COMMENTARY

Economic & Political Weekly EPW NOVember 30, 2013 vol xlvIiI no 48
13
A draft of this article rst appeared in two
parts on the blog Polity in India.

Raadhika Gupta (raadhika.gupta@post.
harvard.edu) is a research associate at Jindal
Global Law School, Sonipat.
Legalising Betting in Sports
Some Reections on Lawmaking
Raadhika Gupta
The debates on legalising betting
in sports against the backdrop
of the Indian Premier League
scandal evoke two broader
questions regarding our law and
policymaking, and the way we
respond to scandals such as these.
First, what moral authority does
the state have to ban conduct
such as betting? Second, should
inefcacy of law be a valid
ground to repeal or change
the law?
T
he recent betting and match xing
scandal of the Indian Premier
League (IPL) has brought shame to
the country and the sport. It has also com-
pelled the lawmakers to re-examine their
laws and policies to check such practices.
One of the solutions being offered is to
legalise betting in sports in India.
1
It is be-
lieved that the ban on betting is impossible
to be fully implemented and the legalisa-
tion will help regulate betting, instead of
driving it underground, allow regulated
betting to act as a potential source of
funds, and help reduce instances of match-
xing and spot-xing.
Even while this IPL scandal has exposed
intricate links between xing and bet-
ting, the latter is being proposed as a
solution to the former. There is a differ-
ence between xing and betting. I do
not think anyone would support legal-
ised or regulated xing. Fixing is de-
plorable; it turns a match to a scripted
episode, denies honest players a chance
to win (or lose) a game on their effort (or
the lack of it), and undermines the faith
the fans repose in the game and the play-
ers. However, legalisation of betting in
sports is being seen as one of the solu-
tions to mitigate the practice of xing.
Legalisation of Betting
There are mixed reactions to this pro-
posal to legalise betting. On one hand, it
seems that betting causes xing, because
bookies are willing to pay players and x
the game to make substantial prots by
changing the odds in their favour and
winning bets. On the other hand, it is
argued that legalisation will help monitor
the conduct of bookies, take betting away
from criminals to nanced bookies, who
have incentive to report corruption, and
provide regulatory authorities with a
data source to rely on when investigating
cases of suspicious bets and xing.
2

It is also argued that the law should
rather allow controlled betting than
waste resources imposing a blanket ban,
which in any case, is impossible to be ful-
ly implemented.
3
Whether legalisation of
betting will actually help check xing or
not is debatable. It is argued by some that
such experiments in the past have not
worked, for example, xing exists in foot-
ball even in countries where betting is le-
gal, and spot-xing occurred in cricket in
England in 2010 involving Pakistani play-
ers, although betting is legal in England.
4

Here, I do not want to pronounce upon
the merit of this proposal. These recent
debates evoke two broader questions
regarding our law and policymaking and
the way we respond to scandals such as
these. First, what moral authority does
the state have to ban conduct such as
betting? And second, should inefcacy
of law be a valid ground to repeal or
change the law?
States Moral Authority
The debate on legalisation of betting rais-
es interesting questions around the moral
authority of the state to ban betting.
There is no doubt that the state has legal
authority to pass laws on betting. Entry 34
of the State List in the Constitution allows
states to make laws on betting and gam-
bling and Entry 62 allows imposition of
taxes on such luxuries. Further, Entry 40
of the Union List allows the centre to reg-
ulate lotteries. But should a state interfere
in activities such as betting by criminalis-
ing such conduct?
