Madras High Court
2 Rahul Nandkumar Bhardwaj vs 4 The Director General Of Police on 25 February, 2021
W.P.Nos.18022 of 2020 etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.07.2021
DELIVERED ON : 03.08.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.Nos.18022, 18029, 18044, 19374, 19380 of 2020, 7354, 7356
and 13870 of 2021
and W.M.P.Nos.22409, 22411, 23962, 22389, 22391, 23398, 22400,
22370, 22372, 22373, 22374, 22404, 22408, 23964, 23965, 23969,
23970, 23971 of 2020, 7968, 7976 and 7983 of 2021
W.P.No.18022 of 2020:
1 Junglee Games India Private Limited
Represented by its Authorized Representative
Rahul Nandkumar Bhardwaj
Having its registered office at
5th floor, Tower A, Building 10
DLF Cyber City, DLF Phase 2
Sector 24, Gurugram
Haryana - 122 022.
2 Rahul Nandkumar Bhardwaj .. Petitioners
Vs
1 The State of Tamil Nadu
Through Chief Secretary
Secretariat, Fort St George
Chennai - 600 001.
____________
Page 1 of 93
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
2 The State of Tamil Nadu
Department of Home
Through Principal Secretary
Secretariat, Fort St George
Chennai - 600 001.
3 The State of Tamil Nadu
Department of Law
Through Principal Secretary
Secretariat, Fort St George
Chennai - 600 001.
4 The Director General of police
State of Tamil Nadu
Office of the Director General
Kamarajar Salai, Chennai - 600 004. .. Respondents
PRAYER in W.P.No.18022 of 2020: Petition under Article 226 of the
Constitution of India seeking issuance of a writ of certiorari or any
other appropriate writ or order or directions to call for the records of
Act 1 of 2021, Tamil Nadu Gaming and Police Laws (Amendment) Act,
2021 dated February 25, 2021 published in government Gazette
No.123 and quash the same. (Prayer amended vide order dated
19.3.2021 made in WMP.No.7966/2021 in WP.18022/2020)
and batch cases
For Petitioners in: Mr.A.K.Ganguli, Sr.Advocate
W.P.Nos.18022, 18029 & Mr.P.S.Raman, Sr.Advocate
and 18044 of 2020 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
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
For Petitioners in: Dr.Abhishek Manu Singhvi,
W.P.Nos.19374 and Senior Advocate
19380 of 2020 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: Mr.C.Aryama Sundaram
W.P.Nos.7354 and 7356 Senior Advocate
of 2021 for M/s.Rahul Unnikrishnan
For Petitioner in: Mr.Jay Sayta,
W.P.No.13870 of 2021 Mr.Akshat Gupta
and Mr.Adhithya Reddy,
Advocates
For Respondents in all: Mr.R.Shunmugasundaram
writ petitions Advocate-General
assisted by
Ms.Shabnam Banu,
Advocate for the State
COMMON ORDER
THE HON'BLE CHIEF JUSTICE
The petitioners complain of an over-paternalistic stance taken by
the State in bringing about sweeping amendments to an existing law
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
that, according to the petitioners, infringe their fundamental rights and
are otherwise unreasonable to the point of being manifestly arbitrary.
2. The challenge here is to 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 (hereinafter referred to as
the Amending Act). Substantially the same amendments to the Act of
1930 had been previously incorporated in an Ordinance promulgated
on November 21, 2020. Act 1 of 2021 came into effect upon it being
gazetted on February 25, 2021. The matter also brings to the fore the
risks of introducing an amendment to an enactment that predates not
only the Constitution, but also the Government of India Act, 1935,
which broadly spelt out the areas in which the provincial legislatures
could legislate upon.
3. The Amending Act has been challenged, not only on the
ground that it turns the original statute on its head, but also in its
expansive definition of a word that has been judicially interpreted and,
thus, the seemingly blatant attempt to bypass the law declared by
courts, including the Supreme Court, by the legal fiction created in the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
definition. The challenge here is not so much to the legislative
competence, but to the extent that a law may be made in respect of a
field or allied fields indicated in an Entry in the State List. In effect,
the Amending Act, or the relevant part of the Ordinance that preceded
it in 2020, has incorporated certain provisions to enlarge the scope
and effect of the Act of 1930.
4. The amended statute prohibits 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. Among others, the three major features of the Amending
Act appear to be the enlargement of the inclusive definition of the
word "gaming"; the introduction of Section 3-A in the Act to prohibit
wagering or betting in cyberspace (though it actually does much
more); 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.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
5. The petitioners can be bunched into three distinct groups:
those involved in providing, inter alia, the card game of rummy on the
virtual platform; those involved, inter alia, in offering poker in
cyberspace; and, a private body which seeks to regulate diverse forms
of games offered to be played on the internet in the country in which
the other petitioners, who provide platforms for playing the games, are
members. Five sets of counsel have put forward the submission on
behalf of the petitioners. The primary ground urged to assail the
impugned legislation is in it apparently prohibiting games of skill, if
played for any prize or stakes; which, according to the petitioners, is in
flagrant disregard of the law laid down by the Supreme Court that
competitions in games of skill are business activities and, thus,
protected under Article 19(1)(g) of the Constitution of India.
6. The State finds itself in the lonely, opposite corner, as it seeks
to assert the virtues of life without betting and gambling, the
immorality involved in gaming and the ill-effects of gambling on large
swathes of the society, particularly those from the economically
weaker and socially backward sections. The State claims that even
suicides have taken place upon a punter losing his all by playing one
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
card game or the other on the internet. The State refers also to the
possibility and likelihood of manipulation in games conducted on the
virtual mode and repeatedly alludes to players and others being
cheated, without indicating any material or particulars in such regard
despite the court's prodding.
7. It may do well to see the 1930 Act as it stood before the
Ordinance was introduced in November, 2020, particularly the nature
of the mischief that it sought to prevent and the exercise being
confined to games predominantly of chance. The Statement of Objects
and Reasons pertaining to the 1930 Act recorded as follows:
"The Madras City Police (Amendment) Act, 1929 was
designed to deal with bucket shops in the City of
Madras. There is increasing evidence of the fact that
bucket shops are springing up outside the municipal
limits. In order to deal with them effectively and to
consolidate the law on gaming and keeping common
gaming-houses throughout the province, this Bill
extends to the Presidency, with the exception of
Madras City, those provisions of the Madras City Police
Act, 1888, as amended by the Madras City Police
(Amendment) Act, 1929, which deal with bucket shops.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
It also combines, in the same Bill, the provisions of the
Madras City Police Act, 1888, and the Towns Nuisances
Act, 1889, which relate to gaming and the keeping of a
common gaming-house."
8. The expression "bucket shop" obviously referred to
unauthorised facilities extended in public places for speculating in
general and using the funds of unwitting investors. The "bucket shop"
technique involves firms indulging in such activities to profit off their
clients. In Britain, the "bucket shop" would refer to a brokerage house
dealing in securities and commodities, where the brokerage house
would hold on to a customer's orders rather than execute the same in
the hope that it could buy or sell the stock or commodity at a greater
profit.
9. The definition Section in the 1930 Act, prior to the impugned
amendment, defined a "common gaming-house", "gaming" and
"instruments of gaming" quite differently than now and Section 4(1) of
the 1930 Act made only certain activities punishable:
"4. Penalty for opening etc., for certain forms of
gaming. -
(1) Whoever-
(a) being the owner or occupier or having the use of
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
any house, room, tent, enclosure, vehicle, vessel or
place, opens, keeps or uses the same for the purpose
of gaming -
(i) on a horse-race, or
(ii) on the market price of cotton, bullion or
other commodity or on the digits of the
number used in stating such price, or
(iii) on the amount or variation in the market
price of any such commodity or on the digits of
the number used in stating the amount of such
variation, or
(iv) on the market price of any stock or share
or on the digits of the number used in stating
such price, or
(v) on the number of registration or on the
digits of the number of registration of any
motor vehicle using a public place, or
(vi) on any transaction or scheme of wagering
or betting in which the receipt or distribution of
winnings or prizes in money or otherwise is
made to depend on chance; or
(b) being the owner or occupier of any such house,
room, tent, enclosure, vehicle, vessel or place
knowingly or willfully permits the same to be opened,
occupied, kept or used by any other person for the
purpose of gaming on any of the objects aforesaid, or
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
(c) has the care or management of, or in any manner
assists in, conducting the business of, any such house,
room, tent, enclosure, vehicle, vessel or place opened,
occupied, kept or used for the purpose of gaming on
any of the objects aforesaid, or
(d) advances or furnishes money for the purpose of
gaming on any of the objects aforesaid with persons
frequenting any such house, room, tent, enclosure,
vehicle, vessel or place,
shall be punishable with imprisonment for a term which
may extend to two years and with fine which may
extend to five thousand rupees, but in the absence of
special and adequate reasons to the contrary to be
mentioned in the judgment of the Court -
(i) such imprisonment shall not be less than
three months and such fine shall not be less
than five hundred rupees for a first offence;
(ii) such imprisonment shall not be less than
six months and such fine shall not be less than
seven hundred and fifty rupees for a second
offence; and
(iii) such imprisonment shall not be less than
one year and such fine shall not be less than
one thousand rupees for a third and
subsequent offences."
The remainder of Section 4 of the 1930 Act pertained to others
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
involved in the prohibited acts of gaming, and also stipulated the
punishments for such incidental activities. The horse-racing aspect was
included by way of an amendment which was notified much later.
Horse-racing has been held by the Supreme Court to be a game of
skill. However, the other activities indicated in sub-clauses (ii) to (v) of
Section 4(1)(a) of the 1930 Act are games of pure chance. Residuary
sub-clause (vi) also prohibits any transaction or scheme of wagering or
betting where the outcome depends on chance. Thus, the mischief that
the original statute sought to address was the betting on games of
chance.
10. Section 11 of the 1930 Act, prior to its obliteration and
substitution by the Ordinance of November, 2020 and the impugned
Act of 2021, read as follows:
"11. Saving of games of skill.-
Nothing in sections 5 to 10 of this Act shall be held to
apply to games of mere skill wherever played."
11. The prohibition under previous Section 4 of the Act confined
gaming to games of chance as were specified and others by virtue of
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
the residuary sub-clause (vi). It is in such milieu, since games of skill
were not included in Section 4 of the Act, that the exemption in
respect of games of skill indicated in Section 11 thereof covered the
ancillary provisions in Sections 5 to 10 of the Act.
12. Apart from making changes in the definitions of "common
gaming-house" and "instruments of gaming" to extend to computers
and the world of cyberspace, the principal alterations introduced by the
Ordinance and the succeeding Amending Act are found in the
expansive meaning assigned to the word "gaming", the introduction of
Section 3-A and the substitution of Section 11 of the Act of 1930:
"3.Definitions.— In this Act, unless there is anything
repugnant in the subject or context,—
(a) ...
