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TMI Blog2021 (8) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... am Banu, Advocate ORDER Sanjib Banerjee, C.J. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects of gambling on large swathes of the society, particularly those from the economically weaker and socially backward sections. The State claims that even suicides have taken place upon a punter losing his all by playing one card game or the other on the internet. The State refers also to the possibility and likelihood of manipulation in games conducted on the virtual mode and repeatedly alludes to players and others being cheated, without indicating any material or particulars in such regard despite the court's prodding. 7. It may do well to see the 1930 Act as it stood before the Ordinance was introduced in November, 2020, particularly the nature of the mischief that it sought to prevent and the exercise being confined to games predominantly of chance. The Statement of Objects and Reasons pertaining to the 1930 Act recorded as follows: "The Madras City Police (Amendment) Act, 1929 was designed to deal with bucket shops in the City of Madras. There is increasing evidence of the fact that bucket shops are springing up outside the municipal limits. In order to deal with them effectively and to consolidate the law on gaming and keeping common gaming-houses throughout the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of gaming on any of the objects aforesaid, or (c) has the care or management of, or in any manner assists in, conducting the business of, any such house, room, tent, enclosure, vehicle, vessel or place opened, occupied, kept or used for the purpose of gaming on any of the objects aforesaid, or (d) advances or furnishes money for the purpose of gaming on any of the objects aforesaid with persons frequenting any such house, room, tent, enclosure, vehicle, vessel or place, shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees, but in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court - (i) such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees for a first offence; (ii) such imprisonment shall not be less than six months and such fine shall not be less than seven hundred and fifty rupees for a second offence; and (iii) such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees for a third and subsequent offences." The remainder of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciting, receipt, or distribution;" "3-A. Wagering or betting in cyber space.-- (1) No person shall wager or bet in cyberspace using computers, computer system, computer network, computer resource, any communication device or any other instrument of gaming by playing Rummy, Poker or any other game or facilitate or organize any such wager or bet in cyberspace. (2) Whoever wagers or bets in cyberspace using computers, computer system, computer network, computer resource, any communication device or any other instrument of gaming by playing Rummy, Poker or any other game or facilitates or organizes any such wager or bet in cyberspace, shall be punished with imprisonment which may extend to two years or with fine not exceeding ten thousand rupees or with both." "11. Games of mere skill.-- Notwithstanding anything contained in this Act, Sections 3A and Sections 5 to 10 shall apply to games of mere skill, if played for wager, bet, money or other stake." 13. Several other words and expressions relevant in the use of computers have been defined by referring to the respective meanings assigned to them in the Information Technology Act, 2000. In addition, the expression "cyber cafe" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and have been judicially differentiated in this country from games of chance. It is their submission that when the basis of the distinction is whether a game depends on chance or it depends on skill, the predominance test ought to be applied. They assert that the card game of rummy, per se, has been judicially recognised as a game of skill. 16. It is the further contention of such petitioners that the age-old distinction between skill and chance is vital and such distinction is imperative because, according to them, States do not have any legislative competence over games of skill, but may regulate games of chance. This, according to them, is a rational distinction that goes to the very root of competence. These petitioners suggest that when one is playing a game of skill, whether such game is played physically or virtually, it makes no difference. According to such rummy aficionados, only three major changes have been made to the existing statute: by including all virtual games in the fold of gaming; by specifically naming two card games; and, by excluding the existing exemptions. These petitioners submit that the amendments introduced are liable to be struck down on the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that right up to Section 11 of the Act and till its end, it is the game of pure chance that was prohibited. 20. In such context, these petitioners refer to the doctrine of res extra commercium as understood and judicially interpreted in this country to suggest that, like liquor, gambling may be regarded as immoral and, therefore, there may not be any absolute right to indulge in gambling, where gambling connotes an activity dependent overwhelmingly on chance. Such petitioners point out that the expression "games of mere skill", as contained in Section 11 of the Act prior to the recent amendment, was judicially interpreted to imply games predominantly involving skill. These petitioners concede that every future event depends, at least theoretically, on an element of chance, but the activities understood as gaming involve almost no skill or the skill component is negligible. 