__________________________________________________

1st SYMBIOSIS LAW SCHOOL, NAGPUR, NATIONAL MOOT

COURT COMPETITION, 2020

BEFORE THE HONOURABLE SUPREME COURT OF INDILAND

IN THE MATTER OF:

STATE OF TOTOMOTO………………….………PETITIONER

VS.

UNION OF INDILAND & ANR..…….…………RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

1
 TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………....2

TABLE OF ABBREVIATIONS…………………………………………………….4

TABLE OF AUTHORITIES………………………………………………….……..5

STATEMENT OF JURISDICTION…………………………………………….…..8

STATEMENT OF FACTS…………………………………………………….……9

STATEMENT OF ISSUES…………………………………………………….…..11

SUMMARY OF ARGUMENTS……………………………………………….….12

ARGUMENTS ADVANCED………………………………………………….….14

1. CRIKSAGA & OTHER ONLINE FANTASY SPORTS GAMES ARE NOT

DETRIMENTAL TO SOCIETY……………………………………….14
 Online fantasy games are not the same as gambling
 Such games help in economic growth of a county.
 Higher engagement of fans- a deeper connection between sports fans and real
life sports.

2. THE TOTOMOTO ONLINE GAMING ACT 2019 IS

UNCONSTITUTIONAL……………………………………………...19
 Violation of article 19(1)g of the constitution
 Violation of article 20 of the constitution
 Violation of article 21 of the constitution

3. THE TOTOMOTO ONLINE GAMING ACT 2019 IS AGAINST THE

CRIMINAL JURISPRUDENCE PREVALENT IN
INDILAND……………………………………………………………23
The act has violated basic principles of criminal jurisprudence:

2
  That the onus ties affirmatively on the prosecution to prove its case beyond
reasonable doubt and it cannot derive any benefit from weakness or falsity of
the defence version while proving its case;
 That in a criminal trial the accused must be presumed to be innocent until he
is proved to be guilty; and
 That the onus of the prosecution never shifts.

4. THE STATE IS LEGISLATIVELY NOT COMPETENT TO ENACT THE

ACT SUBJECTIVELY & TERRITORIALLY………………………………….25
 The state could not, by implication, interpret ‘betting and gambling’ to include
skill-based games & thereby derive the competence to legislate on the same.
 The central govt. is endowed with the exclusive right under constitution to
enact laws, and gaming through the online medium fell within their
description. Thus the central govt. had the exclusive legislative competence to
regulate online gaming.

5. THE BILATERAL INVESTMENT TREATIES ENTERED INTO BY THE

REPUBLIC OF INDILAND IS CONSTITUTIONAL…………………27
 Treaties are signed by union of indiland with other countries in order to save
the economy and to increase employment in the country.
 Union government has certain powers like entering into treaties and
agreements with foreign countries and implementing of treaties, agreements
and conventions with foreign countries.

6. PRAYER……………………….………………………………………….29

3
 TABLE OF ABBREVIATIONS

AIR ALL INDIA REPORTER

GOVT. GOVERNMENT

HON’BLE HONOURABLE

H.C HIGH COURT

LTD. LIMITED

PIL PUBLIC INTEREST LITIGATION

ART. ARTICLE

S. SECTION

S.C SUPREME COURT

S.C.C SUPREME COURT CASES

U.O.I UNION OF INDIA

V./VS. VERSUS

& AND

S.C.R SUPREME COURT REPORTS

D.M.C DISTRICT MUNSIF COURT

P.G.A PUBLIC GAMBLING ACT

4
 TABLE OF AUTHORITIES

CASE LAWS

 VARUN GUMBER V. UNION TERRITORY OF CHANDIGARH CWP No. 7559 of

2017.

 GURDEEP SINGH SACHAR V. U.O.I, CR PIL ST.22.19.

 STATE OF ANDHRA PRADESH V. K. SATYANARAYANA AIR 1968 SC 825

 DR. K.R. LAKSHMANAN V. STATE OF TAMIL NADU, AIR 1996 SC 1153.

 STATE OF BOMBAY V. R.M.D. CHAMARBAUGWALA AIR 1957 SC 699

 HUMPHREY V. VIACOM 2007 BL 38423 (D.N.J. 2007).

 MANEKA GANDHI V U.O.I 1978 AIR 597, 1978 SCR (2) 621

 GAUSSIAN NETWORK PRIVATE LIMITED V. MONICA LAKHANPAL AND ORS

SUIT NO. 32/12

 THE DIRECTOR GENERAL OF POLICE V. MAHALAKSHMI CULTURAL

ASSOCIATION. SPECIAL LEAVE TO APPEAL (C) NO(S).15371/2012.

 HITENDRA VISHNU THAKUR VS. STATE OF MAHARASHTRA AIR 2623, 1994

SCC (4) 602

 INCOME TAX COMMISSIONER VS. VATIKA TOWNSHIP PRIVATE LTD. [2014]

49 TAXMANN.COM 249

 BOARD OF TRUSTEES OF THE PORT OF BOMBAY V. DILIPKUMAR

RAGHAVENDRANATH NANDKARNI AIR 1983 SC 109: (1983) 1 SCC 124

 OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION AIR 1986 SC 180

 RABINDRA KUMAR DEY VS STATE OF ORISSA 1977 AIR 170, 1977 SCR (1) 439

 JAIKRISHNADAS MANOHARDAS DESAI AND ANR. V. STATE OF BOMBAY

[1960] 3 S.C.R. 319. 324

5
 SUNIL KUMAR SHARMA VS STATE 139 (2007) DLT 407, I (2007) DMC 654

 KALI RAM VS STATE OF HIMACHAL PRADESH 1973 AIR 2773

 MANEKA SANJAY GANDHI V. RANI JETHMALANI 1979 AIR 468, 1979 SCR (2)
378

 ABDUL NAZAR MADANI V. STATE OF T.N AIR 2000 SC 2293

 M. KARUNANIDHI V. UNION OF INDIA (1979) 3 SCC 431

 MCCULLOCH V. MARYLAND 17 U.S. (4 WHEAT.) 316 (1819)