(b) “gaming” does not include a lottery, but includes
any game involving wagering or betting in person or in
cyber space.
Explanation.— For the purposes of clause (b) and
section 3-A, wagering or betting shall be deemed to
comprise the collection or soliciting of bets, the receipt
or distribution of winnings or prizes, in money or
otherwise, including through electronic transfer of
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
funds, in respect of any wager or bet, or any act which
is intended to aid, induce, solicit or facilitate wagering
or betting or such collection, soliciting, receipt, or
distribution;"
"3-A. Wagering or betting in cyber space.—
(1) No person shall wager or bet in cyberspace using
computers, computer system, computer network,
computer resource, any communication device or any
other instrument of gaming by playing Rummy, Poker
or any other game or facilitate or organize any such
wager or bet in cyberspace.
(2) Whoever wagers or bets in cyberspace using
computers, computer system, computer network,
computer resource, any communication device or any
other instrument of gaming by playing Rummy, Poker
or any other game or facilitates or organizes any such
wager or bet in cyberspace, shall be punished with
imprisonment which may extend to two years or with
fine not exceeding ten thousand rupees or with both.”
"11. Games of mere skill.— Notwithstanding
anything contained in this Act, Sections 3A and
Sections 5 to 10 shall apply to games of mere skill, if
played for wager, bet, money or other stake.”
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
13. Several other words and expressions relevant in the use of
computers have been defined by referring to the respective meanings
assigned to them in the Information Technology Act, 2000. In addition,
the expression "cyber cafe" has been introduced in various provisions
along with computers and related gadgets. The punishments for the
offences in Sections 8, 9 and 12 have been enhanced and Section 13-B
has been introduced pertaining to offences by companies. The
Explanatory Statement for the Ordinance promulgated in November,
2020 makes out as follows:
"Gaming by means of cards, dice etc., in the form of
betting or wagering has been banned in the cities of
Chennai, Madurai, Coimbatore, Salem, Tiruchirappalli
and Tirunelveli by the Chennai City Police Act, 1888
(Tamil Nadu Act III of 1888) read with Tamil Nadu Act
32 of 1987 and Tamil Nadu Act 51 of 1997 and in the
rest of the State by the Tamil Nadu Gaming Act, 1930
(Tamil Nadu Act III of 1930). Playing games like
Rummy, Poker etc., using computers or mobile phones,
for money or other stakes, which are addictive in
nature, have developed manifold, in the recent times.
As a result, innocent people get cheated and incidents
of suicide are reported. In order to prevent such
incidents of suicide and protect the innocent people
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
from the evils of online gaming, it has been decided to
ban wagering or betting in cyberspace by suitably
amending the relevant enactments. Accordingly, the
Government have decided to amend the Tamil Nadu
Gaming Act, 1930 (Tamil Nadu Act III of 1930) and
extend its application throughout the State for the
purpose and to make consequential amendments to the
Chennai City Police Act, 1888 (Tamil Nadu Act III of
1888) and the Tamil Nadu District Police Act, 1859
(Tamil Nadu Act XXIV of 1859).
2. The Ordinance seeks to give effect to the above
decision."
14. According to the first set of petitioners that provides a
platform for playing rummy on the virtual mode or in cyberspace, it is
submitted that it is only a person who plays the game that can place a
bet and no person not playing can bet on a game, or on its outcome,
or on the successful player, or on anything else at all. Indeed, much
submission has been made on the algorithms of some of the games
offered online and the mode and manner of betting therein. In the
context of the legal discussion necessary for the present purpose, the
so-called checks and balances need not be gone into in great detail
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
since the merit of the challenge to the impugned legislation is not
impacted thereby.
15. The rummy companies contend that games of skill are
distinct as a class and have been judicially differentiated in this country
from games of chance. It is their submission that when the basis of the
distinction is whether a game depends on chance or it depends on skill,
the predominance test ought to be applied. They assert that the card
game of rummy, per se, has been judicially recognised as a game of
skill.
16. It is the further contention of such petitioners that the age-
old distinction between skill and chance is vital and such distinction is
imperative because, according to them, States do not have any
legislative competence over games of skill, but may regulate games of
chance. This, according to them, is a rational distinction that goes to
the very root of competence. These petitioners suggest that when one
is playing a game of skill, whether such game is played physically or
virtually, it makes no difference. According to such rummy aficionados,
only three major changes have been made to the existing statute: by
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
including all virtual games in the fold of gaming; by specifically naming
two card games; and, by excluding the existing exemptions. These
petitioners submit that the amendments introduced are liable to be
struck down on the grounds of lack of competence and
unreasonableness. They also maintain that the amendments result in
manifest arbitrariness as the prohibition introduced thereby is blanket,
disproportionate and excessive. They say that in codifying exclusions,
the State is more in the game of populism which is far removed from
the reality.
17. The rummy companies refer to excessive State policing and
submit that the apprehension that citizens indulging in the activity
which is sought to be prohibited would create an uncontrollable or
chaotic jungle that the State cannot control, is a scare argument and
the prohibition based on some imaginary apprehension cannot be
upheld. They emphasise that there is a space for choice in the world
and Part-III of the Constitution in this country merely recognises such
rights as inhere in any human.
18. According to the first lot of petitioners, it matters little if one
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
applies the stake or non-stake test, as it does not cure or benefit or
improve the case at all. They suggest that the real test is whether the
stakes are obtained as a result of chance or skill. According to them,
Entry-34 in the Second List of the Seventh Schedule to the
Constitution — "Betting and gambling" — is limited to the transfer of
stake on chance only. They suggest that competitions limited to events
of chance may even be prohibited by the State. However, these
petitioners caution that one may not read up any Entry in the Lists to
interpret it to say any more than it does in the ordinary sense, unless
the word or words used in the Entry or the field described therein
already carry a legal connotation.
19. The rummy petitioners refer to the kind of activities
prohibited under Section 4(1)(a) of the Act prior to its amendment and
submit that, apart from horse-racing which was notified in 1974 or
thereabouts, the other prohibited activities clearly indicate that the
emphasis of the enactment was to prevent gaming, where gaming was
an activity dependent completely on chance. They also refer to Section
4-A that was inserted in 1975, at the same time that the prohibition of
horse-racing was notified, and submit that these statutory
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
presumptions were relatable to the activities prohibited by Section 4(1)
of the Act. These petitioners refer to the common thread of the activity
of gaming running through the various provisions of the Act prior to its
recent amendment and submit that right up to Section 11 of the Act
and till its end, it is the game of pure chance that was prohibited.
20. In such context, these petitioners refer to the doctrine of res
extra commercium as understood and judicially interpreted in this
country to suggest that, like liquor, gambling may be regarded as
immoral and, therefore, there may not be any absolute right to indulge
in gambling, where gambling connotes an activity dependent
overwhelmingly on chance. Such petitioners point out that the
expression "games of mere skill", as contained in Section 11 of the Act
prior to the recent amendment, was judicially interpreted to imply
games predominantly involving skill. These petitioners concede that
every future event depends, at least theoretically, on an element of
chance, but the activities understood as gaming involve almost no skill
or the skill component is negligible.
21. On behalf of these petitioners, several of the provisions
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
amended by the impugned Act are placed and the perceived anomalies
therein demonstrated on the basis of the skill versus chance test. In
particular, they refer to Sections 8 and 9 of the Act and the general
philosophy of the impugned amendment that, regardless of a game or
activity being wholly dependent on skill, if there is any bet or wager
involved, it would constitute an offence within the meaning of the
amended Act.
22. The rummy petitioners first refer to the two
Chamarbaugwala cases decided by a Constitution Bench and the
distinction brought out therein between a game of skill and a game of
chance. In the first of the two cases cited, reported at AIR 1957 SC
699 (State of Bombay v. R.M.D.Chamarbaugwala), the issue involved
was the rationale of declining the renewal of a licence to conduct a
prize competition. The contention of the State before the Supreme
Court was that there could be no business in promoting a prize
competition and the violation of the writ petitioners' rights under
Article 19(1)(g) of the Constitution did not arise. In the discussion on
the validity of the Amending Act of 1952 that was before the Supreme
Court, such court noticed that "Betting and gambling" as appearing in
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
List-II in the Seventh Schedule to the Constitution was there in the
Government of India Act, 1935. In the context of the definition of
"prize competition" that included any competition in which the success
did not depend to a substantial degree upon the exercise of skill, the
Supreme Court referred to an English judgment that opined that even
if a scintilla of skill was required for success the competition could not
be regarded as of a gambling nature, but toned down the dictum and
acknowledged that a game of substantial skill would not amount to
gambling. The Supreme Court agreed with the proposition that "a
competition in order to avoid the stigma of gambling must depend to a
substantial degree upon the exercise of skill." At paragraph 17 of the
report, the court went on to say that a competition in which success
does not depend to a substantial degree upon the exercise of skill "is
now recognised to be of a gambling nature."
23. In the other Chamarbaugwala case, reported at AIR 1957 SC
628 (R.M.D.Chamarbaugwala v. Union of India), there is a more
wholesome discussion on the skill versus chance aspect at paragraphs
3 to 6 of the report. The court also noticed that in the other
Chamarbaugwala judgment it had held that "trade and commerce
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
protected by Article 19(1)(g) and Article 301 are only those activities
which could be regarded as lawful trading activities, that gambling is
not trade but res extra commercium, and that it does not fall within
the purview of those Articles." Paragraph 5 of the report is of some
relevance:
"5. As regards competitions which involve substantial
skill however, different considerations arise. They are
business activities, the protection of which is
guaranteed by Article 19(1)(g), and the question would
have to be determined with reference to those
competitions whether Sections 4 and 5 and Rules 11
and 12 are reasonable restrictions enacted in public
interest. But Mr Seervai has fairly conceded before us
that on the materials on record in these proceedings,
he could not maintain that the restrictions contained in
those provisions are saved by Article 19(6) as being
reasonable and in the public interest. The ground being
thus cleared, the only questions that survive for our
decision are (1) whether, on the definition of “prize
competition” in Section 2(d), the Act applies to
competitions which involve substantial skill and are not
in the nature of gambling; and (2) if it does, whether
the provisions of Sections 4 and 5 and Rules 11 and 12
which are, ex concessi void, as regards such
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
competitions, can on the principle of severability be
enforced against competitions which are in the nature
of gambling."
At paragraph 10 of the report, the Supreme Court recorded the State's
submission that the impugned Act in that case was relatable to Entry-
34 in the State List. However, on an overall appreciation of the
legislation, the court observed that by virtue of "the declared object
(of the Act) and the wording of the statute, we are of opinion that the
competitions which are sought to be controlled and regulated by the
Act are only those competitions in which success does not depend to
any substantial degree on skill." The principle is summarised at
paragraph 23 of the report:
"23. Applying these principles to the present Act, it will
not be questioned that competitions in which success
depends to a substantial extent on skill and
competitions in which it does not so depend, form two
distinct and separate categories. The difference
between the two classes of competitions is as clear-cut
as that between commercial and wagering contracts.
