State of Play: Colonial history and present-day law governing gambling

Gambling goes back through the ages. Old are the very many hypocrisies that have courted human indulgence. But, sanctimony aside – be it breeding roosters for aggression or horses for speed – ‘skill’, much like ‘beauty’, lies in the eyes of the beholder.

It is the age of the hand-held smart phone; multiple mobile-apps now offer many of the classic board games. There are some newer-tweaked versions, and a bunch of rather novel fantasy games. Money is involved too. Lots of it! And with the rapid growth in digital infrastructure, communication technology and the internet, we are in a constant state of play. The Coronavirus-induced lockdowns have also provided the perfect environment for the age-old indulgence i.e. in the cozy privacy of our homes. Of course, online gaming had seen a steady growth in India even before the pandemic.

Yet, like the other ‘(s)industries’, say alcohol, the legislation and governance qua gambling has been shrouded in utter hypocrisy. From the earliest of times, laws have sought to enforce a subjective morality and have attempted to shield us from ourselves – of course, because we don’t know any better.

Take the Rig Veda written around 1500 BC, which draws the unmistakable link between gambling and the actual vice of theft. There is patriarchal prejudice too – the loneliness of the wife and worries of the mothers are attributed to the male and his gambling addictions. It also urges the gambler (in the same breath), to think of his cattle and the wife at home (obviously, both must be there). The Mohammedan law on the subject is quite similar. It treats gambling as evil and sinful. But more interestingly, the constitutional courts, which are tasked with protecting our liberties and freedoms, have continued to make reference to such verses in order to justify prohibitions on online games and lotteries.

The British of the Victorian era shared these sentiments. It was the Council of the Governor General of India that introduced the Bill, which was to become the Public Gambling Act, 1867 – a law that continues to be on the statute book today and serves as the blueprint for other anti-gambling laws in the various states. The Act introduced a distinction between games of ‘skill’ as against those of ‘chance’. The latter variety was treated as tantamount to gambling and a consequent provision was made to punish those indulging in speculative ventures while establishments that facilitated these were outlawed.

The hypocrisy behind this legislation is outdone only by the typical rich attitude of the colonials. Legislative history testifies that at least part of the object was to ensure that natives in the direct employ of the colonial households did not while away their time indulging in play rather than serving their masters.

You see, as originally drafted, the provisions of the Bill were confined to towns containing not less than five thousand inhabitants, such as the Presidency of Fort William, the Panjab, Oudh, the Central Provinces, and British Burmah. These were the large urban centres, with a considerable British presence. But this would have had an unintended consequence viz., “a large proportion of the population” that “consisted of domestic servants” in the hill-getaways of “Nynee Tal, Muree, and Dalhousie” would have been left unregulated. So for obvious reasons, it was thought best that “gaming-houses should, if possible, be suppressed” in such areas too.

Meanwhile, it had to be ensured that elitist pleasures continued unobstructed. So, separate legislation legalizing horse-racing was quickly put into the works around the same time. This indulgence was deemed to be one involving ‘skill’. And before you cast doubts or mild aspersions, better hold your horses. Today our own Apex Court has come to accept the sport as so.

By the way, a fervent appeal (by the common folk, of course) demanding that cock-fighting be placed on a pedestal similar to horse-racing was declined. In the British mind, breeding roosters for aggression couldn’t ever be similar to breeding horses for speed. But that is the thing with ‘skill’ – much like ‘beauty’ it lies in the eyes of the beholder. And, at a rather rudimentary level, I suggest that is the problem with the current regulatory framework.

Be that as it may, the archaic law took force and swept away basic liberties such as the right against self-incrimination i.e. a common minimum safeguard which we take as a given under contemporary law. In effect, a person found in a gaming establishment was not to be excused from giving evidence against himself.

Here too, the Select Committee that studied the Bill had borne the conception that those indulging in gambling were prone to commit crimes such as “theft and even murder”. Yet, even in 1867 – though in small measure, wisdom was available. One of the legislators, JEL Brandreth had doubted the efficacy of the draft law on the ground that habitual offenders were in any case, more likely to gamble in secret and then be driven to crime in order to repair their losses.

Fast forward to present day India, the majority of governments in the states continue to be disinclined to legalize gambling. But interestingly, many run their own lotteries because after all, ‘sin’ is justified once under the aegis of the State. Also, where gambling is legal, those in power continue to flirt with the idea of banning ‘locals’ from entering casinos– repeatedly so. Charming, that the citizen is a bit more prone to being discriminated against in his home state. Locals insulted yet?!

Anyhow, let’s get over the casinos already. We are playing blackjack and roulette on our handheld phones instead. And the lawyers are busy arguing that these involve sufficient elements of ‘skill’, while the courts continue to apply unobjective tests to see, if in fact, such is the case (as if qualitative assessments of the kind are always possible).

But if we are open to alternatives, particularly since we haven’t all indulged in murderous thievery in order to ‘repair our losses’ after the odd game of poker, it might be wise to revisit the whole ‘skill v. chance test’ instead. After all, the British have, and they started it.

The point being, modern legislations, as opposed to the ecclesiastical ones or those relating to the Victorian era, should treat us as informed adults. And, within the bounds of good taste, any legislation should respect individual choice and accommodate the sentiment that as adults, we should have the final say in matters concerning ourselves, and our bodies and minds.

Lastly, and speaking of loose ends, the colonial lawmakers in 1867, were not entirely certain whether “gambling ought to be condemned in India, as a thing ‘per se’ evil.” Therefore, since ‘evil’ must be something more ghastly than gambling in our land, right now may be a delightful time for our present-day legislators to drop their own Victorian era hypocrisies, make provision to prohibit the entertainment of those in their direct employ (if they must), and leave the rest of us in a peaceful state of play.

The author is an Advocate-on-Record at the Supreme Court of India and is currently a Partner in the dispute resolution practice at L&L Partners, Law Offices, New Delhi. Views are strictly personal.