AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 1377
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...., Advocate-General assisted by Shabnam Banu, Advocate ORDER Sanjib Banerjee, C.J. 1. The petitioners complain of an over-paternalistic stance taken by the State in bringing about sweeping amendments to an existing law that, according to the petitioners, infringe their fundamental rights and are otherwise unreasonable to the point of being manifestly arbitrary. 2. The challenge here is to Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (Act 1 of 2021), by which the Tamil Nadu Gaming Act, 1930 was amended (hereinafter referred to as the Amending Act). Substantially the same amendments to the Act of 1930 had been previously incorporated in an Ordinance promulgated on November 21, 2020. Act 1 of 2021 came into effect upon it being gazetted on February 25, 2021. The matter also brings to the fore the risks of introducing an amendment to an enactment that predates not only the Constitution, but also the Government of India Act, 1935, which broadly spelt out the areas in which the provincial legislatures could legislate upon. 3. The Amending Act has been challenged, not only on the ground that it turns the original statute on its head, but also in its....
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....g, the immorality involved in gaming and the ill-effects of gambling on large swathes of the society, particularly those from the economically weaker and socially backward sections. The State claims that even suicides have taken place upon a punter losing his all by playing one card game or the other on the internet. The State refers also to the possibility and likelihood of manipulation in games conducted on the virtual mode and repeatedly alludes to players and others being cheated, without indicating any material or particulars in such regard despite the court's prodding. 7. It may do well to see the 1930 Act as it stood before the Ordinance was introduced in November, 2020, particularly the nature of the mischief that it sought to prevent and the exercise being confined to games predominantly of chance. The Statement of Objects and Reasons pertaining to the 1930 Act recorded as follows: "The Madras City Police (Amendment) Act, 1929 was designed to deal with bucket shops in the City of Madras. There is increasing evidence of the fact that bucket shops are springing up outside the municipal limits. In order to deal with them effectively and to consolidate the law ....
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.... vessel or place knowingly or willfully permits the same to be opened, occupied, kept or used by any other person for the purpose of gaming on any of the objects aforesaid, or (c) has the care or management of, or in any manner assists in, conducting the business of, any such house, room, tent, enclosure, vehicle, vessel or place opened, occupied, kept or used for the purpose of gaming on any of the objects aforesaid, or (d) advances or furnishes money for the purpose of gaming on any of the objects aforesaid with persons frequenting any such house, room, tent, enclosure, vehicle, vessel or place, shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees, but in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court - (i) such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees for a first offence; (ii) such imprisonment shall not be less than six months and such fine shall not be less than seven hundred and fifty rupees for a second offence; and (iii) such imp....
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....in money or otherwise, including through electronic transfer of funds, in respect of any wager or bet, or any act which is intended to aid, induce, solicit or facilitate wagering or betting or such collection, soliciting, receipt, or distribution;" "3-A. Wagering or betting in cyber space.-- (1) No person shall wager or bet in cyberspace using computers, computer system, computer network, computer resource, any communication device or any other instrument of gaming by playing Rummy, Poker or any other game or facilitate or organize any such wager or bet in cyberspace. (2) Whoever wagers or bets in cyberspace using computers, computer system, computer network, computer resource, any communication device or any other instrument of gaming by playing Rummy, Poker or any other game or facilitates or organizes any such wager or bet in cyberspace, shall be punished with imprisonment which may extend to two years or with fine not exceeding ten thousand rupees or with both." "11. Games of mere skill.-- Notwithstanding anything contained in this Act, Sections 3A and Sections 5 to 10 shall apply to games of mere skill, if played for wager, bet, money or oth....