On the facts, there might be difficulty in deciding
whether a given competition falls within one category
or not; but when its true character is determined, it
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
must fall either under the one or the other. The
distinction between the two classes of competitions has
long been recognised in the legislative practice of both
the United Kingdom and this country, and the courts
have, time and again, pointed out the characteristic
features which differentiate them. And if we are now to
ask ourselves the question, would Parliament have
enacted the law in question if it had known that it
would fail as regards competitions involving skill, there
can be no doubt, having regard to the history of the
legislation, as to what our answer would be. Nor does
the restriction of the impugned provisions to
competitions of a gambling character affect either the
texture or the colour of the Act; nor do the provisions
require to be touched and re-written before they could
be applied to them. They will squarely apply to them on
their own terms and in their true spirit, and form a
code complete in themselves with reference to the
subject. The conclusion is therefore inescapable that
the impugned provisions, assuming that they apply by
virtue of the definition in Section 2(d) to all kinds of
competitions, are severable in their application to
competitions in which success does not depend to any
substantial extent on skill."
24. The rummy petitioners next refer to a judgment reported at
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
AIR 1968 SC 825 (State of Andhra Pradesh v. K.Satyanarayana),
where it has been clearly held at paragraph 12 of the report that "it
cannot be said that Rummy is a game of chance and there is no skill
involved in it." Upon rendering such finding, the court agreed that the
conviction against the respondents before it had been rightly set aside
by the High Court. However, the court cautioned, in the same
paragraph, as follows:
"12. ... Of course, if there is evidence of gambling in
some other way or that the owner of the house or the
club is making a profit or gain from the game of rummy
or any other game played for stakes, the offence may
be brought home. ..."
25. The next judgment cited by the rummy petitioners has also
been copiously placed by the other lots of petitioners. It is necessary
to dwell on such judgment reported at (1996) 2 SCC 226
(Dr.K.R.Lakshmanan v. State of Tamil Nadu) rendered by a three-
member Bench. Paragraph 2 of the report sets out the questions that
arose for consideration. These questions range from what amounted to
gambling, to the meaning of the expression "mere skill", to whether
horse-racing was a game of chance or a game of mere skill, and
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
whether wagering or betting on horse-races amounted to gaming as
defined in the relevant statute. The court referred to the definition of
"gambling" from Black's Law Dictionary (6th Ed) and opined that
gambling amounted to the "payment of a price for a chance to win a
prize." The court then referred to a game of chance being one that is
determined entirely or in part by lot or by mere luck, like the throw of
the dice, the turning of the wheel and the shuffling of the cards. The
judgment reasoned that a game of skill may necessarily involve an
element of chance, but the success therein would depend "principally
upon the superior knowledge, training, attention, experience and
adroitness of the player." By way of example, the court observed that
golf, chess "and even rummy" were considered to be games of skill.
The court referred to the Chamarbaugwala cases and the concept of
gambling as enunciated therein before observing as follows at the end
of paragraph 9 of the report:
"9. ...
This Court, therefore, in the two Chamarbaugwala
cases, has held that gambling is not trade and as such
is not protected by Article 19(1)(g) of the Constitution.
It has further been authoritatively held that the
competitions which involve substantial skill are not
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
gambling activities. Such competitions are business
activities, the protection of which is guaranteed by
Article 19(1)(g) of the Constitution. ..."
The Supreme Court went on to refer to how the expression "game of
mere skill" in Section 11 of the same Act that now falls for discussion,
prior to its amendment, had been interpreted in K.Satyanarayana to
mean mainly and preponderantly a game of skill in the context of the
game of rummy. Paragraphs 33 and 34 of the report have been
placed several times as all the petitioners submit that in the light of
such dictum rendered by the Supreme Court, the impugned Amending
Act in this case has to be struck down:
"33. The expression ‘gaming’ in the two Acts has to be
interpreted in the light of the law laid down by this
Court in the two Chamarbaugwala cases, wherein it has
been authoritatively held that a competition which
substantially depends on skill is not gambling. Gaming
is the act or practice of gambling on a game of chance.
It is staking on chance where chance is the controlling
factor. ‘Gaming’ in the two Acts would, therefore, mean
wagering or betting on games of chance. It would not
include games of skill like horse-racing. In any case,
Section 49 of the Police Act and Section 11 of the
Gaming Act specifically save the games of mere skill
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
from the penal provisions of the two Acts. We,
therefore, hold that wagering or betting on horse-
racing — a game of skill — does not come within the
definition of ‘gaming’ under the two Acts.
"34. Mr Parasaran has relied on the judgment of the
House of Lords in Attorney General v. Luncheon and
Sports Club Ltd. [1929 AC 400 : 1929 All ER Rep Ext
780], and the judgment of the Court of Appeal in Tote
Investors Ltd. v. Smoker [(1967) 3 All ER 242 : (1967)
3 WLR 1239 : (1968) 1 QB 509] , in support of the
contention that dehors Section 49 of the Police Act and
Section 11 of the Gaming Act, there is no ‘wagering’ or
‘betting’ by a punter with the Club. According to him, a
punter bets or wagers with the totalizator or the
bookmaker and not with the Club. It is not necessary
for us to go into this question. Even if there is wagering
or betting with the Club it is on a game of mere skill
and as such it would not be ‘gaming’ under the two
Acts."
The court concluded, at paragraph 51 of the report, that horse-racing
was neither gaming nor gambling as defined and envisaged under the
statutory provisions and, as such, held that the penal provisions of the
statute would not be applicable to horse-racing, which was a game of
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
skill.
26. A single Bench judgment of the Andhra Pradesh High Court
reported at (1998) 5 ALD 126 (Executive Club Formed by Lalitha Real
Estates Pvt. Ltd v. State of Andhra Pradesh) has been brought to bear
on what would amount to a game of skill to which the penal provisions
of the relevant statute in Andhra Pradesh would not apply. Rummy was
held to be a game of skill on the basis of the dicta in K.Satyanarayana
and K.R.Lakshmanan and the concept of gambling in the
Chamarbaugwala cases.
27. For similar purpose, a single Bench judgment reported at
(2005) 1 ALD 772 (Patamata Cultural and Recreation Society v.
Commissioner of Police) has been placed. Again, the wording in the
gaming statute in Andhra Pradesh and the exclusion of a game of skill
weighed with the court. The judgment also refers to an old Calcutta
case reported at (1907) 6 Cri.LJ 421 (Hari Singh v. Emperor) which
interpreted the meaning of gaming in the relevant statute as follows:
"If a game is one of skill, it is not an offence under the
Gaming Act; if it is a game of mere chance, it is; where
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
the chief element of a game is one of skill, the game is
not an offence, although there is an element of chance
in it.”
The Andhra Pradesh judgment also notices a Division Bench judgment
of the Calcutta High Court reported at AIR 1914 Cal 532 (Ram Newaz
Lal v. Emperor) where a game of mere skill was understood to imply
"pure skill, skill and nothing else." However, in the light of the dicta in
K.Satyanarayana and K.R.Lakshmanan, a game of mere skill would be
one where the success predominantly depends on skill though it may
not depend only on skill.
28. Two other unreported judgments of the Andhra Pradesh High
Court, an Order dated October 29, 2015 passed on W.P.No.30597 of
2014; and, another Order dated September 9, 2011 passed on
W.P.No.24533 of 2011, have been cited for the proposition that
rummy is a game of skill.
29. The next ground urged on behalf of the rummy petitioners
pertains to the extent to which a degree of paternalism may be
exercised by the State and the sense of morality that may be enforced
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
in enacting a statute. These petitioners submit that on both counts, the
statute must satisfy the test of reasonableness under Article 14 of the
Constitution, it must not infringe the rights guaranteed under Article
19 of the Constitution and it must also conform to the modern rule of
proportionality which is increasingly applied to assess both the
appropriateness of administrative decisions and the validity of any
impugned provision of law.
30. In such context, these petitioners first refer to a judgment
reported at (2019) 3 SCC 429 (Indian Hotel and Restaurant
Association (AHAR) v. State of Maharashtra) that dealt with dance
performances in hotels and restaurants. The discussion in the
judgment pertaining to the extent the State can go in imposing
morality on its citizens has been placed from paragraphs 77 to 80 of
the report. While the court accepted that certain activities may be
perceived as immoral per se, like gambling and prostitution, it raised a
doubt regarding the present understanding of gambling. The court
observed that activities which were once immoral may no longer be
regarded as such, as societal norms keep changing. The court also
held that any legislation by which the State seeks to impose its notion
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
of morality or exercise social control must also pass the muster of
constitutional propriety.
31. In the next case cited, reported at (2008) 3 SCC 1 (Anuj
Garg v. Hotel Association of India), the Supreme Court referred to the
parens patriae power of the State and observed that the subject-
matter of the exercise of such power has to be assessed on the twin
counts of its necessity and the trade-off or adverse impact, if any. The
court also left it open for a legislation brought under such authority to
be subjected to a constitutional challenge on the ground of the right to
privacy. The Supreme Court cautioned that "majoritarian impulses
rooted in moralistic tradition ... (should) not impinge upon individual
autonomy." At paragraph 50 of the report, the tests were formulated:
"the legislative interference should be justified in principle"; and, "the
same should be proportionate in measure."
32. In the Constitution Bench judgment reported at (2018) 10
SCC 1 (Navtej Singh Johar v. Union of India), that the petitioners have
next referred to, the effects doctrine has been emphasised. Paragraph
428 of the report is instructive:
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
"428. When the constitutionality of a law is challenged
on the ground that it violates the guarantees in Part III
of the Constitution, what is determinative is its effect
on the infringement of fundamental rights. [Kerala
Education Bill, 1957, In re, AIR 1958 SC 956 at para
26; Sakal Papers (P) Ltd. v. Union of India, AIR 1962
SC 305 at para 42; Rustom Cavasjee Cooper v. Union
of India, (1970) 1 SCC 248 at paras 43, 49; Bennett
Coleman and Co. v. Union of India, (1972) 2 SCC 788
at para 39; Maneka Gandhi v. Union of India, (1978) 1
SCC 248 at para 19.] This affords the guaranteed
freedoms their true potential against a claim by the
State that the infringement of the right was not the
object of the provision. It is not the object of the law
which impairs the rights of the citizens. Nor is the form
of the action taken determinative of the protection that
can be claimed. It is the effect of the law upon the
fundamental right which calls the courts to step in and
remedy the violation. The individual is aggrieved
because the law hurts. The hurt to the individual is
measured by the violation of a protected right. Hence,
while assessing whether a law infringes a fundamental
right, it is not the intention of the lawmaker that is
determinative, but whether the effect or operation of
the law infringes fundamental rights."