STATUTES
 PUBLIC GAMBLING ACT, 1867
 NAGALAND PROHIBITION OF GAMBLING AND PROMOTION AND
REGULARISATION OF ONLINE GAMES OF SKILL ACT, 2015
 THE SIKKIM ONLINE GAMING REGULATION ACT, 2008.
 THE ANDHRA PRADESH GAMING ACT, 1974
 TAMIL NADU GAMING ACT, 1930
 ASSAM GAMING AND BETTING ACT, 1970
 THE UNLAWFUL INTERNET GAMBLING ENFORCEMENT ACT OF 2006

BOOKS
 INDIAN CONSTITUTIONAL LAW, M.P JAIN
 CONSTITUTION OF INDIA, V.N SHUKLA
 THE CONSTITUTIONAL LAW OF INDIA, J.N PANDEY
 CRIMINAL JURISPRUDENCEM R. CHAKRABORTY

ONLINE SOURCES
 http://glaws.in/


 https://mobile.manupatra.in
 https://www.casemine.com/

6
  https://indiankanoon.org/

 https://sportsbetting.net.in/gambling-laws/

 http://www.sportslaw.in/reports/FantasySportsPublication-Web.pdf

STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Supreme Court of Indiland under Article 134A
of the Constitution of Indiland, 1950.1 The Respondent humbly submits to the jurisdiction of
this Hon’ble Court.

1
134A. Certificate for appeal to the Supreme Court.—Every High Court, passing or making a judgment,
decree, final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1)
of article 134—
(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or
making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or
making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of
article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that
case.

7
 STATEMENT OF FACTS

BACKDROP

The Union of Indiland has world’s largest democracy with the longest & most detailed
constitution. It is a diverse & dynamically populated South-east Asian country with several
religions & economic backgrounds. Despite its vast diversity, the country is united by one
sport, Cricket. Cricket being followed by 90% of the country’s population has contributed to
23% of its economy.

By 2015, the global market of Indiland was facing recession & hence came up with the policy
“Play in Indiland” in which it entered into Bi-lateral Investment Treaties with Governments
of Germaria, Sporarica & Frazilia to invest in Indiland by promoting business with respect to
or ancillary to Cricket.

CRIKSAGA- AN ONLINE FANTASY SPORTS GAME

MiracoTech Pvt. Ltd., a company registered in Sporarica, immediately upon the execution of
the Bi-lateral investment treaties set up a subsidiary in Indiland under the name & style of
“MiracoCric Indiland Pvt. Ltd.” (MIPL) in collaboration with Mr. Puyol, a celebrated
cricketer in Indiland & the promoter of MIPL. MIPL introduced its first product in Indiland,
which was a mobile based gaming app titled “Criksaga”.

Criksaga is an online fantasy sports game that involves selection of & competition among
virtual teams for points. These points can be redeemed in prizes, including money.  The App
was a booming success in Indiland especially in State of Totomoto where almost 75% of the
State’s population were enrolled on the App. Several other companies including a few
companies from Germaria, Sporarica & Frazilia developed & released in markets their own
apps similar to Criksaga. The virtual fantasy games became an instant hit & its impact was
visible on the economic growth of Indiland.

TOTOMOTO ONLINE GAMING ACT, 2019

However, after the app was launched, a large number of people were being affected due to
the amount of money that was being lost by them in the course of the game, mainly because
the said Apps were being viewed as being means of making easy money, this was causing

8
major distress in the society. Not only this, there were several reports of suicides & personal
insolvencies being attributed to the Apps. Taking these occurrences & reports into
consideration, the government of Totomoto has passed the Totomoto Online Gaming Act,
2019. The provisions of the Act seek to ban any app that concerns fantasy sports leagues &
additionally categorise the use of the Apps as a punishable offence. Following the ban, not
only a large number of users protested against the act claiming violation of their right to life
& personal liberty but the MIPL also, along with Mr. Puyol filed a Writ Petition before the
High Court for the State of Totomoto challenging the vires & constitutional validity of the
Act.

The state government however, through its Advocate General contended that the Court
should take into consideration the social aspect of the legislation like it encourages the act of
gambling & the absence of age restrictions which results in the corruption of young minds,
the app had sparked several cases of violence/deaths including suicides. It also categorically
contended that the State was well within its legislative competence to enact the Act both
subjectively & territorially.

PROCEEDINGS

Considering the submissions of the Counsels on all the sides & the material on record, the
High Court of State of Totomoto declared the Act unconstitutional as violative of
fundamental right & having been passed without any legislative competence. The High Court
also specifically records that the Apps were developed in furtherance of BITs & that were
instrumental in improving the economy of the nation & that the Act was impeding the
economic growth. Upon request being made by the Advocate General, the High Court issued
a Certificate of Appeal under the Indiland Constitution, thereby enabling the State to prefer
an appeal before the Supreme Court of Indiland.

