The recent IPL betting and fixing scandal has brought shame on the country and the sport. It has also got the law makers thinking about their laws and policies to check such practices. One of the solutions being offered is to legalize betting in sports in India. A complete ban on betting is often thought to be difficult to implement, and that legalization may help regulate betting instead of driving it underground. Legalization will also allow regulated betting to act as a potential source of funds, and will help reduce instances of match fixing and spot fixing.
This proposal has received mixed reactions and has both pros and cons. But there are two broader questions these recent debates evoke about our law and policy making and the way we respond to scandals such as these. Firstly, what moral authority does the state have to ban conduct such as betting? And secondly, should inefficacy of law be a valid ground to repeal or change the law? I will devote this post to the first question, and my next post on the second one shall (hopefully) follow soon.
The debate on legalization of betting raises interesting questions around the moral authority of the state to ban betting in the first place. There is no doubt that the state has legal authority to pass laws on betting. Entry 34 of the State List in the Indian Constitution allows states to make laws on betting and gambling and Entry 62 allows imposition of taxes on such luxuries. Further, Entry 40 of the Union List allows the centre to regulate lotteries. But should a state interfere in activities such as betting by criminalizing such conduct?
What could be the justifications behind criminalization of betting? Criminal law is usually invoked in cases involving a public wrong, causing a harm or threat of harm to another person. However, in case of betting, it is possible that two parties consensually enter into a betting arrangement, where one loses and the other wins, and there is no harm caused to anyone else. Some acts are criminalized based on the threat to the unity and integrity of the nation, like the offence of sedition. It is unlikely that betting poses such a risk. The state also sometimes criminalizes conduct that it perceives as immoral or which are likely to offend society’s collective morality. The law criminalizing homosexual conduct was one such law. It is debatable if betting is considered ‘immoral’ in this sense, and whether the state can or should make conduct which is immoral illegal, even if such actions are not harmful or violative of any person’s right. If betting is a ‘victimless crime’, the debate over its legalization raises interesting questions around the liberty of citizens, the government’s role in modern India and the legitimacy of the state to take decisions on behalf of the people to prohibit acts it considers undesirable.
Interestingly, the Constituent Assembly debates reveal that the insertion of the entry on betting and gambling was opposed on the ground that such insertion might lead to legalization of such activities. One of the members, Shri Lakshminarayan Sahu, argued that mention of such activities should have no place in a constitution built on the ideals of truth and non-violence practiced by Mahatama Gandhi. It was when Chairman Ambedkar clarified that insertion of the entry will in fact empower the state to prohibit such activities, that the motion to insert the entry was passed. [Constituent Assembly Debates, Volume IX, 2 September 1949].
The negative stance towards betting and some of the justifications behind its criminalization are visible in Supreme Court judgments. The court has referred to the Vedas, Mahabharat and other ancient texts to conclude that Indian law makers have always viewed gambling as a “sinful and pernicious vice”. Such practices leave people indebted and homeless, disrupt families, destroy wealth, disavow values like honesty and truth and lower the standard of living. Interestingly, there were also references to texts like that of Kautilya who would have allowed regulated gambling and enabled the state to earn revenue from it. The court has developed a distinction between games of chance and games of skill and allowed games such as horse racing and rummy to legally exist as falling in the category of games of skill. [Dr. K.R. Lakshmanan v. State Of Tamil Nadu, AIR 1996 SC 1153; State of Andhra Pradesh v. K. Satyanarayana (1968) 2 SCR 387; State of Bombay v. RMD Chamarbaugwala, AIR 1957 SC 699].
Irrespective of whether betting in cricket is a game of chance or skill, should a state prohibit even games of chance? Should it be the state’s business to criminalize activities to make sure that people spend their time and money in productive activities instead of getting addicted to wasteful acts which might have some negative effects in society? What about activities like drinking and smoking, which are perhaps more ‘harmful’ than betting, in terms of harming the person doing the act, disrupting families, increasing risk of other crimes, and are engaged in by a larger number of people. Even if it may not involve any skill, betting might be a form of private entertainment for some people.
This also raises the question whether criminal law is the proper law to regulate betting. Undesirable conduct in society can be regulated through other means such as civil law, tort law and tax law. Criminal law involves a higher level of social sanction, as opposed to others. Should betting be subject to that?
There is an implicit assumption about the illegality of betting in the Constituent Assembly Debates and the Supreme Court judgments. The recent debates on legalization of betting have also largely failed to engage with the wider questions about the state’s moral authority to ban betting. The debates have largely focused on the practicalities of implementation and the economics of regulation. The exercise of the power of the state to ban or regulate the conduct has remained unquestioned. While there is no doubt such practical concerns are significant, I find questions around the role of the state and liberty of the people more interesting. As a state, India needs to consider if it should deal with certain private acts which may have some negative offshoots for society through the medium of law, and, if yes, what will be the best legal strategy to regulate such conduct. Perhaps we should use moments of legal uncertainty and possible change such as these to engage with these larger questions on the ethics of law making in India.
My next post will deal with the second question raised above on inefficacy of laws. It is often stated that full implementation of a blanket ban on betting is impossible. It is also argued that legalization of betting will help reduce instances of the crime of fixing. My next post will examine, assuming that the state has a legitimate ground to ban betting, if these arguments would justify legalization of betting.