21. On behalf of these petitioners, several of the provisions amended by the impugned Act are placed and the perceived anomalies therein demonstrated on the basis of the skill versus chance test. In particular, they refer to Sections 8 and 9 of the Act and the general philosophy of the impugned amendment that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtra commercium, and that it does not fall within the purview of those Articles." Paragraph 5 of the report is of some relevance: "5. As regards competitions which involve substantial skill however, different considerations arise. They are business activities, the protection of which is guaranteed by Article 19(1)(g), and the question would have to be determined with reference to those competitions whether Sections 4 and 5 and Rules 11 and 12 are reasonable restrictions enacted in public interest. But Mr. Seervai has fairly conceded before us that on the materials on record in these proceedings, he could not maintain that the restrictions contained in those provisions are saved by Article 19(6) as being reasonable and in the public interest. The ground being thus cleared, the only questions that survive for our decision are (1) whether, on the definition of "prize competition" in Section 2(d), the Act applies to competitions which involve substantial skill and are not in the nature of gambling; and (2) if it does, whether the provisions of Sections 4 and 5 and Rules 11 and 12 which are, ex concessi void, as regards such competitions, can on the principle of severability be enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y substantial extent on skill." 24. The rummy petitioners next refer to a judgment reported at AIR 1968 SC 825 (State of Andhra Pradesh v. K. Satyanarayana), where it has been clearly held at paragraph 12 of the report that "it cannot be said that Rummy is a game of chance and there is no skill involved in it." Upon rendering such finding, the court agreed that the conviction against the respondents before it had been rightly set aside by the High Court. However, the court cautioned, in the same paragraph, as follows: "12. ... Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of rummy or any other game played for stakes, the offence may be brought home. ..." 25. The next judgment cited by the rummy petitioners has also been copiously placed by the other lots of petitioners. It is necessary to dwell on such judgment reported at (1996) 2 SCC 226 (Dr. K.R. Lakshmanan v. State of Tamil Nadu) rendered by a three-member Bench. Paragraph 2 of the report sets out the questions that arose for consideration. These questions range from what amounted to gambling, to the meaning of the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trolling factor. 'Gaming' in the two Acts would, therefore, mean wagering or betting on games of chance. It would not include games of skill like horse-racing. In any case, Section 49 of the Police Act and Section 11 of the Gaming Act specifically save the games of mere skill from the penal provisions of the two Acts. We, therefore, hold that wagering or betting on horse-racing -- a game of skill -- does not come within the definition of 'gaming' under the two Acts. "34. Mr. Parasaran has relied on the judgment of the House of Lords in Attorney General v. Luncheon and Sports Club Ltd. [1929 AC 400: 1929 All ER Rep Ext 780], and the judgment of the Court of Appeal in Tote Investors Ltd. v. Smoker [(1967) 3 All ER 242 : (1967) 3 WLR 1239 : (1968) 1 QB 509], in support of the contention that dehors Section 49 of the Police Act and Section 11 of the Gaming Act, there is no 'wagering' or 'betting' by a punter with the Club. According to him, a punter bets or wagers with the totalizator or the bookmaker and not with the Club. It is not necessary for us to go into this question. Even if there is wagering or betting with the Club it is on a game of mere sk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cised by the State and the sense of morality that may be enforced in enacting a statute. These petitioners submit that on both counts, the statute must satisfy the test of reasonableness under Article 14 of the Constitution, it must not infringe the rights guaranteed under Article 19 of the Constitution and it must also conform to the modern rule of proportionality which is increasingly applied to assess both the appropriateness of administrative decisions and the validity of any impugned provision of law. 30. In such context, these petitioners first refer to a judgment reported at (2019) 3 SCC 429 (Indian Hotel and Restaurant Association (AHAR) v. State of Maharashtra) that dealt with dance performances in hotels and restaurants. The discussion in the judgment pertaining to the extent the State can go in imposing morality on its citizens has been placed from paragraphs 77 to 80 of the report. While the court accepted that certain activities may be perceived as immoral per se, like gambling and prostitution, it raised a doubt regarding the present understanding of gambling. The court observed that activities which were once immoral may no longer be regarded as such, as societal no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her a law infringes a fundamental right, it is not the intention of the lawmaker that is determinative, but whether the effect or operation of the law infringes fundamental rights." 