The difference between a “game of skill” and a “game of chance” has been interpreted judicially several times, while the first is permissive, the second is pernicious and frowned upon.
What was before the High Court of Madras on the one hand is the right to freedom granted to individuals to live their lives in their own way and on the other hand, the freedom to exercise any lawful activity, interwoven with notions of morality, politics and appeasement.
It all started with a few people who lost money playing online games and committed suicide, which led to widespread resentment against these online games and the need to regulate or even ban them.
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Even the Madras High Court, in one case, said: “This Court hopes and hopes that this government will take note of the current alarming situation and pass appropriate legislation, thereby regulating and controlling these online games through a license, of course, keeping in mind to take into account the law of the land as well as legal precedents in this regard.
In a state where feelings still trump sensitivity, the government introduced an ordinance in November 2020, which was later enacted as the Tamil Nadu Gaming and Police Act 2021 (Amendment) by which the Tamil Nadu Gaming Law of 1930 was significantly amended.
Prior to this amendment, the law prohibited various games of chance listed in the law and section 11 of the law expressly stated that these prohibitions would not apply to pure games of skill. The new section 3 A of the law aims to prohibit any person from betting or betting in cyberspace, playing games such as rummy, poker or any other game and also to prohibit any person from organizing games. such games or to facilitate such a game.
The age-old distinction between “game of skill” and “game of chance” has been erased. The scope of Article 11 has been reversed; it has been established that even if a game of skill is played for a bet, bet, money or other stake, the defect of the law applies. This means that even Olympic medalist PVSindhu can be booked under this amended law, if she lives in Tamil Nadu.
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The above legislative action has been attacked as general, disproportionate and excessive. It has been argued that entry 34 of List II of the 7th Schedule to the Constitution grants legislative power to states over “betting and games of chance” and is what is not legally established as not equivalent to to bets and games of chance, if one seeks to be subject to the scope of said entry, it amounts to being global, it has been argued.
Naturally, when such an overshoot is so obvious, the Court had no choice but to annul the amendments as being ultra vires the constitutional guarantees of freedom. The court also lambasted the extreme legislation as an attempt to play in the gallery during the election season and the unanimity with which it was passed is only a pre-election optic.
Hopefully the government will again approach the issue more pragmatically by balancing competing interests. In a rights-conscious society, if one seeks to uphold morality from the outside, fate is certain. On the contrary, the state and all its stakeholders should strive to develop a societal environment, where morality is seeded, evolved and nourished naturally, so that it is not necessary to protect it from the outside.
(The author is an advocate based in Chennai and can be contacted at [email protected])