'Rummy & Poker Are Games Of Skills' : Madras High Court While Striking Down Online Gaming Ban

The Madras High Court on Tuesday struck down the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 which imposes a ban on playing of games such as rummy and poker on cyberspace with stakes. Section 11 of the impugned legislation also banned games of 'mere skill' if such games are played for wager, bet, money or other stake.

A Bench comprising Chief Justice Sanjib Banerjee and Justice Senthikumar Ramamoorthy was adjudicating upon a batch of petitions filed by gaming companies who offer access to card games like rummy and also poker on virtual platforms.

The petitioners had contended that the impugned legislation by prohibiting even games of skills if played for any prize or stakes violates Article 19(1)(g) of the Constitution (right to practise any profession or to carry on any occupation, trade or business). Reliance was also placed on the Madras High Court judgement in Dr.K.R.Lakshmanan v. State of Tamil Nadu wherein a 'game of skill' had been explained in the context of placing bets on horse racing. It was held in that particular case 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 High Court had observed that golf, chess "and even rummy" were considered to be games of skill.

"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"

Upon a perusal of the rival submissions, the Court observed that betting in its original sense cannot be divorced from gambling since the risk-taking element in gambling is betting. Furthermore, it was also opined that there lies no distinction between chance and skill or the preponderance of either in an activity which may be seen and understood to amount to gambling.

"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 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", the order stated.

Furthermore, the Court observed that 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. Whereas, a 'game of skill' on the other hand includes the exercise of skill that can overpower that 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", the Court opined.

Reliance was also placed by the Court on the Supreme Court decision in Dr.K.R.Lakshmanan v. State of Tamil Nadu wherein it was held that a game of skill is distinct from a game of chance and if there is preponderance of the skill element involved, then the concerned activity would be protected by Article 19(1)(g) of the Constitution and that competitions involving games of skill must be regarded as business activities.

Furthermore, the Court opined that the sweeping ambit of Section 3-A of the amended Act of 1930, coupled with the expansive definition of "gaming" eliminates any chance of display of skill in any game if any stakes are involved.

"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 Court further observed.

Accordingly the Court held that games such as rummy and poker cannot be banned by the impugned legislation and that the legislation is 'manifestly arbitrary' and ultra vires of the Constitution.

Case Title: Junglee Games India Private Limited v. State of Tamil Nadu

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