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
33. The Constitution Bench judgment reported at (2016) 7 SCC
353 (Modern Dental College and Research Centre v. State of Madhya
Pradesh) advocating the doctrine of proportionality has been placed by
the petitioners to contend that the blanket prohibition of betting in
cyberspace and, in particular, several provisions of the 1930 Act being
extended even to games of skill would fall foul of such doctrine. Upon
noticing the importance of the expression, "in the interest of the
general public" in Article 19(6) of the Constitution, the Supreme Court
observed that whether the impugned provisions of any statute or rules
amount to reasonable restrictions or are seen to have been brought in
the interest of the general public, the exercise that is required to be
undertaken is to balance the fundamental right to carry on occupation
under Article 19(1)(g) of the Constitution on the one hand and the
restrictions imposed on the other. It is this balancing act that is
described as the doctrine of proportionality in such context and the
four facets thereof are indicated as follows:
"60. ...
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of
that purpose;
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
(iii) the measures undertaken are necessary in that
there are no alternative measures that may similarly
achieve that same purpose with a lesser degree of
limitation; and finally
(iv) there needs to be a proper relation
(“proportionality stricto sensu” or “balancing”) between
the importance of achieving the proper purpose and the
social importance of preventing the limitation on the
constitutional right."
34. The petitioners next rely on a judgment reported at (2019) 1
SCC 1 (K.S.Puttaswamy v. Union of India) where the Constitution
Bench considered whether the right to privacy was guaranteed under
Part-III of the Constitution. The doctrine of proportionality was
discussed at great length with reference to some of the judgments
already noticed and the varying Canadian and German approaches in
such regard were noted. At the end of the day, the court summarised
the doctrine of proportionality to be principles that seek to safeguard
citizens from excessive government measures. It went on to add that
the cost or burdens of the measure must not clearly exceed the likely
benefits, which is described as the "ends" or "ends-benefits"
proportionality and the impugned measure should "impair as little as
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
possible the right or freedom in question". The court noticed the
modern conflict between an individual or collective right and a
legitimate government interest in regulating such right and embraced
the doctrine of proportionality as the "defining doctrinal core of a
transnational rights-based constitutionalism" at paragraph 1276 of the
report.
35. The petitioners have also brought the Constitution Bench
judgment in the Triple Talaq case reported at (2017) 9 SCC 1
(Shayara Bano v. Union of India) to emphasise on the concept of
manifest arbitrariness. Paragraph 87 of the report not only speaks of
the thread of reasonableness that runs through Part-III of the
Constitution, but also of substantive due process:
"87. The thread of reasonableness runs through the
entire fundamental rights chapter. What is manifestly
arbitrary is obviously unreasonable and being contrary
to the rule of law, would violate Article 14. Further,
there is an apparent contradiction in the three-Judge
Bench decision in State of A.P. v. McDowell and Co.,
(1996) 3 SCC 709 when it is said that a constitutional
challenge can succeed on the ground that a law is
“disproportionate, excessive or unreasonable”, yet such
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
challenge would fail on the very ground of the law
being “unreasonable, unnecessary or unwarranted”.
The arbitrariness doctrine when applied to legislation
obviously would not involve the latter challenge but
would only involve a law being disproportionate,
excessive or otherwise being manifestly unreasonable.
All the aforesaid grounds, therefore, do not seek to
differentiate between State action in its various forms,
all of which are interdicted if they fall foul of the
fundamental rights guaranteed to persons and citizens
in Part III of the Constitution."
At paragraph 101 of the report, the Supreme Court describes manifest
arbitrariness in the context of a statute to be something done by the
legislature capriciously, irrationally and without adequate determining
principle such that it is excessive and disproportionate. The court went
on to emphasise that "arbitrariness in the sense of manifest
arbitrariness as pointed out by us above would apply to negate
legislation as well under Article 14."
36. A more recent judgment on virtual currency reported at
(2020) 10 SCC 274 (Internet and Mobile Association of India v.
Reserve Bank of India) has been cited by the petitioners for the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
discussion therein on the challenge to the impugned Reserve Bank
circular on the ground of Article 19(1)(g) of the Constitution and the
doctrine of proportionality. At paragraph 193 of the report, the court
observed that the imposition of any restriction on the exercise of a
fundamental right may be in the form of control or prohibition; but
when the exercise of a fundamental right is prohibited, the burden of
proving that a total ban on the exercise of the right alone may be in
public interest "lies heavily upon the State." The court referred to a
judgment reported at (1969) 1 SCC 853 (Mohammed Faruk v. State of
Madhya Pradesh), which has also been cited by the petitioners here,
and the Constitution Bench formulation of the parameters while testing
the validity of a law imposing a restriction on carrying on a business or
a profession. The tests in Mohammed Faruk were reiterated:
"(i) its direct and immediate impact upon … the
fundamental rights of the citizens affected thereby;
(ii) the larger public interest sought to be ensured in
the light of the object sought to be achieved;
(iii) the necessity to restrict the citizens' freedom;
(iv) the inherent pernicious nature of the act prohibited
or its capacity or tendency to be harmful to the general
public; and
(v) the possibility of achieving the same object by
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
imposing a less drastic restraint."
The judgment also referred to the four-pronged test enunciated in
Modern Dental College and Research Centre. In a sense, the tests laid
down in both Mohammed Faruk and Modern Dental College and
Research Centre were taken to be similar.
37. The rummy petitioners next rely on the tests of
reasonableness qua Article 19 of the Constitution enunciated in the
judgment reported at (2004) 1 SCC 712 (Dharam Dutt v. Union of
India) and, in particular, the observation that the onus of
demonstrating that the impugned legislation comes within the
permissible constitutional limits and that the restriction imposed is
reasonable would shift to the State upon a prima facie case of violation
on such counts being made out. Paragraph 49 of the report is relevant
in such regard:
"49. In spite of there being a general presumption in
favour of the constitutionality of the legislation, in a
challenge laid to the validity of any legislation allegedly
violating any right or freedom guaranteed by clause (1)
of Article 19 of the Constitution, on a prima facie case
of such violation having been made out, the onus would
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
shift upon the respondent State to show that the
legislation comes within the permissible limits of the
most relevant out of clauses (2) to (6) of Article 19 of
the Constitution, and that the restriction is reasonable.
The Constitutional Court would expect the State to
place before it sufficient material justifying the
restriction and its reasonability. On the State
succeeding in bringing the restriction within the scope
of any of the permissible restrictions, such as, the
sovereignty and integrity of India or public order,
decency or morality etc. the onus of showing that
restriction is unreasonable would shift back to the
petitioner. Where the restriction on its face appears to
be unreasonable, nothing more would be required to
substantiate the plea of unreasonability. Thus the onus
of proof in such like cases is an ongoing shifting
process to be consciously observed by the Court called
upon to decide the constitutional validity of a legislation
by reference to Article 19 of the Constitution. The
questions : (i) whether the right claimed is a
fundamental right, (ii) whether the restriction is one
contemplated by any of clauses (2) to (6) of Article 19,
and (iii) whether the restriction is reasonable or
unreasonable, are all questions which shall have to be
decided by keeping in view the substance of the
legislation and not by being beguiled by the mere
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
appearance of the legislation."
38. The petitioners also refer to a judgment reported at (2003) 7
SCC 309 (B.P.Sharma v. Union of India) for the discussion therein as
to what would be reasonable restrictions within the meaning of Article
19(6) of the Constitution to curtail the rights under Article 19,
particularly under Article 19(1)(g). At paragraphs 14 and 15 of the
report, the Supreme Court observed that citizens are free to choose
any trade, business, calling or profession and the manner and terms in
which they carry on their profession; but the State may, in the interest
of the general public, impose reasonable restrictions which may be
thought necessary. The court observed that "nobody can be considered
to have a fundamental right to carry on such business, trade, calling or
profession like gambling, betting or dealing in intoxicants or an activity
injurious to public health and morals." However, the court interpreted
the expression "in the interest of the general public" to imply matters
pertaining to "public health and morals ..., economic stability ...,
stability of the country, equitable distribution of essential commodities
at fair prices ... for maintenance of purity in public life, prevention of
fraud and similar considerations."
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
39. A judgment reported at AIR 1945 Mad 164 (Public
Prosecutor v. Verajlal Sheth) has been placed for the acceptance in
that case of the definition of "gaming" in the Oxford English Dictionary
as “the action or habit of playing at games of chance for stakes;
gambling” and the definition of "wager or bet" to be “A promise to give
money or money's worth upon the determination or ascertainment of
an uncertain event.”
40. The first lot of petitioners rest upon citing a judgment
reported at (1999) 8 SCC 74 (Thampanoor Ravi v. Charupara Ravi) for
the proposition that when a word or expression acquires a special
connotation in law, it must be assumed that the legislature has used
the word or expression in its legal sense and not with reference to
common parlance or the dictionary meaning. These petitioners submit
that since betting and gambling had already been included in the
Government of India Act, 1935 and had been judicially interpreted
even before the Constitution came into effect, the enlargement of the
scope of the word "gaming" in the Amending Act would, in effect,
amount to widening the scope of the field embodied in Entry-34 of the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
State List.
41. The next set of petitioners, who are also mostly involved in
offering betting on rummy on their platforms, seek to make a
distinction between betting and gambling. They suggest that gambling
is now understood as involving an activity of pure chance, where skill
is either not involved or involved to the most minimal extent. These
petitioners exhort that the entirety of the field in Entry-34 of "Betting
and gambling" must be understood in such context and it is only the
betting involved in gambling which is covered by the field in the Entry
and not betting per se. They refer to Entry-36 in the corresponding
list in the Act of 1935 and the pre-constitutional connotation of
gambling that is deemed to be the basis for the Entry. These
petitioners assert that the attempt at widening the definition of
gaming, in effect, amounts to the impermissible enlargement of the
scope of legislative competence.
42. They refer to the Chamarbaugwala cases where the use of
skill has been seen to be permissible as a business activity and entitled
to protection under Article 19(1)(g) of the Constitution. They refer to
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
the history of the regulation of gaming and the prohibition in certain
areas before copiously referring to the judgment in K.R.Lakshmanan.
43. These petitioners place a judgment reported at AIR 1958 SC
560 (State of Madras v. Gannon Dunkerley and Company) where the
construction of Entry-48 in the State List fell for consideration. The
Constitution Bench observed that expressions used in the Lists must
be interpreted in their legal sense and cannot be construed in the
popular sense. The court concluded that the expression in the relevant
Entry was a nomen juris, implying that it had an accepted and well-
recognised legal connotation.
