[Breaking] Capricious, excessive, disproportionate: Madras High Court strikes down Tamil Nadu's 2021 Online Gaming ban

An Amendment to the Tamil Nadu Gaming Act, 1930 imposing a ban on online gaming, including online rummy and online poker with stakes, was struck down by the Madras High Court on Tuesday (Junglee Games India Private Limited v. State of Tamil Nadu). .The Court declared as unconstitutional Part II of the Tamil Nadu Gaming & Police Laws (Amendment) Act, 2021 which banned betting or wagering in cyberspace and also games of skill if played for a wager, bet, money or other stakes..The Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy concluded that by imposing a wide ranging complete ban, least intrusive test was violated and the ban had, thereby, fallen foul of Article 19(1)(g) of the Constitution of India (right to practise any profession, or to carry on any occupation, trade or business)..The Court opined that the legislation assailed has to be regarded as something done capriciously, irrationally and which was excessive and disproportionate. .The Bench added that the doctrine of severability is also not applicable since the amended definition of "gaming" runs through the entire legislation. .The Court concluded that the amendment is disproportionate to the object it sets out and that no part of it can be saved. The Court, therefore, struck down the amendment in its entirety as ultra vires the Constitution.."In fine, it must be said that the Amending Act in its application to the Act of 1930 is so disproportionate to the objects that it sets out to achieve that no meaningful part of it – even a sliver – can be reasonably allowed to be retained or upheld as valid", stated the judgment. .Explaining how the sweep of the amendment is unreasonable, the Court said:"The amended Act encompasses within its sweep all sporting activities, if played for a prize, whether between two class teams in a school or between two schools in an inter-school competition, if there is a trophy to be won; leave alone the ATP prize-money or ranking tournaments organised in the city. Goodbye to IPL and Test matches, too, from Tamil Nadu since cash rewards are offered therein … The wording of the amending Act is so crass and overbearing that it smacks of unreasonableness in its every clause and can be seen to be manifestly arbitrary. Whatever may have been the pious intention of the legislature, the reading of the impugned statute and how it may operate amounts to a baby being thrown out with the bathwater and more.".The case also prompted the Court to comment on how laws are often passed without adequate research backing it up. In this case, the Court opined that the amendment may have been guided by morality and that appears to have been a bid to play to the galleries during election season. ."In the absence of any scientific or empirical study to justify the proposed action, the impugned legislation may be seen to have been born out of a sense of morality and a bid to play to the galleries in election season in a societal ethos where smoking and drinking are regarded as less immoral than when indulged in before elders; and, superstitious notions and false senses of vanity continue to prevail as real education is still at a premium despite literacy rates increasing and thousands qualifying each year to add a few letters after their names. That the Bill faced no opposition in the House has more to do with the optics just ahead of the State elections," the judgment stated. .The Bench, however, added that nothing in its judgment rendered today would prevent the State government from introducing an appropriate legislation in the field of betting and gambling, conforming to the Constitutional sense propriety. .The Court passed the judgment in a batch of petitions challenging the online gaming ban in so far as it concerned online rummy and online poker. .In so far as rummy and poker were concerned, the Court observed that there appears to be little doubt that both games were games of skill since "they involve considerable memory, working out of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards."."Poker may not have been recognised in any previous judgment in this country to be a game of skill, but the evidence in such regard as apparent from the American case (United States of America v. Lawrence DiCristina) even convinced the Law Commission to accept the poker as a game of skill in its 276th Report", the Court added. .The Court had reserved judgment in the matter on July 26. .In the final leg of the hearing, the Court had reiterated that the law in in its present form may not survive judicial scrutiny."I think it is better we throw it out, you better get a more intelligible legislation," Chief Justice Banerjee had orally observed. .Advocate General R Shunmugasundaram led the arguments for the State government presently led by the DMK after the matter was heard afresh from July 5. Prior to this, former Advocate General Vijay Narayan had represented the then AIADMK-led regime, which had introduced the ban. .Among those who led the arguments for various petitioners were senior advocates AM Singhvi, Mohan Parasaran, Aryama Sundaram, AK Ganguli and PS Raman. .Senior advocate Parasaran was briefed by advocates Suhaan Mukerji, Varun Mathew, Nikhil Parikshit of PLR Chambers..Advocates Adithya Reddy, Akshat Gupta of G&J Partners and Jay Sayta appeared for the online rummy company, Dgtly Infotech (OPC) Pvt. Ltd..Other counsel representing various petitioners included advocates Arun Karthik Mohan, Rahul Unnikrishnan, Sashidhar Sivakumar, Pavitra V, Potharaju Ashutosh, Suhrith Parthasarathy, Surasika Parthasarathy, Ashwini Vaidialingam, Amritha Sathyajith, NS Tanvi, Vishakh Ranjit and Swarnam Rajgopal..[Read Judgment]