Madras High Court’s recommendation to regulate the online gaming industry is laudable

Vikramajit Sen | Updated on August 25, 2020

In a recent judgment, the court called for monitoring of the industry as many youngsters are being lured with prize money and gaming sites are turning out to be virtual gambling houses

The pandemic has changed many things, most of all our behavioural norms. The recent decision of the Madras High Court (D Siluvai Venance v. State) dispels the perception in some quarters that Judges are too conservative, if not ‘tech-phobic’.

This judgment deserves commendation for its perspicacity and its understanding of an industry that is still in its infancy and is stumbling its way into the mainstream. Indeed, the court has displayed an astute consideration of a rapidly evolving society, of the changing social dynamics of our youth, and of the epochal technological shifts that are impacting communities all across the world.

The court opined that “To regulate the physical sports/games, we are having a legislative set up, but having such a set up to deal with the emerging online games/virtual games is the need of the hour. A comprehensive regulatory framework by a regulatory body is necessary to regulate the online sports and to curb any illegal activities as well. In fact, such regulation of online sports would encourage investment in the sector, which could lead to technological advancements as well as generation of revenue and employment. …This court is not against the virtual games, but, the anguish of this court is that there should be a regulatory body to monitor and regulate the legal gaming activities, be it in the real world or the virtual world. Needless to say that if the government intends to pass a legislation in this regard, all the stakeholders should be put in notice and their views should be ascertained.”

A paradigm shift

The Madras High Court has to be lauded for its recommendation to regulate the online gaming industry in India for several reasons, not the least being the sagacity and contemporariness of its verdict. The gaming industry is undergoing a paradigm shift with the evolution of television, digital and online gaming models. Following the increased internet penetration from the mid-1990s, the more recent Digital India initiative of the current government and the Covid lockdown, online gaming has become popular and mainstream.

The popularity of online gaming is best evidenced by the rapid growth of in the gamut of online card games such as Poker and Rummy, and new age games like fantasy sports. Mobiles and digital infrastructures in general have received further impetus in India by the telecom revolution, internet and cable TV penetration in every segment of our population.

Indeed, the court has not been oblivious of the ill-effects of online gaming. Justice B Pugalendhi noted that “almost in all the social media, youngsters are being attracted, to play such online games, by alluring with prize money. Gaming sites are also partaking a slice on the winning hand, as of a virtual gambling house.”

The judgment concludes with a telling directional expectation that it “hopes and trusts that this government shall take note of the present alarming situation and pass suitable legislation, thereby, regulating and controlling such online gaming through licence, of course, keeping in mind the law of the land as well as the judicial precedents in this regard…”

Complex tech issues

In the recent past, Indian courts have displayed profound comprehension of complex issues relating to technology. The Aadhaar judgment relating to privacy (Puttaswamy case), or the one on digital intermediary liability (Shreya Singhal case) are only few examples. In Puttaswamy, the Supreme Court left no stone unturned in acknowledging that 20th century laws do not necessarily cater to 21st century issues when it observed that “Technology, as we experience it today is far different from what it was in the lives of the generation which drafted the constitution….Hence, it would be an injustice both to the draftsmen of the constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation.”

While the judiciary has not provided policy guidelines, presumably out of respect for the separation of powers doctrine, it has nudged Parliament and the Executive to formulate regulations for this sunrise industry. The All India Gaming Federation (AIGF) has a self-regulation framework and a skill games charter.

Parliament must meaningfully engage with the sector, which already manifests enormous potential for investments, and for revenue to fill the government’s coffers. Prompt governmental engagement is essential, particularly in the present adverse times when the nation’s priority is to get the economy up and running.

The writer is a former Judge of the Supreme Court and a key member of the AIGF Advisory Panel

Published on August 25, 2020

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