44. These petitioners next rely on a Constitution Bench judgment
reported at (1989) 2 SCC 645 (Builders' Association of India v. Union
of India) where the constitutionality of the Forty-sixth Amendment of
1982 was questioned. In dealing with the issue, the court observed
that a State could make a law as long as it was within its authority, but
frowned on any attempt to override a judicial pronouncement without
removing the defect that was noticed in the judgment.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
45. The second lot of petitioners refer to rummy as a game of
skill and the judicial pronouncements in such regard before proceeding
to cite another Constitution Bench judgment reported at (2002) 2 SCC
459 (Koluthara Exports Ltd v. State of Kerala) for the proposition that
however well-intentioned a legislation may be and whatever social
purpose it may profess to serve, the enactment could be invalidated if
the State had no authority in such regard.
46. These petitioners next place a Constitution Bench judgment
reported at (2005) 1 SCC 394 (E.V.Chinnaiah v. State of Andhra
Pradesh) which dealt with affirmative action in general. The petitioners
cite paragraphs 30 and 31 of the report where the doctrine of pith and
substance has been referred to. The court observed that the stated
objects of the enactment may not be the only criteria for assessing the
validity thereof, as the court would examine "not only the object of the
Act as stated in the statute but also its scope and effect to find out
whether the enactment in question is genuinely referable to the field of
legislation allotted to the State."
47. A nine-judge Bench decision reported at (2007) 2 SCC 1
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
(I.R.Coelho v. State of Tamil Nadu) has been placed by these
petitioners for the proposition that judicial review is a basic feature of
the Constitution. The court held in that case that the separation of
powers between the Legislature, Executive and the Judiciary was also
one of the basic features of the Constitution and it was the duty of the
court to enforce constitutional limitations.
48. The next judgment placed is also one rendered by a
Constitution Bench, reported at (2014) 12 SCC 696 (State of Tamil
Nadu v. State of Kerala), where it was observed that no provision of
law may be enacted contrary to a judicial pronouncement without
removing the mischief noticed in the judgment. At paragraph 15 of
the report, the Supreme Court laid down the primary test for
determining whether an enactment or a provision had been brought in
only to nullify a previous judgment: "to see whether the law and the
judgment are inconsistent and irreconcilable so that both cannot stand
together."
49. The third lot of petitioners refers to games like rummy and
horse-racing being games of skill and quote several Supreme Court
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
judgments, some noticed before, in such regard. They also rely on a
judgment reported at (1996) 7 SCC 637 (Indian Aluminium Company
v. State of Kerala) for the principle recognised at sub-paragraphs (8)
and (9) of paragraph 56 of the report. In essence, the judgment
declares that the legislature cannot overrule, revise or override a
judicial decision without changing the underlying conditions such that
"if those conditions had existed at the time of declaring the law as
invalid ... the previous decision would not have been rendered ..."
50. Of the several petitioners who have challenged the Amending
Act, one is a federation or association of the entities that provide
games on the virtual platform or cyberspace. Such petitioners read the
amending provisions and submit that the irrationality therein is
apparent. They maintain that Entry-34, in its use of the word
"Betting" refers to the betting that goes with gambling, where
gambling has a specific legal connotation that it pertains to a game or
activity of pure chance which cannot be controlled by any element of
skill. These petitioners contend that the Act of 1930 was intended to
only cover gaming and as to what amounted to gaming is indicated in
Section 4(1)(a) of the Act, except the reference to horse-racing therein
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
which has been judicially found to be a game of skill. These petitioners
emphasise that betting on any gambling activity amounts to gaming as
has been judicially understood and as was originally the intention of
the statute. Equally, such petitioners assert that betting on non-
gambling activity would not amount to gaming and the obliteration of
the distinction by the Amending Act makes the Amending Act
unreasonable and fall foul of Article 14 of the Constitution.
51. These petitioners refer to some of the original provisions in
the 1930 Act to submit that all forms of gaming had not been
prohibited, but the prohibited activities were confined to any
transaction or scheme of wagering or betting in which the receipt or
distribution of winnings or prizes in money or otherwise depended on
chance.
52. Such petitioners lay considerable emphasis in the artificial
widening of the definition of "gaming" as brought about in Section 3(b)
of the Act and the Explanation thereto. They also suggest that the
definition of "instruments of gaming" in Section 3(d) of the Act in its
use of the word "other" in the expression "any other article" makes
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
computers and like gadgets instruments of gaming by a legal fiction,
which should not stand judicial scrutiny. Similarly, these petitioners
refer to the word "other" in the expression "any other instrument of
gaming" and submit that to the extent games of skill are identified as
gaming activities by the legal fiction used in the definition of "gaming",
the impugned provisions are directly contrary to judicial
pronouncements and otherwise unreasonable and excessive. They
claim that the impugned Amending Act is contrary to the dictum in
K.R.Lakshmanan and should not be countenanced since it does not
address the mischief noticed in K.R.Lakshmanan, but seeks to override
the dictum nonetheless.
53. These petitioners say that the effect of the Amending Act
runs beyond any game played in cyberspace and amended Section 11
of the Act pertains also to physical forms of games, but to the extent
newly introduced Section 3-A of the Act and the other incidental
provisions target all games played in cyberspace for stakes, they are
colourable and unreasonable exercise of authority, as there can be no
distinction between card games, particularly like poker and rummy,
being played in physical form or on the internet.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
54. These petitioners seek to make a distinction between betting
and wagering, though the authorities that they cite in such regard do
not necessarily support the same. According to these petitioners, a
wager would be between two or more persons involved in the conduct
of the activity, whereas betting would be by persons only interested in
the outcome of the activity, but not involved in the conduct thereof.
They rely on a judgment reported at AIR 1942 PC 19 (Ismail Lebbe
Marikar Ebrahim Lebbe Marikar v. Bartleet and Company) where,
however, betting and wagering had been understood to imply the
same activity in the context of a wagering contract under Section 30 of
the Contract Act, 1872.
55. In Black's Law Dictionary (11th Ed), "bet" is described as
“something (especially money) staked or pledged as a wager”, while
"wager" is defined as “money or other consideration risked on an
uncertain event; a bet or gamble”. A wager is also seen to be a
promise to pay money or other consideration on the occurrence of an
uncertain event. "Gambling", on the other hand, is said to be the act of
risking something of value, especially money, for a chance to win a
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
prize and "gaming" is said to imply gambling. A "game of chance" is
described as a game wherein the outcome is determined by luck rather
than skill, and a "game of skill" is said to be a game in which the
outcome is determined by the player's superior knowledge or ability,
not chance.
56. In the New Oxford Dictionary of English, "betting" is said to
be the action of gambling money on the outcome of a race, game or
other unpredictable event, while "wager" is described to be the more
formal term for bet.
57. These petitioners refer to the principles enunciated in the
Chamarbaugwala cases and specifically rely on paragraph 20 of the
report in K.R.Lakshmanan, where the expression "mere skill" has been
held to "mean substantial degree or preponderance of skill."
58. These petitioners read the Statement of Objects and Reasons
of the 1930 Act and submit that the impugned amendment goes not
only against the purpose of the statute, but also against the tenor of
the original provisions. They recount the history of the legislation
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
pertaining to gaming in this State beginning with the Madras City
Police Act, 1888, the Act of 1930, the amendment introduced to the
Act of 1930 in 1949 by, inter alia, including horse-racing as a gaming
activity, to the belated notification thereof in or about 1975, to the
K.R.Lakshmanan judgment holding that horse-racing was a game of
skill, and to the Ordinance brought about late in 2020 which
metamorphosed to the impugned Act 1 of 2021.
59. According to these petitioners, there is no reason for
prohibiting all forms of betting in cyberspace, which is a controlled
area, and allowing wanton betting in physical form where it cannot be
regulated with any degree of certainty. Apart from the specific
challenge on the grounds of irrationality, unreasonableness and
excessive exercise of authority in amending the definition section and
introducing Section 3-A in the statute, these petitioners are particularly
critical of Section 11 as amended, by which the latitude that was
shown to games of skill has been reversed and games of skill have
been equated with games of chance without any distinction. Their
specific contention in wanting amended Section 11 to be struck down
is founded on six grounds: that it seeks to bypass judicial
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
pronouncements that have stood the test of time without tackling the
mischief noticed in such judgments; that no guidelines are indicated
for protecting the right under Article 19(1)(g) of the Constitution; that
it amounts to absolute prohibition which is unwarranted and
impermissible; that no attempt is made to restrict or regulate or apply
the doctrine of proportionality or find the least intrusive measure to
deal with the perceived menace; that it is per se manifestly arbitrary
and otherwise vague; and, that it is contrary to the purpose for which
the original statute was enacted.
60. These petitioners refer to the apparent confused state of
mind of the legislature in the use of the expression "in person or in
cyber space" in Section 3(b) of the Act without there being any
sequitur to betting in person, though Section 3-A of the Act prohibits
all form of betting in cyberspace alone.
61. These petitioners submit that the impugned Amending Act is
so convoluted, confusing and self-contradictory that it is liable to be
struck down in its entirety as the rule of severability cannot be brought
into play in the context of the overarching unreasonableness and
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
irrationality in the impugned legislation. For such purpose, these
petitioners refer to a judgment reported at AIR 1961 SC 268 (Bullion
and Grain Exchange Ltd v. State of Punjab). The Constitution Bench in
such case referred to the Chamarbaugwala cases to discuss whether a
statute could be severed and the invalid parts separated from the rest
to strike down only the offending portions. The test seems to be to
apply the rule of severability and strike down only the invalid parts if it
appears to the court that the legislature would have enacted the valid
part if it had known that the rest of the statute would be invalid. The
second rule would be that if the valid part which is left after omitting
the invalid portion is so thin and truncated as to be in substance
different from what it was when it emerged out of the legislature, the
entirety of the legislation has to be rejected.
62. These petitioners refer especially to poker being a game of
skill as recognised in the 276th Report of the Law Commission of July,
2018 intituled Legal Framework: Gambling and Sports Betting
including in Cricket in India. In paragraph 3.34 of the report, poker is
referred to as a game of skill "because more skilful players will always
win over the less skilled or novice players." The skills necessary to be
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
a successful poker player are also noticed at paragraph 3.35 of the
report.
63. These petitioners rely on an American judgment reported at
886 F. Supp. 2d 164 (United States of America v. Lawrence DiCristina)
where, after receiving expert evidence, it was concluded that poker
was a game of skill. Though the judgment was reversed in appeal, the
finding that poker was a game of skill was left undisturbed.
64. A fourth lot of petitioners refers to the scope of the original
Act of 1930 being limited to prohibiting gambling in public space by
indulging in pure games of chance and criticises the irrational
incorporation of the recent amendments that completely destroy the
architecture of the statute.
65. Such petitioners refer to a judgment reported at 2017 SCC
OnLine P&H 5372 (Varun Gumber v. Union Territory of Chandigarh) as
to what would amount to a game of skill. They refer to Entry-33 in the
State List and suggest there is complete confusion in the manner of
change brought about by the Amending Act. Such petitioners question
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
the legislative perception that if two persons privately play rummy in
an enclosed place it may not disturb public order or cause any
nuisance, but if the same two persons play rummy on the internet, it
would be criminal, as the impugned legislation makes it out to be.
