Regulating Something Which Cannot be Stopped: Taking the Concept of British Gambling Commission Forward in a Gambling-Prone India

30th November, 2020 - 12:37 pm Categories: Sports Law 0 Comments

Gambling today is not per se legal in India, but the very fact that none of the gambling legislations define the term “gambling”, have made the entire scenario obscure and has called for regulations considering the immense potential of the gambling industry to fetch revenues. Though there have been recommendations from the law commission to regulate and legalise certain aspects of gambling, the concerned governments, barring Sikkim and Goa, are yet to take a call on the ambiguous Public Gambling Act, 1867 (the Act) which forms the base of most of the gambling legislation across the states. This article makes an attempt to discern the narrow scope of the Act in question, apart from analysing the Gambling Commission of the UK, its scope and mode of regulating gambling throughout UK and how can India take it forward to regulate gambling laws in order to establish a prospective gambling-based tourism industry.

Scope of the Act

More than a century old, the Act forms the base for most of the state legislations apart from being the sole legal framework available at the central level. Enacted in 1867, the Act does not make any reference to “gambling” rather defines “Common-gaming house”. A common gaming house, is defined as any walled enclosure which consists of such facilities including cards, dice, tables et al. for the purpose of profit for the person owning or occupying such enclosure. Moving forward, the Act penalises those in-charge of common-gaming houses, apart from penalising those who might be found within the premises of the said property to which this legislation’s jurisdiction has been extended. While the Act provides for activities of gaming for money or profit which are penalised, it also extends to any person who might be a spectator, or someone present there for the sake of recreation.

While the legislation disallows owning a game house, apart from being present in one for the purpose of gambling, endowing or advancing money, it does not explain what constitutes gambling, which has caused impediments in functioning of game houses which have been functioning for recreational purposes, or the ones jointly owned but do not endorse gambling as a profitable venture. Furthermore, the legislation divides the concerned activities into two parts viz, game of skill and game of chance. This has added up to the already narrow approach of the legislation as determining what constitute a game of skill or one of chance requires considering an array of things with respect to the game in question; and though addressing the latter might still be relatively feasible, determining the former has become difficult with the advent of online gaming. This has, contrary to its purpose, allowed a suitable breeding ground for illegal gambling especially during the sport seasons of football, cricket, rugby etc. Therefore, in absence of a robust gambling regulator or commission dedicated to the purpose in India, it is necessary to analyse similar bodies in other countries in order to figure out the efficacy of the same in India.

The Gambling Commission of the UK

Set up under the Gambling Act, 2005 (the Act), the commission is a corporate body which has the responsibility to allow gambling to an extent that it is in line with the objectives of the commission. Furthermore, the commission has discretion with respect to regulating the existing rules concerning gambling along with gambling facilities to ensure the activities carried out within the premises of such facilities are fairly concluded, apart from regulating requirements vis-à-vis admissibility within the premises of a gambling house and appeals. This robust framework of laws is supported by periodic reviews which constitutes the base for their strategy aimed at regulating irregularities, if any.

The commission in its latest strategy for 2018-21 titled, “Making Gambling Fairer and Safer” has identified key areas having a nexus with gambling such as mental health, fairness, regulatory amendments etc. The commission in its strategy to prevent public harm has suggested an increase in funding from the private sector and bring in a tougher licensing regime for those offering services to online gamblers apart from suggesting that the government levies certain taxes on the same. The said recommendation comes in light of reduced funding from the industry and the government, which have repeatedly failed to meet their targets and has caused a surge in funding through unapproved and illegal channels, which has led to a proportional rise in illegal activities, thereby hampering the overall wellbeing of gamblers. The strategy has further highlighted roughly 1% of the population which gambles as problematic gamblers which have put vulnerable gamblers, estimated to be around 2 million at risk, because of reduced spending and lack of information available with the gamblers.

To deal with this problem effectively, the commission has set 2021 as a target year for businesses involved in offering gambling services to furnish details regarding their products, to significantly reduce the dependence on third parties, who have been categorised as “problem gamblers” in the commission’s report. Furthermore, the report suggests setting up of additional dispute resolution mechanism which would offer cost free redressal to aggrieved customers. Another striking feature of the report is its focus on lotteries, something which is legalised in India and regulated by the Union government. The strategy by considering the contributions lotteries make towards the society, has recommended regulating it in a way which would without diminishing such contribution would carve out better returns for the people. To further this vision, the commission suggests using all the tools at its disposal to aid the National Lottery Licensee which would ensure greater sales and greater returns at the same time.

Lessons for Indian Regulators

A bare perusal of the act and the commission’s sphere of involvement highlight the organised pursuit in the UK to not just keep gambling activities legal for years to come but easing things for consumers who are a part of this industry. Unlike the Indian legislation, the act in the UK includes gaming, betting and lotteries in the definition of gambling as its constituents. Furthermore, the entire industry generates direct employment for over 1,00,000 people which might be a strong reason for Indian regulators to reconsider their stance on the same.

Gambling in India requires a series of changes with respect to legalisation and regulation. Moreover, in order to run things smoothly and effectively in an illegal-gambling prone country like India, the authorities must find a uniform solution at Union level to obviate disparity among the states, as has been the case now with regard to various activities being regulated by one state and categorised as prohibited by another. In the post-COVID world, remote access to various industries is expected to be the new normal, giving the authorities the perfect window to regulate online and offline gaming as a part of its economic policy. This will, in a way ensure employment as a short-term goal, which seems like already adding up to the existing unemployment rates. Furthermore, as a part of its long-term policies the government can consider the idea of introducing “Gambling-Tourism”, with the expectation of boosting tourism which is unlikely to return to its previous level, in case status quo is maintained with respect to the current options at the disposal of tourists. Having said that, it is also essential for the government to take one step at a time, consider the complexities at hand, and establish a consistent and unvarying regulatory framework as a solution to this immediate problem that seems to manifest and grow uncontrollably in the recent times.

Author:  Arijit Sanyal, Intern, 3rd year, New Law College, Pune , and Sudhansu Sahoo, Legal Associate, at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at sudhanshu@khuranaandkhurana.com.