What could be the justications behind
criminalisation of betting? Criminal law
is usually invoked in cases involving a
public wrong, causing a harm or threat
of harm to another person. However, in
case of betting, it is possible that two
parties consensually enter into a betting
arrangement, where one loses and the
other wins, and there is no harm caused
to anyone else. Some acts are criminal-
ised based on the threat to the unity and
integrity of the nation, like the offence
of sedition. It is unlikely that betting
poses such a risk. The state also some-
times criminalises conduct that it per-
ceives as immoral or which is likely to
offend the morality of the society. The
law criminalising homosexual conduct
was one such law. It is debatable if
betting is considered immoral in this
COMMENTARY
NOVember 30, 2013 vol xlvIiI no 48 EPW Economic & Political Weekly
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sense, and also whether the state can or
should pass laws illegalising conduct
which is immoral but may not be harm-
ful or violative of any persons right. If
betting is a victimless crime, the debate
over its legalisation raises interesting
questions around the liberty of citizens,
the governments role in modern India and
the legitimacy of the state to take deci-
sions on behalf of the people to prohibit
acts it considers undesirable. Interestingly,
the Constituent Assembly debates reveal
the intention of Constitution-makers to
prohibit betting. The insertion of the
entry on betting and gambling was
opposed on the ground that such inser-
tion might lead to legalisation of such
activities. One of the members, Shri
Lakshminarayan Sahu, argued that men-
tion of such activities should have no
place in a Constitution built on the ideals
of truth and non-violence practised by
Mahatma Gandhi. It was when chair-
man Ambedkar claried that insertion
of the entry will, in fact, empower the
state to prohibit such activities, that the
motion to insert the entry was passed.
5
The negative stance towards betting
and some of the justications behind its
criminalisation are visible in Supreme
Court judgments. The Court has referred
to the Vedas, Mahabharat and other
ancient texts to conclude that the Indian
lawmakers have always viewed gambling
as a sinful and pernicious vice. Such
practices leave people indebted and
homeless, disrupt families, destroy wealth,
disavow values like honesty and truth
and lower the standard of living. Inter-
estingly, there were also references to
texts like that of Kautilya who would
have allowed regulated gambling and
enabled the state to earn revenue from
it. The Court has developed a distinction
between games of chance and games of
skill and allowed games such as horse
racing and rummy to legally exist as fall-
ing in the category of games of skill.
6
Irrespective of whether betting in crick-
et is a game of chance or skill, should a
state prohibit even games of chance?
Should it be the states business to crimi-
nalise activities to ensure that people
spend their time and money in productive
activities instead of getting addicted to
wasteful acts which might have some
negative effects in society? What about ac-
tivities like drinking and smoking, which
are perhaps more harmful than betting,
in terms of harming the person doing the
act, disrupting families, increasing risk of
other crimes, and involving much larger
number of people. Even if it may not in-
volve any skill, betting might be a form of
private entertainment for some people.
This also raises the question whether
criminal law is the appropriate law to
regulate betting. Undesirable conduct in
society can be regulated through other
means such as civil law, tort law and tax
law. Criminal law involves a higher level
of condemnation of a conduct. Should
betting be subject to that?
There is an implicit assumption about
the illegality of betting in the Constituent
Assembly debates and the Supreme Court
judgments. The recent debates on legali-
sation of betting have also largely failed
to engage with the wider questions
about the states moral authority to ban
betting. The debates have largely fo-
cused on the practicalities of implemen-
tation and the economics of regulation.
The exercise of the power of the state to
ban or regulate the conduct has re-
mained unquestioned. While there is no
doubt that such practical concerns are
signicant, the questions around the
role of the state and liberty of the peo-
ple are more interesting. As a state, In-
dia needs to consider if it should deal
with certain private acts which may
have some negative offshoots for society
through the medium of law, and, if yes,
what will be the best legal strategy to
regulate such conduct.
Efcacy of Betting and Fixing Laws
Two common justications behind legali-
sation of betting are that a betting ban is
impossible to be implemented and legal-
isation will help control instances of
spot-xing and match-xing. I want to
question whether inefcacy of a law
(i e, whether a law is generally followed
by people) should be a valid ground to
repeal or change the law. Assuming
these justications are, in fact, correct,
should that be a good reason to legalise
betting? There are two aspects of the
efcacy argument involved here: one,
betting laws themselves are incapable of
being fully enforced; and two, legalisa-
tion of betting will make another law
(anti-xing law) more efcacious.
Beginning with the rst aspect, I
believe that the argument in favour of
changing betting laws due to their non-
enforceability has been received quite
comfortably and without much challenge.
Similar arguments to legalise conduct or
relax norms because of the perceived im-
possibility to implement them have been
made in other contexts like prostitution
and illegal migration. In India, many laws
remain unenforced and many crimes hap-
pen despite strict criminal laws. I do not
believe anyone would argue that we
should, for instance, legalise rape just be-
cause rapes will anyway continue to oc-
cur. What about anti-piracy measures un-
der copyright laws? Besides, when dec-
ades-old laws on banning betting has re-
main unenforced, there can certainly be
no guarantee that a law regulating betting
will get enforced and will not suffer from
problems of corruption or inefciency.