66. The last line of submission on behalf of the petitioners has
been to indicate the algorithms of the card games played on the
internet in the country and which platforms were available for any
resident in this State to access till the Ordinance came into effect. The
emphasis in such regard is on the protective mechanism which is
followed to screen the players, obtain and maintain a record of their
identities, track their locations and accept payments only through
recognised forms of debit or credit cards or other online modes of
payment. The intending players are required to submit a recognised
government document as proof of identity, which is verified by the
platform before access is given to such person.
67. As to the forms of rummy played, it is submitted that there
are three types of games: points rummy; pool rummy; and,
tournament rummy. A minimum of two persons can play at a table
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
and a maximum of six. No spectators can gain access to watch a game
and only the players actually playing the game are the persons at the
relevant table. It is submitted that two decks of cards are ordinarily
used on the basis of a random number generation software developed
by the world leaders in such field, iTech Labs of Australia.
68. The petitioners submit that an event or an activity that is not
criminal in the real world cannot be banned in cyberspace. They also
suggest that the interpretation of the word "betting" takes colour from
the word “gambling” which is used in conjunction therewith in the
relevant Entry; as the two words and the activities they connote in the
context would be governed by the ejusdem generis and noscitur a
sociis rules of interpretation. These petitioners rely on a Constitution
Bench judgment reported at (2005) 2 SCC 515 (Godfrey Phillips India
Limited v. State of Uttar Pradesh) for such purpose.
69. The State retorts by referring to its unquestionable authority
to legislate in the field of “Betting and gambling” by virtue of the
relevant Entry in the State List. The State seeks to give a background
to why the Ordinance and the subsequent Act were necessary. The
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
State fairly accepts that the impugned legislation “seeks to ban
gambling, which includes games like rummy and poker, irrespective of
the stakes involved in the game, if the same is played for stakes or
money”. The State commends the contents of an affidavit affirmed on
its behalf on April 15, 2021, by the Deputy Secretary in the Home
Department, to the court and copiously places excerpts therefrom.
70. According to the State, the policy decision to bring in the
legislation was taken “after multiple instances of suicides have been
reported across the State, given the addictive tendency of these
games and the financial losses” that they result in. The State submits
that the games like “Rummy Circle” which are offered by some of the
petitioners, have 30 million registered players and about 50,000 new
players every day. The State perceives the recent statistics to suggest
that the target audience for these games are the young and
uneducated as the games offer “easy incentives by way of real cash as
prizes”. The State says that the very nature of the games which have
been prohibited is such that an initial amount is deposited by the
player following which the player keeps betting with more sums of
money depending upon the fall of cards; and, given the addictive
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
tendency that such games prey on, the player tends to raise his stakes
in the hope of a bigger win. The State points out that online gambling
has been banned in Andhra Pradesh, Telangana and Kerala and
stresses on the deleterious effect of gambling.
71. The State contends that the petitioners cannot assert any
right under Article 19(1)(g) of the Constitution because the games
offered amount to “gambling/betting activity despite being a game of
skill since it is being played for a financial or other stake”. The State
maintains that there cannot be any absolute right to practise any
profession or to carry on any activity, trade or business and they are
subject to reasonable restrictions under Article 19(6) of the
Constitution. The State accepts that not only have the named games
of rummy and poker been banned when played for stakes, but all other
online games have also been banned, if played for any stakes.
72. The State has made copious references to the 276th Report
of the Law Commission. In particular, Chapter VIII of the said Law
Commission Report has been read out to demonstrate the deleterious
effects of gambling. In such regard, the said Report speaks of
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
gamblers being often tempted to play for longer durations and “up the
ante when it appears to them that they are just about to win”. This,
according to the said Report, “is, quite often than not, a mirage and …
manifests itself as loss chasing, wherein gamblers keep on playing in
an effort to recover their incessantly accruing losses”.
73. The Law Commission Report also refers to the possibility of
technology being “manipulated to increase the degree of chances
involved in the game” and alludes to the Information Technology Act,
2000, to suggest that provisions may be made “to curb the gambling
or betting activities on the ground that such activities appeal to the
prurient interest or tend to deprave or corrupt persons”.
74. However, the Law Commission perceived online betting and
gambling to be covered under Entry 31 of List I of the Seventh
Schedule to the Constitution since they were “offered and played over
media”. The recommendation is for the Parliament to enact a model
law “for gambling that may be adopted by the States or, in the
alternative, the Parliament may legislate in exercise of its power under
Articles 249 or 252 of the Constitution”.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
75. Elsewhere in its recommendations, the said Report suggests
that horse-racing and “other skill-centric games may also be afforded”
an exemption. The further recommendations indicate that “Gambling
and betting, if any, should be offered by Indian licenced operators
from India possessing valid licences granted by the game licensing
authority”. In support of the suggestion that the gambling and betting
activities must be regulated, the said report justifies that vulnerable
sections of the society ought to be protected from being exploited by
the ill-effects of such activities and suggests that the vulnerable class
could include youth and children below the age of 18 “and those who
are below poverty line and to whom, as a social measure,
Central/State Governments provide subsidies to their Jan Dhan
Account for sustenance”.
76. The State commends the laudable objects that prompted the
amendment as indicated in the Explanatory Statement to the
Ordinance. The State maintains that all online games are invariably
open to manipulation and, as such, no distinction need be made in
such regard between games of chance and games of skill. As to the
amended Section 11 of the Act, the State perceives that the non-
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
obstantate clause therein operates in respect of newly introduced
Section 3-A of the Act, which is a substantive provision, and in respect
of Sections 5 to 10 thereof which are said to be procedural provisions.
It may be said, however, without any hesitation, that not all of the
provisions in Sections 5 to 10 of the Amended Act are procedural. At
least Sections 8 and 9 make out offences and provide penalties for the
commission of such offences.
77. The State then refers to a Full Bench judgment of this court
reported in AIR 1927 Mad 583 (Narayana Aiyangar v. K. Vellaichami
Ambalam). The judgment was rendered in the context of a chit fund.
The Bench referred to how “wager” was defined in the context of a
wagering contract and opined that chit fund transactions needed to be
regulated in the interests of the public and to avoid perpetration of
fraud on poor and innocent persons.
78. The State next places reliance on a Constitution Bench
judgment reported at AIR 1965 SC 307 (Krishnachandran v. State of
Madhya Pradesh). The matter involved the conviction of the appellant
before the Supreme Court under a State law pertaining to gambling.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
The court noticed the wider meaning attributed to the word “gaming”
in the statute. The argument before the court was that the impugned
provisions were in derogation of Articles 19 and 21 of the Constitution
because they unreasonably impaired the right of assembly and the
right to hold and enjoy property and, as such, contrary to the
wholesome manner of living life. The court observed that the
legislative competence had not been questioned and held as follows at
paragraph 7 of the report:
"7. …
Once it is conceded that gambling is an evil, and it is
rightly so conceded here, the interests of public order,
morality or the general public require that it be
eradicated and the only question which survives is
whether the law made to do this is unreasonable in its
restriction upon the guaranteed rights. …”
79. The challenge to the provisions was repelled and the appeal
failed. The petitioners herein, however, submit that the dictum in the
case should not be considered as it was a judgment rendered before
the seminal decision in Maneka Gandhi (AIR 1978 SC 597). According
to the petitioners, the law as it stood prior to Maneka Gandhi did not
require any reasonableness of the procedure to be looked into; but the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
position has now altogether changed.
80. The sheet-anchor of the State’s submission is the dictum
rendered by a two-member Bench in the judgment reported at (1995)
6 SCC 285 (M.J. Sivani v. State of Karnataka). The question before the
Supreme Court was whether video games were required to be
regulated. The material before the court revealed that some of the
video games were operated with two-way or four-way joysticks, push
buttons, volume controls, steering wheels, accelerators, gun-trigger
controls or potentiometers and every video game was operated by an
electronic machine. The court observed in M.J. Sivani that gaming as
defined in the relevant statute included both a game of chance and a
game of skill and also a combination of both and that the element of
gaming was the prizes or consideration. The court held that for an
ordinary person or a novice it was difficult to play a video game with
skill and the regulation of such activity by the impugned legislation was
in accordance with law. In applying the test of reasonableness, the
Supreme Court observed that the broad criterion was whether the law
struck a proper balance between social control on the one hand and
the right of the individual on the other and whether the restriction was
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
in proportion to the evil and the prevailing conditions at the relevant
time.
81. However, what cannot be missed is that the judgment
pertained to a law that regulated gaming activity and may not have
completely prohibited the same even in a broad medium. Paragraph 36
of the report also included the caveat that if any licence was rejected
on any irrelevant ground it was open to the aggrieved party to
challenge the same.
82. Two further judgments reported at (2005) 8 SCC 534 (State
of Gujarat v. Mirzapur Moti Kureshi Kassab and Others) and (2018)
Cr.L.J 1842 (The Director General of Police v. S.Dillibabu) have been
placed by the State. The first of the judgments, rendered by a seven-
member Bench, has been brought for the proposition that the power to
regulate includes the power to prohibit. The other judgment is founded
on the doctrine of res extra commercium as judicially interpreted in
this country.
83. At paragraph 46 of the report in Mirzapur Moti Kureshi, the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
Supreme Court observed that “regulation” includes “prohibition” but
cautioned that “in order to determine whether total prohibition would
be reasonable, the court has to balance the direct impact on the
fundamental right of the citizens as against the greater public or social
interest sought to be ensured”. Several other passages from the
judgment have been placed, including from paragraph 69 of the
report, to the effect that the Statement of Objects and Reasons may
be looked into to appreciate the extent and urgency of the evil which
was sought to be remedied by the statute, “in addition to testing the
reasonableness and the restrictions imposed”. At paragraph 79 of the
report, the court held that “it is permissible to place a total ban
amounting to prohibition on any profession, occupation, trade or
business subject to satisfying the test of being reasonable in the
interest of the general public...”
84. The Division Bench judgment of this court in S.Dillibabu
merely observed, in the light of the Chamarbaugwala judgments being
placed before it, that activities being of gambling nature cannot be
regarded as trade or commerce and no one can claim any right in
respect of such activities under Article 19(1)(g) of the Constitution.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
85. The substance of the State's submission is that the
legislature as the rightful representative of the people in the State
perceives betting in cyberspace to be pernicious and since the State
has exclusive authority under the Constitution to legislate in the field
of betting, the amending statute passes muster as the object of the
legislation is to arrest the addiction of gambling and ensure that
citizens do not rush to their doom by falling prey to such addiction.
Such argument conveys an element of the legislature’s sense of
morality in seeking to protect the residents in Tamil Nadu that the
State perceives it to be in greater public interest than any individual’s
right to trade on his skill.
