The Karnataka Police Act, 1963 was enacted to regulate not only the Police force and maintenance of public order, but also to prevent gambling ^[i]. This law was amended on the 5th of October, 2021, with the notification coming into effect immediately^[ii]. Chapter VII of the legislation, which governs gambling provisions has been amended to impose stricter punishments, covering online games of wagering or betting, including games of skill.  The Statement of Objects and Reasons to the amendment mention that the increased severity of consequences of online gaming is essential for the “orderly conduct of citizens and wean them away from the vice of gambling”. There has evidently been no effort to disguise the paternalistic approach to law making in this instance, all bound to the immoral perception of gambling.  

The Regulatory Milieu

From time immemorial, seers and law givers of India have disapproved the practice of gambling for being a sinful and pernicious vice. The Indian position on public gambling has maintained that it is illegal with the exception of “games of mere skill” under The Public Gambling Act, 1867^[iii]; while any agreement to the effect of a wager would be void as per The Indian Contract Act, 1872^[iv]. Historically, the State has discouraged ‘betting and gambling’— beginning with central legislations in the British era (being derivatives of British gambling laws)^[v]. In post-constitution India, it is an entry under the State List which empowers State Governments to enact laws as it sees fit. The Constituent Assembly took a step in favour of state-wise regulation of the subject so as to permit or prohibit gambling as per the prevailing socio-economic conditions in respective regions^.[vii]. State governments have since chosen to retain the Central Act^[viii] or have enacted variations of it by either explicitly prohibiting it^[ix], regulating aspects of it^[x] or even legalising it^[xi]. And as goes with any item covered in the State List, India now has a divergent position on legality of gaming and gambling across its different states. 

Provisions prohibiting games that involve gambling have undergone several rounds of judicial interpretation. The distinction between a game of skill and that of chance is one such issue, and the concept is more or less crystallised around the semantics of the games in question.   As early as in 1957, the Hon’ble Supreme Court of India in State of Bombay v. R.M.D. Chamarbaugwala^[xii], held that activities encouraging gambling is not trade, whereas, conducting games to be “preponderantly of skill” may be considered a commercial activity, and thereby avail protection under Article 19(1)(g) of the Constitution. Several Courts have since heard and determined various games to be those of chance or skill on a case-by-case basis^[xiii]. The Apex Court in 1996, created the standard that a competition, in order to avoid the stigma of gambling must depend upon the exercise of skill to a substantial degree, and thus, games in which “success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player” would be games of skill ^[xiv]. 

Even as recently as this year, the Madras High Court in a case challenging a similar amendment in the state of Tamil Nadu^[xv] explained that although sporting activities differ from their virtual forms, games like chess and scrabble do not vary depending on the mode of play and such a difference was lost in the amendment. It held that the prohibition of games of skill are excessive and consequentially, the amendment was struck down^[xvi].  It is therefore no doubt, an established point of law that games of skill are not to be treated the same as games of chance. India’s judicial repertoire has always attempted to regulate gambling based on the latter, leaving games of skill undisturbed. 

Now, the new amendment makes significant deviation (although clearly not unchartered) to this legal position with regard to gaming and gambling in Karnataka. It purposefully ignores any distinction between games of chance and skill, viewing them uniformly. It also makes it clear that all digital applications entertaining wagering or betting would be included within its ambit^[xvii] i.e., banned, as per the provisions. Interestingly, in addition to this expanded meaning of gaming for the purpose of this crime, the punishment stipulated has been substantially increased from a maximum of one year of imprisonment to three years along with the possibility of hefty fines. And it has been declared that opening such forms of gaming would be a cognizable and non-bailable offence[xviii]. The amendment, needless to say, has invited discourse among jurists and advocacy groups about the legitimacy, appropriateness and intended purpose of such modification of the law. 

The severity of the amended offence empowers the Police to a greater capacity in terms of conducting searches, arresting culprits and those accused will no doubt have greater difficulty in obtaining bail[xix]. Sociologists and jurists have long contemplated the connection between punishment and crime in order to study its deterrent effects^[xx]. It is unclear whether the State has conducted any such studies before increasing the punishment. In the absence of conclusive proof about increased severity of punishment being an adequate deterrent for the commission of crimes, the effort to increase punishment for gambling, especially in light of including online games as well, seems like a ploy to threaten owners of such games rather than gamblers themselves. 

The Statement of Objects and Reasons to the Amendment first and foremost states that offences under Chapter VII have been made cognizable for the purpose of “effective enforcement of the provisions”. The procedure to be followed in case of cognizable offences^[xxi] is that arrests may be made by Police officers without a warrant[xxii]. The Code of Criminal Procedure, 1973, which entails the guidelines for classifying offences as cognizable sets out that such offences need to be punishable for a minimum of three years[xxiii]. It is very apparent that, the severity of punishment has been increased merely to meet the requirement. If that be the case, it is doubtlessly an authoritarian measure taken to equip the Police with the power to make arrests arbitrarily, bear in mind that such powers are the elemental source of corruption of the Police in India[^xxiv]. 

