Online gambling has become widely popular in India, especially during the coronavirus pandemic which has left many in India stuck at home during a series of total and partial lockdowns.
However, there has been a lot of confusion on the legality of real money games like poker, rummy and fantasy sports, and whether such online games played should be legalised or banned.
It should be noted that gambling platforms remain at the mercy of state governments which decide whether a certain platform should be blocked or not.
Several state governments including Andhra Pradesh, Telangana, Tamil Nadu and Punjab governments have imposed bans on online gambling apps stating ‘legislative ambiguity’.
Andhra Pradesh Chief Minister YS Jagan Mohan Reddy on 27 October 2020 in a letter to the IT Minister Ravi Shankar Prasad requested him to direct Internet Service Providers (ISPs) to block a list of websites involved in online gambling and betting, stating that several youngsters died by suicide after they were pushed into ‘debts’ by gambling online.
However, with the new IT rules in force, state governments will have more power to ban online gambling platforms in India.
Understanding Legality of Online Gambling
Indian law classifies games into two broad categories viz ‘game of skill’ and ‘game of chance’.
The Supreme Court of India has held that the Teen Patti game which goes under different names such as ‘flush’, ‘brag’ etc is a game of pure chance. In India only three states legally allow such games – Goa, Sikkim, and Daman.
Some games like Rummy, on the other hand, require a certain amount of skill because the fall of the cards must be memorised and the building up of Rummy requires considerable skill in holding and discarding cards. Indian laws do not consider such games which involve skill under the definition of gambling.
What Do the Old IT Rules Say?
The old Information Technology (Intermediaries guidelines) Rules, 2011 do not explicitly mention whether the state governments could ask ISPs to block access to content, giving online gambling platforms an edge.
Therefore, even if gambling platforms were banned by the state governments several people could still play the game as ISPs won't restrict the websites or apps.
According to IT Rule 3(2)(b) of the Old Rules, intermediaries such as ISPs, are required to inform users not to host, display, upload, modify, publish, transmit, update or share any information that is relating to or encouraging gambling.
The old IT rule further states that the intermediary on obtaining knowledge or being brought to knowledge by an affected person of any content violating Rule 3(2) was obligated to disable such information within 36 hours of receipt of such request.
The new IT rules give the state governments the power to direct ISPs to block websites which violate the state laws.
This means, the Andhra Pradesh government can now direct ISPs to block online gambling platforms with their territory.
Under the new Rule 3(1)(d) of the IT rules, "an intermediary is obligated to not host, store or publish content which is prohibited by any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force."
Meanwhile, there are no significant changes in the language used in the Old Rule 3(2)(b). It is now possible for any state government to direct ISPs to block fantasy sports, rummy, poker, and any other gambling websites.
Commenting on what happens if ISPs do not comply with the IT Rules, Legal expert and Bombay High Court Advocate Satya Muley told The Quint that noncompliance by the intermediaries shall render them liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.
"Some states like Maharashtra have explicitly banned gambling via existing statutes such as The Maharashtra Casinos (Control and Tax) Act, 1976, however tackling with online gambling was an issue due to absence of explicit relevant provisions. With the IT rules coming in place, the States can now direct the ISP’s to ban online gambling applications or sites," Muley added.
It is worth noting that the Chief Ministers of Tamil Nadu and Puducherry have also asked the centre for similar bans. However, it remains to be seen how ISPs will limit the blocking to the territorial limits of a particular state.