"Prohibition In Name Of Regulation": Online Gaming Companies Argue Against TN Govt Night Ban, Says Govt Can't Mandate Aadhaar Verification

A group of online gaming companies, on Thursday, argued before the Madras High Court that the State government was trying to impose a prohibition on online games of rummy under the guise of regulation. Making submissions before a bench of Justice SM Subramaniam and Justice K Rajasekar, Senior Advocate Mukul Rohatgi argued that since the government's earlier attempts to ban online games were not fruitful, it was now trying to do something it could not do directly. In the previous hearing, the court had remarked that merely because the games were not prohibited, it could not be said it needn't be regulated. “People may play at any time. Some lawyers sit and work on cases in the night. We all have that freedom. Why are you picking on us then? You're trying to do something which you can't do directly. You can't ban us, so now you're doing this….Assuming that there's power to regulate, the ban of 5 hours is a prohibition and not regulation. Under the guise of regulation, you (State) are doing partial prohibition,” Rohatgi argued. Rohatgi also argued that the State government could not make laws on the subject since the Information Technology Act, passed by the Central Government fairly covered all the apprehensions that the State had. “My submission is that the field of skill and their regulation is covered by the central legislation and therefore the state has no power. Under the IT Act, Centre has made regulations directly dealing with online real money games. The state can't make laws. You can't have double barrel,” Rohatgi said. Rohatgi argued that the rights of the gaming company and the players under Article 19(1)(g) and Article 19(1)(a) could be curtailed by the government only through reasonable restriction. However, the restrictions in the present case were neither reasonable, nor proper and could not be saved by Article 19(2) or Article 19(6) of the Constitution. Rohatgi pointed out that when there was no prohibition on any other activities, imposing a ban only on online real money games, by citing public health was wholly arbitrary. “Assuming that there's power and you can place a 5-hour ban. I would say that the power was exercised arbitrarily. You have not placed any such ban on people playing other games citing public health. TV, movies, Netflix, social media, ordering food, everything is available after 12 am. If the government is concerned with public health, it should say why are you eating at 2am, you should sleep. If you have to regulate like a great grandfather, you should regulate all that. So the ban, only on us, is grossly arbitrary,” he said. Lastly, Rohatgi also submitted that even if it was accepted that the government could impose a 5 hour ban on playing the game in the interest of the health of the player, such restriction should be imposed on the player (and not the gaming companies). He said that in such a circumstance, the gaming companies were willing to configure their system in such a manner that a player could not continue the game after playing it continuously for a long period. Aadhar Not The Only Way Of Verification Continuing the arguments on behalf of the gaming companies, Senior Advocate Sajan Poovayya questioned the State's insistence on Aadhar verification for the KYC process while playing video games. Poovayya argued that the gaming companies could use any of the documents approved by the RBI for the process of verification. He pointed out that as per Section 4 of the Aadhar Act, an entity could be allowed to perform authentication using Aadhar only by an act of parliament in the interest of the State. He argued that in the present case, the State could not mandate on Aadhar when it was a private affair between the company and the player. He also added that the State's explanation that Aadhar provided second layer verification could not be justified since there were other ways in which it could be ensured. “Even when I order food online or perform credit card transaction, there's an OTP generated. But that does not mean that I gave them my Aadhar details So is Aadhar the only way of verification? It does not pass the muster of least intrusive test. As per Section 4 of the Aadhar Act, an entity can be allowed to perform authentication only by an act of parliament. Then how can the state necessitate this?” he questioned. While both the senior counsels argued that the State could not bring in such a regulation, the court remarked that the State could interfere when there was some form of addiction that might affect the society. “There's another way to look at it. The state has power only over its people. It has to look after only the people in the State. it cannot look into people in Karnataka, Jharkhand, and all. TN government can't go to Karnataka and say they should also ban….State won't interfere if something is not addictive. You watch 3 movies a day, the...

"Prohibition In Name Of Regulation": Online Gaming Companies Argue Against TN Govt Night Ban, Says Govt Can't Mandate Aadhaar Verification

Upasana Sajeev

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