Of course, no one is so nave as to
argue for legalisation on the sole ground
that implementation is not possible.
However, we need to examine if this
should be a ground at all. I feel there is
some laziness involved in making the
argument to change laws just because
they are not being implemented. The
fact that we can argue for legalisation of
prostitution, but not rape has got noth-
ing to do with implementation, but about
substantive questions about what con-
duct we consider legal and illegal. I am
not saying that the consideration of
actual enforcement of a law is irrelevant
to lawmaking. However, the fact of in-
efcacy triggers a host of other issues
that should be considered; by itself in-
efcacy and non-implementation are not
the grounds to change a law.
So what are these other considerations?
At rst, we need to examine if a law is
actually impossible to be enforced.
Many laws may be easy to make but dif-
cult to implement. Is the question really
about the impossibility of enforcement
or inadequacy of our enforcement mecha-
nisms? Road trafc laws may be impossi-
ble to be fully implemented, but when
they are strictly and correctly enforced by
concerned authorities through nes and
COMMENTARY
Economic & Political Weekly EPW NOVember 30, 2013 vol xlvIiI no 48
15
other penalties, these laws may become
more efcacious. Legal philosopher Hans
Kelsen has a fascinating point of view on
this. He states that the validity of a law is
not conditional on the law being efca-
cious.
7
In fact, according to him, if a norm
is anyway followed by all, then the enact-
ment of the very law is meaningless.
8
This
indicates that some discord between the
law and reality is bound to exist. We may
think of ways to make existing enforce-
ment mechanisms better or consider adop-
ting different enforcement mechanisms,
without changing the substantive law.
Non-efcacy may help us question
some more substantive aspects as well.
We may look at the mischief that the
law seeks to remedy and reconsider if we
really do want to regulate that mischief.
For example, as stated above, it may be
considered whether the state should
criminalise victimless conducts like bet-
ting. If yes, what is the best way to address
the mischief stricter criminal laws as
was done in recent amendments on rape
laws,
9
or decriminalisation coupled with
regulation as is being argued in the case
of betting? If majority of people are diso-
beying a law, it might be a good ground
to examine our motives and strategies,
but not by itself to change the law.
We also need to consider some of the
side-effects of existing laws. Arguments
for relaxation in betting (and prostitution
and migration) laws involve not only the
continuation of the banned conduct, but
also that these laws drive illegal conduct
underground, furthering the mischief.
Drawing from Justice O W Holmes bad
man theory,
10
instead of eradicating the
evil, the law may instead drive the bad
man to engage in it more clandestinely,
causing greater harm. This brings us to
the second aspect that legalisation of
betting will help address the bigger
problem of xing. The argument is to
decriminalise one conduct to check
another crime, probably a higher evil
(like relaxed migration laws may help
reduce vulnerability of migrants to ex-
ploitation and forced prostitution). Again,
rather than treating this as a ground for
legalisation itself, there is a need to
examine the motives and regulation
strategies of the conduct sought to be
legalised. There is also a need to examine
the strategies being used to counter the
higher evil, in this case, xing. What other
possible strategy may prevent a bad man
from engaging in a wrongful conduct? If
the motives behind criminalising the
lesser evil are justied, the improved
efcacy of the other law cannot by itself
be a ground for decriminalisation.
Thus, while concerns around efcacy
and non-implementation are valid, we
need to use these concerns to question
and address the more signicant issues.
If the real problem lies elsewhere, we
must not lazily use these as excuses to
change the law.
While the IPL betting and xing scan-
dal has got people thinking about differ-
ent ways to control betting and xing,
these debates have ignored certain bigger
questions. We need to question both the
moral authority of the state in prohibiting
and banning certain acts and also our
own reasoning when we demand change
in our laws. Perhaps we should use mo-
ments of legal uncertainty and possible
change such as these to engage with these
larger questions on the ethics of lawmak-
ing in India.
