Games and prohibition: on the prohibition of online games

Yet another legislative attempt to ban online gambling failed under judicial review. Amendments to the existing betting and gambling regulations in Karnataka have been struck down by the state High Court. Last year, the Madras High Court struck down similar amendments that targeted rummy and online poker. What is common to both cases is that the legislator has assumed a paternalistic role, no doubt with the laudable aim of protecting the population, in particular young people, from the temptations of online gambling. However, the resulting provisions did not distinguish between games of skill and games of chance and sought to prohibit all games played online, regardless of the extent to which skill was required. . Furthermore, the Karnataka High Court rejected a key argument that it could be upheld as a “public order” law. He was referring to “the threat of cyber-gaming” of epic proportions and the state police recording about 28,000 cases over the past three years. The government was right when it said many have taken their own lives and families have been ruined due to gambling addiction and debt. However, as the court pointed out, if the goal was to reduce the threat of gambling, the government should ban activities that amount to actual gambling, not games of skill. While taking the extreme measure, it did not consider the possibility of regulating betting on games of skill.

While the idea of ​​betting and gambling evokes the image of a “bucket shop” associated with dark gambling halls frequented by hustlers, there is an element of “information, expression and of entertainment” which enjoys constitutional protection. And gaming platforms are also a legitimate business that enjoys freedom of commerce when used for online versions of games of skill. The court drew attention to the fact that these prohibitions create “a whole new category of medium-based regulation, where the randomness of the medium in itself does not alter the true nature and content of the games”. In other words, it is not the gambling part that is targeted but the “online” part. Furthermore, the amendments contradicted a blanket exemption in the original law for “games of skill” by making all online games punishable even if they involved skill. It is clear that an absolute embargo on games of skill involving money or stakes could not have been confirmed by the court, because the boundary between individual freedom, both to exercise the activity and to participate in it as a consumer, and the state action could not have been obliterated. Any legislation that assumes that sections of society need the hand of the state to guide and support them has a certain populist appeal. And there is an addictive element to online games, but that doesn’t mean there isn’t freedom and individual choice at all.