Madras HC | Judiciary, Legislature and Morality-A jamboree for the online gaming adherents | Holds the statute invalid in ‘every pore’ that ‘cries out’ to be so

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthil Kumar Ramamoorthy, J. struck down the impugned Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (Act 1 of 2021), in its entirety and further declared it to be ultra vires the Constitution. And with an absolute intention to strike down the impugned law the Court stated,

“The wording of the amending Act is so crass and overbearing that it smacks of unreasonableness in it’s every clause and can be seen to be manifestly arbitrary. Whatever may have been the pious intention of the legislature, the reading of the impugned statute and how it may operate amounts to a baby being thrown out with the bathwater and more. And, irrespective of the noblest of intentions, the effect of the provisions of the impugned statute is the primary consideration for assessing the validity thereof”.

In the instant case it was alleged that the Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (Act 1 of 2021), by which the Tamil Nadu Gaming Act, 1930 was amended, which clearly infringed their fundamental right. The amended statute prohibited all forms of games being conducted in cyberspace, irrespective of the game involved being a game of mere skill, if such game is played for a wager, bet, money or other stake. Also, the main features of the Amending Act was to enlarge the inclusive definition of the word ‘gaming’ where the Section 3-A was introduced in the Act to prohibit wagering or betting in cyberspace and, the replacement of the substance of Section 11 of the Act that originally exempted games of “mere skill” from the application of the statute and its substitution by including games of mere skill also within the fold of offences under the statute, if such games are played for wager, bet, money or other stake.

The stance that the State put forth was that the policy decision to bring in the legislation was taken ‘after multiple instances of suicides that have been reported across the State, given the addictive tendency of these games and the financial losses’ that they result in wherein the majority is the youth and the uneducated. The State even made references to the 276th Report of the Law Commission.

Now, the decision of the Court was indeed, a victory for all the online gaming enthusiasts, irrespective of the game they chose to play, but the judicial dicta that the Court put forth at various instances in the entire order are definitely not to be missed.

The Court very keenly observed that,

“There appears to be a little doubt that both rummy and poker are games of skill as they involve considerable memory, working out of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards. Poker may not have been recognised in any previous judgment in this country to be a game of skill, but the evidence in such regard as apparent from the American case even convinced the Law Commission to accept the poker as a game of skill in its 276th Report”.

The common order had very stinging yet interesting remarks pertaining to the validity of the statute under scrutiny: –

The Bench exclaimed: 

“Pronounced and excessive paternalism on the part of the State is another definition for authoritarianism and may even amount to repression, particularly when a statute prohibits or restricts some activity that the individual may otherwise have complete and unrestricted freedom to indulge in.”

“In the absence of any scientific or empirical study to justify the proposed action, the impugned legislation may be seen to have been born out of a sense of morality and a bid to play to the galleries in election season in a societal ethos where smoking and drinking are regarded as less immoral than when indulged in before elders; and, superstitious notions and false senses of vanity continue to prevail as real education is still at a premium despite literacy rates increasing and thousands qualifying each year to add a few letters after their names. That the Bill faced no opposition in the House has more to do with the optics just ahead of the State elections.”

“It is true that Arnold Palmer or Severiano Ballesteros may never have mastered how golf is played on the computer or Messi or Ronaldo may be outplayed by a team of infants in a virtual game of football, but Viswanathan Anand or Omar Sharif would not be so disadvantaged when playing their chosen games of skill on the virtual mode. Such distinction is completely lost in the Amending Act as the original scheme in the Act of 1930 of confining gaming to games of chance has been turned upside down and all games outlawed if played for a stake or for any prize.”

“All that can be said is that the Amending Act is so unequivocally audacious that it rules out any element of choice that an individual may exercise. The impugned statute is invalid in its every pore, such that no part of it can be salvaged or permitted to be retained. The all pervasive impact of the wide definition of gaming seeks also to brush aside the law of the land as recognised by the Supreme Court and, to the extent that the Amending Act seeks to undo the effects of dicta that may be regarded as stare decisis, it cries out to be struck down as invalid”.

“The unwavering mantra of the impugned legislation is prohibition and not regulation. The Amending Act fails the constitutional test as stricter scrutiny has to be exercised when vast swathes of apparently permissible activities are sought to be prohibited rather than regulated.”

“The absurdity of the amended provisions has more to do with all forms of games – where games must be understood to be distinct from gaming, whether in the ordinary parlance or as per the convoluted meaning ascribed to it in the impugned legislation – being prohibited in cyberspace, if played for any prize or stake whatsoever. The cause for bringing the amendments does not appear to have any nexus with the effect that has resulted thereby; and that, in essence, is the unreasonableness and grossly disproportionate feature of the impugned statute.”

[Junglee Games India (P) Ltd. v. State of Tamil Nadu,  2021 SCC OnLine Mad 2762, decided on 03-08-2021]

Agatha Shukla, Editorial Assistant has reported this brief.

Advocates before the Court:

For Petitioners in W.P.Nos.18022, 18029 and 18044 of 2020:

Mr.A.K.Ganguli, Sr. Advocate & Mr.P.S.Raman, Sr. Advocate for M/s.Sashidhar Sivakumar, Pavitra V, Potharaju Ashutosh along with Mr.Bobby Chandhoke, Vaibhav Kakkar, Akhil Anand, Durga Bose Gandham, Siddharth Barua, Parth Agarwal, Praful Jindal, Ms.Lakshana Viravalli and Maithreyi Canthaswamy Sharma, Advocates

For Petitioners in W.P.Nos.19374 and 19380 of 2020:

Dr. Abhishek Manu Singhvi, Senior Advocate and Mr.Mohan Parasaran, Senior Advocate along with Mr.Suhaan Mukherji, Mr.Varun Mathew, Mr. Nikhil Parikshith, Mr.L.Nidhiram Sharma, Mr.Ashwin Kumar, Mr.Arun Karthik Mohan and Ms.Ashwini Vaidialingam, Advocates

For Petitioners in W.P.Nos.7354 and 7356 of 2021:

C.Aryama Sundaram Senior Advocate for M/s.Rahul Unnikrishnan

For Petitioner in W.P.No.13870 of 2021:

Mr.Jay Sayta, Mr.Akshat Gupta and Mr.Adhithya Reddy, Advocates For Respondents in all writ petitions: Mr.R.Shunmugasundaram Advocate-General assisted by Ms.Shabnam Banu, Advocate for the State

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