The State of Totomoto accordingly filed an appeal before the Supreme Court of Indiland,
arraying MIPL, Mr. Puyol & Union of Indiland as Respondents. Apart from assailing the
judgment of the High Court on the grounds that the State of Totomoto in fact was
legislatively competent to enact the Act, the State of Totomoto also challenged the
Constitutional validity of the Bilateral investment Treaties entered into by the Republic of
Indiland on the ground that the said BITs acted as promoters of social evils such as gambling
& betting (as incidental to cricket related business) in the country & therefore the said BITs
being contrary to Public Policy.

9
 STATEMENT OF ISSUES

I. WHETHER CRIKSAGA & OTHER ONLINE FANTASY SPORTS GAMES

ARE DETRIMENTAL TO SOCIETY OR NOT.

II. WHETHER THE TOTOMOTO ONLINE GAMING ACT 2019 IS

UNCONSTITUTIONAL OR NOT.

III. WHETHER THE TOTOMOTO ONLINE GAMING ACT 2019 IS AGAINST

THE BASIC PRINCIPLES OF CRIMINAL JURISPRUDENCE PREVALENT
IN INDILAND OR NOT.

IV. WHETHER THE STATE IS LEGISLATIVELY COMPETENT TO ENACT

THE ACT SUBJECTIVELY & TERRITORIALLY OR NOT.

V. WHETHER THE BILATERAL INVESTMENT TREATIES ENTERED INTO

BY THE REPUBLIC OF INDILAND IS CONSTITUTIONAL OR NOT.

10
 SUMMARY OF ARGUMENTS

1. CRIKSAGA & OTHER ONLINE FANTASY SPORTS GAMES ARE NOT

DETRIMENTAL TO SOCIETY.

It is humbly submitted that such games are not detrimental to society as:

 It is not the same as gambling. Such games have been declared as games of skills
according to several S.C & H.C judgements2, and the PGA act creates an
important exception by stating that the provisions of the PGA shall not be held to
apply to any ‘game of mere skill’ wherever played.3
 It helps in economic growth of the country.
 Helps in forming a deeper connection between sports fans and real life sports.

2. THE TOTOMOTO ONLINE GAMING ACT 2019 IS UNCONSTITUTIONAL .

It is humbly submitted that the Totomoto online gaming act 2019 infringes:
 Art. 19(1)g of the constitution as conducting of games of skill falls under the
fundamental right to carry on trade or business.
 Art. 20(1) of the constitution as such games were not offences before the
commencement of this act, so there was no penalty. Hence it cannot be
subjected to a penalty greater than which might have been inflicted at that time,
so the retrospective effect to the act violates the article.
 Art. 21 of the constitution as the app could be a means of livelihood for some
people and it is the fundamental right of every citizen of this country to live with
human dignity, free from exploitation and practice any profession to support his
livelihood.

2
Varun Gumber v. union territory of Chandigarh, State of Andhra Pradesh v. k. Satyanarayana, Dr. K.R.
Lakshmanan v. State of Tamil nadu, State of Bombay v. R.M.D. Chamarbaugwala, to name a few.

3
Section 12 of the Public Gambling Act 1867.

11
 3. THE TOTMOTO ONLINE GAMING ACT 2019 IS AGAINST THE BASIC
PRINCIPLES OF CRIMINAL JURISPRUDENCE PREVALENT IN
INDILAND.
 It is humbly submitted that the S. 3.2 (i), (ii) and S. 3.3 of the act is in violation of
basic principles of criminal jurisprudence as the prosecution has to prove its case
beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of
the defence version while proving its case. Also, the accused must be presumed to be
innocent until he is proved to be guilty.

4. THE STATE IS LEGISLATIVELY NOT COMPETENT TO ENACT THE

ACT SUBJECTIVELY & TERRITORIALLY.

It is submitted to the Hon’ble court that:

 The state could not, by implication, interpret ‘betting and gambling’ to include skill-
based games & thereby derive the competence to legislate on the same.
 The central govt. is endowed with the exclusive right under constitution to enact laws
on posts and telegraphs, telephones, wireless, broadcasting and other forms of
communication. So gaming through the online medium fell within their description.
Thus the central govt. had the exclusive legislative competence to regulate online
gaming.4

5. THE BILATERAL INVESTMENT TREATIES ENTERED INTO BY THE

REPUBLIC OF INDILAND IS CONSTITUTIONAL.
 Treaties are signed by union of indiland with other countries in order to save the
economy and to increase employment in the country.5
 Union government has certain powers like participation in international conferences,
associations and other bodies and implementing of decisions made threat, also,
entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries.6

ARGUMENTS ADVANCED

4
Entry 31, list 1 (Union list), seventh schedule
5
Ar. 257 of the constitution
6
Seventh schedule, union list entry no. 13 &14

12
 1. CRIKSAGA AND OTHER ONLINE FANTASY SPORTS GAMES ARE NOT
DETRIMENTAL TO SOCIETY.
The Counsel humbly submits to the Hon’ble court that:

