ORDER :

Sanjib Banerjee, J.

(Prayer in W.P.No.18022 of 2020: Petition under Article 226 of the Constitution of India seeking issuance of a writ of certiorari or any other appropriate writ or order or directions to call for the records of Act 1 of 2021, Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 dated February 25, 2021 published in government Gazette No.123 and quash the same. (Prayer amended vide order dated 19.3.2021 made in WMP.No.7966/2021 in WP.18022/2020)

1. The petitioners complain of an over-paternalistic stance taken by the State in bringing about sweeping amendments to an existing law that, according to the petitioners, infringe their fundamental rights and are otherwise unreasonable to the point of being manifestly arbitrary.

2. The challenge here is to Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (Act 1 of 2021), by which the Tamil Nadu Gaming Act, 1930 was amended (hereinafter referred to as the Amending Act). Substantially the same amendments to the Act of 1930 had been previously incorporated in an Ordinance promulgated on November 21, 2020. Act 1 of 2021 came into effect upon it being gazetted on February 25, 2021. The matter also brings to the fore the risks of introducing an amendment to an enactment that predates not only the Constitution, but also the Government of India Act, 1935, which broadly spelt out the areas in which the provincial legislatures could legislate upon.

3. The Amending Act has been challenged, not only on the ground that it turns the original statute on its head, but also in its expansive definition of a word that has been judicially interpreted and, thus, the seemingly blatant attempt to bypass the law declared by courts, including the Supreme Court, by the legal fiction created in the definition. The challenge here is not so much to the legislative competence, but to the extent that a law may be made in respect of a field or allied fields indicated in an Entry in the State List. In effect, the Amending Act, or the relevant part of the Ordinance that preceded it in 2020, has incorporated certain provisions to enlarge the scope and effect of the Act of 1930.

4. The amended statute prohibits all forms of games being conducted in cyberspace, irrespective of the game involved being a game of mere skill, if such game is played for a wager, bet, money or other stake. Among others, the three major features of the Amending Act appear to be the enlargement of the inclusive definition of the word “gaming”; the introduction of Section 3-A in the Act to prohibit wagering or betting in cyberspace (though it actually does much more); and, the replacement of the substance of Section 11 of the Act that originally exempted games of “mere skill” from the application of the statute and its substitution by including games of mere skill also within the fold of offences under the statute, if such games are played for wager, bet, money or other stake.

5. The petitioners can be bunched into three distinct groups: those involved in providing, inter alia, the card game of rummy on the virtual platform; those involved, inter alia, in offering poker in cyberspace; and, a private body which seeks to regulate diverse forms of games offered to be played on the internet in the country in which the other petitioners, who provide platforms for playing the games, are members. Five sets of counsel have put forward the submission on behalf of the petitioners. The primary ground urged to assail the impugned legislation is in it apparently prohibiting games of skill, if played for any prize or stakes; which, according to the petitioners, is in flagrant disregard of the law laid down by the Supreme Court that competitions in games of skill are business activities and, thus, protected under Article 19(1)(g) of the Constitution of India.

6. The State finds itself in the lonely, opposite corner, as it seeks to assert the virtues of life without betting and gambling, the immorality involved in gaming