On 30th October, 2019 a writ petition was filed in the Delhi High Court seeking a ban on poker. It has been contended that poker is a game of chance and not skill as the player has no control over the cards dealt to him or her, and, therefore, playing it for real money amounts to gambling and is illegal. The Delhi High Court has sought a response from the Government and the Reserve Bank of India. This is the second such petition filed in the Delhi High Court within a few months.
Poker: a game of skill or chance?
Poker is a card game played among two or more players for several rounds. It can be played online or offline. There are several variations of the game (Omaha, Texas Hold 'Em, etc.), but they all have these aspects in common: the game begins with each player putting down money allocated for betting; during each round of the game, the players are dealt cards from a standard 52-card deck, and the goal of each player is to have the best hand at the table; players keep their cards hidden, and each player places bets on the strength of his or her cards; when the round is over, the cards are revealed, and the player with the best hand wins the round and the money that was bet during that round.
While the element of chance is equally distributed among the players, the outcome of the game is eventually determined by skill. Multiple research papers, conferences, articles have discussed at length how poker while containing elements of randomness (random cards are dealt to the player) is essentially a game which involves substantial skill, probability and game theory (the word "poker face" exists for a reason!).
Yet, in India, poker is stigmatised by being equated to gambling and the poker games are regularly disrupted by the police1, FIRs are booked and players are harassed or arrested. There have been instances where clubs like the New World of Sports Club, Mumbai have been raided2 despite having obtained licenses for organising poker games. These actions of authorities have led to a vicious cycle of poker being played in underground gambling dens, resulting in connections with the underworld and being clubbed with other gambling games.
Legal landscape
The Seventh Schedule of the Constitution of India gives the States the exclusive power to make laws on the subject of "Betting and Gambling". States in India have religiously exercised their legislative power to regulate gaming/ gambling activities within their territory and have passed a variety of betting and gambling laws. While some States prohibit betting and gambling altogether, others permit a few betting and gambling activities, and yet another group of States have adopted a British Raj era law, the Public Gambling Act, 1867.
While games whose outcome is dependent on chance have been considered to fall under the category of gambling, and are generally prohibited, games involving skill (like poker), by not falling within the ambit of gambling are usually exempted. Whether a game amounts to gambling or not has been determined by which factor between chance and skill dominates/preponderates3. Games of chance are those where the winner is predominantly determined by luck; the result of the game is entirely uncertain and a person is unable to influence such result by his mental or physical skill. The person playing a game of chance wins or loses by sheer luck and skill has no role to play. On the other hand, the result of a game of skill is influenced by the expertise, knowledge and training of the player.
Wagering, gambling and betting have often been confused to be synonymous. The Madras High Court in Public Prosecutor v. Veraj Lal Sheth4, explained the distinction as follows: "The principal distinction between gaming and betting or wagering is thus immediately apparent; in gaming the stake is laid by the players upon a game, the result of which may depend to some extent upon the skill of the players, but in a bet or wager, the winning or losing of stake depends solely upon the happening of an uncertain event.". In a game of skill although the element of chance necessarily cannot be entirely eliminated (specially the element of randomness in shuffling and dealing of cards), success predominately depends on superior knowledge, training, attention and experience of the player.
Uncertainty surrounds the legality of game of poker currently. Absence of a clear, general and comprehensive legislation clarifying its status and legality and conflicting decisions discussed below have led to uncertainty with respect to the legality of poker (both offline and online) in India. However, the efforts of poker aficionados, like Indian Poker Association (IPA), in getting the game of poker legalized has resulted in two favorable judgements from the Karnataka High Court and the Calcutta High Court, respectively. However, even these two judgments seem narrow in scope and haven't examined the issue in detail.
The Karnataka High Court judgement5 does not analyse whether poker is a game of chance or skill but goes on to say that poker if played as a game of skill does not require a license and therefore police cannot interfere with a game of poker being conducted. Similarly, the Calcutta High Court judgment6 merely states that since the game of poker ipso facto is not included within the purview of the West Bengal legislation on betting and gambling, namely, the West Bengal Gambling and Prize Competitions Act, 1957, without there being a specific complaint police should not enter into rooms where such games are organized and go on a rampage in the garb of investigation.