There is lack of demonstrable connection between increased punishment or Police authority and the curbing of gambling. The blanket ban on all games with any sort of entry fee by the Amendment does not adequately capture the actual meaning of what gambling even means. This result of this misunderstood action breaches the scope of benefits that gaming has to offer. Gaming has huge entertainment value, with many games offering good socializing and team building opportunities, cognitive mental health benefits, alertness, increased concentration, and even improved brain function^[xxv]. In lieu of a regulation to remove the vices attached to gambling, or control those undesirable, exploitative and addictive forms of gaming and excessive betting, imposing a complete ban like the amendment purports to do, combined with the authority to arrest without warrant encourages an environment fraught with police excesses. It goes to show that the State is merely prohibiting a stigmatised idea of gambling and not the actual unfair allocation of wealth and economic inequalities[xxvi] that may be a result of unregulated gambling. 

Result of Moral Policing

Although the Government of Karnataka is Constitutionally competent to create mandates on the subject, the controversial action is bound to reignite the dialogue surrounding the very need for laws grounded in morality[xxvii]. While this larger philosophical question looms at the corner of the current issue, here are the reasons why it is evident that the recent amendment springs from sentiment of moral policing by the State: 

First, the online gambling industry in India is on its way to creating one of its biggest ever markets[xxviii], fueled by cheap access to internet services^[xxix], increased screen time due to COVID-19 lockdowns^[xxx], and the ever-increasing middle-class population with access to smartphones[xxxi]. The internet throws up plenty of reports and data indicating the losses that India faces from not regulating online gambling in India[xxxii]. By completely choking out the growth of such an industry, especially in a state that houses the country’s IT capital, the amendment is simply not supported by the economics of it. 

Second, regarding the harm that the activity poses to the impressionable youth demographic of the society, the state has witnessed recent Public Interest Litigation (PIL) seeking a ban on such games until regulations may be framed. The PIL sought a ban on online games of wagering and betting unless an appropriate regulatory regime is established and regulations are framed; and the Karnataka High Court directed the State Government to this effect. At no point in the order however, is the distinction between skill and chance overlooked, nor is there anything to the effect incapacitating the State from regulating the same^[xxxiii]. Moreover, there is no published empirical data available to justify the complete ban of all kinds of games or longer duration of imprisonment. The Government could have introduced regulations banning games of chance, or standardised the quantum of betting/gaming fee, imposed age related restrictions, put a cap on duration of play by a participant in a given day, regulated the unethical advertisements made by gaming companies, or taken any other logical measure that reduces any of the recognised risks attached to gaming. Without making any such attempts, a ban and increased punishment not only seems premature, but is a sure-fire way to nip the growing gaming industry in the bud itself. 

And lastly, the final blow sealing the fate of online gambling in India is evidenced by the aforementioned Statement of Objects and Reasons that comes out in complete support of the moralistic aversion to gambling. This rehashes the question of exactly where it is that the State intervention should be drawing the line between private and public sphere of the society. Although the Constitutional mandate on “betting and gambling” has been towards state-wise control, is it wise to overlook the borderless nature of the digital environment to exercise such mandate? And does this amendment in Karnataka risk creating a vacuum of inconsistency in India’s national online gaming policy? 

Economic Loss: A Justifiable Cause?

Making an activity a criminal offence or increasing its severity should be a product of careful consideration. Hasty measures like these come as a blow to citizens’ liberties. Philosophers like H. L. A. Hart, Lord Dublin, John Stuart Mill and many others have extensively discussed the precarious balance between prevention of societal harm and encroaching individual autonomy. Liberty should only end where another’s harm begins^[xxxiv], i.e., the right to do wrong or the right to not be interfered with which is especially applicable in morally contentious issues such as self-inflicted harm. 

In assessment of whether the Karnataka State Government’s efforts are justified, it is worth revisiting the theory of crime. Majority of offences or classification of crimes are intended to protect individuals against harm. Betting and gambling are undoubtedly susceptible to a risk of self-inflicted damage. Betting, even based on games of skill could be damaging.  However, it is not the duty of the state to protect or insulate citizens from all kinds of financial risks. Under the guise of preventing such financial risks, controlling citizens’ activities could only be viewed as paternalistic and excessive intervention on fundamental freedoms. A person’s likelihood of getting into a game or risking his finances generally, does not necessarily extend much impact outside his immediate life. However, gambling is not the only activity that strikes financial loss, and yet, not all such events are morally policed. There are wrong business decisions, entrepreneurial activities or trading decisions which may create similar financial disturbances to an individual or his/her family.  It is not considered the duty of the state to control individual freedom due to fear of economic losses that one or one’s family may inflict because of a bad choice. As long as a person’s choices are not compromising the interest of the public, it is the preferred practice that the State should avoid intervening. Modern legal systems like ours with the Constitution at the top, view criminalization efforts of the legislature conservatively and in all likelihood, this amendment is likely to face the test of that process. 