33. The Constitution Bench judgment reported at (2016) 7 SCC 353 (Modern Dental College and Research Centre v. State of Madhya Pradesh) advocating the doctrine of proportionality has been placed by the petitioners to contend that the blanket prohibition of betting in cyberspace and, in particular, several provisions of the 1930 Act being extended even to games of skill would fall foul of such doctrine. Upon noticing the importance of the expression, "in the interest of the general public" in Article 19(6) of the Constitution, the Supreme Court observed that whether the impugned provisions of any statute or rules amount to reasonable restrictions or are seen to have been brought in the interest of the general public, the exercise that is required to be undertaken is to balance the fundamental right to carry on occupation under Article 19(1)(g) of the Constitution on the one hand and the restrictions imposed on the other. It is this balancing act that is described as the doctrine of proportionality in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is an apparent contradiction in the three-Judge Bench decision in State of A.P. v. McDowell and Co., (1996) 3 SCC 709 when it is said that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge would fail on the very ground of the law being "unreasonable, unnecessary or unwarranted". The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution." At paragraph 101 of the report, the Supreme Court describes manifest arbitrariness in the context of a statute to be something done by the legislature capriciously, irrationally and without adequate determining principle such that it is excessive and disproportionate. The court went on to emphasise that "arbitrariness in the sense of manifest arbitrariness as pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant in such regard: "49. In spite of there being a general presumption in favour of the constitutionality of the legislation, in a challenge laid to the validity of any legislation allegedly violating any right or freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation having been made out, the onus would shift upon the respondent State to show that the legislation comes within the permissible limits of the most relevant out of clauses (2) to (6) of Article 19 of the Constitution, and that the restriction is reasonable. The Constitutional Court would expect the State to place before it sufficient material justifying the restriction and its reasonability. On the State succeeding in bringing the restriction within the scope of any of the permissible restrictions, such as, the sovereignty and integrity of India or public order, decency or morality etc. the onus of showing that restriction is unreasonable would shift back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be required to substantiate the plea of unreasonability. Thus the onus of proof in such like cases is an ongoing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion acquires a special connotation in law, it must be assumed that the legislature has used the word or expression in its legal sense and not with reference to common parlance or the dictionary meaning. These petitioners submit that since betting and gambling had already been included in the Government of India Act, 1935 and had been judicially interpreted even before the Constitution came into effect, the enlargement of the scope of the word "gaming" in the Amending Act would, in effect, amount to widening the scope of the field embodied in Entry-34 of the State List. 41. The next set of petitioners, who are also mostly involved in offering betting on rummy on their platforms, seek to make a distinction between betting and gambling. They suggest that gambling is now understood as involving an activity of pure chance, where skill is either not involved or involved to the most minimal extent. These petitioners exhort that the entirety of the field in Entry-34 of "Betting and gambling" must be understood in such context and it is only the betting involved in gambling which is covered by the field in the Entry and not betting per se. They refer to Entry-36 in the corresponding list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated objects of the enactment may not be the only criteria for assessing the validity thereof, as the court would examine "not only the object of the Act as stated in the statute but also its scope and effect to find out whether the enactment in question is genuinely referable to the field of legislation allotted to the State." 47. A nine-judge Bench decision reported at (2007) 2 SCC 1 (I.R. Coelho v. State of Tamil Nadu) has been placed by these petitioners for the proposition that judicial review is a basic feature of the Constitution. The court held in that case that the separation of powers between the Legislature, Executive and the Judiciary was also one of the basic features of the Constitution and it was the duty of the court to enforce constitutional limitations. 48. The next judgment placed is also one rendered by a Constitution Bench, reported at (2014) 12 SCC 696 (State of Tamil Nadu v. State of Kerala), where it was observed that no provision of law may be enacted contrary to a judicial pronouncement without removing the mischief noticed in the judgment. At paragraph 15 of the report, the Supreme Court laid down the primary test for determining whether an enactment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n chance. 52. Such petitioners lay considerable emphasis in the artificial widening of the definition of "gaming" as brought about in Section 3(b) of the Act and the Explanation thereto. They also suggest that the definition of "instruments of gaming" in Section 3(d) of the Act in its use of the word "other" in the expression "any other article" makes computers and like gadgets instruments of gaming by a legal fiction, which should not stand judicial scrutiny. Similarly, these petitioners refer to the word "other" in the expression "any other instrument of gaming" and submit that to the extent games of skill are identified as gaming activities by the legal fiction used in the definition of "gaming", the impugned provisions are directly contrary to judicial pronouncements and otherwise unreasonable and excessive. They claim that the impugned Amending Act is contrary to the dictum in K.R. Lakshmanan and should not be countenanced since it does not address the mischief noticed in K.R. Lakshmanan, but seeks to override the dictum nonetheless. 