In the light of legislative bans on skill-based online games in different states, NIKHIL PARIKSHITHexamines the “paternalistic” role assumed by the State over its citizens to impose blanket bans based on its own sense of morality and perception.
ONLINE platforms offering skill-based games such as rummy and poker have been subjected to legislative bans in several states such as Telangana, Tamil Nadu, Kerala and more recently, Karnataka. In Tamil Nadu and Kerala, such legislative interventions did not pass the muster of constitutionality and were struck down by the respective High Courts.
Despite a plethora of jurisprudence which have conclusively held that playing games of skill (such as rummy) for money does not amount to “gambling” or “gaming” (both expressions being judicially held to be synonymous to each other) – the advent of online gaming platforms, given their pervasive reach especially among the younger demographic, has triggered knee-jerk and disproportionate legislative interventions in the form of blanket bans.
The common thread behind banning gaming platforms in these states is the State’s moral notion that such online games encourage the vice of gambling and such activity conducted online is per se immoral and pernicious. This, despite the settled legal position that conducting/ organising games of skill has been judicially held to be a “business” that stands protected under Article 19(1)(g) of the Indian Constitution and therefore, does not amount to “gaming” or “gambling”.
In this backdrop, such legislative interventions raise a larger and more searching question as to the extent to which the State can assume a “paternalistic” role over the citizenry by encroaching upon individual choice and impose, by way of reactionary legislative intervention, its own sense of morality – a question that was raised and discussed by the Hon’ble Madras High Court, when it struck down the ban on online rummy in Tamil Nadu.
Paternalistic imposition of the State’s morality
It is quite possible that an activity which was perceived to be immoral in the past may, with the passage of time, be condoned today by society as being acceptable or amoral. For instance, the decriminalisation of “adultery” by the Hon’ble Supreme Court in 2018.
Moral standards vary and assessing an activity (for the purposes of legislation) strictly from a moral standpoint is fraught with contradictions. For instance, the sale and consumption of alcohol is legal in most states but prohibited in others. Similarly, sale of cigarettes is not prohibited but organising an online rummy game is sought to be banned. Therefore, morality is subjective and cannot be the standalone basis for framing any law.
Today, fundamental rights (in the jurisprudential sense) encompass a broad variety of rights which cannot be whittled down by way of arbitrary and paternalistic laws. The Supreme Court in its right to privacy judgment (Puttaswamy I) in 2017 and the LGBT rights judgment (Navtej Singh Johar) in 2018 has given primacy to individual choice.
Any legislation driven by a perceived sense of morality of the State which encroaches upon the fundamental rights guaranteed under Part III of the Constitution must pass the tests of “reasonableness” and “proportionality” in its contemporary sense.
Tests of proportionality
The doctrine of proportionality (explained in its Modern Dental College (2016) and the Aadhar (2018) judgments by the Supreme Court) is a robust doctrine, often applied by constitutional courts for determining the validity of any law (and even executive actions) which encroaches upon fundamental rights. This doctrine essentially involves a balancing act between competing ideals.
A legislative intervention that seemingly or directly encroaches upon a fundamental right (for instance, the right to carry on any occupation, trade or business) is subjected to a fourfold test, namely:
Whether the legislation is designated for a “proper purpose”?;
Whether the legislative measures undertaken to effectuate any limitation on a fundamental right is “rationally connected” to the fulfilment of that purpose?;
Whether the legislative measures undertaken are ‘necessary’ in that there are “no alternative measures that may similarly achieve the same purpose with a lesser degree of limitation”?; and finally
Is there a proper relation (proportionality or balancing) between the ‘importance’ of achieving the proper purpose and the “social importance of preventing the limitation on a constitutional right”?
Very often legislations or executive actions which seek to ban an activity fail to meet the proportionality tests. Such bans are often triggered by perceptions. A case in point is the decision of the Hon’ble Supreme Court in striking down a Reserve Bank of India (RBI) circular which prohibited RBI regulated entities in dealing with individuals or businesses dealing with virtual currencies. The Supreme Court did not accept the threat perception voiced by the RBI, that virtual currencies can give rise to terrorist financing and money laundering, since the basis for this perception was not backed by any empirical evidence.
Therefore, a law banning an activity purely on moral considerations or perceptions being devoid of any empirical or scientific evidence is bound to fall foul of the proportionality tests. In the context of online games, none of the legislations passed by the States even remotely indicate any basis or data justifying a blanket ban except for a sweeping assumption that such games lead to suicides and cause widespread financial ruin.
Threat of Orwellian State
Blanket bans cannot be the answer and the State must find alternatives to achieve a public purpose with the least degree of intervention on a fundamental right – as the doctrine of proportionality envisages. If an activity which is not inherently pernicious or dangerous, yet potentially poses a societal challenge – the State ought to regulate and not prohibit.
Ultimately, the State must arrive at a delicate balance towards protecting individual choice on the one hand, and protecting public interest on the other.
Perception driven bans (howsoever well intended) sans any empirical or scientific data are incremental steps towards heralding an Orwellian State.
(Nikhil Parikshith is an Advocate-on-Record at the Supreme Court of India. The views expressed are personal.)