Orissa High Court Seeks State's Response In Plea Challenging Constitutional Validity Of Orissa Prevention of Gambling Act, 1955

The Orissa High Court on Monday issued notice on a plea challenging the constitutional validity of the Orissa Prevention of Gambling Act, 1955 for being manifestly arbitrary. The plea contended that the impugned legislation impinges on the right to practice any profession, trade or business as guaranteed under Article 19(1)(g) of the Constitution of India. 

A Bench comprising Chief Justice S. Muralidhar and Justice A.K Mohapatra directed the State to file its response in the matter within 8 weeks and accordingly listed the matter for further hearing on February 14. 

The plea moved by online gaming company Tic Tok Skill Games Pvt. Ltd contends that the impugned legislation imposes a 'blanket prohibition' on all games for stakes without any reasonable basis or classification. 

"State action, whether it be of the legislature or of the executive ought to be reasonable and non-arbitrary. The impugned Act is violative of Article 14 as it defies the concept of reasonableness and non-arbitrariness which form the edifice of the doctrine of equality as enshrined in Article 14", the plea stated. 

The petitioner further placed reliance on the Supreme Court judgment in RMD Chamarbaugawala v. Union of India wherein the Apex Court had held that games which substantially involves skills are not gambling activities and are protected under Article 19(1)(g) of the Constitution. It was also averred that the impugned legislation violates the freedom of speech and expression of the petitioner guaranteed under Article 19(1)(a) of the Constitution as it imposes unreasonable restrictions on the petitioner's right to offer content to the public. 

The plea also underscores that the impugned legislation impinges on the distribution of legislative powers as enshrined in Part XI of the Constitution as under Entry 34 of List II, the State does not have the legislative competence to regulate games of skill but can only regulate games of chance. 

"A blanket prohibition of games without any distinction between games of skill and games of chance fall foul of the doctrine of proportionality and the blanket ban imposed on all gaming in the State does not have any rational connection to prevent the vice of gambling and as such all games of skill also get banned on account of such blanket provisions, thereby directly infringing the fundamental right to practice any trade and occupation guaranteed under the Constitution of India", the petitioner further asserted. 

The petitioner also accused the State for succumbing largely to populism without giving due credence to the dynamic realities of the present socio-economic realities surrounding digital games particularly those involving skills. The impugned Act is 'paternalistic' and results in excessive control over all forms of games on a baseless apprehension that absence of State control would lead to an unbridled rise in the problem of gambling, it was further averred. 

Thus, the plea prays for the Orissa Prevention of Gambling Act, 1955 to be struck down for being unconstitutional and in violation of the law laid down by the Supreme Court. 

In a related development, the Karnataka High Court is currently hearing a batch of petitions challenging the constitutional validity of the Karnataka Police (Amendment) Act, 2021 by which the State government has banned all online gambling and betting and provide for maximum imprisonment of 3 years and penalty upto Rs 1 lakh for violation of its provisions. Furthermore, the Kerala High Court last month ruled that online rummy played either with stakes or without stakes remains to be a 'game of skill' while quashing an amendment to a government notification issued under Section 14A of the Kerala Gaming Act, 1060. Similarly, the Madras High Court in August 2021 had also clarified that both rummy and poker are games of skill and had accordingly struck down the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021. 

The petitioner has been represented by Advocates Abhishek Malhotra and Soumitra Bose from TMT Law Practice. 

Case Title: Tic Tok Skill Games Pvt. Ltd & Ors v. State of Odisha