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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Ritu Raj Awasthi, Krishna S. Dixit, JJ.
All India Gaming Federation A Society Registered Under The Societies Registration Act 1860 Represented By Its General Secretary, Maharshtra - Petitioner
Versus
State Of Karnataka, Represented by The Chief Secretary and Ors. - Respondents
Writ Petition No. 18703, 18729, 18732, 18733, 18738, 18803, 18942, 19241, 19271, 19322, 19450, 22371 of 2021 (GM-POLICE)
Decided On : 14-02-2022
Constitution of India, 1950 – Article 226, 246(3) - Karnataka Police (Amendment) Act 2021 - Sections 2, 3, 6, 8 & 9 – Writ petition praying to declare as unconstitutional and strike down sections 2, 3, 6, 8 and 9 of Karnataka police (amendment) act, 2021 as being beyond legislative competence of r-l under article 246(3) of constitution of India, violative of article 14, 19 (l)(g) and 21 of constitution of India, and also being hit by vagueness, manifestly arbitrary, against doctrine of proportionality, and contrary to various judgments of Hon’ble supreme court of India and Karnataka high court - Praying to declare and hold Karnataka police (amendment) act, 2021 vide Annx-A as unconstitutional, as being violative of fundamental rights guaranteed under articles 14 (equality before law), article 19 (protection of certain rights regarding freedom of speech, etc) and article 21 (protection of life and personal liberty) of constitution of India, 1950 and etc.
Finding of the Court :
Statute which '...leaves open, widest conceivable inquiry, scope of which no one can foresee and result of which no one can foreshadow or adequately guard against...' offends this postulate of rule of law and therefore, is liable to be voided on ground of 'manifest arbitrariness'. When a Statute is obscure or admits plural meanings with little for a common citizen to choose between them, there is absolute intractability of language used - They operate as statutes of violence to sensible citizens since they do not allow them to live securely under rule of law - Amendment Act suffers from infirmity of this kind inasmuch as Section 2(7) which encompasses all games regardless of skill involved, renders charging provisions enacted in section 176 read with Sections 79 & 80 of Principal Act so vague that men of common intelligence will not be in a position to guess at its true meaning and differ as to scope of its application and therefore, is liable to be voided - Provisions of Sections 2, 3, 6, 8 & 9 of Karnataka Police (Amendment) Act 2021 are declared to be ultra vires Constitution of India in their entirety and are struck down.
Result : Writ petition allowed
JUDGMENT :
KRISHNA S.DIXIT., J.
The tickling tone for this judgment can be set by what Lord Denning had humoured in TOTE INVESTORS LTD. vs. SMOKER, (1968) 1 QB 509: “...The defendant has in the past occasionally had a wager on a horse-race. Today she has been taking part in another game of chance or skill – the game of litigation...”
All these petitions by the companies & individuals involving substantially similar questions of law & facts seek to lay a challenge to the validity of the Karnataka Act No.28 of 2021 (hereafter ‘Amendment Act’) whereby the Karnataka Police Act, 1963 (hereafter ‘Principal Act’) has been amended; the cumulative effect of these amendments, according to them, is the criminalization of playing or facilitating online games. After service of notice, the respondents having entered appearance through the learned Advocate General have filed their common Statement of Objections and Addl. Statement of Objections resisting the challenge.
II. A BRIEF DESCRIPTION AS TO WHO THE PETITIONERS ARE:
Petitioners in W.P.No.18703/2021 and W.P.No.19322/2021 are the societies registered under the Societies Registration Act. Petitioners in W.P.No.18729/2021, W.P.No.18732/2021, W.P.No.18733/2021, W.P.No.18738/2021, W.P.No.18803/2021, W.P.No.18942/2021, W.P.No.19241/2021 and W.P.No.22371/2021 are the companies incorporated under the Companies Act. Petitioners in W.P.No.19271/2021 and W.P.No.19450/2021 are the individuals. Some of the petitioners in the petitions filed by the companies happen to be Directors. All the petitioners are associated with online gaming in one or the other way. These games are rummy, carom, chess, pool, bridge, cross-word, scrabble and fantasy sports such as cricket, etc.
III. GROUNDS OF CHALLENGE BRIEFLY STATED:
The challenge to the Amendment Act is structured inter alia on the following grounds:
(i) Lack of legislative competence since the Amendment Act does not fit into Entry 34, List II, Schedule VII of the Constitution of India vide CHAMARBAUGWALA-IAIR 1957 SC 628, CHAMARBAUGWALA-IIAIR 1957 SC 874, K.SATYANARAYANA vs. STATE OF ANDRHA PRADESH, AIR 1968 SC 825 & K.R.LAKSHMANAN vs. STATE OF TAMIL NADU, (1996) 2 SCC 226.
(ii) Violation of Article 21 since playing games & sports falls within the umbrella of 'right to life & liberty' that has been stretching precedent by precedent and violation of doctrine of privacy vide K.S.PUTTASWAMY vs. UNION OF INIDA, (2019) 1 SCC 1.
(iii) Violation of fundamental right to freedom of speech & expression guaranteed under Article 19(1)(a) since playing games & sports of skill is a facet of speech & expression and that criminalizing apart from amounting to unreasonable restriction, is incompetent under Article 19(2).
(iv) Violation of fundamental right to profession/business guaranteed under Article 19(1)(g) read with Article 301 i.e., incompetent & unreasonable restriction vide CHINTAMAN RAO vs. STATE OF MADHYA PRADESH, (1950) SCR 759, MOHD. FAROOQ vs. STATE OF MADHYA PRADESH, (1969) 1 SCC 853, game of skill not being a res extra commercium (CHAMARBAUGWALA-II, supra) and embargo being de hors Article 19 (6).
(v) Manifest arbitrariness SHAYARA BANO vs. UNION OF INDIA, (2017) 9 SCC 1 since the Amendment Act fails to recognize the blatant normative difference between a ‘game of skill’ and a ‘game of chance’, in gross derogation of Chamarbaugwala Jurisprudence of more than six decades.
(vi) The impugned legislative measure is a result of excessive paternalism & populism. The State is imposing its own notion of morality on the free & rational citizens by clamping a blanket ban on online games of skill. This is constitutionally unsustainable.
Petitioners in support of their case also press into service several other decisions of the Apex Court and of some High Courts which will be discussed in due course.
IV. RESPONDENTS' OBJECTIONS TO THE PETITIONS:
The respondents oppose the peti
The Tamil Nadu Prohibition of Online Gambling Act cannot classify online rummy and poker as games of chance; they are recognized as games of skill, thus the Act's provisions regarding these games are....
Fantasy games predominantly involve skill and therefore, do not fall within gambling activities and that said games are protected u/a 19(1)(g) of Constitution.
Point of Law : On the question whether the power available to the State to issue a notification under Section 14A to exempt a game, clothe it with a power to notify a game which is a game of mere ski....
The court upheld the state's legislative competence to regulate online games of skill, balancing individual rights against public health needs, confirming that such regulations are constitutional.
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