CRIMINALIZATION OF GAMBLING IN INDIA

Sumit Singh Bhadauria1

INTRODUCTION

The history of humanity is inextricably linked with the history of gambling, as it seems that no
matter how far back in time you go there are signs that where groups of people gathered together
gambling was sure to have been taking place.2 As far as history accounts, gambling has persisted
in socio-cultural life of India. In Hindu mythology, evidence of gambling can be found in religious
text Mahabharata. As the supreme court of India has mentioned that the Pandavas King
Yudhishtira was manipulated by the screwed and unscrupulous dice player Sukuni to gamble his
kingdom, himself and even her wife. Later, he was pardoned by the Duryodhana’s father and was
sent to exile.3

Modern history of gambling started from the European influence in India. The British brought the
game of cricket in 1720. From then the advent of betting has sprung across the undivided India.
European influence on India brought various games such as cricket, horse racing. Due to Increase
in the instances of gambling and the socio-economic problems emerging out of it, colonial
legislature enacted Public Gambling Act, 1867. This act declared illegal opening of public-
gambling houses and made it illegal to bet on any number, date. However, since then gambling in
India had taken manifold changes, and the colonial enactment is inadequate in dealing with
plethora of problems emerging out of it. In contemporary India gambling exist is many forms. A
study conducted by KPMG revealed that the betting market in India estimate about US $60 billion.4

1
2nd Year BA LLB Student, Institute of law, Nirma University
2
The History of Gambling, Gambling.net, available at: http://www.gambling.net/history/ , last seen 28/8/2016.
3
State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699 at para 46; see Star Cruise Services Ltd. V.
Overseas Union Bank Ltd., (1999) 2 SLR (R) 183.
4
KPMG International, “Online Gaming- A Gamble or Sure Bet”, 2010, available at
http://www.kpmg.com/EU/en/Documents/Online-Gaming.pdf, last seen 29/8/2016.

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A recent data published by the Ministry of home affair says that 1.25 lack cases were registered
under gambling acts of various states in year 2014 alone.5 The states where gambling is illegal
such as Madhya Pradesh, Andhra Pradesh, Maharashtra, Rajasthan, Chhattisgarh, Utter Pradesh
reported highest number of cases. But the states where various forms of gambling is legal reported
no cases under gambling laws.6
Presently the gambling in India is state subject. By virtue of section 2 of the Public Gambling act,
1864 the state has to the power to amend the law for the purpose of regulating gambling in their
jurisdiction. However, the present laws are obsolete and inadequate in dealing with the problems
emerging such as psychological problems, disintegration of families, online gambling, increase
criminal activities, poverty, relative other addiction etc. Even Supreme court time and again
condemned the practice of gambling. In State of Bombay v. R.M.D. Chamarbaugwala7, Supreme
court invalidate the contention that the practice of gambling violates the fundamental right of trade,
commerce guaranteed under Article 19(1)(g) and said that the right to trade cannot provided to
gambling activities and competitions “Which encourage a spirit of reckless propensity for making
easy gain by lot or chance….”8

GAMBLING: MEANING, CONNOTATION

In India, most of the gambling activities are banned by the virtue of Public Gambling act, 1864 or
any other state enactment. But, before moving ahead to discussion, meaning of the gambling has
to be contextualise. Generally, gambling understood as ‘Game of Chance’9 where there is risk
factor is involved. It is different from the games which are based on skill or where the outcome is
not determine by the chance but by skill. List II Entry 34 of the constitution defines Gambling as:

5
New government data says 1.25 lakh cases under Gambling Act in 2014, Glaws, available at
http://glaws.in/2016/07/27/new-government-data-says-1-25-lakh-cases-under-gambling-act-in-2014/, last seen
28/8/2016.
6
Ibid.
7
State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699.
8
State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699 at para 42.
9
Gambling: A Human Nature, lawlex, Available at: http://lawlex.org/lex-pedia/gambling-laws-in-india/8590#_ftn6
last seen 29/8/ 2016.

