A bench of the Chief Justice of the Madras High Court, however, said nothing was preventing the state from enacting a new law to regulate these games.
The Madras High Court on Tuesday struck down the Tamil Nadu Gaming and Police Laws (Amendment) Act of 2021, which prohibits playing games such as rummy and poker in cyberspace with high stakes.
Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy held that a blanket ban on skill games violates Article 19 (1) (g) (right to practice any profession, or to engage in any occupation, trade or business) of the Constitution.
The bench said legislation imposing a sweeping ban must be seen as excessive and disproportionate to the intended purpose. He said, however, that state legislators would be free to adopt new legislation to regulate online gambling.
The verdict was rendered while allowing a batch of brief requests filed by a multitude of private companies offering online games. They were represented by senior lawyers Abhishek Manu Singhvi, AK Ganguli, Mohan Parasaran, C. Aryama Sundaram and PS Raman before the bench.
While reserving the verdict in the batch of cases on July 26, the judges said the law appeared to have been very poorly drafted. “I think, better, we throw this away. You get smarter legislation passed, ”Chief Justice told Advocate General R. Shunmugasundaram after wondering how the state could impose a blanket ban even on games of skill such as rummy.
When the GA asked for time for instructions as to whether the current government intended to amend the law, passed under the AIADMK regime in February of this year, or to issue an ordinance since the The ban was imposed in the public interest, the Chamber said there was no scope for the court to wait for the government’s decision after the arguments were concluded.
The judges said the term “gambling” had been interpreted by the Supreme Court to refer only to games of chance. The Supreme Court had also ruled that rummy was purely a game of skill. “When it comes to a game of skill, Article 19 (1) (g) (right to practice any profession, or to exercise any occupation, trade or business) comes into play”, a said the chief justice.
In response, the AG argued that none of the Supreme Court decisions relied on by counsel for the applicants concluded that rummy would continue to be a game of skill even when played online. At that, Chief Justice Banerjee said, games such as soccer, which require physical energy, would certainly be different on the pitch and online. However, he said, there would be virtually no difference between playing mind games that require mental skills, whether in physical form or in cyberspace.
Nonetheless, the GA stood their ground and claimed that online games were susceptible to manipulation. “Manipulation is possible in cyberspace,” he argued. Reacting to this, the CJ said, “So you fix it. You can’t completely ban gaming.