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....for the present purpose, the so-called checks and balances need not be gone into in great detail since the merit of the challenge to the impugned legislation is not impacted thereby. 15. The rummy companies contend that games of skill are distinct as a class and have been judicially differentiated in this country from games of chance. It is their submission that when the basis of the distinction is whether a game depends on chance or it depends on skill, the predominance test ought to be applied. They assert that the card game of rummy, per se, has been judicially recognised as a game of skill. 16. It is the further contention of such petitioners that the age-old distinction between skill and chance is vital and such distinction is imperative because, according to them, States do not have any legislative competence over games of skill, but may regulate games of chance. This, according to them, is a rational distinction that goes to the very root of competence. These petitioners suggest that when one is playing a game of skill, whether such game is played physically or virtually, it makes no difference. According to such rummy aficionados, only three major changes have been ma....
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....it that these statutory presumptions were relatable to the activities prohibited by Section 4(1) of the Act. These petitioners refer to the common thread of the activity of gaming running through the various provisions of the Act prior to its recent amendment and submit that right up to Section 11 of the Act and till its end, it is the game of pure chance that was prohibited. 20. In such context, these petitioners refer to the doctrine of res extra commercium as understood and judicially interpreted in this country to suggest that, like liquor, gambling may be regarded as immoral and, therefore, there may not be any absolute right to indulge in gambling, where gambling connotes an activity dependent overwhelmingly on chance. Such petitioners point out that the expression "games of mere skill", as contained in Section 11 of the Act prior to the recent amendment, was judicially interpreted to imply games predominantly involving skill. These petitioners concede that every future event depends, at least theoretically, on an element of chance, but the activities understood as gaming involve almost no skill or the skill component is negligible. 21. On behalf of these petitioners, s....
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.... the report. The court also noticed that in the other Chamarbaugwala judgment it had held that "trade and commerce protected by Article 19(1)(g) and Article 301 are only those activities which could be regarded as lawful trading activities, that gambling is not trade but res extra commercium, and that it does not fall within the purview of those Articles." Paragraph 5 of the report is of some relevance: "5. As regards competitions which involve substantial skill however, different considerations arise. They are business activities, the protection of which is guaranteed by Article 19(1)(g), and the question would have to be determined with reference to those competitions whether Sections 4 and 5 and Rules 11 and 12 are reasonable restrictions enacted in public interest. But Mr. Seervai has fairly conceded before us that on the materials on record in these proceedings, he could not maintain that the restrictions contained in those provisions are saved by Article 19(6) as being reasonable and in the public interest. The ground being thus cleared, the only questions that survive for our decision are (1) whether, on the definition of "prize competition" in Section 2(d), the Act....
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....ves with reference to the subject. The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in Section 2(d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill." 24. The rummy petitioners next refer to a judgment reported at AIR 1968 SC 825 (State of Andhra Pradesh v. K. Satyanarayana), where it has been clearly held at paragraph 12 of the report that "it cannot be said that Rummy is a game of chance and there is no skill involved in it." Upon rendering such finding, the court agreed that the conviction against the respondents before it had been rightly set aside by the High Court. However, the court cautioned, in the same paragraph, as follows: "12. ... Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of rummy or any other game played for stakes, the offence may be brought home. ..." 25. The next judgment cited by the rummy petitioners has also been copiously placed by the other lots of petitioners. It is neces....
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....has to be interpreted in the light of the law laid down by this Court in the two Chamarbaugwala cases, wherein it has been authoritatively held that a competition which substantially depends on skill is not gambling. Gaming is the act or practice of gambling on a game of chance. It is staking on chance where chance is the controlling factor. 'Gaming' in the two Acts would, therefore, mean wagering or betting on games of chance. It would not include games of skill like horse-racing. In any case, Section 49 of the Police Act and Section 11 of the Gaming Act specifically save the games of mere skill from the penal provisions of the two Acts. We, therefore, hold that wagering or betting on horse-racing -- a game of skill -- does not come within the definition of 'gaming' under the two Acts. "34. Mr. Parasaran has relied on the judgment of the House of Lords in Attorney General v. Luncheon and Sports Club Ltd. [1929 AC 400: 1929 All ER Rep Ext 780], and the judgment of the Court of Appeal in Tote Investors Ltd. v. Smoker [(1967) 3 All ER 242 : (1967) 3 WLR 1239 : (1968) 1 QB 509], in support of the contention that dehors Section 49 of the Police Act and Section ....