53. These petitioners say that the effect of the Amending Act runs beyond any game played in cyberspace and amended Section 11 of the Act perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and submit that the impugned amendment goes not only against the purpose of the statute, but also against the tenor of the original provisions. They recount the history of the legislation pertaining to gaming in this State beginning with the Madras City Police Act, 1888, the Act of 1930, the amendment introduced to the Act of 1930 in 1949 by, inter alia, including horse-racing as a gaming activity, to the belated notification thereof in or about 1975, to the K.R. Lakshmanan judgment holding that horse-racing was a game of skill, and to the Ordinance brought about late in 2020 which metamorphosed to the impugned Act 1 of 2021. 59. According to these petitioners, there is no reason for prohibiting all forms of betting in cyberspace, which is a controlled area, and allowing wanton betting in physical form where it cannot be regulated with any degree of certainty. Apart from the specific challenge on the grounds of irrationality, unreasonableness and excessive exercise of authority in amending the definition section and introducing Section 3-A in the statute, these petitioners are particularly critical of Section 11 as amended, by which the latitude that was shown to games of ski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Report of the Law Commission of July, 2018 intituled Legal Framework: Gambling and Sports Betting including in Cricket in India. In paragraph 3.34 of the report, poker is referred to as a game of skill "because more skillful players will always win over the less skilled or novice players." The skills necessary to be a successful poker player are also noticed at paragraph 3.35 of the report. 63. These petitioners rely on an American judgment reported at: 886 F. Supp. 2d 164 (United States of America v. Lawrence DiCristina) where, after receiving expert evidence, it was concluded that poker was a game of skill. Though the judgment was reversed in appeal, the finding that poker was a game of skill was left undisturbed. 64. A fourth lot of petitioners refers to the scope of the original Act of 1930 being limited to prohibiting gambling in public space by indulging in pure games of chance and criticises the irrational incorporation of the recent amendments that completely destroy the architecture of the statute. 65. Such petitioners refer to a judgment reported at (Varun Gumber v. Union Territory of Chandigarh) as to what would amount to a game of skill. They refer to Entry-33 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant Entry in the State List. The State seeks to give a background to why the Ordinance and the subsequent Act were necessary. The State fairly accepts that the impugned legislation "seeks to ban gambling, which includes games like rummy and poker, irrespective of the stakes involved in the game, if the same is played for stakes or money". The State commends the contents of an affidavit affirmed on its behalf on April 15, 2021, by the Deputy Secretary in the Home Department, to the court and copiously places excerpts therefrom. 70. According to the State, the policy decision to bring in the legislation was taken "after multiple instances of suicides have been reported across the State, given the addictive tendency of these games and the financial losses" that they result in. The State submits that the games like "Rummy Circle" which are offered by some of the petitioners, have 30 million registered players and about 50,000 new players every day. The State perceives the recent statistics to suggest that the target audience for these games are the young and uneducated as the games offer "easy incentives by way of real cash as prizes". The State says that the very nature of the games ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that may be adopted by the States or, in the alternative, the Parliament may legislate in exercise of its power under Articles 249 or 252 of the Constitution". 75. Elsewhere in its recommendations, the said Report suggests that horse-racing and "other skill-centric games may also be afforded" an exemption. The further recommendations indicate that "Gambling and betting, if any, should be offered by Indian licenced operators from India possessing valid licences granted by the game licensing authority". In support of the suggestion that the gambling and betting activities must be regulated, the said report justifies that vulnerable sections of the society ought to be protected from being exploited by the ill-effects of such activities and suggests that the vulnerable class could include youth and children below the age of 18 "and those who are below poverty line and to whom, as a social measure, Central/State Governments provide subsidies to their Jan Dhan Account for sustenance". 76. The State commends the laudable objects that prompted the amendment as indicated in the Explanatory Statement to the Ordinance. The State maintains that all online games are invariably open to mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 597). According to the petitioners, the law as it stood prior to Maneka Gandhi did not require any reasonableness of the procedure to be looked into; but the position has now altogether changed. 