1.1. Online Fantasy Sports Games are not the same as Gambling.
 Game of skill or game of chance:
 A game of skill can be defined as any game or contest in which the designating
element of the outcome is the judgment, skill or adroitness of the participant in the
contest rather than pure chance. Such type of games encourage the user to understand,
experience and analyse aspects related to the game.7
 Fantasy sports like Criksaga requires the user to select a team based on the
application of their knowledge of the particular the sport and involves player
performance analysis. The results are dependent on the performances of each
individual player rather than of a single player thereby reducing the likelihood of luck.
It requires users to have an understanding of the game and a judgement of selected
players’ performance over the others. Thus, fantasy sports would be classified as a
game of ‘mere skill’ unlike gambling which is a game of pure chance.
 In the ruling of the High Court of Punjab and Haryana in the case of Varun Gumber
vs. Union Territory of Chandigarh and others8 it was held that playing fantasy sports
(i.e. a Dream11 game) involved a substantial degree of skill and did not amount to
gambling. The Court held that ‘the element of skill’ had a predominant influence on
the outcome of the game under consideration. Hence the Court adjudged that
Dream11 is a legitimate business activity protected under Article 19(1)(g) of the
Constitution of India.9
 In State of Andhra Pradesh v. K. Satyanarayana10, the Supreme Court held that the
game of rummy is not a game entirely of chance like the ‘three-card’ games (i.e.,
‘flush’, ‘brag’, etc.) which are games of pure chance. In all games in which cards are
shuffled and dealt out, there exists an element of chance, because the distribution of

7
24 F. 3d 56 - Wedges/ledges of California Inc v. City of Phoenix Arizona, OpenJurist, May 1994
8
CWP No. 7559 of 2017.
9
Legal Framework, Gambling and Sports betting including cricket in India, Law Commission of India, July
2018
10
AIR 1968 SC 825

13
 the cards is not according to any set pattern, but is dependent on how the cards find
their place in the shuffled pack. However, the Supreme Court concluded that rummy
is a game of skill, as the fall of the cards needs to be memorized and the building up
of rummy requires considerable skill in holding and discarding cards.
 In another similar case i.e. Dr. K.R. Lakshmanan v. State of Tamil Nadu,11 the
Supreme Court has held that betting on horse racing was a game of skill since factors
like fitness, and skill of the horse and jockey could be objectively assessed by a
person placing a bet. The relevant skill, therefore, in horseracing is the bettor’s ability
to assess the horse and jockey.
 In the Humphrey case, the plaintiff had claimed that the registration fees paid by
fantasy sports league participants constitute “wager” or “bets” and that the winners
are determined predominantly by chance (due to potential player injuries and other
chance circumstances). In dismissing the plaintiff’s complaint, the district court held
that fantasy sports are games of skill, depending on the fantasy participant’s skill in
selecting players for his or her team, adding and dropping players during the course of
the season and deciding who among his or her players will start and which players
will be placed on the bench.12
 The Supreme Court, in State of Bombay v. R.M.D. Chamarbaugwala 13 has interpreted
the words “mere skill” to include games which are preponderantly of skill and even if
there is an element of chance, if a game is preponderantly a game of skill, it would
nevertheless be a game of “mere skill”.
 The Hon’ble Madras High Court in The Director General of Police v. Mahalakshmi
Cultural Association,14 had opined that playing rummy without stakes is legal and if
the same is played with stakes, it would amount to gambling. However, on an appeal
against the above-mentioned decision of the Hon’ble Madras High Court, the Hon’ble
Supreme Court has stayed the operative portion of the decisions and has observed that
the decision of Madras High Court has nothing to do with online rummy.

 Games of skill are legal

11
AIR 1996 SC 1153
12
Humphrey v. Viacom, 2007 BL 38423 (D.N.J. 2007).
13
AIR 1957 SC 699
14
Special Leave to Appeal (C) No(s).15371/2012 (Arising out of impugned final judgment and order dated
22/03/2012 in WA No. 2287/2011 passed by the High Court of Madras)

14
  The Public Gambling Act, 1867 criminalises the act of ‘gambling’ in a public forum
and the keeping of a ‘common gaming house’, however, creates an important
exception in favour of games of skill, by stating that the provisions of the PGA shall
not be held to apply to any ‘game of mere skill’ wherever played.15
 The State of Nagaland introduced a licensed regime for skill games under Nagaland
Prohibition of Gambling and Promotion and Regularisation of Online Games of Skill
Act, 2015 (“Nagaland Gaming Legislation”). The Nagaland Gaming Legislation
expressly recognized, inter alia, “virtual sport fantasy league games” and “virtual
team selection games” as skill games.
 The State of Sikkim has also enacted a licensing regime for online games and sports
games through the internet within the state under the Sikkim act and the Sikkim
Online Gaming Regulation Rules, 2008.
 The Unlawful Internet Gambling Enforcement Act of 2006 in USA specifically
mentions fantasy sports as something allowed under the law, as long as people are not
betting on the outcome of a single game or the performance of a single player.

1.2. Such games help in the economic growth of a country.

 It is pertinent to note that has cricket has become one of the prime contributors to the
economy of the Indiland and contributed to almost 23% of its economy.

 The fantasy sport industry has emerged as a multi-billion dollar industry that has
become an important element not only to the sport industry as a whole 16 but to the
whole country.

 China-Largest gaming market is the largest gaming market with total revenue of USD
24.3 billion in 2016 while USA being the second largest with total revenue of USD
23.5 billion in 2016.

 The game has benefited media outlets like ESPN, Yahoo and CBS profoundly. It was
estimated that the total market impact of fantasy sports is somewhere between $40
billion to over $70 billion per year in tangible and intangible activity. These numbers

15
Section 12 of the Public Gambling Act 1867.
16
Fantasy Sports Trade Association, 2011

15
 continue to grow on an annual basis and do not appear to be slowing down anytime
soon. 17

 As stated by Dwyer & Kim (2011), “Fantasy sport participants also represent
corporate America’s most highly-coveted group of consumers.”18

 It’s a growing industry, estimated to be worth more than $7 billion a year in the US
and Canada and to have 59 million players.19

 Fantasy sports and the gaming industry in India has found different ways to encourage
fan engagement in various sports across India. The industry is already worth INR 43.8
billion and is said to reach INR 118.8 billion by FY23 with a growth rate of CAGR
22.1%. 