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....High Court, an Order dated October 29, 2015 passed on W.P. No. 30597 of 2014; and, another Order dated September 9, 2011 passed on W.P. No. 24533 of 2011, have been cited for the proposition that rummy is a game of skill. 29. The next ground urged on behalf of the rummy petitioners pertains to the extent to which a degree of paternalism may be exercised by the State and the sense of morality that may be enforced in enacting a statute. These petitioners submit that on both counts, the statute must satisfy the test of reasonableness under Article 14 of the Constitution, it must not infringe the rights guaranteed under Article 19 of the Constitution and it must also conform to the modern rule of proportionality which is increasingly applied to assess both the appropriateness of administrative decisions and the validity of any impugned provision of law. 30. In such context, these petitioners first refer to a judgment reported at (2019) 3 SCC 429 (Indian Hotel and Restaurant Association (AHAR) v. State of Maharashtra) that dealt with dance performances in hotels and restaurants. The discussion in the judgment pertaining to the extent the State can go in imposing morality on its ci....
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....zens. Nor is the form of the action taken determinative of the protection that can be claimed. It is the effect of the law upon the fundamental right which calls the courts to step in and remedy the violation. The individual is aggrieved because the law hurts. The hurt to the individual is measured by the violation of a protected right. Hence, while assessing whether a law infringes a fundamental right, it is not the intention of the lawmaker that is determinative, but whether the effect or operation of the law infringes fundamental rights." 33. The Constitution Bench judgment reported at (2016) 7 SCC 353 (Modern Dental College and Research Centre v. State of Madhya Pradesh) advocating the doctrine of proportionality has been placed by the petitioners to contend that the blanket prohibition of betting in cyberspace and, in particular, several provisions of the 1930 Act being extended even to games of skill would fall foul of such doctrine. Upon noticing the importance of the expression, "in the interest of the general public" in Article 19(6) of the Constitution, the Supreme Court observed that whether the impugned provisions of any statute or rules amount to reasonable restrict....
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....of manifest arbitrariness. Paragraph 87 of the report not only speaks of the thread of reasonableness that runs through Part-III of the Constitution, but also of substantive due process: "87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in State of A.P. v. McDowell and Co., (1996) 3 SCC 709 when it is said that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge would fail on the very ground of the law being "unreasonable, unnecessary or unwarranted". The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and ....
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....asonableness qua Article 19 of the Constitution enunciated in the judgment reported at (2004) 1 SCC 712 (Dharam Dutt v. Union of India) and, in particular, the observation that the onus of demonstrating that the impugned legislation comes within the permissible constitutional limits and that the restriction imposed is reasonable would shift to the State upon a prima facie case of violation on such counts being made out. Paragraph 49 of the report is relevant in such regard: "49. In spite of there being a general presumption in favour of the constitutionality of the legislation, in a challenge laid to the validity of any legislation allegedly violating any right or freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation having been made out, the onus would shift upon the respondent State to show that the legislation comes within the permissible limits of the most relevant out of clauses (2) to (6) of Article 19 of the Constitution, and that the restriction is reasonable. The Constitutional Court would expect the State to place before it sufficient material justifying the restriction and its reasonability. On the State succ....