80. The sheet-anchor of the State's submission is the dictum rendered by a two-member Bench in the judgment reported at (1995) 6 SCC 285 (M.J. Sivani v. State of Karnataka). The question before the Supreme Court was whether video games were required to be regulated. The material before the court revealed that some of the video games were operated with two-way or four-way joysticks, push buttons, volume controls, steering wheels, accelerators, gun-trigger controls or potentiometers and every video game was operated by an electronic machine. The court observed in M.J. Sivani that gaming as defined in the relevant statute included both a game of chance and a game of skill and also a combination of both and that the element of gaming was the prizes or consideration. The court held that for an ordinary person or a novice it was difficult to play a video game with skill and the regulation of such activity by the impugned legislation was in accordance with law. In applying the test of reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities under Article 19(1)(g) of the Constitution. 85. The substance of the State's submission is that the legislature as the rightful representative of the people in the State perceives betting in cyberspace to be pernicious and since the State has exclusive authority under the Constitution to legislate in the field of betting, the amending statute passes muster as the object of the legislation is to arrest the addiction of gambling and ensure that citizens do not rush to their doom by falling prey to such addiction. Such argument conveys an element of the legislature's sense of morality in seeking to protect the residents in Tamil Nadu that the State perceives it to be in greater public interest than any individual's right to trade on his skill. 86. The State's final submission is by referring to a judgment rendered by this court several months back calling upon the State to take appropriate steps to curb gambling in the light of suicides and other ill-effects resulting therefrom. However, the relevant judgment has not been placed as no mandamus could have been issued to legislate nor can the impugned provisions of the Amending Act be attributed to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves and the likely victim of the consequences of indulging in such activity or being excessively exposed thereto. Like a parent seeking to protect her child and assuming that the child is incapable of deciding what is good for her and what is not, the State considers the individual or class of individuals sought to be protected as defenceless and incapable of making the correct choice. The more natural the activity that is sought to be controlled, the greater is the degree of authoritarianism in the elimination of the exercise of choice by the individual or the class of individuals sought to be protected as vulnerable by legislation born out of State paternalism. 91. But before assessing the appropriateness of the extent of State paternalism oozing out of the impugned legislation, a brief peek into history and a general discussion on gambling and how it has been judicially interpreted, may be in order. 92. In course of the Constituent Assembly debates, divergent views were expressed when it came to including betting and gambling in the State List. While some members perceived the activities to be so pernicious that they ought not even be included in any List, there were o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esults in instances like the Rumble in the Jungle of 1974 Muhammad Ali's upset win over George Foreman at Kinshasa, in then Zaire.or of, arguably, the greatest upset in football history at Belo Horinzonte in 1950 The USA beat England 1-0 at the 1950 FIFA World Cup Finals. or in the felling of the mighty West Indies at Lords in 1983 India won the Prudential World Cup cricket final in London. The activity involved in every case was a game of pure skill, yet the unfancied triumphed and such moments are regarded as seminal moments and go down as part of sporting folklore. 96. Every game or like activity depends on an element of chance. One team at a cricket match may bat in perfect sunshine on a flat wicket, but the other may bat on a sticky wicket upon rain intervening in the interregnum. However, ordinarily, it is expected that the more skillful would take the unexpected-the chance element-in its stride and the greatest upsets remain etched in our memories because the expected dexterity of the acknowledged skillful was felled by the less-gifted. 97. Gambling and gaming have developed secondary meanings in judicial parlance. Indeed, such words had attained such connotations in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriately invoked in a 1951 judgment of the Supreme Court in a matter pertaining to shebaitship, the principle has been incorrectly applied thereafter, ever since the days of the Chamarbaugwala cases. 100. Whether or not the jurisprudence in such regard is corrected in future, there appears to be a much greater element of morality involved in what activities would be regarded as res extra commercium, as the expression is now judicially interpreted in this country, than what may be gleaned to be the constitutional sense of morality. While prostitution, consumption of poison, robbing or dacoity may appeal even to the most liberal to be pernicious; the consumption of alcohol or even the exercise of the choice of gambling, when used in the ordinary sense, may not appear so vile to many. There may be a difference of opinion between a person and his neighbour as to what may be perceived to be the constitutional sense of morality, whether in general or in respect of a particular field of activities, but the difference ought only to be in degrees and not poles apart unless the individual sense of morality tinges the perception. Again, the understanding of the constitutional sense of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm of prize. 