Public Gaming Act, 1867
The Public Gaming Act, 1867 was enacted with the object of preventing (i) gambling in a public place and (ii) the keeping of the common gaming-houses and to provide for the punishment of public gambling and the keeping of common gaming houses. The term ‘Gambling’ per-se has not been defined in the Public Gambling Act 1867 and the terms – gambling, gaming, betting and wagering are the terms which are often used synonymously, and of all ‘Gambling’ being regarded as embracing all the terms. The term ‘Gaming’ too has not been defined under the Indian Gambling laws, however, an inference can be drawn from the English Betting and Gaming Act, 1960, wherein its is defined as “playing of a game of chance and skill combined, and a pretended game of chance and skill combined, but not any athletic game or sport”. Also, in light of various case laws so far dealt by the Indian courts, it has been observed that the term ‘gaming’ generally denotes playing at any game whether of chance or skill (or mixed chance and skill) for money or money’s worth.
“Element of Chance” or “Element of Skill”
A game can be (i) a game of chance or (ii) a game of skill or (iii) a mixed games of chance and skill. In a very relevant case in this regard of Dr. KR Lakshmanan v/s State of Tamil Nadu, the Supreme Court of India held that gaming is an act or practice of gambling on a game of chance and the test of determining if a game is ‘gambling’, is whether dominant element is chance or skill. Hence, the test of determining if a game is ‘gambling’ is whether dominant element is ‘chance’ or ‘skill’. Again, the legislation in India does not define the terms ‘skill’ or ‘chance’ for the purposes of gambling, however, based upon the interpretation of the Indian courts, it can be concluded - that a game that does not involve skill or is a mixed game of chance and skill would not be treated as lawful in India.
In many cases that have come before the Supreme Court, it has held that when a game relies on the element of chance, it cannot be a game of mere skill, and must therefore be analyzed to determine whether chance or skill predominates. Whether or not a particular activity will be considered gambling will depend greatly on the amount of skill required in comparison to the amount of chance. Games and activities where the element of chance predominates will likely be considered Gambling and where the element of skill predominates, such games and activities may be exempted from the prohibition, such as betting on horseracing.Hence, on-line games, contests for the purposes of promoting sale, use or supply of any goods or for the provision of any service are likely not to fall under the gamut of Gambling since the same lacks the basic ingredients of gambling / forms of gambling. However, the same is likely to fall under the gamut of ‘Unfair Trade Practice’ under Section 2 (1) (r) (3) (b) of the Consumer Protection Act, 1986 as the same reads as below:
Consumer Protection Act, 1986 –
Section 2 (1) (r) (3) (b) - ‘Unfair Trade Practice’ means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;—
(3) permits—
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
Many Indian courts in several instances wherein similar contests were conducted for the purpose of promoting the sale, use or supply of any goods or for the provision of any service construed such activities as ‘Unfair Trade Practice’. One such related case being that of N.R. Swaminathan v. Union of India , wherein ‘The Diamond Jubilee commemorative volume of ‘Dinamani’, Publication of an Indian Express Group which was priced at Rs.50/- contained a coupon and the readers who purchased this were entitled to write a sentence in about 15 words explaining why they enjoy reading ‘Dinamani’ [based on skill]. The Hon’ble High Court of Madras relied on two main elements to construe this scheme as the ‘Unfair Trade Practice’, and declare it illegal, firstly, that the price of the publication was increased before the Diamond Jubilee commemorative, and secondly, that the coupon contained therein was to enable the winners to earn several prizes to be announced and that the same was purposely done in order to promote the sale / circulation of their publication.
In light of the aforementioned Indian laws, case studies, it is likely that on-line games, contests for the purposes of promoting sale, use or supply of any goods or for the provision of any service may not be directly falling foul on the provisions of the Public Gaming Act, however, the same may be construed as ‘Unfair Trade Practice’. So, planning to conduct a promotional game or a contest…..Beware!!……it’s unfair!
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