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....ase of the definition of "gaming" in the Oxford English Dictionary as "the action or habit of playing at games of chance for stakes; gambling" and the definition of "wager or bet" to be "A promise to give money or money's worth upon the determination or ascertainment of an uncertain event." 40. The first lot of petitioners rest upon citing a judgment reported at (1999) 8 SCC 74 (Thampanoor Ravi v. Charupara Ravi) for the proposition that when a word or expression acquires a special connotation in law, it must be assumed that the legislature has used the word or expression in its legal sense and not with reference to common parlance or the dictionary meaning. These petitioners submit that since betting and gambling had already been included in the Government of India Act, 1935 and had been judicially interpreted even before the Constitution came into effect, the enlargement of the scope of the word "gaming" in the Amending Act would, in effect, amount to widening the scope of the field embodied in Entry-34 of the State List. 41. The next set of petitioners, who are also mostly involved in offering betting on rummy on their platforms, seek to make a distinction between bett....
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....tion may be and whatever social purpose it may profess to serve, the enactment could be invalidated if the State had no authority in such regard. 46. These petitioners next place a Constitution Bench judgment reported at (2005) 1 SCC 394 (E.V. Chinnaiah v. State of Andhra Pradesh) which dealt with affirmative action in general. The petitioners cite paragraphs 30 and 31 of the report where the doctrine of pith and substance has been referred to. The court observed that the stated objects of the enactment may not be the only criteria for assessing the validity thereof, as the court would examine "not only the object of the Act as stated in the statute but also its scope and effect to find out whether the enactment in question is genuinely referable to the field of legislation allotted to the State." 47. A nine-judge Bench decision reported at (2007) 2 SCC 1 (I.R. Coelho v. State of Tamil Nadu) has been placed by these petitioners for the proposition that judicial review is a basic feature of the Constitution. The court held in that case that the separation of powers between the Legislature, Executive and the Judiciary was also one of the basic features of the Constitution and i....
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.... amount to gaming and the obliteration of the distinction by the Amending Act makes the Amending Act unreasonable and fall foul of Article 14 of the Constitution. 51. These petitioners refer to some of the original provisions in the 1930 Act to submit that all forms of gaming had not been prohibited, but the prohibited activities were confined to any transaction or scheme of wagering or betting in which the receipt or distribution of winnings or prizes in money or otherwise depended on chance. 52. Such petitioners lay considerable emphasis in the artificial widening of the definition of "gaming" as brought about in Section 3(b) of the Act and the Explanation thereto. They also suggest that the definition of "instruments of gaming" in Section 3(d) of the Act in its use of the word "other" in the expression "any other article" makes computers and like gadgets instruments of gaming by a legal fiction, which should not stand judicial scrutiny. Similarly, these petitioners refer to the word "other" in the expression "any other instrument of gaming" and submit that to the extent games of skill are identified as gaming activities by the legal fiction used in the definition of "gamin....
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....said to be the action of gambling money on the outcome of a race, game or other unpredictable event, while "wager" is described to be the more formal term for bet. 57. These petitioners refer to the principles enunciated in the Chamarbaugwala cases and specifically rely on paragraph 20 of the report in K.R. Lakshmanan, where the expression "mere skill" has been held to "mean substantial degree or preponderance of skill." 58. These petitioners read the Statement of Objects and Reasons of the 1930 Act and submit that the impugned amendment goes not only against the purpose of the statute, but also against the tenor of the original provisions. They recount the history of the legislation pertaining to gaming in this State beginning with the Madras City Police Act, 1888, the Act of 1930, the amendment introduced to the Act of 1930 in 1949 by, inter alia, including horse-racing as a gaming activity, to the belated notification thereof in or about 1975, to the K.R. Lakshmanan judgment holding that horse-racing was a game of skill, and to the Ordinance brought about late in 2020 which metamorphosed to the impugned Act 1 of 2021. 59. According to these petitioners, there is no reas....
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....id parts if it appears to the court that the legislature would have enacted the valid part if it had known that the rest of the statute would be invalid. The second rule would be that if the valid part which is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, the entirety of the legislation has to be rejected. 62. These petitioners refer especially to poker being a game of skill as recognised in the 276th Report of the Law Commission of July, 2018 intituled Legal Framework: Gambling and Sports Betting including in Cricket in India. In paragraph 3.34 of the report, poker is referred to as a game of skill "because more skillful players will always win over the less skilled or novice players." The skills necessary to be a successful poker player are also noticed at paragraph 3.35 of the report. 63. These petitioners rely on an American judgment reported at: 886 F. Supp. 2d 164 (United States of America v. Lawrence DiCristina) where, after receiving expert evidence, it was concluded that poker was a game of skill. Though the judgment was reversed in appeal, the finding that po....