Maintenance of the Moral Fabric of the Society

By the process of elimination, it all comes down to the activity of gambling being viewed as ethically wrong— as somewhat of a plague that the society needs to be cleansed of. While such objectives are not inherently offensive, since they are probably intended to protect citizens from financially ruin, where then does the state draw the line in said promotion of economic justice in exchange for personal freedom^[xxxv]? Whatever limited disclosures are made available; the legislature has not exhibited an adequate case for individuals risking their money having impacted their family finances substantially either. Even general arguments made in favour of banning gambling due to loan-sharking or commission or attempt of suicide^[xxxvi] is more like treating a symptom of unregulated gambling rather than the activity itself; as banning it will not bring an end to underground options. 

Jurists have acknowledged the need to maintain the moral fabric of the society and justified criminalising activities that disturb such morality. However, using moral justification for criminalising certain activities is a difficult proposition in many instances as it is difficult to legally justify what constitutes morality. Gambling has always been a part of human civilisation, even in one as old as India’s, it has almost always existed, though perhaps not always culturally approved of. Indian scriptures on events of gambling reveal a more nuanced position in that regard. While some texts like the Manu Smriti condemn it outright and advised the King to exclude it from his realm^[xxxvii], there are plenty of others like the Yagnyavalkya Smriti[xxxviii] and Kautilya’s Arthashastra^[xxxix] that accepted that if it cannot be stopped, it may as well be regulated and taxed by the King. The Mahabharata itself is perhaps a prime example that had gambling been regulated, the ill-fated game of dice may not have seen the same catastrophic ending[xl]. There is a plethora of instances in ancient literature, on the approach of controlling or regulating excessive gambling.  Given that it still persists, there is no doubt that completely obliterating it is closer to fantasy. The very subsistence of gambling and betting through several millennia in this country and all others, though often with varied forms of controls, negates the argument of all forms of gaming risking money being fundamentally immoral. Even those historical or epical narrations where gambling is treated as a vice are predominantly relating to games of chance. For this reason, it may not even be historically justified to prohibit all kinds of games risking money or imposing increased punishment on solely moral grounds.

Finally, if said moral concern is the cause of the amendment, it fails to explain the distinction between horse-racing and lotteries which continue to be legal. If public morality is the reason for increased criminalisation, then the legislature should have offered an explanation as to how betting on a game of horse-racing^[xli] is different from the games of skill that now stand banned. Such laws do not create a contrast between the wagering contracts that the law refuses to recognise and those that are legally valid such as derivatives like futures, options or swaps— all of which involve risks and are significantly of wagering character. The varying standards of morality that are at play is yet to be explained, in the absence of which, selectively banning few gaming and wagering activities especially in a targeted attempt to disrupt digital gaming is beyond comprehension.  

An Unreasonable Restriction?

Constitutional morality has always leaned towards individual freedom. In a conflict between individual freedom and upholding an aging concept of cultural morality, individual freedom must prevail as long as it is not harming the society at large. Declaring gaming of most kind as a severe offence merely on the grounds of morality is an unreasonable restriction on individuals’ freedom. If the intent was to control the financial risks associated with gambling, putting a financial limit on betting based on the financial status of the player concerned would have been more appropriate measure. There are a variety of means to verify the identity of players, such as KYC formalities to ensure transparency. The Law Commission of India has made very concrete recommendations^[xlii] based on thorough findings which the amendment seems to have overlooked for reasons yet unknown. 

On an economic perspective, this amendment can result in substantial revenue loss, and loss of employment opportunities in Karnataka as these gaming operators are likely to shift their base to other jurisdictions. These companies can easily offer these services from such overseas jurisdictions or with in India where it is legal. In such instance, those countries/ states could tax those businesses. 

Exercise of the constitutionally derived mandate thus, should have been based on national discussions and public debate. A consensus among the States and a consistent and uniform regulation should have been more appropriate. This unilateral amendment in Karnataka and a select few states risks a cavity in India’s general advancements in the digital era. 

The lack of clarity on the grounding behind such a ban and increased criminalisation, that takes away from individual liberty in an arbitrary manner, has created a case ripe for a challenge under constitutional remedies. 

Authors: Rajesh Vellakkat, Partner and Vandana Birthur, Trainee Associate at Fox Mandal & Associates. The content of this Article does not necessarily reflect the views / position of Fox Mandal but remain solely those of the authors.