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 “Gambling’ includes any activity or undertaking whose determination
is controlled or influenced by chance or accident and any activity or
undertaking which is entered into or undertaken with consciousness of
the risk of winning or losing (eg, prize competitions, a wagering
contract) … where there is no actual transfer of goods but only payment
or receipt of the difference according to the market price, which varies
from the contract price.10”

According to New York penal laws, Gambling defined as:

“When someone stakes or risks something of value upon the outcome

of a contest of chance or a future contingent event not under his control
or influence, upon an agreement or understanding that he will receive
something of value in the event of a certain outcome.”11

Section 12 of the Public Gambling Act, 1864 specifically exempt those games which involve mere
skill whatever player.12 Supreme court in K.R Lakshmanan v. State of Tamil Nadu13 give a detail
meaning of word “mere skill” used in section 12 of Public Gambling Act, 1864. The court said the
term “mere skill” to mean “Substantial degree or preponderance of skill.”14 This means the
approach taken by the Court in order to classify a game, as a game of skill or game of chance is
checking whether substantial skill is involved in the game; and even if there is some form of chance
involved in the game (like an accident, poor turf conditions in a horse race or coin toss to determine
first batting or bowling, poor umpiring decision, weather or pitch conditions in game of cricket),
the game would not be considered as game of chance, because the skill is the predominating factor
in game.15

10
Schedule 7, the Constitution of India.
11
New York Penal Law §225.00(2).
12
S. 12, Public Gambling Act, 1867.
13
K.R. Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226.
14
K.R. Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226, para 20; see Miers, Regulating Commercial
Gambling (Oxford University Press, 2004) 65.
15
T.R.K. Motwani, Skill Versus Chance – the Gambling Debate, SCC Online (2014) 7 SCC J-26, (2014).

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Considering above mention definitions Professor Nelson Rose, expert in gambling and gambling
laws, has classified three basic ingredients for constituting offence of Gambling: Consideration,
Chance and Prize.16 However, given the rise of various forms of gaming it is very difficult, at least
in India context, to determine which game considered as game of skills and which as game of
chance; what is legal and what isn’t. Hence, there is skill v. chance debate in context of classifying
games. This question will be discussed in later part of the paper focusing on the reasoning of Indian
court and the US courts in determining which game is skill based or which is chance based in
context of games such as horse racing, poker, rummy. Having define the meaning of gambling,
this paper now examines the socio-economic problems relating to it such as economic problem,
psychological problems, financial problems, indebtedness, health problems, social impact, crime.

SOCIO-ECONOMIC PROBLEMS OF GAMBLING:

There are various negative consequences related to the gambling. The data reviewed here to
showcase the menace is exists from international perspective. The author here is not arguing for
complete ban on the Gambling. Every coin has two sides, but particularly in Indian context, the
positive economic benefit of gambling outnumbers the social costs relating to it. It may be argued
that the economic benefit in turn benefit the social outcome in long run. However, this cycle is
vicious.

PSYCHOLOGICAL PROBLEMS.
Gambling, such as other addiction, becomes a predominant behaviour in human psychology. This
is also called as “Problem Gambling”, “Gambling Addicts”, “Compulsive Gambling.” 17 This
disorder is impulse control, cannot control even at the substantial cost of something more
important. According to a study by the Emotional Neuroscience Centre in Massachusetts,
Monetary reward in a gambling-like experiment produces brain activation very similar to that

16
Gabling and the Law: Is Poker- like chess- a game of skill?, rose.casinocitytimes, available at
http://rose.casinocitytimes.com/article/gambling-and -the-law-is-poker-like-chess-a-game-of-skill-43975, last
seen 28/8/2016.
17
Gambling Addiction and Problem Gambling, Helpguide, available at:
http://www.helpguide.org/articles/addiction/gambling-addiction-and-problem-gambling.htm, last seen 29/8/16.

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observed in a cocaine addict receiving an infusion of cocaine.18 This study reveals that risk factor
is predominant in pathological gambler. Pathological gamblers persisted despite having negative
consequences of the same, such persistence is related to insensitiveness to the punishment for loss
or hypersensitivity to the reward associated with infrequent wins.19 This psychological problem is
the root cause to the other social problems.

SOCIAL AND INDIVIDUAL PROBLEMS

The Australian Productivity Commission found that between five and ten people are affected by
every individual who is a problem gambler, including spouses, children and other family members,
friends, co-workers and employers as well as those involved in financial relationships.20 Many
families of pathological gamblers suffer from a variety of financial, physical, and emotional
problems.21 Lorenz and Shuttlesworth (1983) surveyed the spouses of compulsive gamblers at
Gam-Anon, the family component of Gamblers Anonymous, and found that most of them had
serious emotional problems and had resorted to drinking, smoking, overeating, and impulse
spending.22 In a similar study, Lorenz and Yaffee (1988) found that the spouses of pathological
gamblers suffered from chronic or severe headaches, stomach problems, dizziness, and breathing
difficulties, in addition to emotional problems of anger, depression, and isolation.23 Another study
found that the inappropriate relationship of pathological gambler towards their family members
later results in self-harm. In a national survey of 500 Gamblers Anonymous members, those
assessed as being at highest risk for suicide were more likely to be separated or divorced (24
percent) and to have relatives who gambled or were alcoholic (60 percent). About 17 percent of