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....ambling" which is used in conjunction therewith in the relevant Entry; as the two words and the activities they connote in the context would be governed by the ejusdem generis and noscitur a sociis rules of interpretation. These petitioners rely on a Constitution Bench judgment reported at (2005) 2 SCC 515 (Godfrey Phillips India Limited v. State of Uttar Pradesh) for such purpose. 69. The State retorts by referring to its unquestionable authority to legislate in the field of "Betting and gambling" by virtue of the relevant Entry in the State List. The State seeks to give a background to why the Ordinance and the subsequent Act were necessary. The State fairly accepts that the impugned legislation "seeks to ban gambling, which includes games like rummy and poker, irrespective of the stakes involved in the game, if the same is played for stakes or money". The State commends the contents of an affidavit affirmed on its behalf on April 15, 2021, by the Deputy Secretary in the Home Department, to the court and copiously places excerpts therefrom. 70. According to the State, the policy decision to bring in the legislation was taken "after multiple instances of suicides have been r....
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....ved in the game" and alludes to the Information Technology Act, 2000, to suggest that provisions may be made "to curb the gambling or betting activities on the ground that such activities appeal to the prurient interest or tend to deprave or corrupt persons". 74. However, the Law Commission perceived online betting and gambling to be covered under Entry 31 of List I of the Seventh Schedule to the Constitution since they were "offered and played over media". The recommendation is for the Parliament to enact a model law "for gambling that may be adopted by the States or, in the alternative, the Parliament may legislate in exercise of its power under Articles 249 or 252 of the Constitution". 75. Elsewhere in its recommendations, the said Report suggests that horse-racing and "other skill-centric games may also be afforded" an exemption. The further recommendations indicate that "Gambling and betting, if any, should be offered by Indian licenced operators from India possessing valid licences granted by the game licensing authority". In support of the suggestion that the gambling and betting activities must be regulated, the said report justifies that vulnerable sections of the so....
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.... it is conceded that gambling is an evil, and it is rightly so conceded here, the interests of public order, morality or the general public require that it be eradicated and the only question which survives is whether the law made to do this is unreasonable in its restriction upon the guaranteed rights. " 79. The challenge to the provisions was repelled and the appeal failed. The petitioners herein, however, submit that the dictum in the case should not be considered as it was a judgment rendered before the seminal decision in Maneka Gandhi (AIR 1978 SC 597). According to the petitioners, the law as it stood prior to Maneka Gandhi did not require any reasonableness of the procedure to be looked into; but the position has now altogether changed. 80. The sheet-anchor of the State's submission is the dictum rendered by a two-member Bench in the judgment reported at (1995) 6 SCC 285 (M.J. Sivani v. State of Karnataka). The question before the Supreme Court was whether video games were required to be regulated. The material before the court revealed that some of the video games were operated with two-way or four-way joysticks, push buttons, volume controls, steering wheels, ac....
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.... and the restrictions imposed". At paragraph 79 of the report, the court held that "it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of the general public..." 84. The Division Bench judgment of this court in S. Dillibabu merely observed, in the light of the Chamarbaugwala judgments being placed before it, that activities being of gambling nature cannot be regarded as trade or commerce and no one can claim any right in respect of such activities under Article 19(1)(g) of the Constitution. 85. The substance of the State's submission is that the legislature as the rightful representative of the people in the State perceives betting in cyberspace to be pernicious and since the State has exclusive authority under the Constitution to legislate in the field of betting, the amending statute passes muster as the object of the legislation is to arrest the addiction of gambling and ensure that citizens do not rush to their doom by falling prey to such addiction. Such argument conveys an element of the legislature's sense of morality in seeking to pro....