 There has been considerable increase in the Indian betting market which can be
evidenced from the report issued by International Centre for Sports Security (“ICSS”),
where ICSS claims that the betting market in India could be worth over US$130
billion.

1.3. Higher engagement of sports fans-A deeper connection between sports

fans and real life sports.
 It is pertinent to note that Cricket in Indiland had been scrupulously followed by
more than 90% of its population and several people considered it as a religion in
Indiland. Criksaga was a booming success in Indiland with people across the
country playing it across all age groups. More than 60% of the Indiland
Population were involved/enrolled on the App. The success of the App was even
more evident in State of Totomoto where almost 75% of the State’s population
were enrolled on the App.
 The fantasy sport revolution has changed how fans consume sports. Relative to
the general fan, fantasy participants attend more games and watch more televised
sports.20

17
Goff, 2013
18
Caucasian, Male, 18-45, Bachelor’s Degree and $78,000 annual income
19
Acc. to Fantasy Sports Trade Association
20
FSTA, 2006

16
  As an example, there have been studies that show that in the United States, when a
sports user evolves into a fantasy sport user, he or she consumes 80 percent more
sports.21
 89% of fantasy sports games users are logging into the game platform or the
official app at least once per month. The average time spent on the platform is
approximately 40 minutes, which provides enough time for the league and its
official partners to engage.22
 In 2013 there were 33,559,990 fantasy sport participants in the United States
alone, this figure is the highest annual figure since the establishment of organized
fantasy sports. It was calculated that the average fantasy sport user spends about
$111 a year on league due’s, strategy guides, and single game challenges.23
 It is not just Americans who are participating in fantasy sports. Fantasy sports
have made a splash on the international stage. American participants were joined
by 3.1 million Canadian participants 24. Other parts of the world such as Europe,
India, and South America have also enjoyed what fantasy sports have to offer and
have been playing fantasy sports more forming to their respective cultures such as
fantasy cricket, fantasy soccer, and fantasy rugby.25
 Growth in digital infrastructure: Over the last two years, the number of internet
subscribers has grown from 368 million in September 2016 to 560 million in
September 2018, of which 86 per cent were broadband subscribers. Also, during
the same period, average data usage per subscriber increased significantly due to
the availability of affordable smartphones/smart feature phones coupled with
rapidly falling data costs. This growth in digital infrastructure has led to the
availability of high speed internet in the hands of the Indian masses, helping drive
growth in fantasy sports. The option of playing the sport on a handheld device and
at any given point irrespective of location and time has significantly helped the
user engagement around fantasy sports.26
21
Fantasy sports to have 100 million users in India by 2019, the journey has just begun, Financial Express,
June 2018; accessed on 1 February, 2019
22
Nielsen report & the FSTA
23
Flanigan, Michael, "How Fantasy Sport Participation Affects Fan Loyalty" (2014). Sport Management
Undergraduate. Paper 50.
24
Fantasy Sports Trade Association, 2011
25
Ankeny, 2009
26
The Indian Federation of Sports Gaming (IFSG), India’s first self-regulatory industry body for the sports gaming sector,
and KPMG India Private Limited (KPMG) launched a report on the ‘The Evolving Landscape of Sports Gaming in India’
at.

17
  Dwyer & Yong Jae (2011) gave certain motivational factors for why individuals
participate in fantasy sports. The first motivational factor is called the
entertainment/escape motive. This motive represents participation for enjoyment
of the activity as well as the distraction it creates during the participant’s everyday
lives. Another motivational factor for fantasy sport participation is competition.
The competition motive exemplifies participation not only to win each week, but
encouraged by the need to make the competition aware their superiority. The third
motivational factor for participation in fantasy sports is social interaction. Social
interaction is a key element in participation. This motive involves establishing,
preserving, or renewing relationships with family, friends, and/or co-workers.27

2. THE TOTOMOTO ONLINE GAMING ACT 2019 IS UNCONSTITUTIONAL.

The Counsel humbly submits to the court that:

2.1. The Act violates Article 19(1)g of the constitution of Indiland.

 As given in Art. 19(1)g, every citizen has the right to practise any profession, or to
carry on any occupation, trade or business. Games involving substantial skill are
business activities deserving protection under Art. 19(1)(g).28
 In 1996, The Supreme Court maintained that betting on horseracing by owners for a
prize was a game of skill and cannot be included under the ambit of gambling. The
Court added that such a sport of horse-racing and the betting carried on by owners
would be granted the fundamental right of freedom of trade guaranteed under Art.
19(1) (g) of the constitution.29
 The Punjab High Court held that since fantasy sports did not amount to gambling,
Dream 11 was conducting a business activity protected under Article 19(1)(g)7 of the
Constitution.30

27
its second flagship event - GamePlan 2019 with the theme ‘Economy of Sports Gaming’. The report provides an overview
of the online gaming industry with a focus on fantasy sports and eSports.
28
Chamarbaugwala I, supra note 82, at 5.
29
Dr. K.R. Lakshmanan v. State of Tamil Nadu.
30
Shri Varun Gumber v. UT of Chandigarh & Ors.

