Introduction

In the world of Indian sports, gambling is generally regarded as a fly in the ointment. The ever-increasing popularity of sportspersons and sports culture has fuelled a thriving culture of gambling. So it is baffling to note that the Indian gambling market, despite being largely illegal, is estimated at around $60 Billion, or 3.5% of India’s Gross Domestic Product according to a KPMG study.[i] What is important to understand is that the laws like the Public Gambling Act, 1867 and several other state legislations prohibiting gambling not only push the individuals involved in gambling or betting in sports underground but are ineffectual in actually ending such activities. The American jurist Oliver Wendell Holmes, in his Bad Man Theory, argued that instead of eradicating the evil, the law may instead drive the individual to get involved in it in more illicit manner, causing a greater harm.[ii]

Ancient India’s connection with gambling

One of the oldest instances of gambling can be traced back in the great epic Mahabharata where the king, Yudhisthira lost his kingdom along with his brother and wife to his uncle, Shakuni in a game of Pachisi. Yudhisthira believed that such practice was sinful and that it did not involve any skill to which Shakuni replied that gambling, like any other battle, involves skills which help the expert defeat the ignorant one. The same view is endorsed by many individuals who are either involved in or advocate for the legitimisation of betting in sports. However, the Supreme Court of India has quoted the epic to discourage gambling by observing that the Mahabharata criticises gambling by depicting the miserable state of the Pandavas who had gambled away their Kingdom.[iii] The concept of gambling also finds a mention in the Vedas as well as the ancient texts like Manusmriti where it was prohibited.

Draupadi is presented in a pachisi game where Yudhishthira has gambled away all his material wealth.

However, Kautilya’s Arthashastra presents an interesting as well as practical approach towards gambling. It highlights the role of a superintendent who must be honest and responsible in order to conduct gambling fairly and in turn earn not only a certain percentage of the stakes gained by the winner, but also the amount chargeable for providing the gambler with license, medium for playing etc.[iv] This approach can prove a brilliant model for legalisation of betting and gambling in sports with the government acting as the superintendent and earning revenue by allowing licensed and regulated betting in sports. Other ancient texts like Katyayana Smriti and Narad Smriti also discuss the scope of gambling backed by proper safeguards and regulation.

Why should sports betting be legalised?

In the C19th the British imported gambling on horse races which was regulated by the Calcutta Turf Club in a kind of lottery, but eventually nearly all other forms of gambling were banned in the Public Gambling Act, 1867.

Whoever is found in any such house, walled enclosure, room or place, playing or gaming with cards, dice, counters, money or other instruments of gaming or is found there present for the purpose of gaming, whether playing for any money, wager, stake or otherwise, shall be liable to a fine not exceeding one hundred rupees.

The Public Gambling Act 1867

This did not quash the gambling culture entirely, which continued at a low level for another century, but it caught major attention after the introduction of the shorter formats of cricket and especially the IPL (Indian Premium League). Considering its popularity in India, it does not come as a surprise that the IPL ranks at the top of the list for revenue of offshore betting companies.[v] A total of £4.3 billion was traded on the Betfair Exchange in the 2018 IPL, which is only a small part of the total amount bet legally throughout the world.[vi]

These numbers cannot make up for the bad reputation that these activities have brought for the Indian sports industry. The involvement of several well known names in the sports industry not only raised questions about the effectiveness of law prohibiting such activities in sports, but interestingly initiated the discussion about the need to legalise betting. Justice Mudgal, who headed the IPL spot-fixing and betting probe, himself said that legalising betting will be helpful in the generating income for the government by reducing the illegal spot-fixing, betting practices etc. in India.[vii]

Concepts of morality and righteousness take a backseat when a person is able to bet and win money from their sofa. The practice of sports betting became crystallised and more convenient with the arrival of online betting platforms – especially in the absence of an comprehensive law governing online gambling and betting (with the exception of Nagaland and Sikkim permitting gambling on online platforms). The advent of virtual currency also gave a push to the online gambling market in India until it was banned by the Reserve Bank of India in 2018.[viii] The Information Technology (Intermediary Guidelines) Rules, 2011 prohibit online intermediaries from transmitting content relating to gambling.[ix] However, the permissibility of gambling on online gambling sites whose host countries do not prohibit the same remains a grey area leading to numerous betting websites becoming popular in India.

One of the arguments against legalisation of betting in sports rests on a moral footing. However, law and morality are not synonymous. What the state can and has done to maintain a balance between law and morality is regulation of activities which might not score well on a moral compass for some individuals; for example drinking, smoking etc. As far as criminalising betting in sports is concerned, we must keep in mind the criminal law can only be involved in case of a public wrong. A gambling or betting transaction takes place between two parties resulting in one party winning and the other one losing and such an arrangement is unlikely to pose a public harm or a threat to morality of the society.[x]

A study suggests that the government loses a huge tax revenue of ₹19000 crores every year owing to the illegality of sports betting.[xi] Regulation of betting in sports will not only shift the flow of revenue towards the state through licensing of gamblers and elimination of the illegal agencies but also keep a check on match-fixing activities. Given the damage to reputation that the Indian sports industry has suffered, it could also be seen as an effort towards restoring the integrity of sports especially popular tournaments such as the IPL in India.

Judicial and Legislative Stance

Several factors such as societal beliefs, values, religion, economic status, politics at a particular point in time influence the legislative and judicial narrative of a country. The religious texts mentioned above have played an important role in defining people’s morality in their day-to-day lives in Indian society. It is important to be acquainted with these factors in order to understand the development in the legislative and judicial approach towards gambling and betting in sports.

The Supreme Court of India went from regarding gambling as an evil and emphasising the need of a law to root it out for public interest[xii] to suggesting the Law Commission examine the legalisation of gambling in India[xiii]. In 2017, the Honourable Court while dealing with several allegations levelled against the Board of Cricket Control in India stated that issue of legalisation of sports must be dealt with by the law commission.

In July 2018, the 276th Law Commission of India submitted its reports suggesting Parliament enact a law to legalise and regulate betting in sports. The Law Commission report, for better accountability, stated that gambling records must be linked with the Aadhar/PAN Card of the operators and the participants. The report deals with a wide range of concerns associated with betting in sports including online gambling, linking of the gambling records with the Aadhar Card/PAN Card of the operators and participants.

Prior to this, the Mudgal Committee and Lodha Commission have also emphasised the need for legalisation of betting in sports along with strong safeguards. Congress MP Dr. Shashi Tharoor introduced the The Sports (Online Gaming and Prevention of Fraud) Bill in the Lok Sabha in 2018. The Bill, if passed, would provide for a comprehensive legislation for the regulation of online gaming.

Conclusion

The increasing popularity of illegal betting in sports poses a threat to the integrity of sports not just in India but throughout the world. The revenue that is lost every year due to the absence of any regulation is too substantial to be ignored by a developing country such as India. The legalisation of betting in sports can help in a myriad ways and save the integrity of sports in India.

Snehal Walia

Snehal Walia is an undergraduate student at Rajiv Gandhi National University of Law, Punjab and is deeply passionate about youth advocacy, sports and writing. She believes that sports have the special ability to bring different nations closer to each other by creating a special brotherhood that goes beyond the field between the players and anyone associated with the sports events and competitions held around the world. Her other interest areas include sports law, media law, criminal law and Indian politics. She has previously interned with an NGO, State Human Rights Commission and law firms in India.

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References

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