State Can't Abolish Distinction Between 'Game Of Skill' & 'Game Of Chance': Online Gaming Companies Argue Before Madras High Court

While challenging the Tamil Nadu Prohibition of Online Gambling and Regulation Of Online Games Act 2022, the online gaming companies argued that there was a watershed distinction between a game of skill and a game of chance. It was submitted that this watershed distinction could not be abolished by a deeming function of the state. It was also submitted that the state was trying to do something which was not legally permissible to do. He added that Games of skill were per se a distinct class that was differentiated from a game of chance and this distinction had existed for more than 100 years."Games of skill are per se always a distinct class differentiated from game of chance. Watershed distinction cannot be abolished by a deeming function," Senior Counsel AM Singhvi appearing for one of the online rummy companies submitted. The gaming companies were making submissions before the bench of Chief Justice SV Gangapurwala and Justice PD Audikesavalu. The bench had earlier refused interim relief to the companies. Singhvi also submitted that even if a game of skill had an element of chance involved, the predominance test would be applied and the predominant nature of the game had to be looked into. He added that an element of chance in an admitted game of skill will not change the nature of the game. “Take the game of bridge. No one will say it's a game of chance. It's a game of skill. Same in chess. But even in these games, when I give out the cards, there's some chance. Que is an element of chance in an admitted game of skill will change its nature. Then comes the predominance test. Some element of chance will not change the predominant nature,” Singhvi argued. Singhvi also submitted that even if a game of skill was played with stakes, it would not change the very nature of the game to make it gambling. “When you play a game of skill, like bridge, but there are people around you betting. The manner of playing with stakes will not convert the intrinsic nature of the game. Just because you're having stakes, you're gambling? That's completely wrong,” he submitted. Singhvi further submitted though the State had competence to make laws over chance, it could not do so over skill. He argued that the State could not deem something which can’t be deemed. He added that even if the game was played online or offline, the intrinsic nature of the game would not change. He submitted that when compared to playing games offline, the online games provided better security as it reduced obnoxiousness and followed protocol. Singhvi also pointed out that online games could be monitored by any person. He added that instead of regulating the games, the state was seeking to ban the game itself. “You can't throw the baby along with the water. You can regulate but you can't say that I'm banning the game itself. Can all the suicides in TN be related to online regulators? There are other obnoxious activities like alcohol and lottery. But the state is not banning it,” Singhvi submitted. Senior Counsel Mukul Rohatgi, also appearing for the gaming companies submitted that there was no damage to the tranquillity and order of the society which necessitated such a ban on the games. Senior Counsel Aryama Sundaram, appearing for the Gaming Federation submitted that the definitions provided in the Act were vague and would thus lead to arbitrariness. He argued that there could not be penal consequences on subjective satisfaction. He added that as far as game of skill were concerned, it was protected by Article 19(1)(g) of the Constitution and that distinction of a game of skill as online or offline was violative of Article 14 of the Constitution. The matter has been posted to July 18 for further arguments. Case Title: All India Gaming Federation v State of Tamil Nadu and Others Case No: WP 13203 of 2023

State Can't Abolish Distinction Between 'Game Of Skill' & 'Game Of Chance': Online Gaming Companies Argue Before Madras High Court

Upasana Sajeev

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