Instead of states, Centre should decide on the ban on online gaming

The Online gaming and gambling industry is again in the focus with some States going all out in their efforts at imposing a ban on “games of chance”; and “online gambling”. The problem is that some States like Tamil Nadu that promulgated an Ordinance and then passed a Bill in the Legislative Assembly do not seem to have much of a clue either about how to define “games of chance” or about how they will enforce the proposed ban.

For now in Tamil Nadu, there is a stalemate with the Governor RN Ravi not having granted assent to the Bill. The Ordinance itself (ironically signed by the same Governor) lapsed. When the E-Gaming Federation went to the Madras High Court against the Ordinance, the TN Government embarrassingly, told the Court they had not enforced the Ordinance, (which they pushed through as they felt the matter could not even wait until the next Assembly session a month away) as yet.

The Ordinance which the Tamil Nadu Government passed is believed to be the basis of the Bill now pending clearance. The Ordinance defines “an online game of chance” as any game involving an element of skill and chance where the element of chance dominates over the element of skill. Alternately it says it must involve an element of chance that can be overcome only by superlative skill. What defines superlative skill and how the to be set up, Gaming Authority of the State Government would decide on whether chance exceeds skill in any game is open to anyone’s guess.

Further, while the Ordinance aims to ban online gambling it includes all online gaming in its ambit for regulation. The State Gaming Authority will decide what games of skill are and what games of chance are. Further they are even empowered to decide how much money can be wagered on each game and how much time in a day can be spent on playing each game. How the Government proposes to monitor this without violating the users’ right to privacy is hard to see.

What jurisdiction the Authority would have over a company based outside the State or country is unclear but the Ordinance says that the Non local providers of the banned gaming services must ensure that those in Tamil Nadu will need to be warned that they are not permitted to play the game or alternately would have to give an online undertaking that they are not playing the game from within the State.

That such absurd clauses were added after a Committee was formed under former High Court Judge, Justice Chandru, to frame the guidelines for the Bill does not speak highly of either the Committee or the Government. Further some of the Clauses are sufficiently vague and could include fantasy sports like Dream XI as well where money is wagered.

Many of these issues have already been adjudicated as legal by the Supreme Court including Online Rummy, the rampant playing of which (leading to suicides due to financial bankruptcy) led to the Bill in the first place.

If Online Rummy and Poker have already been declared as games of skill as have fantasy sports what exactly is being sought to be banned here?

The role of the Government is to ensure there is no illegality in the process of online gaming and gambling and that the punters are not being cheated by any manipulation by the companies. Hamhanded attempts at a ban will only be counterproductive and push the Industry further underground.

Tamil Nadu is by no means the only State to pass such a bill. Online gambling is already banned in West Bengal, Telangana, Andhra Pradesh, Karnataka (Overturned by HC), Kerala(Overturned by HC) and a few other States.

While there is a clear need to regulate and ensure transparency in the Industry, a ban on online gambling is neither enforceable on a State to State basis nor implementable based on the clauses seen in some of the Bills that seek to enforce such bans.

Geo-blocking, the method by which Governments block access to gambling sites can easily be circumvented using VPN’s. The legality of geo-blocking has been questioned in several countries around the world and the EU has adopted regulation which makes it difficult for one EU country to geo-block what is available in another country of the EU. Legality apart the question of feasibility of State wise geo-blocking using the users’ location has also come in for debate. While blocking at the National level is more effective, blocking access to sites and apps at State level is hardly foolproof.

Also thousands of new gaming sites and apps emerge every month. How will a Committee keep track of these to apply bans?

While there is little doubt that there is a societal impact because of online gambling which needs to be addressed, the solutions proposed by Governments are a mere eyewash. They know it won’t work but will go through the motions anyway. After all they believe that they must be seen to be doing something, however futile it may be. Politics of tokenism is the name of the game.

The author Sumanth C. Raman is a Tamil television anchor and sports commentator. The views expressed are personal.

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Sumanth Raman