18
J Hedwig, N Kretschmer, H Hecht, MG Coles, CB Holroyd, WH Milthner, Hypersensitivity to Reward in
Problem Gamblers, 8 Biological Psychiatry, 781 (2010).
19
Ibid.
20
The National Academics Press, Pathological Gambling: A critical Review, available at:
http://www.nap.edu/catalog/6329.htm, (last seen 29/10/16.)
21
Abbott, D.A., S.L. Cramer, and S.D. Sherrets, Pathological gambling and the family: Practice implications,
Families in Society 76(4):213-219, (1995).
22
Lorenz, V.C., and D.E. Shuttlesworth, The impact of pathological gambling on the spouse of the gambler,
Journal of Community Psychology 11:67-76, (1983).
23
Lorenz, V.C., and R.A. Yaffee, Pathological gambling: Psychosomatic, emotional and marital difficulties as
reported by the gambler, Journal of Gambling Behavior 2(1):40-49, (1986).

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gamblers who considered suicide, and 13 percent of those who had attempted it, had children with
some type of addiction24

FINANCIAL PROBLEMS AND CRIME

Financial problems and crimes are the most immediate problem of a pathological gambler. Since
pathological gambler suffer from insensitivity to punishment or hypersensitivity to reward, he
incapable of understanding the nature and consequences of his act. As access to money becomes
more limited, gamblers often resort to crime in order to pay debts, appease bookies, maintain
appearances, and garner more money to gamble.25 A number of study done on the behavioural
aspect of pathological gambler found that the disorder directly contribute to the crimes such as
fraud, forgery, robbery, theft. A study by Blaszczynski and Silove (1996) revealed that the criminal
behaviour among adolescent gamblers may be more prevalent than among adult gamblers, in part
because youths have few options for obtaining funds and greater susceptibility to social pressure
among gambling peers.26 In the United Kingdom, Fisher (1991) reported that 46 percent of
adolescents surveyed stole from their family, 12 percent stole from others, 31 percent sold their
possessions, and 39 percent gambled with their school lunch or travel money.27 Another problem
seldom noted about the unemployment among the pathological gamblers. In one of the few studies
to address bankruptcy, Ladouceur et al. (1994) found that 28 percent of the 60 pathological
gamblers attending Gamblers Anonymous either reported that they had filed for bankruptcy or
reported debts of $75,000 to $150,000.28
Despite having serious negative socio-economic implication of gambling, various states
continuous to legalise gambling in India; as it is a major source of revenue in some states. As per
recent data released by the government of Kerala total annual sales of lottery in Kerala has grown

24
Supra no. 19 at p. 158.
25
Meyer, G., and T. Fabian, Delinquency among pathological gamblers: A causal approach, Journal of Gambling
Studies 8(1):61-77, (1992).
26
Blaszczynski, A.P., and D. Silove, Pathological gambling: Forensic issues. Australian and New Zealand, Journal
of Psychiatry 30(3):358-369, (1996).
27
Fisher, S, Governmental response to juvenile fruit machine gambling in the U.K.: Where do we go from here?,
Journal of Gambling Studies 7(3):217-247, (1991).
28
Ladouceur, R., J.M. Boisvert, M. Pepin, M. Loranger, and C. Sylvain, Social costs of pathological gambling,
Journal of Gambling Studies 10:399-409, (1994).