In contrast, the Gujarat High Court7 has in a detailed judgement analyzed the game of poker and has held that Texas Hold 'Em Poker is a game of chance and not skill and is therefore prohibited (an appeal against this judgment is pending with the Division Bench of the Gujarat High Court). The Gujarat High Court relied on a judgment of Supreme Court8 which, while considering whether Rummy is a game of chance or skill, had held that: "the game of Rummy is not a game entirely of chance like the 'three card' game. The three-card game which goes under different names such as 'flush', 'brag' etc. is a game of pure chance" and held that as a necessary corollary poker as its variant must also fall in the category of a game of chance. While this further adds to the ambiguity, it appears that the Gujarat High Court considered only one variation of the game of poker i.e. Texas Hold 'Em Poker.
Even the Bombay High Court9 in a petition for quashing of FIR, has in a cryptic observation held that poker is a game of chance and not skill. The order does not specifically address the game that the petitioner was playing when raided by the police as poker, but instead uses the phrase "game of cards" as described in the FIR. We understand from public domain that the petitioner's advocate specifically requested the judges to not use the word poker10 in their order and therefore it appears that even the Bombay High Court has views similar to that of the Gujarat High Court.
Further, the Supreme Court, in M. J. Sivani v. State of Karnataka11 observed that in games like poker, double up, blackjack and pacman there was no scope for using one's skill to arrive at a desired result, as the electronic machines on which these games were played could be tampered with resulting in the chances of winning becoming completely unrelated to the skill of the player.
Lastly, in M/s Gaussian Networks Pvt. Ltd. v. Monica Lakhanpal and State of NCT12 a District Court of Delhi while hearing a petition filed for a declaration that poker is illegal, held that playing skill-based games for money in the virtual space, renders them illegal. It observed that the degree of skill that is involved in playing these games in physical form cannot under any circumstances be equated with games played online13. The District Court held that since there was a possibility for manipulation of outcomes by cheating and collusion in online gambling, it can be assumed that the degree of chance would also increase swaying it from a game of skill to a game of chance. The petition was subsequently withdrawn and the observations therefore do not hold good in law.
Way forward
Despite the ambiguity and the uncertainty that surrounds poker (legal in some states like Goa, Sikkim and Nagaland and illegal in many) there are various leagues and tournaments that are organized every few months in India (often only in States where poker is legal).
Question of legalizing gambling has always been a vexed issue given the moral undertones attached to it and possible ramification for the poor. These are considerations not associated with the game of poker. There is a strong case for both the Central Government and the respective State Governments in clarifying and legalising the status of poker. The Law Commission of India in its Report No. 276 – Legal Framework: Gambling and Sports Betting including in Cricket in India, has also recommended that "Since horse racing, being considered a game of skill, has been exempted from the ambit of blanket prohibition on "gambling", both by the legislatures and judiciary, other skill-centric games may also be afforded this exemption.". While all games involving dealing of cards have an element of chance, it can be said that offline poker involves both skill and chance with skill being the predominant factor. However, online poker being open to the possibility of manipulation and cheating can be said to involve more chance and less skill.
Legalizing poker would have several benefits. It would help in regulating and regularizing the game thereby reducing harassment of the poker players and corruption. It would serve as another revenue source for Central and State Governments who are always looking for ways and means for augmenting their revenues. As early as the 2nd and 3rd century, Kautilya - the famed economic and political thinker of ancient India, in his economic treatise Arthashastra had recognized "gambling" as one of the sources of revenue for the State and during his time State levied a 5% tax on winnings from gambling. Regularization and legalization of poker will result in both the States as well as the Centre earn revenue in the form of direct and indirect taxes on the winnings from the game and the activity of playing the game.
Footnotes
1 https://www.casino.org/news/delhi-india-authorities-apprehend-58-seize-gambling-equipment-from-illegal-temporary-casino/, https://glaws.in/2018/11/07/indian-poker-face-diwali-party-raided-mumbai-police-135-arrested/, https://glaws.in/2017/05/09/headquarters-poker-room-ahmedabad-raided/
2 https://glaws.in/2017/10/18/licensed-mumbai-poker-club-nwos-raided-crime-branch-25-arrested/
3 RMD Chamarbaugawala v. Union of India AIR 1957 SC 628
4 AIR 1915 Mad 164
5 Indian Poker Association v. State of Karnataka 2013 SCC Online KAR 8536
6 Indian Poker Association v. State of West Bengal W.P.A. No. 394 of 2019
7 Dominance Games Pvt. Ltd. v. State of Gujarat and Ors. (2018)1GLR801
8 State of Andhra Pradesh v. K. Satyanarayana 1968CriLJ1009
9 Nasir Salim Patel v. State of Maharashtra & Ors. WP (Criminal) 427 of 2017
11 AIR 1995 SC1770
12 Suit No 32 of 2012
13 This was an observation also made in the Law Commission Report No. 276
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