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....ation of resources involved in such activity, regulation is deemed imperative; or, it may seek to regulate the perceived undesirability of the over-indulgence in certain activities. 90. Pronounced and excessive paternalism on the part of the State is another definition for authoritarianism and may even amount to repression, particularly when a statute prohibits or restricts some activity that the individual may otherwise have complete and unrestricted freedom to indulge in. The State perceives the ordinary individual or the class protected to be vulnerable, unable to protect themselves and the likely victim of the consequences of indulging in such activity or being excessively exposed thereto. Like a parent seeking to protect her child and assuming that the child is incapable of deciding what is good for her and what is not, the State considers the individual or class of individuals sought to be protected as defenceless and incapable of making the correct choice. The more natural the activity that is sought to be controlled, the greater is the degree of authoritarianism in the elimination of the exercise of choice by the individual or the class of individuals sought to be protec....
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.... ordinary course of things. It is possible that a tsunami takes place during the interregnum and even the simple act of meeting the person is impossible to be executed. 95. Sporting activities are replete with upset results. An upset implies that the outcome has been contrary to the ordinary expectation. The expectation is fed by the history of the performances of the two parties that precedes the particular encounter. Whether in the boxing ring or in the football arena or on the cricket pitch, it is the hope of a different outcome than what is predicted that impels the underdog and results in instances like the Rumble in the Jungle of 1974 Muhammad Ali's upset win over George Foreman at Kinshasa, in then Zaire.or of, arguably, the greatest upset in football history at Belo Horinzonte in 1950 The USA beat England 1-0 at the 1950 FIFA World Cup Finals. or in the felling of the mighty West Indies at Lords in 1983 India won the Prudential World Cup cricket final in London. The activity involved in every case was a game of pure skill, yet the unfancied triumphed and such moments are regarded as seminal moments and go down as part of sporting folklore. 96. Every game or like a....
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....ak of Article 19 thereof alone. 99. Res extra commercium has been defined by juxtaposing such expression to res in commercio at the beginning of an article by Senior Advocate Arvind P. Datar and Advocate Rahul Unnikrishnan published in 2017 (3) SCC J-1 (Kerala Liquor Ban: Revisiting Res Extra Commercium & Police Power). The authors trace the etymological roots of the doctrine of res extra commercium to Roman law as being things incapable of ownership as opposed to res in commercio pertaining to those capable of ownership. The article argues that though the doctrine of res extra commercium was appropriately invoked in a 1951 judgment of the Supreme Court in a matter pertaining to shebaitship, the principle has been incorrectly applied thereafter, ever since the days of the Chamarbaugwala cases. 100. Whether or not the jurisprudence in such regard is corrected in future, there appears to be a much greater element of morality involved in what activities would be regarded as res extra commercium, as the expression is now judicially interpreted in this country, than what may be gleaned to be the constitutional sense of morality. While prostitution, consumption of poison, robbing o....
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....he most ridiculous and unwanted results if applied in letter and spirit. There is also a self-contradiction apparent from the activities which may be regarded as gaming in terms of Clause (vi) of Section 4(1)(a) of the Act and the sweeping inclusion of even games of skill in Section 11 thereof. Though Section 3-A of the Act is confined to cyberspace, the reference to Sections 5 to 10 of the Act in Section 11 thereof makes such provision applicable even to physical forms of games and outlaws the activities indicated in Sections 8 and 9 of the Act if the game is played for the slightest of stakes or any form of prize. 104. Indeed, there may be a self-contradiction in Section 4(1)(a) of the Act itself upon the change of the definition of gaming and Section 4(1)(a) being read in such light. Since the definition of gaming now includes wagering or betting, upon any person playing any game in the physical form and in which there is any wagering or betting within the meaning of the expanded definition, including the Explanation in Section 3(b) of the Act of 1930, the activity may amount to an offence. Even as the amended provision greatly enhances the meaning of gaming as used in the sa....