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from Rs. 557 Crores to Rs. 5696 Crores.29 As per the statement of Chief Minister Oommen Chandy
expected turnover is US $911.30 Punjab Government also recently announced the move to increase
paper lottery draw and propose horse-betting in a bid to bolster the fiscal health of the state.31
Meanwhile state where lottery is ban such as Karnataka considering the request from various
stakeholder to lift the ban on lottery as government losing about 10,000 crores of revenue. It is one
things that legalize gambling comes with certain economic benefits that boost up the GDP of the
states, but such a boost up is a quantitative measure. The social costs related to it far outnumber
the economic benefits from it. Hence, the qualitative measure to increase the welfare of the people
must give way to the quantitative measure of the states. For example, in United State where most
form of gambling is legalised suffer from social costs such as individual and social problem,
financial problem, indebtedness, crime, families’ problem as explained earlier. National Gambling
Impact Study in United States, where gambling is legal, revealed that end result of gambling can
be devastating for the gambler as well as their family.32 This study shows that two out of three
gambling addicts will engage in illegal acts to pay for their gambling debts.33 Further, there is also
an extreme amount of stress placed on the family to repay debts and bills that the addict has
accumulated as a result of gambling.34 Legalised gambling discourages human development; even
illegal gambling does so. Human capital is directly affected by the urge of getting more and more
money without having earn it by means of hard-work.
The studies are existing from an international perspective and are open to interpretation due to
various limitations. But, one factor can be qualified that some or the other ways, all the problems
emerging from the psychological effect on the behaviour of pathological gambler. Now this paper
looks at the skill v. chance debate in context of various games by the supreme court of India and
US courts.

29
Kerala government mops up almost $1 billion in lottery sales, Karnataka mulls the lottery route to generate
funds, Glaws, available at: http://glaws.in/2016/03/19/kerala-government-mops-up-almost-1-billion-dollars-in-
lottery-sales/ ,(last seen 29/8/16.)
30
Kerala lottery tickets sales soar during Oommen Chandy tenure, ZeeNews, available at:
http://zeenews.india.com/news/kerala/kerala-lottery-tickets-sales-soar-during-oommen-chandy-
tenure_1866451.html,( last seen 29/8/16).
31
Punjab government increases paper lottery draws, proposes legal horse-betting in bid to bolster fiscal health,
Glaws, available at: http://glaws.in/2016/02/29/punjab-government-increases-paper-lottery-draws-proposes-
legal-horse-betting-in-bid-to-bolster-fiscal-health/, last seen 29/8/16.
32
Gambling-addicts-negative effects, Rehab-International, available at: http://rehab-international.org/gambling-
addiction/effects, last seen on 29/10/16.
33
Ibid.
34
Ibid.

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SUPREME COURT INTERPRETATIONS

Indian Supreme court on various Judgment relies on the rulings of US supreme court to come to
conclusion regarding skill or chance is particular games. Relying on interpretation of US court,
Supreme court on many occasion looked at the debate on skill v. chance for games such as rummy,
horse-racing and holding that both the games involve skills. Thus, does not come under the ambit
of Public Gambling act. However, the position regarding whether Poker is game of skill or chance
is still debatable in India. Various state government have legalised the game of poker as game of
skill and many have not. Supreme court yet to decide that whether poker is game of skill or chance,
the decision is presently pending before the supreme court of India in Mahalaxmi Cultural
Association Case.35 As for now, analysing judicial precedents of US court and Indian court can
help to form a clear picture regarding the debate of skill v. chance in game of poker.

HORSE RACING, RUMMY, POKER

Supreme Court in K.R. Lakshmanan v. State of Tamil Nadu36 held that the betting on horse
racing does not amount to gambling. The court, after a detailed analysis, decided that the horse
racing is a game of skill and not chance. It is the speed and stamina of horse, acquire by training,
decide the outcome of the game.37 Even jockeys are expert in art of riding; therefore, the court
concluded that betting on horse racing depend on knowledge and skill and not on luck and
chance.38
In State of A.P. v. K. Satyanarayanag39 the Court held that game of rummy involves substantial
amount of skill and even though there is existence of luck, the skill involved in the game
predominated over the luck.40 In order to play the game one required skills such as memorization
of sequence, appropriate holding and discarding of cards and hence substantial amount of skill is

35
Director General of Police, Chennai and others v. Mahalakshmi Cultural Association, (2012) 2 CTC 484.
36
K.R. Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226.
37
Ibid
38
Ibid.
39
State of A.P. v. K. Satyanarayanag, AIR 196B SC 825.
40
Ibid at p. 5.