104. Indeed, there may be a self-contradiction in Section 4(1)(a) of the Act itself upon the change of the definition of gaming and Section 4(1)(a) being read in such light. Since the definition of gaming now includes wagering or betting, upon any person playing any game in the physical form and in which there is any wagering or betting within the meaning of the expanded definition, including the Explanation in Section 3(b) of the Act of 1930, the activity may amount to an offence. Even as the amended provision greatly enhances the meaning of gaming as used in the said Act, the wagering and betting components of the definition are further widened by the Explanation to the definition; as would be evident from the words "wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise…". 105. Again, since Section 11 of the Act does not apply the operation of such provision to Section 4 thereof, there is a further contradiction. By virtue of Section 4(a)(1)(vi) of the Act, despite betting being involved in course of the playing of a game, it may be possible to contend tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in such sense that the State lacks the power to enact any law pertaining to betting and gambling. Their case is that the scope of betting and gambling has been so vastly enlarged than what the Entry connotes and despite the key word of "gambling" therein having previously been judicially interpreted, that the act of extending the field amounts to usurpation of an authority that the State has not been conferred under the relevant Entry. To a great degree, the petitioners are justified on such count. 109. At the same time, the expansion of the field, so to say, can also be seen to be the unreasonableness of the impugned legislation or the complete disconnect thereof with any element of proportionality, though high authorities command that proportionality must instruct any legislative action if it seeks to curb any right guaranteed by the Constitution. 110. There is no doubt that the activity of gambling and the inextricable element of betting involved therewith has a deleterious impact on certain individuals and can even be ruinous. So much is accepted. The immediate question that arises is whether it was necessary to go the distance that the Amending Act has charted out to comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o card games or board games such as chess or scrabble, there is no distinction between the skill involved in the physical form of the activity or in the virtual form. It is true that Arnold Palmer or Severiano Ballesteros may never have mastered how golf is played on the computer or Messi or Ronaldo may be outplayed by a team of infants in a virtual game of football, but Viswanathan Anand or Omar Sharif would not be so disadvantaged when playing their chosen games of skill on the virtual mode. Such distinction is completely lost in the Amending Act as the original scheme in the Act of 1930 of confining gaming to games of chance has been turned upside down and all games outlawed if played for a stake or for any prize. 114. There appears to be a little doubt that both rummy and poker are games of skill as they involve considerable memory, working out of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards. Poker may not have been recognised in any previous judgment in this country to be a game of skill, but the evidence in such regard as apparent from the American case even convinced the Law Commission to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many matters. The use of the punctuations comma and semi-colon and the conjunction "and" in the Entries appear to be with a deliberate design and tell their own story: that when several matters are mentioned in an entry with either the conjunction, when there are two matters, or with both the comma and the conjunction, when there are more than two matters, such matters indicate the breadth of the field covered by the Entry: for example, Entries 4, 5 and 6 of List I and Entries 16 and 31 of List II. But where the punctuation semi-colon is used between two sets of matters, the Entry indicates allied or related fields but distinct nonetheless: for example, Entries 2, 19 and 41 in List I and Entries 10 and 15 in List II. 118. It is in such light that "Betting and gambling" in Entry 34 of the State List has to be seen, where betting cannot be divorced from gambling and treated as an additional field for the State to legislate on, apart from the betting involved in gambling. Since gambling is judicially defined, the betting that the State can legislate on has to be the betting pertaining to gambling; ergo, betting only on games of chance. At any rate, even otherwise, the judgments in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes of skill …". Again, M.J. Sivani upheld a legislation that the Supreme Court described to be "to regulate running of the video games". 121. In the light of the foregoing discussion, the legislation assailed herein has to be regarded as something done by the legislature capriciously, irrationally and without adequate determining principle such that it is excessive and disproportionate, to borrow the words of Shayara Bano. 122. The doctrine of severability would also not apply in the present case as the concept of the expanded meaning of gaming runs through the entirety of the Amending Act; so much so that it cannot be gauged with any element of certainty as to which part of the amendments the legislature would have intended to be retained as valid even if the legislature was aware that some parts thereof were invalid. In fine, it must be said that the Amending Act in its application to the Act of 1930 is so disproportionate to the objects that it sets out to achieve that no meaningful part of it-even a sliver-can be reasonably allowed to be retained or upheld as valid. 123. Accordingly, the impugned Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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