Reflects individual sense of morality: Madras High Court expresses reservations about Law Commission report on gambling, sports betting

The Madras High Court on Friday expressed reservations about the 2018 report of the Law Commission of India on legal framework relating to gambling and sports betting in India..The Court observed that the report appeared to have been guided by the author's sense of morality and noted that it refers to incidents in epics. "That report is alarming. A Law Commission report that has to be objective, refers to an epic and an incident in the epic. It is the individual sense of morality of the author," remarked Chief Justice Sanjib Banerjee.The report in question was published during the tenure of chairperson Dr. BS Chauhan..The Court was hearing petitions challenging Tamil Nadu's ban on online games insofar as it bans online rummy and online poker. During the hearing, the Court also questioned the State on whether it had sufficient data to back up its law banning online gaming, while also pointing out that the law in its present form appears to be poorly drafted..The law was introduced via an ordinance in November last year in the wake of suicides in Tamil Nadu owing to losses incurred while playing online games. Later, a Bill was tabled by the State government on the issue. .In the course of his submissions on Friday, Advocate General R Shanmugasundaram also referred to the Law Commission of India's (LCI) report on the issue..The Advocate General further submitted that what the Law Commission and the judges may have to say are indicators that serve to guide the government. ."We take guidance from your Lordships. Because your Lordships are men of wisdom and come across so many issues, you apply your minds and decide. Governments take cue from judgments and Law Commission reports. Third is the incidents of suicides. It really shocks the conscience. That is the background of this case", he explained..The Court, however, continued to express reservations.."It (the law banning online gaming) appears to be without any data or study; your sense of morality (appears to have) appealed," the Court said. .Chief Justice Banerjee went on to observe that even if the State has the authority to regulate an area, it has to be within acceptable parameters."Let us analyse what you have done. There is no doubt Mr Advocate (General) that you (the State) have the authority, you have the legislative competence. But just because you have the authority does not mean that you crack the whip to such an extent…".He further commented that as per jurisprudence that has evolved over the years, when betting is on a game of skill, there is a right to practice it, to pursue it and to show one's skill.."Once skill is involved, you may regulate it. The moment you prohibit it, it becomes dangerous," he observed..The Chief Justice also took note that the present online gaming ban has been introduced in the form of an amendment to a law that is nearly a 100 years old, i.e. the Tamil Nadu Gaming Act, 1930.."You can bring various laws other than the way you have presented it. You have presented it very poorly in a 1930 law, you can bring a new law," the Court pointed out..The Chief Justice added that the Court is not dictating the State on how to go about such efforts. However, there are drafting sections for every legislative wing that can draft laws in forensic terms, he observed. .While so, the present law appears haphazard, inarticulate, confusing and appears to be contradictory to the purpose for which it was brought, and contrary to the body of jurisprudence governing gambling and betting.."It is so haphazard...There may be issues. But because of the terrible wording of the amendment, we may have to throw out the entire thing. But that will not prevent you from dealing with certain menaces that need to be stopped...We yield to you. If the State thinks that certain kinds of activities are not desirable then, subject to constitutional parameters, we will give you the benefit of doubt. Every presumption is in your favour. You are the State," the Court said. .The Chief Justice added that the Court would have to examine whether the State is being arbitrary in not allowing persons who are good at a skill from using that skill. .To explain the concern, the Chief Justice also cited the example of the game of bridge, a game in which renowned filmmaker Omar Sharif was also highly proficient. It takes a lifetime to learn how to master placing bids in the game, he noted.Sharif made a fortune exercising his craft (bridge), the Chief Justice pointed out."If you are going to stop him from exercising his craft, that would be a violation under the Constitution," the Chief Justice remarked. .The Advocate General responded by pointing out that skilled games have not been prohibited totally. It is only if such games are played with stakes and wagers that the law in question applies, he pointed out..The hearing before the Bench of Chief Justice Banerjee and Justice Senthilkumar Ramamoorthy will continue on Monday at 12.00 pm.