18
  The Bombay High Court vide its judgment in the case of Gurdeep Singh Sachar v.
Union of India and others31 dated 30 April 2019, citing previous judicial
pronouncements of the Supreme Court and other High Courts, has upheld Dream 11 is
a legitimate business activity protected under Article 19(1)(g) of the Constitution of
India. Subsequently, within 5 (five) months of the pronouncement of the judgment by
the P&H High Court, the Supreme Court dismissed the special leave petition filed
against the said judgment.
 The Hon’ble Delhi District Court in Gaussian Network Private Limited v. Monica
Lakhanpal and Ors.32 had opined that games played online, with stakes, are illegal in
States which prohibit gambling, and enterprises which organise/conduct such games
do not enjoy the protection of freedom to practice any trade under Article 19(1)(g) of
the Constitution of India, since gambling would be an illegal trade in that State.
However, the revision petition filed before the Hon’ble Delhi High Court against the
afore-mentioned case has been withdrawn. Article 19(1)(g) of the Constitution of
India does allow every individual to practice any trade as he pleases, as long as it is
not illegal.

2.2. The Act violates Article 20 of the constitution of Indiland.

 It is given in section 3.4 of the act, 33 that each company involved in Gaming related
activities including in development and management of Apps that facilitate Gaming
would be liable to repay all the monies collected from its users and would also include
monies collected before the commencement of the act.
 But according to article 20(1), “No person shall be convicted of any offence except
for violation of the law in force at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence”
 Such games were not offences before the commencement of this act, so there was no
penalty. Hence it cannot be subjected to a penalty greater than which might have been

31
cr pil st.22.19.

32
Suit no. 32/12, judgment dated 17th September, 2012.

33
Refer to ANNEXURE- A, Act No. XX of 2019

19
 inflicted at that time, therefore the retrospective effect to the act infringes article 20(1)
of the constitution.

  In Hitendra Vishnu Thakur vs. State of Maharashtra,34 the Court laid down the ambit
and scope of an amending Act and its retrospective operation. The Court held that a
statue which affects substantive right is presumed to be prospective in operation
unless expressly made retrospective. A procedural law should not be allowed to
operate retrospectively and a statute which not only changes the procedure but also
creates new rights and liabilities shall be construed to be prospective in operation
unless otherwise provided, either expressly or by necessary implication.

 A Constitutional Bench of the Hon’ble Supreme Court in Income Tax Commissioner

vs. Vatika Township Private Ltd.35 held that a legislation cannot be presumed to be
intended to have a retrospective operation. The idea behind the rule is that a current
law should govern current activities. Law passed today cannot apply to the events of
the past. If we do something today, we do it keeping in view the law of today and in
force and not tomorrow‘s backward adjustment of it. The Constitutional Bench set out
the general principles concerning retrospectively and concluded that of the various
rules guiding how a legislation has to be interpreted, one established rule is that unless
a contrary intention appears, a legislation is presumed not to be intended to have a
retrospective operation. The Court held that every human being is entitled to arrange
his affairs by relying on the existing law and should not find that his plans have been
retrospectively upset. 

 This principle of law is known as lexprospicit non respicit i.e. law looks forward not
backward. A retrospective legislation is contrary to the general principle that
legislation by which the conduct of mankind is to be regulated when introduced for
the first time to deal with future acts ought not to change the character of past
transactions carried on upon the faith of the then existing law. The obvious basis of
the principle against retrospectively is the principle of fairness‘, which must be the
basis of every legal rule.36 Thus, legislations which modified accrued rights or which
impose obligations or impose new duties or attach a new disability have to be treated
as prospective unless the legislative intent is clearly to give the enactment a
34
AIR 2623, 1994 SCC (4) 602
35
[2014] 49 taxmann.com 249
36
Constitution of India – M. P Jain

20
 retrospective effect unless the legislation is for purpose of supplying an obvious
omission in a former legislation or to explain a former legislation. 

2.3. The Act violates Article 21 of the constitution of Indiland

 Article 21 embodies a constitutional value of supreme importance in a democratic
society.37 This right has been held to be the heart of the Constitution, the most organic
and progressive provision in our living constitution, the foundation of our laws.38
 According to Art. 21 of the constitution, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”
 The Supreme court in Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nandkarni,39 came to hold that “the right to life” guaranteed by
Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v.
Bombay Municipal Corporation,40 popularly known as the “Pavement Dwellers
Case” a five-judge bench of the Court now implied that ‘right to livelihood’ is borne
out of the ‘right to life’, as no person can live without the means of living, that is, the
means of Livelihood.
 The prohibition of such apps by the act violates the right to life and personal liberty
as the app could be a means of livelihood for some people and it is the fundamental
right of every citizen of this country to live with human dignity, free from exploitation
and practice any profession to support his livelihood as per the judgement given
above.
 If the right to livelihood is not treated as a part and parcel of the constitutional right to
life, the easiest way of depriving a person of his right to life would be to deprive him
of his means of livelihood to the point of abrogation.41
 In the instant case,42 The Court further opined: “The state may not by affirmative
action, be compelled to provide adequate means of livelihood or work to the citizens.
But, any person who is deprived of his right to livelihood except according to just and
fair procedure established by law can challenge the deprivation as offending the right
to life conferred in Article 21.”
37
According to Bhagwati, J.
38
Iyer, J.
39
AIR 1983 SC 109: (1983) 1 SCC 124
40
AIR 1986 SC 180
41
ibid
42
Pavement Dwellers Case

21
  In Maneka Gandhi v Union of India43 the Supreme Court observed that the procedure
prescribed by law for depriving a person of his life and personal liberty must be
“right, just and fair” and not “arbitrary, fanciful and oppressive,” otherwise it would
be no procedure at all and the requirement of Article 21 would not be satisfied.