86. The State’s final submission is by referring to a judgment
rendered by this court several months back calling upon the State to
take appropriate steps to curb gambling in the light of suicides and
other ill-effects resulting therefrom. However, the relevant judgment
has not been placed as no mandamus could have been issued to
legislate nor can the impugned provisions of the Amending Act be
attributed to the court.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
87. At the end of the day, a balance has to be struck between
the extent to which the State can impose restrictions to protect a class
or certain classes of persons and the reasonableness of such
restrictions qua the ordinary individual who may resist the same,
whether or not the statutory measure is intended to protect such
individual.
88. Oftentimes, when the State takes a paternalistic attitude, it
seeks to legally regulate private life. This brings about a conflict
between both the authority and the desirability on the part of the State
to legislate in areas where it perceives that the individual in general or
certain classes of individuals require protection and the private rights
of the individual and every citizen’s freedom of choice. State
paternalism, by and large, is understood to mean the phenomenon in
which the State acts as the guardian and protector of its citizens or a
class or classes of citizens who are perceived to be vulnerable in
certain situations or are thought to be generally weak and incapable of
protecting themselves. When a statute is attacked on the ground of
overbearing paternalism, a cost-benefit analysis is called for, not in
mathematical terms, but only to assess whether by and large the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
benefit in the form of public good outweighs the cost of the individual
being deprived of his choice.
89. State paternalism through legislation can span the ordinary
areas of protecting children or women or the elderly or persons with
disabilities by enacting remedial statutes to undo the historical or long-
standing neglect or oppression or exploitation of certain classes of
persons and even to protect persons performing certain duties, as in
the workspace. Paternalistic legislation may regulate the conduct of an
activity depending on where, as a result of the limitation of resources
involved in such activity, regulation is deemed imperative; or, it may
seek to regulate the perceived undesirability of the over-indulgence in
certain activities.
90. 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. The State perceives the ordinary
individual or the class protected to be vulnerable, unable to protect
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
themselves and the likely victim of the consequences of indulging in
such activity or being excessively exposed thereto. Like a parent
seeking to protect her child and assuming that the child is incapable of
deciding what is good for her and what is not, the State considers the
individual or class of individuals sought to be protected as defenceless
and incapable of making the correct choice. The more natural the
activity that is sought to be controlled, the greater is the degree of
authoritarianism in the elimination of the exercise of choice by the
individual or the class of individuals sought to be protected as
vulnerable by legislation born out of State paternalism.
91. But before assessing the appropriateness of the extent of
State paternalism oozing out of the impugned legislation, a brief peek
into history and a general discussion on gambling and how it has been
judicially interpreted, may be in order.
92. In course of the Constituent Assembly debates, divergent
views were expressed when it came to including betting and gambling
in the State List. While some members perceived the activities to be so
pernicious that they ought not even be included in any List, there were
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
others who also wanted the relevant entry carried over from Entry-36
of the Provisional List in the Government of India Act, 1935 to be
deleted, but for completely different reasons. However, Dr. Ambedkar
reminded the members that if the field was not included, the States
would have no power to legislate over the same as the residuary and
what was not specifically provided for in the State List could be
understood to fall within the exclusive domain of the Parliament.
93. In ordinary and common parlance, gambling connotes taking
a chance. In the usual sense, there is no distinction made between
chance and skill or the preponderance of either in an activity which
may be seen and understood to amount to gambling. However,
betting, in the ordinary sense, cannot be divorced from gambling since
the risk-taking element in gambling is betting. Notwithstanding the
considerable industry on the part of the petitioners to distinguish
betting from wagering and either of such activities from gambling, and
seeking to suggest a mathematical formulation of the extent of chance
involved in gambling or betting involved in gaming, the activity of
betting or wagering or gambling implies an element of speculation on
the happening of a certain event, whether or not the persons involved
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
in betting or wagering or gambling have any control over the event as
long as there is some element of prize to win for forecasting the
outcome of the event.
94. Philosophically and realistically, every future event depends
on an element of chance. There may be no greater need to look
beyond the pandemic raging across the globe to appreciate such
truism. Even in the ordinary case, when a person promises to meet
another on the next day, there are several presumptions that go into
such promise and they are based on the ordinary course of things. It is
possible that a tsunami takes place during the interregnum and even
the simple act of meeting the person is impossible to be executed.
95. Sporting activities are replete with upset results. An upset
implies that the outcome has been contrary to the ordinary
expectation. The expectation is fed by the history of the performances
of the two parties that precedes the particular encounter. Whether in
the boxing ring or in the football arena or on the cricket pitch, it is the
hope of a different outcome than what is predicted that impels the
underdog and results in instances like the Rumble in the Jungle of
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
19741 or of, arguably, the greatest upset in football history at Belo
Horinzonte in 19502 or in the felling of the mighty West Indies at Lords
in 19833. The activity involved in every case was a game of pure skill,
yet the unfancied triumphed and such moments are regarded as
seminal moments and go down as part of sporting folklore.
96. Every game or like activity depends on an element of
chance. One team at a cricket match may bat in perfect sunshine on a
flat wicket, but the other may bat on a sticky wicket upon rain
intervening in the interregnum. However, ordinarily, it is expected that
the more skilful would take the unexpected – the chance element – in
its stride and the greatest upsets remain etched in our memories
because the expected dexterity of the acknowledged skilful was felled
by the less-gifted.
97. Gambling and gaming have developed secondary meanings
in judicial parlance. Indeed, such words had attained such
connotations in the pre-constitutional era that the nomen juris cannot
1 Muhammad Ali’s upset win over George Foreman at Kinshasa, in then Zaire.
2 The USA beat England 1-0 at the 1950 FIFA World Cup Finals.
3 India won the Prudential World Cup cricket final in London.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
be shrugged off to understand such words to mean or imply anything
other than how they have been judicially interpreted. Irrespective of
what meanings are ascribed to these words in dictionaries, gambling is
equated with gaming and the activity involves chance to such a
predominant extent that the element of skill that may also be involved
cannot control the outcome. A game of skill on the other hand, may
not necessarily be such an activity where skill must always prevail;
however, it would suffice for an activity to be regarded as a game of
skill if, ordinarily, the exercise of skill can control the chance element
involved in the activity such that the better skilled would prevail more
often than not. The vagaries of the unknown and unpredictable, and
yet possible, must be kept out of consideration to determine whether
an activity is a game of skill. Even in everyday life, one never ceases
to ponder over what could have been if the alternative had been
chosen. Seen from the betting perspective, if the odds favouring an
outcome are guided more by skill than by chance, it would be a game
of skill. The chance element can never be completely eliminated for it
is the chance component that makes gambling exciting and it is the
possibility of the perchance result that fuels gambling.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
98. Much has been submitted on behalf of the petitioners to
confine the operation of the doctrine of res extra commericum as
judicially interpreted in this country to only the obviously pernicious.
The underlying suggestion in course of such submission has been that
somehow the element of morality involved has to be reduced, possibly
to the vanishing point, if it impinges on the rights guaranteed under
Part III of the Constitution, not to speak of Article 19 thereof alone.
99. Res extra commercium has been defined by juxtaposing such
expression to res in commercio at the beginning of an article by Senior
Advocate Arvind P. Datar and Advocate Rahul Unnikrishnan published
in 2017 (3) SCC J-1 (Kerala Liquor Ban: Revisiting Res Extra
Commercium & Police Power). The authors trace the etymological roots
of the doctrine of res extra commercium to Roman law as being things
incapable of ownership as opposed to res in commercio pertaining to
those capable of ownership. The article argues that though the
doctrine of res extra commercium was appropriately invoked in a 1951
judgment of the Supreme Court in a matter pertaining to shebaitship,
the principle has been incorrectly applied thereafter, ever since the
days of the Chamarbaugwala cases.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
100. Whether or not the jurisprudence in such regard is
corrected in future, there appears to be a much greater element of
morality involved in what activities would be regarded as res extra
commercium, as the expression is now judicially interpreted in this
country, than what may be gleaned to be the constitutional sense of
morality. While prostitution, consumption of poison, robbing or dacoity
may appeal even to the most liberal to be pernicious; the consumption
of alcohol or even the exercise of the choice of gambling, when used in
the ordinary sense, may not appear so vile to many. There may be a
difference of opinion between a person and his neighbour as to what
may be perceived to be the constitutional sense of morality, whether in
general or in respect of a particular field of activities, but the difference
ought only to be in degrees and not poles apart unless the individual
sense of morality tinges the perception. Again, the understanding of
the constitutional sense of morality may depend on the mores of the
time since the Constitution is regarded as a living document and not
pegged to the time of its adoption.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
101. Since the discussion here has to be confined to the validity
of the impugned Amending Act, the several tests enunciated in the
authoritative judicial pronouncements brought to bear on the subject
by the parties need to be understood and applied. For a start, K.R.
Lakshmanan instructs that when a game of skill is distinct from a game
of chance, on the preponderance of the skill element involved, the
activity would be protected by Article 19(1)(g) of the Constitution and
competitions involving games of skill have to be regarded as business
activities.
102. A person may be gifted in card games or another’s talent
may lie in word games. Rationally, such persons should be free to
exploit their skills; and only reasonable restrictions that do not
completely blunt their chance to show off or make a living out of their
skills may be permissible. The sweeping wording of Section 3-A of the
amended Act of 1930, coupled with the expansive definition of
“gaming” injected therein, eliminates any chance of display of skill in
any game on the virtual mode if any stakes, however little, are
involved. Cyber cafes and computers and related hardware cannot, by
themselves, be places or instruments of gaming. Yet, the legal fiction
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
introduced by the enhanced potency given to the word “gaming” has
the effect of a kind of Midas touch in whichever provision the word is
used.
103. Section 11 of the amended Act, indeed, turns the existing
statute on its head, as the petitioners complain. What was once the
exemption or escape provision has now been given the most
claustrophobic stranglehold and has the possibility of bringing about
the most ridiculous and unwanted results if applied in letter and spirit.
There is also a self-contradiction apparent from the activities which
may be regarded as gaming in terms of Clause (vi) of Section 4(1)(a)
of the Act and the sweeping inclusion of even games of skill in Section
11 thereof. Though Section 3-A of the Act is confined to cyberspace,
the reference to Sections 5 to 10 of the Act in Section 11 thereof
makes such provision applicable even to physical forms of games and
outlaws the activities indicated in Sections 8 and 9 of the Act if the
game is played for the slightest of stakes or any form of prize.
