The ban on online games of skill shows the pitfalls of paternalistic laws

In light of legislative bans on online skill games in various states, NIKHIL PARIKSHITH examines the “paternalistic” role assumed by the state over its citizens in imposing general prohibitions based on its own sense of morality and perception.

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ONLINE platforms offering games of skill such as rummy and poker have been subject to legislative bans in several states such as Telangana, Tamil Nadu, Kerala and more recently, Karnataka. In Tamil Nadu and Kerala, such legislative interventions failed the test of constitutionality and were overturned by the respective High Courts.

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The law applicable to games of skill

Despite a plethora of case law which has concluded conclusively that playing games of skill (such as rummy) for money does not amount to a “game” or a “game” (the two expressions being legally considered to be gaming platforms, given their ubiquitous reach, especially among the youngest, have triggered instinctive and disproportionate legislative interventions in the form of blanket bans.

The common thread behind the ban on gaming platforms in these states is the state’s moral notion that such online games encourage gambling vice and such activity conducted online is in itself immoral and pernicious. This, despite the established legal position that the conduct / organization of skill games has been legally considered a “business” which is protected by Article 19 (1) (g) of the Indian Constitution and, by therefore, does not constitute a “game” or “game”.

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In this context, such legislative interventions raise a broader and more in-depth question of the extent to which the state can assume a “paternalistic” role over citizens by encroaching on individual choice and by imposing, through reactionary legislative intervention, its own meaning. morality – an issue that was raised and discussed by the High Court of the Honorable Madras, when it overturned the online rummy ban in Tamil Nadu.

Paternalistic imposition of state morality

It is quite possible that an activity that was perceived as immoral in the past may, over time, be tolerated by society today as acceptable or amoral. For example, the decriminalization of “adultery” by the Honorable Supreme Court in 2018.

Moral standards vary and evaluating an activity (for the purposes of legislation) strictly from a moral point of view is fraught with contradictions. For example, the sale and consumption of alcohol is legal in most states but prohibited in others. Likewise, the sale of cigarettes is not prohibited but the organization of an online rummy game is sought to be prohibited. Therefore, morality is subjective and cannot be the stand-alone basis for making a law.

Today, fundamental rights (in the jurisprudential sense) encompass a wide variety of rights which cannot be eroded by arbitrary and paternalistic laws. The Supreme Court in its judgment on the right to privacy (Puttaswamy I) in 2017 and the ruling on LGBT rights (Navtej Singh Johar) in 2018 gave primacy to individual choice.

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Any legislation motivated by a perceived sense of state morality that infringes on fundamental rights guaranteed by Part III of the Constitution must pass the tests of “reasonableness” and “proportionality” in its contemporary sense.

Proportionality tests

The doctrine of proportionality (explained in its Modern Dental College (2016) and the Adhar (2018) Supreme Court rulings) is sound doctrine, often applied by constitutional courts to determine the validity of any law (and even executive actions) that infringe on fundamental rights. This doctrine essentially involves a balancing act between competing ideals.

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Legislative intervention which apparently or directly interferes with a fundamental right (for example, the right to exercise any occupation, trade or business) is subject to a quadruple test, namely:

1. Is the legislation intended for an “appropriate objective”? ;
2. Are legislative measures taken to apply a limitation on a fundamental right “rationally linked” to the achievement of that objective? ;
3. Are the legislative measures taken “necessary” in the sense that there are “no alternative measures which can also achieve the same objective with a lesser degree of limitation”? ; and finally
4. Is there an appropriate relationship (proportionality or balance) between “the importance” of achieving the appropriate goal and “the social importance of preventing limitation of a constitutional right”?

Very often, laws or executive actions that seek to prohibit an activity do not meet the criteria of proportionality. These prohibitions are often triggered by perceptions. One example is the Hon’ble Supreme Court’s decision to quash a Reserve Bank of India (RBI) circular that prohibited RBI-regulated entities from dealing with individuals or companies dealing in virtual currencies. The Supreme Court did not accept the threat perception expressed by the RBI that virtual currencies can lead to terrorist financing and money laundering, as the basis for this perception was not supported by any empirical evidence .

Consequently, a law prohibiting an activity purely on moral considerations or perceptions being devoid of any empirical or scientific proof is doomed to fall under the blow of the tests of proportionality. In the context of online games, none of the legislation adopted by the States indicates, even remotely, any basis or data justifying a general ban, with the exception of the general hypothesis that such games lead to suicides and cause widespread financial ruin.

Threat of the Orwellian State

General prohibitions cannot be the answer and the state must find alternatives to achieve a public objective with as little interference as possible on a fundamental right – as envisaged by the doctrine of proportionality. If an activity that is not inherently pernicious or dangerous, yet potentially poses a societal challenge, the state should regulate, not ban.

Ultimately, the state must strike a delicate balance between protecting individual choice on the one hand and protecting the public interest on the other.

Perception-motivated bans (also well-intentioned) without all empirical or scientific data are incremental steps towards announcing an Orwellian state.

(Nikhil Parikshith is a registered lawyer at the Supreme Court of India. The opinions expressed are personal.)