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The High Court of Judicature at Bombay (Division Bench), in Gurdeep Singh Sachar v. Union of India and Ors , 22 observed and held that the Online Fantasy game of the fantasy game operator does not involves ‘betting’, ‘wagering’ and ‘gambling’ activities respectively and that online fantasy is a ‘game of skill’. The decision of the Bombay High Court was appealed, and the Supreme Court of India – see its order dated 6 March 2020 – stayed the applicability of the Bombay High Court judgment and issued notice to all the parties. The Jaipur Bench of the High Court of Rajasthan in Ravindra Singh Chaudhary v. Union of India 23 held that fantasy sports games offered online is not a part of wagering contract, since they depend on skill of participant and not merely on chance and thus, the business offered by the platforms operating online fantasy sports has protection under Article 19(1)(g) of the Constitution of India. It also observed that the fantasy sports offered online are not operating in total regulatory vacuum and are subject to self-regulation by the industry body known as the Federation of Indian Fantasy Sports (FIFS), and rules and regulations of the charter of FIFS ensure that the games run by its members are ‘games of skill’ and are not in the form of any gambling or betting.Tamil Nadu promulgated the Tamil Nadu Gaming (Amendment) Act, 2021, which banned gaming by means of, inter alia, cards and dice (such as rummy and poker) in the form of betting or wagering in cyberspace using communication devices such as computers or mobile phones or any other device and also prohibited ‘electronic transfer of funds’ for placing bets, distributing the winnings of games and any other prize money related to online games (including rummy and poker) in the State of Tamil Nadu. The said Act was, however, challenged before the Madras High Court in the case of Junglee Games India Private Limited and Another v. State of Tamil Nadu and Others . 24 The Madras High Court, in its judgment dated 3 August 2021, struck down the said amendment, holding it to be ultra vires the Constitution of India Furthermore, the wording of the Amendment Act was held to be extremely arbitrary and unreasonable. Albeit the Madras High Court did not question the legislative competence of the state government of Tamil Nadu to enact laws in this area, the expansion of the field was held to be in complete disconnect to proportionality and reasonableness. It was reiterated 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. The Madras High Court also observed that competitions involving games of skill such as rummy and poker have to be regarded as business activities and would be protected under Article 19(1)(g) of the Constitution of India. A special leave petition, preferred by the state government of Tamil Nadu, is currently pending before the Supreme Court of India. 25. The Telangana Gaming Act 1974 amended by the Telangana Gaming (Amendment) Act 2017 dated 7 November 2017 prohibits the residents of Telangana to organise, provide, participate in and play games of skill (including online games of skill) in and from the state for stakes. The Andhra Pradesh Gaming Act, 1974 amended by the Andhra Pradesh Gaming (Amendment) Ordinance, 2020 prohibits playing, opening, keeping, operating, using or permitting online gaming (including games of skill) for money or stakes in its territory. The Gujarat High Court, in its decision dated 4 December 2017 in the case of Dominance Games Pvt Ltd v. State of Gujarat and Ors , 26 held that poker is a game of chance, and hence prohibited in the State of Gujarat. However, an appeal captioned as Dominance Games Pvt Ltd v. State of Gujarat and Ors 27 is pending before the division bench of the same High Court. The Home (F) Department of the Government of Kerala – see its notification GO(P) No. 26/2021/HOME dated 23 February 2021 in the Kerala Gazette Extraordinary – has banned ‘online rummy played with stakes’. The High Court of Kerala in Head Digital Works Private Limited and Ors v. State of Kerala and Ors 28 quashed the Kerala notification issued by the government of Kerala under Section 14A of the Kerala Gaming Act, 1960, which sought to ban online rummy and declared the Kerala notification to be arbitrary, illegal and violative of the fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. In the case of Indian Poker Association & Anr v. State of West Bengal & Ors , 29 the Calcutta High Court (Circuit Bench at Jalpaiguri) in its order dated 29 August 2019 observed and held that since the game of poker is not included within the gambling activities under the West Bengal Gambling and Prize Competitions Act 1957, the police cannot interfere with such games. On 5 October 2021, the Karnataka government promulgated the Karnataka Police (Amendment) Act 2021, which amended the Karnataka Police Act, 1963, prohibiting gaming, gambling, betting (except betting and wagering on horse racing), games of chance and games of skill (with stakes), including online, in the state of Karnataka. The amendment was seemingly brought out of compliance with the directions given by the High Court of Karnataka to the state government of Karnataka in another pending case to introduce legislation to deal with various online forms of gambling. The vires of the Karnataka Police (Amendment) Act 2021 was challenged before the High Court of Karnataka by the self-regulating federation of gaming companies in India in the case of All India Gaming Federation v. State of Karnataka & Anr . 30 The High Court of Karnataka, through its judgment dated 14 February 2022, struck down the provisions of Sections 2, 3, 6, 8 and 9 of the Karnataka Police (Amendment) Act 2021, declaring the same to be ultra vires in relation to the Constitution of India in their entirety. The High Court of Karnataka did not bar the state government of Karnataka from bringing in appropriate legislation concerning the subject of betting and gambling in accordance with the provisions of the Constitution of India. However, the High Court of Karnataka, inter alia, observed that the impugned legislative action had clamped an absolute embargo on all games of skill, defying the principle of proportionality and was excessive in nature and was, therefore, in violation of Article 14 of the Constitution of India on the ground of ‘manifest arbitrariness’. The High Court of Karnataka also directed the state government of Karnataka and the police authorities not to interfere with the online gaming business and allied activities. ii The regulator.
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