8|Page Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

involved.41 But when question arouse before the court that whether the organisers charging certain
fees to make profit out of rummy can be said as common-gambling house, the court answered in
affirmative. The court said that the even if the game involved substantial amount of skill, if it is
played for stakes, it would attract the penal provision.42

Whether poker is legal or not is a debatable question in India; since the advent of poker is
increasing day by day, there is urgent need to decide the question that whether poker is game of
skill or chance. In recent decision, New York court in United States of America v. Lawrence
DiCristina43, after placing reliance on the expert testimony, held that the poker involves both the
chance and skill. Court said there are various skilled choices such as how much to wager, when to
pack, when to raise, when to bluff, when to call, etc. Thus, a person having skill in playing poker
can play same hand in different man than a person who is novice. After detailed discussions, the
Court concluded that game of poker is influenced both by luck-when cards are dealt; and by skill-
when decision are made by the players.44 The player cannot control the dealing of cards but, he
can make wise decisions and can win even through bad cards. The Court also stated that most
poker hands end when opponents fold the cards. When cards are folded, the result of the hand is
determined even without considering the cards which each player held.45 This implies that in poker
hands, the element of chance can be completely nullified and outcome of a hand can be determined
solely on the basis of skill. The Court therefore held that though chance may play a role in
determination of outcome; it is not a dominating factor.46
However, in India supreme court ruling is pending in case of Mahalakshmi
Cultural Association47 where in question is whether poker is game of skill or chance. But despite
that state government of Kerala included poker as a game of skill.48

41
Ibid.
42
Ibid.
43
America v. Lawrence DiCristina, 886 F Supp 2d 164 (SDNY 2012): 2012 US Dist LEXIS 118037.
44
America v. Lawrence DiCristina, 886 F Supp 2d 164 (SDNY 2012): 2012 US Dist LEXIS 118037, 38.
45
America v. Lawrence DiCristina, 886 F Supp 2d 164 (SDNY 2012): 2012 US Dist LEXIS 118037, 43.
46
America v. Lawrence DiCristina, 886 F Supp 2d 164 (SDNY 2012): 2012 US Dist LEXIS 118037, 49.
47
Director General of Police, Chennai and others v. Mahalakshmi Cultural Association, (2012) 2 CTC 484.
48
Kerala government considering notifying poker as a skill game, 1976 notification already grants immunity to
rummy, Glaws, available at: http://glaws.in/2016/06/25/kerala-government-considering-notifying-poker-as-a-
skill-game-1976-notification-already-grants-immunity-to-rummy-exclusive/( last seen on 29/8/16.)

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CONCLUSION

Today most of the policies of government of India is heading towards decriminalising Gambling
or in other words a liberal approach to exempt as many as games from the category of chance to
the category of skill; without having conclusive proof. Such policies are prompted by economic
necessity of the particular state. Since gambling is the major source of revenue, state governments
are more liberalising the polices relating to it. Poker is one such example. Online gambling is one
more aspect emerging in Indian Gambling sector, but the saddest part is that most of the states
does not have proper law to regulate it. Even some of states such as Sikkim has legalized online
gambling. Inability of Obsolete laws continued the online gaming unabated. Any form of gambling
such as poker, rummy, horse racing which are categorized as legal, despite having skill based,
gambling on those games likely to produces serious problem gambling, Financial Problem, Crime,
Individual and social problem, family problem. Therefore, gambling on those games should be
strictly made illegal with some exception. There is continuous debate in India to legalise cricket
betting. Although, this move might have some positive effect on match fixing, as claimed by some
experts and top-notched lawyers, but the social problems which are likely to emerge from it is
dreadful. Because, cricket betting in country like India is widely prevalent; such practice should
be discouraged by deterrence; rather than decriminalising it. Legalising betting in India likely to
increase the problem of pathological gambling; repercussion of the same is highly dreadful as it is
shown earlier. United States of America also decriminalised various forms of gambling; but the
implication of this policy come with high social cost in USA. Promoting Gambling to increase
revenue is the worst public policy. It creates more addicts; such as in USA. Earl Grinols, Baylor
University Professor, in his book “Gambling in America” estimates that addicted gamblers cost
the U.S. between $32.4 billion and $53.8 billion a year -- about $274 per adult annually.49 He
further says that Las Vegas is most dysfunctional Communities in America, in part because of
legalized Gambling.50 There are higher rates of addictions, foreclosures, burglary than anywhere

49
Earl L. Grinols, “Gambling in America: Costs and Benefits”, Cambridge University Press, ed. 3, (2004).
50
The High Price of America’s Gambling Addiction, AOL, available at http://www.aol.com/article/2011/07/22/the-
high-price-of-americas-gambling-addiction/19996806/ , (last seen on 28/8/2016.)

10 | P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 11

else.51 Therefore, steps such as legalising gambling; or for that matter cricket gambling will be a
regressive steps for the future of entire country.

51
Ibid.

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