The Bill takes the view that, in online rummy and poker, the algorithms can override the skill or talent element, which makes it game of chance. It is speculated that this is where difference of opinion exists between the gaming industry and the government, and is the reason for the Governor to withhold the Bill.
What is the controversy raging in Tamil Nadu over an online gambling and games regulation bill?
THE delay caused by Tamil Nadu Governor T.N. Ravi in giving assent to the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Bill, 2022 has led to controversy. Members from the ruling party doubted the motives of the Governor in not giving assent and once again questioned the need for governorship in today’s democratic politics.
This Bill is not the first time where the Government of Tamil Nadu came hard on online gaming, which apparently is causing suicides and depression among citizens. The state legislature has previously enacted the Tamil Nadu Gaming and Police Laws (Amendment) Act to ban online gaming, a part of which was struck down by the Madras High Court last year as it did not distinguish between games of skill and chance.
Later, the state government appointed a committee under the chairmanship of former Madras High Court judge, Justice K. Chandru. Based upon the recommendations of the said committee, the government promulgated the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Ordinance, 2022. Though the ordinance was promulgated, it was never notified.
The Ordinance was in force till November 27. Meanwhile, the state legislature passed the Bill replacing the ordinance. As the ordinance lapsed and the Bill cannot become the law till it is given an assent by the Governor, the alleged pocket veto being exercised by the Governor has become a controversy. It is to be noted that, as on December 1, the Governor has withheld 21 Bills passed by the state legislature. It was reported that the Governor termed the withholding of Bills as a “courteous way of saying no.”
It is being speculated that the predominant reason for not giving assent to the Bill is that the Bill recognises online rummy and poker as games of chance. As per the Bill, all games of chance are prohibited and playing them is also an offence.
It is being speculated that the predominant reason for not giving assent to the Bill is that the Bill recognises online rummy and poker as games of chance. As per the Bill, all games of chance are prohibited and playing them is also an offence which attracts imprisonment of three months or a fine of Rs. 5,000, or both. Now that Bill recognises these games as games of chance, if it comes to force, they would no longer be played in the state of Tamil Nadu.
Also read: Karnataka High Court reaffirms the legality of online gaming: an analysis
What is an ‘online game of chance’ as per the Bill?
Section 2(l) of the Bill defines an online game of chance as an online game which involves (i) “both an element of skill and element of chance, and the element of chance dominates over the element of skill”; or (ii) the “element of chance…can be eliminated only by superlative skill”; or (iii) “is a game presented as involving the element of chance”; or (iv) “involves cards, dice, wheel or such other device, which works on random or event generator.”
Games of chance are understood to be games which are won purely on basis of luck. As opposed to games of skill, where there is involvement of human agency, skill and talent, games of chance lack these elements. For example, in a game of dice, where a person wins money or pot on the event of resulting particular number on rolling a dice, it is not dependent on skill or talent of player or organiser and the result is based on luck.
Are online rummy and poker games of skill?
Traditionally, the game of rummy has been treated as games of skill. In the case of State of Andhra Pradesh versus K Satyanarayana (1967), the Supreme Court reaffirmed this view. As this game involves remembering cards, constant monitoring of cards discarded and taken by opponents, and formation of sets, it was considered to be a game of skill.
There is divided opinion on poker being a game of skill. Most common law countries consider poker as gambling. But research by Israeli mathematician Noga Alon, American economist Steven Livitt and American legal scholar Thomas J. Miles, and American professional poker player and author David Sklansky concluded that poker is a game of skill as it involves “an in-depth study of quantum mechanics, statistical physics, game theory and human psychology.” Though the Calcutta High Court has viewed poker as a game of skill, the Aurangabad bench of the Bombay High Court is yet to examine its legality and is currently considering the question.
Research has concluded that poker is a game of skill as it involves “an in-depth study of quantum mechanics, statistical physics, game theory and human psychology.”
The current Bill departs from the above traditional view and categorises the above games as games of chance. It presents a view that such online games can simply be put into the two categories of games of skill and those of chance. The preamble to the Bill provides that these online games are based on computer-based random generators created by algorithms which can be set to the benefit of game organisers and cannot be audited. As it is not truly random and the whole game can be rigged, they cannot be categorised as games of skill. The Bill takes the view that, in online rummy and poker, the algorithms can override the skill or talent element, which makes it a game of chance. It is speculated that this is where difference of opinion exists between the gaming industry and the government, and is the reason for the Governor to withhold the Bill.
Also read: Bans on skill-based online games show the pitfalls of paternalistic laws
What are the other issues highlighted by the controversy?
In any case, the practice of using pocket veto to withhold the assent by the Governor is against the spirit of the Constitution. Perhaps, this is the reason why a private Constitution amendment Bill was introduced which limits the delay in assenting or vetoing Bills to 30 days. Such a pocket veto is taking away states’ right to re-enact the Bill the second time (where the Governor must give assent), even in the case of rejection by the Governor in the first place.
Other than this, this Bill is a step forward in regulating online games. Setting up an Online Gaming Authority to oversee the functioning of the online gaming industry is a welcome step. The Bill provides power to the authority to regulate aspects of legal games such as the minimum age for playing such games, the maximum number of hours one can play such games, the money involved in these games, and so on. Such a regulatory authority is the need of the hour.