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....out with the bathwater and more. And, irrespective of the noblest of intentions, the effect of the provisions of the impugned statute is the primary consideration for assessing the validity thereof. 108. There is little doubt that the State has the authority by virtue of the Constitution to enact a law pertaining to betting and gambling; just as the State has due authority in such regard, inter alia, in respect of public order; sports, entertainments and amusements; and, offences against laws with respect to any of the matters in the State List. The petitioners here have not challenged the legislative competence in such sense that the State lacks the power to enact any law pertaining to betting and gambling. Their case is that the scope of betting and gambling has been so vastly enlarged than what the Entry connotes and despite the key word of "gambling" therein having previously been judicially interpreted, that the act of extending the field amounts to usurpation of an authority that the State has not been conferred under the relevant Entry. To a great degree, the petitioners are justified on such count. 109. At the same time, the expansion of the field, so to say, can also....
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....ethos where smoking and drinking are regarded as less immoral than when indulged in before elders; and, superstitious notions and false senses of vanity continue to prevail as real education is still at a premium despite literacy rates increasing and thousands qualifying each year to add a few letters after their names. That the Bill faced no opposition in the House has more to do with the optics just ahead of the State elections. 113. It is true that, broadly speaking, games and sporting activities in the physical form cannot be equated with games conducted on the virtual mode or in cyberspace. However, when it comes to card games or board games such as chess or scrabble, there is no distinction between the skill involved in the physical form of the activity or in the virtual form. It is true that Arnold Palmer or Severiano Ballesteros may never have mastered how golf is played on the computer or Messi or Ronaldo may be outplayed by a team of infants in a virtual game of football, but Viswanathan Anand or Omar Sharif would not be so disadvantaged when playing their chosen games of skill on the virtual mode. Such distinction is completely lost in the Amending Act as the original....
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.... legislation is prohibition and not regulation. The Amending Act fails the constitutional test as stricter scrutiny has to be exercised when vast swathes of apparently permissible activities are sought to be prohibited rather than regulated. 117. The manner in which the matters are specified in the Entries in the Lists in the Seventh Schedule to the Constitution calls for special attention. Article 246 of the Constitution refers to the Entries in the various lists as "matters enumerated". The Entries are also seen to be fields in which the competent legislature may legitimately legislate. Several of the Entries, however, cover many matters. The use of the punctuations comma and semi-colon and the conjunction "and" in the Entries appear to be with a deliberate design and tell their own story: that when several matters are mentioned in an entry with either the conjunction, when there are two matters, or with both the comma and the conjunction, when there are more than two matters, such matters indicate the breadth of the field covered by the Entry: for example, Entries 4, 5 and 6 of List I and Entries 16 and 31 of List II. But where the punctuation semi-colon is used between two s....
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....ohibition. In the chit fund case of Narayana Aiyangar that the State has relied on, the emphasis is on the need for regulation in the interests of the public. There is no doubt that M.J. Sivani read the word "gaming" in a wider sense when it observed that "a game of pure chance or mixed chance and skill, it is gaming"; but such dictum of a two-Judge Bench rendered in 1995 must be seen to have been tempered by the clear enunciation of the law in such regard in the later judgment of K.R. Lakshmanan, rendered by a three-Judge Bench, when it observed that gaming would mean wagering or betting on games of chances and it "would not include games of skill …". Again, M.J. Sivani upheld a legislation that the Supreme Court described to be "to regulate running of the video games". 121. In the light of the foregoing discussion, the legislation assailed herein has to be regarded as something done by the legislature capriciously, irrationally and without adequate determining principle such that it is excessive and disproportionate, to borrow the words of Shayara Bano. 122. The doctrine of severability would also not apply in the present case as the concept of the expanded meaning of ....