Poker Legality in India

Poker has always been looked at with suspicion, either as a vice of the rich or a kick of the addict. Online poker India legal, again, is either been prohibited or frowned upon. Rarely it is seen a game of skill. In the last decade or so, we have become one of the emerging countries in the online poker market. But is poker legal in India online?

As per the Supreme Court, the games whose core function is chance are illegal, whereas a game of skill is not. Over the years, several court judgments including the Supreme Court have considered and understood that offering games of skill is a fundamental right under the Indian constitution and games of skill cannot be prohibited.

There have been several litigations for online poker India legal, however, it is an ongoing process with litigations statuses pending at various forums with legislation looking to bring about this clarity in the law.

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Is Poker Legal in India?

Online Poker in India is a controversial topic. As per the Supreme Court, any game whose core function is based on a chance is illegal while a game that requires skill is not. However, since gambling is a state subject, the different state has a different say on this. Goa, Daman, Sikkim and Nagaland have made gambling legal in their jurisdiction whereas there are a few states which have made horse racing and lottery legal in their jurisdiction. So, you see each state has its own set of rules to deal with these circumstances.

Now, to know if Poker is legal in India we have to begin from the start-

The very first or basic act of Gambling was formed around 150 years ago under the British Raj – The Public Gambling Act of 1867. The penalty for this law prohibiting gambling is approx Rs 200 and/or 3 months of imprisonment or both.

Section 12 of this law states –

“Act not to apply to certain games. Nothing in the foregoing provisions of this Act contained shall be held to apply to any game of mere skill wherever played.”

In 1996, the Supreme Court of India clarified the definition and stated that –

“The competitions where success depends on a substantial degree of skill despite there being an element of a chance are not “gambling.”

Moreover, the Constitution of India gives the States the exclusive power to make laws on the subject of “Betting and Gambling”. So, the central act is applicable in all the states which do not have any particular gambling laws. To be precise, all states except Sikkim, Nagaland, Gujarat, Assam, Odisha and Telangana exempt “games of skill” from the gambling.

The Assam Game and Betting Act, 1970 and Orissa (Prevention of) Gambling Act, 1955 and Telangana State Gaming (Amendment) Ordinance and High Court Judgment in Gujarat, 2017 forbids games with real money stakes. These laws do not create an exception for games of skill and categorize them under gambling. As a result, the residents of Assam, Odisha, Telangana and Gujarat are prohibited from playing online poker.


The favourable prospects

  • States such as Sikkim and Nagaland have enforced specialized online gaming laws to legitimize the industry. Not only that, if you’re an online gaming license in Nagaland you can use this permission to access a pan-Indian market, given if ‘games of skill’ are permitted in those states.
  • That’s good news for you that to date no other game has specifically received such a judicial nod. The judgment in fact, has now allowed several stakeholders to make a strong point in favour for the legitimacy of other such games.
  • KPMG reports that the Indian gaming industry is estimated at around $60 billion per year with the figure expected to rise with the coming of online gaming.
  • When asked about the feasibility of common law to help in the progression of changing trends, Law Commission Chairman Balbir Singh Chauhan pointed out positively that should everything go in the way of legalising the game, the government could be in to earn as much as $2.6 billion per year in tax revenue. Gambling in India is legal only in the following states:
  • Goa
  • Daman
  • Sikkim
  • Nagaland

Along with that, other categories such as horse racing and lottery are legal in a few other states. While some states have formally allowed games which require skill, others nonetheless have especially prohibited and tabooed them in all forms.


The unfavourable:

  • Where states like Nagaland gave the first license for online Poker, and Calcutta High Court dismissed Poker from being tried under gambling laws, states like Telangana have pushed to make any form of online betting illegal, including Poker.
  • The State Government issued decrees which made online betting in games like Poker and Rummy illegal. After a lot of court proceedings, with arguments made by both sides debating the legality and Rights, the online status of Poker in the State was revoked. Soon after, a bill was passed in the legislative council amending the Telangana Gaming Act of 1974 backed by all the major political parties, which has now left room for other States to also follow suit should they choose to.
  • To add to that list, a Madras High Court judgment rallied up the anti-gambling cause once again by stating that if organised for profit, a ‘game of skill’ would still be considered as ‘gambling’. Since the appeal was withdrawn from the verdict in the Supreme Court before it could be actually decided, the legal status of making such a profit on these activities still is blurry at best.
  • Also, as per the Information Technology Act of 2000, internet service providers are prohibited from hosting such websites for gambling. There are also other regulatory issues including those around foreign exchange remittances of winnings from lottery, and other hobbies. Ranjana Adhikari, co-head of media entertainment and gaming practice at Nishith Desai Associates says that ideally, ‘games of skill’ should be exempted from such prohibitions in foreign exchange. Fiscal issues under the GST rules are however harming the sector.

Is Poker a Game of Skill?

Poker requires psychological skills, knowledge of statistics & probability and strategizing skill and hence is often referred to as a game of skills and not the game of chance.

Let’s take a look at the mechanism of the game. A Poker game begins with each player putting down money allocated for betting. Then they are dealt cards from a standard 52-card deck to make the best hand at the table. During this process each player keeps their cards hidden, each player places bets on the strength of his/her cards. In the end, all the cards are revealed when the round is over. The player with the best hand wins the round along with the money that was bet during that round. And this continues in each round.

So, although it starts with the luck or chance, the element of chance is equally distributed among each player. But, the outcome of the game is eventually determined by skill.


Conclusion

At present, India’s policy related to online poker is unclear. There are many loopholes in the laws, and no transparent nation-wide system can be ascertained. Several court judgments, several petitions have been filed over the years, but there’s no one way out. And, this is an ongoing process with litigations pending at various forums.

Currently, all the poker websites in India allow players from all states and union territories except Gujarat, Assam, Odisha, Nagaland, Sikkim and Telangana due to the peculiar wording of gaming legislation in these states.