3. THE TOTOMOTO ONLINE GAMING ACT 2019 IS AGAINST THE BASIC

PRINCIPLES OF CRIMINAL JURISPRUDENCE PREVALENT IN
INDILAND.
The counsel humbly submits to the court that:
 3 basic principles of criminal jurisprudence were given in Rabindra Kumar Dey vs
State Of Orissa,44 and Jaikrishnadas Manohardas Desai and Anr. v. State of
Bombay.45
(i) that the onus ties affirmatively on the prosecution to prove its case beyond
reasonable doubt and it cannot derive any benefit from weakness or falsity of the
defence version while proving its case;
(ii) that in a criminal trial the accused must be presumed to be innocent until he is
proved to be guilty; and
(iii)that the onus of the prosecution never shifts.
 Similarly the Hon’ble Delhi High Court in the case of Sunil Kumar Sharma vs
State46 gave similar principles as the above cases.
 However, according to Sec 3.2(i) of the act, 47 which says that “the accused shall be
punished with imprisonment which may extend to one year and with fine which may
extend to five thousand rupees, however in the absence of special reasons to be
recorded in writing, the punishment awarded under this clause shall be imprisonment
for not less than three months and fine of not less than three thousand rupees” is
violating the basic principles of criminal jurisprudence as this clearly means that the
accused will be, nevertheless, punished without any prosecution or giving any chance
to prove his innocence.

43
1978 AIR 597, 1978 SCR (2) 621
44
1977 AIR 170, 1977 SCR (1) 439
45
[1960] 3 S.C.R. 319. 324
46
139 (2007) DLT 407, I (2007) DMC 654
47
Refer to ANNEXURE- A, Act No. XX of 2019

22
  Similarly in Sec 3.2(ii) of the act, the punishment increases without any prosecution
or without presuming accused as innocent until proved guilty, hence violative of the
basic principles of criminal jurisprudence.
 Even in case of Sec 3.3 of the act which says that “It shall not be necessary, in order
to convict any person for opening, keeping or using or permitting the use of Gaming
Portal or of being concerned with the care or management of a Gaming Portal, to
prove that any person found therein was gaming for money, wager, bet or stake,” the
accused is not assumed innocent before proving guilty.
 Other than S. 3.2(i) and (ii), S.5 of the act which gives the explanation of the section
i.e. “For the purpose of this section, any person found in or using any Gaming Portal
during gaming therein shall be presumed to have been present there for the purpose of
gaming” also violates the basic principles of criminal jurisprudence for the same
reason as above.
 As has been held in Kali Ram vs State Of Himachal Pradesh,48 one of the cardinal
principles which has always to be kept in view in our system that “a person arraigned
as an accused is presumed to be innocent unless that presumption is rebutted by the
prosecution by production of evidence as may show him to be guilty of the offence
with which he is charged.” 
 Several other judgements has been given by the Hon’ble apex court in 2014 in support
of proving case of prosecution beyond reasonable doubt.49
 The Law Commission of India, forty-seventh report on the trial and punishment of
social and economic offences, It was observed that —-“No rule of criminal law is of
more importance “than that which requires the prosecution to prove the accused’s
guilt beyond reasonable doubt.
 The burden of proving the guilt of the accused is upon the prosecution and unless it
relieves itself of that burden, the courts cannot record a finding of the guilt of the
accused.50 In the first place this means that it is for the prosecution to prove the
defendant’s guilt and not for the latter to establish his innocence.51 However it is given
in the S.4 of the act that “nothing contained in this sub-section shall render any such
person liable to punishment if he proves that the contravention took place without his

48
1973 AIR 2773
49
Puran Chand vs State Of H.P,  State Of Gujarat vs Kishanbhai,  Prakash vs State Of Karnataka, State Of
Rajasthan vs Manoj Kumar, Basappa vs State Of Karnataka , to name a few
50
Kali Ram vs State Of Himachal Pradesh
51
The Law Commission of India, 47th report on the trial and punishment of social and economic offences

23
 knowledge of that he exercised all due diligence to prevent such contravention.” It is
clearly stated that the accused himself has to prove that the contravention took place
without his knowledge.
 It was held in Maneka Sanjay Gandhi V. Rani Jethmalani52 that assurance of a fair
trial is the first imperative of the dispensation of justice and the central criterion for
the Court to consider when a motion for transfer is made is not the hypersensitivity or
relative convenience of a party or availability of legal services or any like grievance.
In Abdul Nazar Madani V. State of T.N53 the Apex Court stated that the purpose of the
criminal trial is to dispense fair and impartial justice uninfluenced by extraneous
considerations. The apprehension of not getting a fair and impartial inquiry or trial is
required to be reasonable and not imaginary based upon conjectures and surmises.
 Therefore, S. 3.2(i) & (ii), S.4 and S.5 of the act are in violation of the basic principles
of criminal jurisprudence prevalent in Indiland.

4. THE STATE IS LEGISLATIVELY NOT COMPETENT TO ENACT THE

ACT SUBJECTIVELY & TERRITORIALLY.
The Counsel humbly submits to the court that:
 It is true that state governments have power to make law with respect to betting and
gambling,54 however, online fantasy sports games like Criksaga are games of skill and
does not come under gambling as addressed in issue 1. Therefore, the state could not,
by implication, interpret ‘betting and gambling’ to include skill-based games &
thereby derive the competence to legislate on the same.

 Also, it is pertinent to note that Central govt. is endowed with the exclusive right
under constitution to enact laws on posts and telegraphs, telephones, wireless,
broadcasting and other forms of communication. 55 So gaming through the online
medium fell within their description. Thus the central govt. had the exclusive
legislative competence to regulate online gaming.

