Online gambling is currently unregulated in Kerala due to gaps in the legislation, necessitating an immediate legislative response.

JUDGMENT

Dated this the 10th day of February 2021 S.MANIKUMAR, C.J.

The main concern raised by the petitioner in this Public Interest Litigation is that there is no mechanism to monitor the online gambling and online betting. Petitioner has sought for a declaration that playing online gambling and online betting in Virtual Space, Cyber Space, through Mobile Applications, as well as through computers, more particularly “online rummy”, be declared as unlawful and illegal.

2. He has also sought for a mandamus directing respondent No.1/State of Kerala, represented by the Chief Secretary to the Government, Government Secretariat, Thiruvananthapuram, to ban all the forms of online gambling and online betting of any nature, until and unless an appropriate regulatory regime is established and regulations are framed by the 1st respondent regulating the functions and activities of all the forms of online gambling and online betting.

3. Petitioner has submitted that the law relating to gaming in Kerala, is mainly dealt with Kerala Gaming Act , 1960. However, the Act does not extend its power to any gambling, wagering or betting games conducted through online platforms, by using electronic and communication devices. The idea of Games, as envisaged under the Act, exclusively includes those games that are conducted in a ''common gaming house” by using “instruments for gaming” for the purpose of accrual of profit or gain to the person owing, occupying, keeping such instruments of gaming in the enclosed physical promise. Thus, there is always an element of physical premise present in it. Therefore, the online gambling games do not come under this legislation. According to Mr.Jomy K. Jose, learned counsel for the petitioner, online gambling platforms are engaged in illegal activities and they remain unchecked, owing to deficiencies in the legal infrastructure. Gambling through online platforms is now a growing menace in the State.

4. In support of his contentions, petitioner has relied on a decision of the Madras High Court inD. Siluvai Venance v. State of Tamil Nadu [2020 (3) MLJ (Crl) 710] and also a decision of Gujarat High Court inAmit M. Nair v. State of Gujarat in Writ Petition (PIL) No.146 of 2020.

5. That apart, Mr. Jomy K. Jose, learned counsel for the petitioner also submitted that the Government of Andhra Pradesh have promulgated the Andhra Pradesh Gaming (Amendment) Ordinance, 2020 amending the Andhra Pradesh Gaming Act, 1974 and State of Tamil Nadu is also contemplating a similar amending Act.

6. Learned Senior Government Pleader Mr.Aravinda Kumar Babu submitted that online gambling and online betting are not included in the Kerala Gaming Act , 1960. Law needs to be framed to bring this under the Government’s regulatory purview.

7. On 9.2.2021, when the matter came up for hearing, learned Senior Government Pleader Mr.Aravinda Kumar Babu, on instructions, submitted that respondent No.3/Kerala State Police Chief, Vazhuthacaud, Thiruvananthapuram, has sent a proposal to the Government to include online gambling and online betting under the Kerala Gaming Act , 1960, and that the same is pending consideration in the Law Ministry, Government of Kerala. Today, it is submitted by the learned Senior Government Pleader that the said proposal is under the consideration of the Government and a decision in this regard would be taken, within two weeks from today.

8. Thus from the statement made on behalf of the Government it is revealed that the existing law, does not bring online gambling or online betting, within the purview of the Kerala Gaming Act , 1960, and inclusion of the same in the existing enactment is a legislative function.

9. Placing on record the submission of the learned Government Pleader, Respondents 1 and 2 (Chief Secretary to Government, State of Kerala and the Secretary to the Government, Information Technology Department) respectively, are directed to take appropriate decision on the aspect of inclusion of online gambling and o