1.   The Karnataka Police Act, 1963, Act  4 of 1964, Statements of Objects and Reasons.
2. The Karnataka Police (Amendment) Bill, 2021, LA Bill No. 37 of 2021.
3. The Public Gambling Act, 1867, Section 12.
4.   The Indian Contract Act, 1872, Section 30.
5.   Gaming Act of 1845; Betting Act of 1853. 
6.   Constitution of India, Seventh Schedule, List II, Entry 34.
7.   Constituent Assembly Of India Debates (Proceedings), Volume IX, Friday, the 2nd September 1949; available at: 
8. Uttar Pradesh, Madhya Pradesh, Delhi, Punjab
9. The Maharashtra Prevention of Gambling Act, 1887, et al.
10.  The Assam Game and Betting Act, 1970; The Orissa Prevention of Gambling Act, 1955, et al. 
11.   Goa, Daman and Diu Public Gambling Act, 1976; The Sikkim Online Gaming (Regulation) Act, 2008.
12. State of Bombay v. R.M.D. Chamarbaugwala [AIR 1957 SC 699]
13. State of Andhra Pradesh v. K. Satyanarayana [AIR 1968 SC 825]; 
14. Dr. K.R. Lakshmanan v. State of Tamil Nadu [AIR 1996 SC 1153];
15. M.J. Sivani And Ors. v. State Of Karnataka And Ors. [1995(3) SCR 329];
16. Manoranjitham Manamyil Mandram v. The State Of Tamil Nadu And Ors. [AIR 2005 Mad 261]; 
17. Shri Varun Gumber v. Union Territory of Chandigarh and Ors. [CWP No. 7559 of 2017].
18.   Dr. K.R. Lakshmanan v. State of Tamil Nadu [AIR 1996 SC 1153]. 
19.   Dr. K.R. Lakshmanan v. State of Tamil Nadu [AIR 1996 SC 1153]. 
20.   Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021.
21.   Junglee Games India Private Limited and Ors v. State of Tamil Nadu [2021 SCC OnLine Mad 2762].
22.   The Karnataka Police Act, 1963, Section 2(7), Section 2(11).
23.   The Karnataka Police Act, 1963, Section 78.
24.   Marwah, Sonal. A Heavy Hand: The Use of Force by India’s Police, Small Arms Survey, 2012; Law Commission of India, Consultation Paper on Law Relating to Arrest, Annexure III, available at: 
25.   William C. Bailey, Ronald W. Smith, Punishment: Its Severity and Certainty, 63 J. Crim. L. Criminology & Police Sci. 530 (1972).
26.   Code of Criminal Procedure, 1973, Section 2(c).
27.   Code of Criminal Procedure, 1973, Section 54.
28.   Code of Criminal Procedure, 1973, First Schedule, Part II.
29.   National Police Commission, Third Report, regarding Quality of Arrests, available at: 
30.   Johannes Niklas, Vuorre Matti and Przybylski Andrew K, Video game play is positively correlated with well-being, Royal Society Open Science, available at: 
31.   Constitution of India, Directive Principles of State Policy, Article 38 and Article 39.
32.   Chapter IV A, Legal Framework: Gambling and Sports Betting Including in Cricket in India, Law Commission Of India, Report No. 276, July 2018, available at: 
33.   Online gaming in India: Reaching a new pinnacle, A study by KPMG in India and Google, May 2017, available at: 
34.  Internet penetration rate in India from 2007 to 2021
35.  A year off script, Time for resilience: A synopsis, KPMG in India’s Media and Entertainment report, 2020, available at: 
36. Future of Consumption in Fast-Growth Consumer Markets: INDIA, World Economic Forum, January 2019. 
37. REPRESENTATION: Regulating Sports Betting in India- A vice to be tamed?, FICCI.
38.   Sharada D. R. v. State of Karnataka [W. P. No. of 2020 (GM-RES) PIL]
39.   J.S. Mill, On Liberty and Utilitarianism (Bantom Classic, New York, 2008)
40.   Constitution of India, Directive Principles of State Policy, Article 38. 
41.   Avinash Mehrotra v. Union Of India [W.P.(C) Nos. 5661/2019 and 11472/2019].
42.   State of Bombay v. RMD Chamarbaugwala [AIR 1957 SC 699].
43.   Reeja v. State Of Kerala [2004 (3) KLT 599]
44.   Kautilya Arthashastra, Book 3, Chapter 20, R. Shamasastry, 1956.
45.   Chapter IX, Legal Framework: Gambling and Sports Betting Including in Cricket in India, Law Commission Of India, Report No. 276, July 2018, available at: 
46.   State of Andhra Pradesh v. K. Satyanarayana [AIR 1968 SC 825].
47.   Legal Framework: Gambling and Sports Betting Including in Cricket in India, Law Commission Of India, Report No. 276, July 2018, available at: