The gambling and betting in India is still illegal in India except in states of Goa, Daman and Sikkim. The land based casinos are operational in these states with pre-requisite licensing and is restricted to certain areas of the state only.

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1. Legal Side of Online Gambling in India. Unfortunately, as it has already been stated, all kinds of gambling are illegal in India. Or, to be more precise, it is illegal for domestic players. However, as a result of the Goa, Daman and Diu Public Gambling Act of 1976, casinos do exist in three out of 26 states (Goa, Sikkim and Daman).
2. The reason most Indians believe that gambling is illegal in India is because you will not find any casinos or gambling houses in the country with the exception of three states. Goa, Sikkim and Daman are the three states in India to have a legalized casino industry.
3. There is a law in India that says it is illegal to fund online gambling sites without using Rupees. This law is called the Foreign Exchange Management Act. If you are to place a bet at an online bookmaker or gaming site you need to do so in Rupees.
4. (i) Betting or gambling is not illegal or prohibited in India. (ii) What is illegal is running or maintaining “common gaming houses for gains”. (iii) None of the prohibitions apply if the game is a “game of mere skill”. Element of Chance and Hope.

However, this year has seen an explosion in gaming and gambling websites. The online gambling has replaced the need for a physical gaming parlour.

While the physical form of gambling (except betting on horse racing) is generally not recognized under the law in India, the law related to online gambling still lies in the grey area. The government has not yet regulated the said area.

According to the Public Gambling act of 1867 (Indian Kanoon), all kinds of Gambling activities are illegal, however, it doesn’t say that online gambling is illegal. Also, the word “Gambling” is a slightly Alien to India because of the traditional beliefs.

Multiple cases in courts of India are going on seeking its regulation and Andhra Pradesh recently became the first and only state so far to explicitly ban online gambling.

The online gambling industry has already set its feet deep in India and is growing exponentially. While the legislature is yet to regulate it, it is imperative for players in India, who indulge in online gambling to know and understand the law relating to taxation vis-a-vis gambling.

It is necessary and mandatory to disclose the income from gambling and lotteries in India. As the gambling is expressly prohibited under Public Gambling Act in India, there is no specific provision in law of taxation that prescribes for tax on monies won in prizes, lottery or gambling.

Despite this, the income from gambling, casinos, lotteries etc. can be charged under the head of ‘income from other sources’ under section 56 of the Income Tax Act, 1961.

The amount is taxable at the rate of 30 percent and cess amount also has to be paid.

Further, if the prize money exceeds Rupees 10,000, the tax is deducted by the organizer at source, also called TDS, and the player receives the net amount. This is done under section 194B of the Income Tax Act, 1961.

If the organizer does not go for TDS, then the player has to declare that income as income from other sources and pay the tax accordingly.

In case of physical casinos, that Indian residents play abroad, they are not allowed to carry back the entire amount; there is a limit of US $5000 on the cash that a person can carry back at home.

Notably, no deduction or allowance is permitted from such income. The usual income slabs are also not applicable on income from gambling, lotteries, prizes, betting etc.

To function within the law, it is pertinent that a player knows the rules related to taxation and its implications.

Online Gaming/Gambling laws in India prohibit betting or wagering and any act which is intended to aid or facilitate the same. Gaming/Gambling being a State subject, gaming/gambling in India have laws which differ from state to state . This would mean what is permitted in one State may be an offence in another. The Public Gambling Act, 1867, is the central enactment on the subject, which has been adopted by certain states of India like Uttar Pradesh, Punjab, Madhya Pradesh etc. The other States have enacted their own legislation to regulate gaming / gambling in India activities within its territory. It is to be noted that State Legislations have been enacted prior to the advent of virtual / online gambling in India and therefore references of gaming/gambling in India, in respective state legislatures are in relation to physical premises only, barring Sikkim and Nagaland which are the only States who have introduced regulations pertaining the online gaming.

After going through the State gambling laws for online gambling in India, it is found that, except the State of Orissa and Assam, most of the States have excluded ‘games of skill’ from applicability of its respective gaming/gambling laws. Further, playing certain games including ‘Poker’, both online and offline, is permitted under the laws of West Bengal, Nagaland and Sikkim subject to licence from the appropriate State Authorities. But this would be applicable only in the territorial limits of the respective State. In Goa, gambling is permitted only in Government permitted places operated as casinos.

The issue of online gambling in India laws in India still remains a grey area which is yet to be adjudicated by Courts of India. Having said that, necessary inferences can be drawn from orders passed by the Court while deciding the issue of whether a particular game is a ‘game of skill’ or a ‘game of chance’. But the issue of whether a ‘game of chance’, if played like a sport without stakes amount to gambling or not? still remains largely undecided.

Game of Skill v. Game of Chance:

There has been a substantial discussion by Supreme Court and High Court on what constitutes a ‘game of skill’ and a ‘game of chance’. What is adduced from the judgments is that a game where there is preponderance of skill over chance is a ‘game of skill’ and vice-versa.

By taking the above ratio into account, SC in the matter of State of AP v. K.Satyanarayana(1968) held the game of Rummy to be a ‘game of skill’. However, the Court in its judgment has indicated that if there is gambling or if the gambling house is making profit from the game of rummy, then it could amount to an offense under the laws of AP. It was further observed by SC that the three card game which goes under different names such as flush, brag, etc. is a game of pure chance. This was relied upon by SC in another its other judgments viz. M.J.Sivani v. State of Karnataka (1995) and Dr. K.R. Lakshmanan vs State Of Tamil Nadu And Anr (1996).

The issue of whether rummy if played with stakes amounts to gambling or not has not been decided by Supreme Court. However, Andra Pradesh High Court in D. Krishna Kumar And Anr. vs State Of A.P.(2002) (Annexure-2) relying upon the SC decision of 1968 held that till such time the state gambling Act is amended to lay down that playing Rummy with stakes is 'gaming', playing Rummy with stakes is not 'gaming' within the meaning of the Act and is therefore allowed.

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The issue of Online Gaming/gambling laws in India was discussed in detailed in the above case when the issue was put up before the Court under Order 36 Rule(1) of CPC by the parties. The Court held the following:

• Game of skills, if played with stakes does not amount to gambling;
• Playing games of skill for money is only legal in the real form, online games cannot be compared to real games;
• Attracting business or enticing players by alluring them with prize money is illegal;
• Gaming sites partaking a slice on the winning hand are illegal as they amount to a virtual gambling house.

Having said that, the said ruling was rendered infructuous as during the final arguments in the Revision petition, parties sought to withdraw the petition. So the effect being there is no ruling which can be treated as a precedent as regards online gambling.

Gujarat High Court on Poker:

The issue whether Poker is a ‘game of skill’ or a ‘game of chance’ was never discussed in detail by any Court in India until the recent decision/order dated December 4, 2017 passed by Gujrat High Court in Dominance Games Pvt. Ltd. V. State of Gujarat, wherein, the said issue was extensively pondered upon. The Court in its said decision held that Poker is a ‘game of chance’ and therefore amounts to gambling under Gujarat Prevention of Gambling Act, 1887. While arriving at the aforesaid decision, the Court inter alia observed the following:

• That the game of poker originated from ‘flush’ or ‘Indian teenpatti’ which has been observed by SC as a game of chance in its 1968 judgment and consequently, as a corollary, the game of poker is also to be construed as a game of chance;
• The game of poker involves a process wherein the players have no control or say on the cards received by them and the final outcome is based on mere luck or chance depending upon how the cards are received by the player. Poker face to bet, would be a part of bluffing or deception and the so-called strategy, cannot be considered as a skill. The outcome also depends on the ability of a player to spend money and how deep are his pockets. It is a game of deceiving, bluffing and duping other players;
• The game of Rummy is different than Poker. While poker involves betting or wagering, rummy has nothing to do with stakes and betting or wagering is not essential to the game of rummy;
• The Court while noting the ills of gambling and impact of gambling on the moral fibre of society noted that ‘one must not overlook the ground realities in India or the country like India, where the majority of the population is struggling for the basic necessity and there is lack of awareness amongst the people and if they are permitted by betting in the craze of easy money, they do not know what to do if the things go wrong.’

Mr. K.N Suresh, Secretary of Indian Poker Association has filed an appeal against the said order, being Letters Patent Appeal No. 2625 of 2017 before the Division Bench of Gujarat High Court. The bench after hearing the matter briefly on December 28, 2017 issued notice to the state government and other respondents, and till date the matter is not heard finally. Having said that, since no ad-interim/interim reliefs are granted presently, the Single Judge order stands valid and enforceable.

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Though the order does not specifically make any observation on Poker, if played as a sport and/or without stakes, however, while differentiating between rummy and poker, the Hon’ble Court at para 60 of the said order makes a presumption that wagering or betting is an inseparable part of the game of poker and therefore would involve stake. The Court while holding Poker to be a ‘game of chance’ has also predominantly relied upon moral religious and social grounds. In the absence of the said order being overruled and the issue being addressed specifically, the game of poker, even if played as a sport and/or without stakes remains a grey area which is then left at the discretion of police authorities.

POSITION:

Though the issue of Poker was considered by Gujarat High Court in view of the provisions of Gujarat Prevention of Gambling Act, 1887, in arriving at the decision of Poker being a ‘game of chance’, the court made several observations like how the game is played, origin of the game, reference to ancient Indian literature, moral and religious grounds, etc. which may be applied by other states/state machinery having similar gambling laws. The issue is likely to be clarified by Division Bench of Gujarat High Court, once the appeal is finally heard.

In view of the above, it is clear that if a game is considered to be a ‘game of chance’ under the state laws and rulings by the Courts and is played with stakes, would constitute gambling under the respective state laws with exception pertaining to a few states as mentioned above. If an entity is able to show that a particular online game or a particular on-ground gaming activity has preponderance of skill over chance and/or is played as a sport without stakes, it may fall within the exception of gaming/gambling under the state gambling laws. It is pertinent to note however that if online gaming is illegal in any State, the promotion of the same in such State would amount to violation of ASCI Code as well as Cable TV Network Regulation Act, 1994.

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