Author- Ritisha Choudhary, a 4th-year law student at the University of Petroleum and Energy Studies, Dehradun
Digitization has made everything in reach and available at the fingertips. The games that one seeks to play are not just limited to fields and tracks or boards, but have acquired a digital status played throughout the globe. This advancement indeed has invited some ill practices, betting, gambling etc., to be a part of them. Fantasy sports is one of them that indulges gambling. These games are played not merely on skills but also on chance thus, making it a game of chance. Thus, it is safe to say, fantasy sports are similar to wagers which makes them illegal.
The Public Gambling Act, 1857 governed the matters of gambling and betting which fell in the ambit of State list thus, giving states the powers to make laws exclusively. One such legislation was passed by the state of Tamil Nadu named, Tamil Nadu Gambling and Police Laws (Amendment) Act, 2021. The act was challenged as it challenged the original legislation and bypassed the laws laid down as precedents by various courts including the Supreme Court.
MAJOR CHANGES IN THE ACT
A substantial change was made to the definition of the word ‘gaming’. The new definition is expansive and prohibits betting and wagering in cyberspace. Introduction of section 3-A, which prohibits wagering and betting in cyberspace games. Further, the act replaced section 11. Earlier the section exempted games of ‘mere skill’ but now if the games of skill are played for wager, money or bet, shall be encompassed in the prohibited list.
The abovementioned changes were challenged before the Madras High Court in the case of Junglee Games India Private Limited v. State of Tamil Nadu & Ors (2021 SCC OnLine Mad 2762).
OPINION OF THE COURT
The new amended act prohibits all the games in cyberspace including the game of skills if played for bet, wager, money or any other stake. The state contends the validity of the amended act on the grounds of morality and mortality rate that has been declining after people commit suicide after playing one game of poker.
As per the Statement of Objects and Reasons of Amendments, playing addictive online games has grown in popularity in recent years. Innocent people were defrauded, and suicides were reported. It was agreed to prohibit wagering or betting in cyberspace in order to prevent such occurrences and safeguard innocent people from the dangers of online gambling.
The amended act was primarily challenged by the petitioner on the ground, the act prohibits the game of skills if played for money, bet or any other stake which blatantly bypasses the law laid down by the Supreme Court which has considered as business activities under Article 19(1)(g) of the Indian Constitution. thus, providing the games of skill status of profession or practice protected under Article 19(1)(g) of the Indian Constitution.
The High Court observed that the legislation failed to pass the ‘least intrusive test’. As per the test, if the government passes a law restricting a citizen’s fundamental rights, it must use “the least restrictive ways” to achieve its aim, according to the least invasive principle thus, violating Article 19(1)(g) of the Indian Constitution. The court further said that the state has put a blanket ban through this amendment without providing any alternative which is very arbitrary, unreasonable and blatantly violative of the precedented laws given by the courts including the Supreme Court.
Earlier poker was considered a game of chance and not skill but later as per the 276th Law Commission Report, it was considered a game of skill. The court went forward stating that Rummy and Poker are not merely games of chance as they require a considerable amount of memory to keep a track of cards and thus, involve usage of intellect hence, making it a game of skill. Thus, in the opinion of the Madras High Court, the act is excessive, disproportionate and violative of the right to practice any profession as per Article 19(1)(g) of the Indian Constitution.
SUPREME COURT ON FANTASY SPORTS
Upholding the judgement of Rajasthan High Court in the case of Chandresh Sankhala v. State of Rajasthan & Ors (2020 SCC OnLine Raj 264) and reaffirming the judgement of Bombay High Court in the case of Gurdeep Singh Sachar v. Union of India (2019 SCC OnLine Bom 13059) and Punjab & Haryana High Court in Varun Gumber v. Union Territory of Chandigarh and Others (2017 SCC OnLine P&H 5372). The Supreme Court has recognised the online fantasy games offered by Dream 11 as a ‘sport of skill’ and not merely a ‘sport of chance’ dismissing the Special Leave Petition submitted that alleged the fantasy games offered by Dream 11 are not games of skill and amount to wagering, gambling and betting by an order passed by Division Bench of Justice RF Nariman and Justice BR Gavai.
The program discussed that the matter is not new thus, calling it to res Integra by and have come in front of the court earlier by referring to the judgement of Bombay High Court and Punjab & Haryana High Court. Thus, the Special Leave Petition stand vitiated and the fantasy games offered by Dream 11 are legal.
The order of the Supreme Court and the judgement of the Madras High Court has cleared the ambiguity regarding the legal status of online fantasy games. Further, these have settled the debate of, what constitutes a game of skill and a game of chance. This was crucial as the judgements have directly impacted the status of these games and have protected the right to practice any profession under Article 19(1)(g) of the Indian Constitution.
The judgement is a victory in itself. Had the amendment not been challenged, every game which acknowledged the efforts of the players by appreciating them by giving trophies, cash prizes etc, would have been penalised in the name of gambling and wagering, thus defeating the purpose and spirit of sports in the name of competition. Further, it would have refused to acknowledge the Asian Games, Olympics, IPL etc, as these competitions and events award the winners with trophies and medals.
Not only this, the judgment has protected online gaming and the nuances surrounding it thus, giving it an opportunity to an already expanding field that is creating employment and promoting the spirit of sport.