Postscript
The recent comments on legalisation of
betting made at the session on ethics and
integrity in sports organised by the Cen-
tral Bureau of Investigation (CBI) on 12
November 2013 revived the debate on
this issue. While former cricketer Rahul
Dravid commented that betting should
be legalised if it leads to better govern-
ance and lesser corruption,
11
CBI Director
Ranjit Sinha created a controversy by
drawing comparison bet ween betting
and rape. In my article I argued that inef-
cacy and non-implementation of laws
by themselves cannot be grounds to
change the law and legalise an activity
like betting. For instance, no one could
argue for legalising rape just because
rapes continue to occur despite criminal
laws. However, allegedly, Sinha in fact
made this shocking argument when,
while making a case for legalising bet-
ting since the ban cannot be enforced,
he said: do we have the enforcement
agencies it is very easy to say if you
cant enforce it, it is like if you cant pre-
vent rape, enjoy it. It is better to legalise
it and earn some revenue rather than
throwing your hands up and letting
things happen as it were.
12
He later
claried that he was in fact trying to use
the context of rape to argue that simply
because laws cannot be enforced does
not imply that laws should not be
made.
13
Either ways, the entire episode-
exposes the absurdity of the argument
that an activity should be legalised
merely because laws have failed in their
implementation.
Notes
1 Amit Shanbaug (2013), Legalise Betting to
Counter Spot-xing: FICCI, The Economic
Times, 24 May, viewed on 14 June 2013, availa-
ble at: http://articles.economictimes.indiatimes.
com/2013-05-24/news/39502130_1_cci-regu-
lation-sports-development
2 Ian Preston, Stephen Ross and Stefan Szymanski
(2013), IPL Spot Fixing: Is Legalising Betting
the Answer, The Economic Times, 26 May, viewed
on 14 June 2013 (http://articles.economictimes.
indiatimes.com/2013-05-26/news/39538279_
1_corruption-county-and-international-cricket
-ipl).
3 Amit Shanbaug (2013) op cit.
4 Alam Srinivas (2013), An Intelligent Readers
Guide to IPL, Betting and Fixing, 1 June,
viewed on 14 June 2013 at http://www.cricket-
country.com/cricket-articles/An-intelligent-
reader-s-guide-to-IPL-betting-and-xing/27298
5 Constituent Assembly Debates, Volume IX,
2 September 1949.
6 Dr K R Lakshmanan vs State of Tamil Nadu, AIR
1996 SC 1153; State of Andhra Pradesh vs K Sa-
tyanarayana (1968) 2 SCR 387; State of Bombay
vs RMD Chamarbaugwala, AIR 1957 SC 699.
7 Andrei Marmor (2010), The Pure Theory of
Law in Edward N Zalta (ed.), The Stanford
Encyclopedia of Philosoph, viewed on 14 June 2013
(http://plato.stanford.edu/archives/fall2010/
entries/lawphil-theory).
8 Hans Kelsen (2007), The Dynamic Aspect of
Law, The Philosophy of Law, viewed on 14 June
2013 (http://www.philosophy.hku.hk/cours-
es/law/KelsenNormValidity.htm).
9 21 March 2013: Tougher Anti-Rape Law Gets
Rajya Sabha Approval, The Hindustan Times,
viewed on 14 June 2013 (http://www.hindus-
tantimes.com/India-news/NewDelhi/Anti-rape-
bill-gets-Parliament-nod/Article1-1029926.aspx).
10 Oliver Wendell Holmes (1897), The Path of the
Law, Harvard Law Review, 10: 457.
11 PTI (2013): No Harm in Legalising Betting:
CBI Director, Livemint (12 November). Viewed
on 17 November 2013 (http://www.livemint.
com/Politics/TAcortXuJdfN9GNmPCCLXO/
No-harm-in-legalising-betting-CBI-director.
html).
12 Fitter, Pierre Mario (2013): What Ranjit Sinha
Should Have Said, India Today (15 November).
Viewed on 17 November 2013. (http://indiato-
day.intoday.in/story/what-ranjit-sinha-should-
have-said/1/325014.html).
13 Ghosh, Deepshikha (2013): Legalising Betting
Like Enjoying Rape: CBI Chief Ranjit Sinha
Regrets Statement after Backlash, NDTV (13
November). Viewed on 17 November 2013 (http://
www.ndtv.com/article/india/legalising-betting-
like-enjoying-rape-cbi-chief-ranjit-sinha-regrets-
statement-after-backlash-445301).