 Though there is a division of powers between the Union and the States, the Indian
Constitution provides the Union with power to exercise control over the legislation as

52
1979 AIR 468, 1979 SCR (2) 378
53
AIR 2000 SC 2293
54
Schedule 7, in list 2(state list) entry no. 34
55
Entry 31, list 1 (Union list), seventh schedule

24
 well as the administration of the States. Legislation by a State can be disallowed by
the President, when reserved by the Governor for his consideration.56

 The Doctrine of Repugnancy- Repugnancy is an inconsistency or contradiction

between two or more parts of a legal instrument (such as a statute or a contract). 57
Article 254 describes the Doctrine of Repugnancy58 as:
“Inconsistency between laws made by Parliament and laws made by the Legislatures
of States:
1.  If any provision of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause
2. the law made by Parliament, whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the existing law, shall prevail and the
law made by the Legislature of the State shall, to the extent of the repugnancy, be
void.”

 In simple terms, as beautifully summarized by the Supreme Court in M. Karunanidhi

v. Union of India,59 “Where the provisions of a Central Act and a State Act in the
Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central
Act will prevail and the State Act will become void in view of the repugnancy.

 Similarly, in M. Karunanidhi v. Union of India,60 the Supreme Court held that, where
the provisions of a Central Act and a State Act in the Concurrent list are fully
inconsistent and absolutely irreconcilable, the Central Act will prevail and the State
Act will become void in view of the repugnancy.

 In most federal constitutions and democracies across the world, the doctrine of
repugnancy is embedded to resolve the conflict between a law made by the center and
a conflicting law made by the state. In most case, the decision is in favor of the central

56
Part ix of the Constitution
57
Blacks’ Law Dictionary
58
Part xi of the Constitution

59
 (1979) 3 SCC 431, (Also see: I.T.C Ltd. V. Agricultural Produce Market Committee)

60
1979 AIR 898, 1979 SCR (3) 254

25
 law. In the United States of America, if a federal law conflicts with a state law, then
the federal law pre-empts the state law.61

 In 1819 in the case of McCulloch v. Maryland,62 the United States Supreme Court
Chief Justice John Marshall stated that “States have no power, by taxation or
otherwise, to retard, impede, burden, or in any manner control the operations of the
Constitutional laws enacted by Congress to carry into execution the powers vested in
the Federal Government.”

5. THE BILATERAL INVESTMENT TREATIES ENTERED INTO BY THE

REPUBLIC OF INDILAND IS CONSTITUTIONAL.

It is humbly submitted that:

 The Bilateral Investment Treaties was signed by union of indiland with other
countries in order to save the economy and to increase employment in the country
which is of national importance under article 257 of the constitution-
The executive power of every state shall be so exercised as not to impede or prejudice
the exercise of the executive power of the union, and the executive power of the union
shall extend to the giving of such directions to a state as may appear to the
government of India to be necessary for that purpose.
 Union government has certain power like participation in international conferences,
associations and other bodies and implementing of decisions made threat, also,
entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries.63

 Most BITs grant investments made by an investor of one Contracting State in the
territory of the other a number of guarantees, which typically include fair and
equitable treatment, protection from expropriation, free transfer of means and full
protection and security.64 

61
Doctrine of Preemption

62
17 U.S. (4 Wheat.) 316 (1819)
63
seventh schedule, union list entry no. 13 & 14
64
George Mason Law Review (14 Geo. Mason L. Rev. 135) (2007)

26
  Bilateral investment treaties (BITs) are instruments that aim at promoting and
protecting foreign direct investment (FDI). Switzerland holds a leading position
worldwide with regard to the negotiation and conclusion of BITs: The Swiss
government has ratified 113 of such treaties so far, which means that about every 23rd
BIT worldwide is concluded between Switzerland and a third state.65
 Investment treaties play a growing role in company life. Concluded between two or
more governments, investment treaties protect covered foreign investors from certain
host government conduct and abuse. Treaties typically provide protection from
expropriation, discrimination or treatment that is not “fair and equitable”. They can
provide additional protection to covered foreign investors beyond that provided in
national legal frameworks, including constitutions, laws and regulations.66
 The petitioner contended that such treaties are promoters of social evils such as
gambling and betting, however it has already been addressed in issue I that such
online fantasy sports games are games of skill which encourages the user to
understand, experience and analyse aspects related to the game unlike gambling
which is a game of pure chance. Hence it does not promote social evils but instead
helps in forming a deeper connection between sports fans and real life sports.

65
U. of St. Gallen Law & Economics Working Paper No. 1400747
66
The Impact of Investment Treaties on companies, Shareholders And Creditors

27
 PRAYER

WHEREFORE in the light of the issues raised, arguments advanced and authorities cited,
the counsel for the respondents most humbly request that this Hon’ble Supreme Court of
Indiland may be pleased to adjudge and declare that:

 Criksaga and other online fantasy sports games are not detrimental to the society.
 The Totomoto online gaming act 2019 will remain unconstitutional.
 The Totomoto online gaming act 2019 is against the basic principles of criminal
jurisprudence prevalent in Indiland.
 The State is legislatively not competent to enact the act subjectively & territorially.
 The Bilateral Investment Treaties entered into by the Republic of Indiland is
constitutional.

And pass any other order which this Hon’ble court deem fit in the light of justice, equity and
good conscience.

And for this act of kindness of your lordship, the defendant shall be duty bound as ever pray.

Respectfully submitted

COUNSELS FOR THE RESPONDENTS

28