A Primer on the Legality of Poker in India: Jay Sayta Blogs

Background

I have been often asked the question whether poker is indeed legal in India. Online and offline players ask me about the legality of playing poker and possible criminal liability while entrepreneurs ask me about the legality of running physical and virtual poker rooms.

In short, poker has been generating a lot of interest in the global gaming community but the laws remain grey. The first question that would arise for consideration and about which there has been a heated debate across the globe is whether poker is a game of skill. The laws in India (except in the states of Assam and Odisha) follow the preponderance test like a lot of other Amercian and European jurisdictions. Thus, games involving a preponderant and substantial degree of skill are exempt from the definition of gambling.

In 1968, the Supreme Court of India in State of Andhra Pradesh v. K Satyanarayana, AIR 1968 SC 825 held that playing the card game of rummy was not illegal as per the Gaming Act as it fell in the category of “games of skill”.

In 1996, the Supreme Court in Dr. KR Lakshmanan v. State of Tamil Nadu, AIR 1996 SC 1153 followed this up by adding that all games involving a substantial and preponderant element of skill fell outside the definition of gambling and consequently was not illegal.

Further various High Court decisions including a recent Karnataka High Court ruling have reiterated that playing games of skill (like rummy) for profit or charging commission for the same was not illegal under the Gaming Acts of different states.

In October 2013, the Karnataka High Court in response to a writ petition filed by the Indian Poker Association (IPA), observed that playing poker in recreational clubs would not be illegal as per the Karnataka Police Act and further no license was required for playing the game of poker. However the Court did not delve into the merits of whether there is enough statistical and legal evidence to hold poker as a game of skill leaving the situation ambiguous and open to interpretation.

Current litigation

Even though the Supreme Court ruled rummy to be a game of skill way back in 1968, an issue arose in the Madras High Court as to the legality of charging rake or commission for running a game of rummy. A single judge bench of the Court in 2011 held that playing rummy for stakes was completely legal and restrained the police from interfering in games of rummy conducted by Mahalakshmi Cultural Association.

However on appeal to a two-judge bench of the Madras High Court, this decision was overruled and the Court held that playing rummy was immoral and caused lose of livelihood and hence was illegal under Tamil Nadu laws. This decision is contrary to accepted interpretation of the Gaming Acts by various other High Courts and hence has made the legality of games of skill for stakes ambiguous. The petitioner club and other rummy websites have now appealed to the Supreme Court and the matter is next listed for hearing in April 2014. The final verdict of the case expected within the next couple of years is expected to bring clarity on the ambit and extent of games of skill.

Another interesting matter on poker arose in the Delhi District Court in 2012 when two parties associated with Adda52.com approached the Court for an opinion on the legality of online poker and degree of skill involved in the game.

Curiously the District Court ruled against the contention that online poker was a game of skill and held that poker would constitute gambling as per current laws. However the petitioners have filed for revision before the Delhi High Court and the matter is yet to be conclusively decided. A final adjudication of the matter is expected in the coming months and would decide the fate of the poker industry in India.

Analysis

There has not been any conclusive decision on the legality of poker in India. Courts in India have not clarified whether poker would fall in the category of “games of skill” and whether such games can be played on a commercial basis. Thus, playing online and offline poker fall in the grey area with no clarity on its legality. The liability for running poker rooms or online poker websites would depend on the interpretation of the Gaming Acts. The only exception to this is the state of West Bengal where a specific exception has been carved out for poker in the West Bengal Gambling and Prize Competition Act, keeping it outside the ambit of gambling.

However it is fairly certain that in the absence of any specific law on online gambling, participation on online poker websites would not be penalised. The possible liability for online poker websites would be an order blocking the IP addresses.

It is thus upon the poker community to create sufficient pressure to create awareness about the degree of skill involved in poker and create an environment where the sport poker can be held legitimately without any fear from law enforcement agencies treating professionals enjoying the sport as petty criminals. The ongoing cases in the Delhi High Court and Supreme Court will decide the fate of the poker industry in the coming days. The gaming world is closely monitoring major developments in this space in the next couple of years.      

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Author’s brief bio

Jay Sayta is a law student of the National University of Juridical Sciences Kolkata and runs GLaws.in; India’s first and only website on gaming laws.

Jay started GLaws.in about three years ago as a resource to monitor developments in the gaming industry. In a short span of three years, GLaws.in has become a premier resource for everyone associated with the Indian gaming industry.

Jay has advised many companies and start-ups on various aspects concerning the Indian gaming industry. He has also written several articles in journals and other publications and has been quoted as an expert on gaming laws by several top newspapers such as Financial Times, Times of India and Mint.