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Test of skills in a game of chance

Namit Saxena, January 7, 2016 0:04 IST

A concrete legislation must deal extensively with what constitutes betting and what can't be shielded as fixing.

The three-member Justice Lodha committee recently submitted the much-awaited report on reforms in cricket. The committee was categorically asked to recommend reforms in practices and procedures of the BCCI. One of the key recommendations was to legalise betting and criminalise match-fixing in cricket. Earlier, Justice Mukul Mudgal in his report on allegations of betting and spot/ match-fixing in IPL-6 had also given suggestions to control betting by an in-house mechanism in the BCCI in 2014.

It is pertinent to note that gambling, betting, waging, fixing, scripting, gaming, manipulating and speculations are overlapping but different terms. These terms have been meticulously defined by legal experts and, after due deliberation, the term betting has been suggested to be legalised by the committee. The committee interviewed 74 eminent citizens to obtain suggestions in this context. Query 8.8 of the committee’s questionnaire dealt specifically with betting and match-fixing.

The suggestions received as recorded in Clause VIII(2) echo that betting, as distinguishable from match-fixing/ spot-fixing, should be legalised, but players, team officials, employees and members should be barred from betting. The committee finally concluded in Chapter IX that while the issue of betting can be effectively dealt by providing a legal framework, match/ spot-fixing is neither pardonable nor a matter for regulation.

The legislative framework for betting in India revolves around the Public Gambling Act, 1867; Art 19(1)(g) and Entry 34 of List – II (State list) in 7th Schedule of the Constitution; Section 30 of the Indian Contract Act, 1872; Section 294A, 415 & 420 of the Indian Penal Code, 1860; Fore-ign Exchange Management Act (Fema) 1999 and IT Act 2000.

Prior to the adoption of our Constitution, the 1867 Act governed gambling. It banned all types of gambling except any game of mere skill wherever played (Sec 12).

Section 30 of the Contract Act stipulates that agreements by way of wager shall be void and incapable of surviving in a court of law except for horse racing. Entry 34 of the State list made “betting and gambling” a state subject. By virtue of this entry, states operate state-owned lotteries, casinos and gambling units. Notably, this also attests that a pan-India policy controlling betting and gambling is beyond the powers of the Central government.

Interestingly, Dr B R Ambedkar (Constituent Assembly Debates, Vol IX, 2-9-1949) had vehemently opposed insertion of this entry on gambling, justifying the resultant empowerment of the state to prohibit such activities. Furthermore, Fema legislates upon the issues of cross-border gambling transactions. There is no dedicated legislation for betting.

The first case which dealt with the subject of gambling was K Satyanarayana (1968) wherein Justice Hidayatullah held the card game of “rummy” to be a game of skill and chance and therefore saved by virtue of Sec 12 of the 1867 Act. In K R Lakshmanan (1996), the court again upheld the “skills test” and held that horse racing was a game of skill and not gaming or gambling. Recently, in All Kerala Online Lottery Dealers Association, the court, while relying on an earlier decision in B R Enterprises (1999), held that the state can discriminate between paper lottery and online lottery approving the test again.

Debatable question

The whole issue, therefore, narrows down to the debatable question whether cricket is a game purely of “skill” or not. Undeniably, skill is involved in all sports activities and it is commonly said that cricket is a game of chance. History, however, suggests that cricketing skills can be manipulated as the formats are very wide and matches can drift away by a mere drop catch, bowling a no ball or by misfielding deliberately.

Cricket, which is followed as a parallel religion in India, has witnessed involvement of the most infamous and banning of players as the demarcating line between betting and fixing is very thin. The committee neither supports its recommendation with availability of a favourable legislative framework nor provides guidelines for a law. In fact, it merely mentions checks and balances like ethics code, educating young players etc., which come after ascertaining whether it passes the “skills test” or not.

Hence, a three-step procedure should be adopted. Firstly, the BCCI should seek legal advise on whether the game passes the skills test and will it sustain if challenged in a court of law. Secondly, a concrete legislation should be formed which will deal extensively with what constitutes betting and what can not be shielded in the form of fixing.

And thirdly, an institution like the Sports Betting Intelligence Unit in UK should be developed here which will have separate units for separate sports. This unit will work as a dedicated team of experts detecting fraud, corruption, malpractices etc., and report them to the police and cases will be investigated by an officer above the rank of an inspector.

Either the states can draft separate laws or the Supreme Court can direct the Law Commission to recommend a report or the Centre can issue directions under Art 256 to states. In this, lies a big challenge to the game. All the best, Cricket!

(The writer is advocate, Sup-reme Court)

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