104. Indeed, there may be a self-contradiction in Section 4(1)(a)
of the Act itself upon the change of the definition of gaming and
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
Section 4(1)(a) being read in such light. Since the definition of gaming
now includes wagering or betting, upon any person playing any game
in the physical form and in which there is any wagering or betting
within the meaning of the expanded definition, including the
Explanation in Section 3(b) of the Act of 1930, the activity may
amount to an offence. Even as the amended provision greatly
enhances the meaning of gaming as used in the said Act, the wagering
and betting components of the definition are further widened by the
Explanation to the definition; as would be evident from the words
“wagering or betting shall be deemed to comprise the collection or
soliciting of bets, the receipt or distribution of winnings or prizes, in
money or otherwise…”.
105. Again, since Section 11 of the Act does not apply the
operation of such provision to Section 4 thereof, there is a further
contradiction. By virtue of Section 4(a)(1)(vi) of the Act, despite
betting being involved in course of the playing of a game, it may be
possible to contend that no offence would have been committed if the
game indulged in was primarily a game of skill. That ought to be the
interpretation of Section 4(1)(a) of the Act on the basis of the previous
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
judicial pronouncements since Clause (vi) of sub-section (1) has, per
force, to be restricted to a game of chance and not applied to a game
of skill. Thus, despite no offence under Section 4(1) of the Act of 1930
being made out for playing or participating in a game of skill, if any
betting and wagering – within the meaning of such expression as
indicated in the Explanation to Section 3(b) of the Act – is involved in a
game of skill, by virtue of Sections 8 and 9 of the Act an offence is
made out of the same activity. As a result, a simple game of football or
volleyball played for bragging rights between two teams or a
tournament which awards any cash prize or even a trophy, would, by
the legal fiction created by the definition, amount to gaming and
thereby outlawed. The relevant persons may be punished for the
offences committed under Sections 8 and 9 of the Act.
106. The amended Act encompasses within its sweep all sporting
activities, if played for a prize, whether between two class teams in a
school or between two schools in an inter-school competition, if there
is a trophy to be won; leave alone the ATP prize-money or ranking
tournaments organised in the city. Goodbye to IPL and Test matches,
too, from Tamil Nadu since cash rewards are offered therein.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
107. The wording of the amending Act is so crass and
overbearing that it smacks of unreasonableness in its 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.
108. There is little doubt that the State has the authority by
virtue of the Constitution to enact a law pertaining to betting and
gambling; just as the State has due authority in such regard, inter alia,
in respect of public order; sports, entertainments and amusements;
and, offences against laws with respect to any of the matters in the
State List. The petitioners here have not challenged the legislative
competence in such sense that the State lacks the power to enact any
law pertaining to betting and gambling. Their case is that the scope of
betting and gambling has been so vastly enlarged than what the Entry
connotes and despite the key word of “gambling” therein having
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
previously been judicially interpreted, that the act of extending the
field amounts to usurpation of an authority that the State has not been
conferred under the relevant Entry. To a great degree, the petitioners
are justified on such count.
109. At the same time, the expansion of the field, so to say, can
also be seen to be the unreasonableness of the impugned legislation or
the complete disconnect thereof with any element of proportionality,
though high authorities command that proportionality must instruct
any legislative action if it seeks to curb any right guaranteed by the
Constitution.
110. There is no doubt that the activity of gambling and the
inextricable element of betting involved therewith has a deleterious
impact on certain individuals and can even be ruinous. So much is
accepted. The immediate question that arises is whether it was
necessary to go the distance that the Amending Act has charted out to
completely stultify and negate skill altogether. If, prima facie, the
impugned legislation is seen to impose restrictions or altogether curb
the exercise of skill in a particular domain, the onus is on the State to
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
justify not only the need therefor but also the extent thereof. No
attempt has been made in such regard apart from the anecdotal
reference to some suicides and the subjective perception of the evil of
addiction.
111. Even if there was some material before the Assembly,
whether or not any discussion was held in such regard, the same may
have gone some distance in the State discharging its onus and the
court yielding to the wisdom of the legislature in a matter pertaining to
the larger public good. But the State does not even attempt to indicate
what impelled it to bring in such sweeping changes to a statute that
was originally intended to curb any wager on an outcome of chance.
The State makes no endeavour to demonstrate that any lesser form of
curbs may not have sufficed. It is in such light that the impugned
legislation must be seen to be so unreasonable as to be branded as
manifestly arbitrary, particularly against the backdrop of the judicial
pronouncements that hold the field.
112. More often than not, laws are enacted in this country
without adequate research or empirical studies being conducted to
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
assess the impact thereof or the ability of the law to tackle the
mischief intended to be eradicated and far too often the good is
clubbed with the bad as there is no informed alternative to choose
from. 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.
113. It is true that, broadly speaking, games and sporting
activities in the physical form cannot be equated with games
conducted on the virtual mode or in cyberspace. However, when it
comes to card games or board games such as chess or scrabble, there
is no distinction between the skill involved in the physical form of the
activity or in the virtual form. It is true that Arnold Palmer or
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
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.
114. 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.
115. The present matter does not turn merely on the two games
named in Section 3-A of the amended Act being regarded as games of
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
skill. 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.
116. That does not imply that some form of regulation, or even
prohibition in some limited respects, may not be brought in by the
State legislature in respect of the field of betting and gambling in
Entry-34 of List II of the Seventh Schedule to the Constitution. But, it
may be better not to take a chance or gaze into the future in respect
of an uncertain event or traverse into the forbidden arena of advance
ruling. 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
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
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.
117. The manner in which the matters are specified in the
Entries in the Lists in the Seventh Schedule to the Constitution calls for
special attention. Article 246 of the Constitution refers to the Entries
in the various lists as “matters enumerated”. The Entries are also seen
to be fields in which the competent legislature may legitimately
legislate. Several of the Entries, however, cover many matters. The
use of the punctuations comma and semi-colon and the conjunction
“and” in the Entries appear to be with a deliberate design and tell their
own story: that when several matters are mentioned in an entry with
either the conjunction, when there are two matters, or with both the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
comma and the conjunction, when there are more than two matters,
such matters indicate the breadth of the field covered by the Entry: for
example, Entries 4, 5 and 6 of List I and Entries 16 and 31 of List II.
But where the punctuation semi-colon is used between two sets of
matters, the Entry indicates allied or related fields but distinct
nonetheless: for example, Entries 2, 19 and 41 in List I and Entries 10
and 15 in List II.
118. It is in such light that “Betting and gambling” in Entry 34 of
the State List has to be seen, where betting cannot be divorced from
gambling and treated as an additional field for the State to legislate
on, apart from the betting involved in gambling. Since gambling is
judicially defined, the betting that the State can legislate on has to be
the betting pertaining to gambling; ergo, betting only on games of
chance. At any rate, even otherwise, the judgments in the two
Chamarbaugwala cases and in K.R. Lakshmanan also instruct that the
concept of betting in the Entry cannot cover games of skill. Although
the State could contend with some degree of justification that its
legislative competence extends beyond Entry 34 by drawing on, for
instance, Entries 1, 26 or 33, in such event, the State should have
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
discharged the burden of establishing proportionality. For reasons
detailed in preceding paragraphs, by imposing a wide-ranging blanket
ban, the State has completely failed to meet the “least intrusive”
measure test and, therefore, the impugned amendment falls foul of
Article 19(1)(g) of the Constitution.
119. In the State bringing in the Ordinance in November, 2020,
which was later adopted as the Amending Act, the legislature erred in
expanding its field of legislation by widening the scope of gambling and
ascribing a connotation to betting that the relevant Entry in the State
List does not envisage. It is true that the Entry “Betting and gambling”
appears, at first blush, to cover the possible distinct fields of betting
and gambling; but the law as declared defines gambling as a game of
chance which skill cannot control; and, the authority conferred on a
State legislature by the relevant Entry appears to be confined to the
arena of betting in games of chance. Viewed in such perspective, the
impugned legislation does not appear to be genuinely referable to the
field of legislation allotted to the State under Entry-34 of the State List.
120. At the same time, the Amending Act and the law laid down
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
on the subject in a plethora of judgments are so inconsistent and
irreconcilable that both cannot stand together. Even the Law
Commission’s recommendations stressed on regulation and not
prohibition. In the chit fund case of Narayana Aiyangar that the State
has relied on, the emphasis is on the need for regulation in the
interests of the public. There is no doubt that M.J. Sivani read the word
“gaming” in a wider sense when it observed that “a game of pure
chance or mixed chance and skill, it is gaming”; but such dictum of a
two-Judge Bench rendered in 1995 must be seen to have been
tempered by the clear enunciation of the law in such regard in the later
judgment of K.R. Lakshmanan, rendered by a three-Judge Bench,
when it observed that gaming would mean wagering or betting on
games of chances and it “would not include games of skill …”. Again,
M.J. Sivani upheld a legislation that the Supreme Court described to be
“to regulate running of the video games”.
121. In the light of the foregoing discussion, the legislation
assailed herein has to be regarded as something done by the
legislature capriciously, irrationally and without adequate determining
principle such that it is excessive and disproportionate, to borrow the
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
words of Shayara Bano.
122. The doctrine of severability would also not apply in the
present case as the concept of the expanded meaning of gaming runs
through the entirety of the Amending Act; so much so that it cannot be
gauged with any element of certainty as to which part of the
amendments the legislature would have intended to be retained as
valid even if the legislature was aware that some parts thereof were
invalid. In fine, it must be said that the Amending Act in its application
to the Act of 1930 is so disproportionate to the objects that it sets out
to achieve that no meaningful part of it – even a sliver – can be
reasonably allowed to be retained or upheld as valid.
123. Accordingly, the impugned Part II of the Tamil Nadu
Gaming and Police Laws (Amendment) Act, 2021 (Act 1 of 2021),
which amends the Tamil Nadu Gaming Act, 1930, is declared to be
ultra vires the Constitution in its entirety and struck down as a
consequence. Nothing herein will prevent an appropriate legislation
conforming to the constitutional sense of propriety being brought in
the field of betting and gambling by the State.
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
124. W.P.Nos.18022, 18029, 18044, 19374, 19380 of 2020,
7354, 7356 and 13870 of 2021 are allowed as indicated above. As a
consequence, W.M.P. Nos.22409, 22411, 23962, 22389, 22391,
23398, 22400, 22370, 22372, 22373, 22374, 22404, 22408, 23964,
23965, 23969, 23970, 23971 of 2020, 7968, 7976 and 7983 of 2021
are closed. Whatever the financial losses the petitioners may have
faced, since the object of the exercise by the State cannot be seen to
be as pernicious as the law enacted for the purpose was, there will be
no order as to costs.
(S.B. CJ.) (S.K.R.,J.)
03.08.2021
Index : Yes
Internet : Yes
sasi
____________
https://www.mhc.tn.gov.in/judis/
W.P.Nos.18022 of 2020 etc.
THE HON’BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY,J.
(sasi)
W.P.Nos.18022, 18029, 18044, 19374,
19380 of 2020, 7354, 7356 and 13870 of 2021
3.8.2021
____________
https://www.mhc.tn.gov.in/judis/
