Sports betting, the clandestine pastime has become a global phenomenon in contemporary times. This is due to changes in the standard of living and purchasing power of peoples and also differing morals. The governments of countries like USA and India however have remained hostile to this development and veered towards prohibition of the same. In light of this socio-economic development, the legalization of sports betting demands reassessment.

The paper attempts to make out a case for legalisation of sports betting in India firstly by tracing the history of betting in India and its consequent development through judicial decisions and its position in the Indian Constitution, in the first part. In the second part, the arguments for legalisation are propounded from the moral, economic and taxation viewpoint.

Having made the case for legalisation, the third part calls for regulation of sports betting so that the advantages of legalised sports betting are not frittered away by its disadvantages such as ill effects on health and corruption. Thereafter, the fourth part bolsters the case for legalisation by drawing upon the experiences of countries who have legalised sports betting. Finally laying down the concluding remarks to legalise and regulate betting by utilising the prospects of expanding betting market.

Sports Betting in India: From past to the present

Betting as a sport and leisure activity is not alien to India. References to betting can be found in Indian epics and scriptures such as Mahabharata, Rigveda, Atharvaveda, law books such as Yajnavalkya Smriti and Kautilya's Arthashastra are no exception to that. The Rigveda offers a sagacious advice in its characteristic style to abstain from gambling, referring to the fallout that gambling wrought to family of the gambler and instead to remain content with earnings and income from one's humble occupation i.e. farming.

The Katayana Smriti throws light on the practical aspects concerning gambling and betting which are equally relevant today. It acknowledges the shortcomings in completely outlawing gambling and thus calls for regulating it. It provides that gambling should take place in an open hall which shall be marked with an ornamental arch, so that the nature of the place is easily identifiable by the respectable men and also asserts that gambling should be carried openly after imposing a tax on it and thus, making it a source of income.

Taking few leaps forward, closer to our times is the Constitution of India. It vests the power in the states to legislate in respect of betting and gambling. The Constituent Assembly debates shows reservations by some members, expressing concerns on similar lines as the contemporary opposing views, for making provision for betting and gambling in the Constitution of India. Prof Shibban Lal Saksena anxiously asserted that by providing for 'Entry 45-Betting and Gambling', betting and gambling were sought to be legalized. He thought gambling to be a "crime" and was surprised to see gambling and betting as a legitimate field of activity.

He wanted that gambling and betting should be banned. Shri Lakshimarayan Sahu added to the concerns expressed by Prof. Shibban Lal Saksena, and stated that when the entire structure of our State is based upon truth and non-violence and guided by the lofty ideals of Mahatma Gandhi, there should be no mention of gambling and betting in the Constitution. Its mention would mean that the government encourages the idea of gambling and betting and seeks to control them.

He referred questioningly if we have forgotten the lessons of Mahabharata, an apparent reference to the game of dice in it and consequent fratricidal war. In his view, taxation on such items was also improper. Dr. Ambedkar replied to both the learned members stating that they misunderstood the purport of entry 45 and they were under misapprehension that if this entry was not included there would be no betting and gambling in the country. Dr Ambedkar submitted that if this entry is omitted, then there would be absolutely no control over gambling and betting, because entry 45 may be either used to permit gambling or betting or it may be used to prohibit it by the provincial(state) governments.

If this entry is not there, the provincial (state) government would be helpless in prohibiting the gambling and betting. Thus, in essence Dr. Ambedkar wanted to convey to the Assembly that the entry 45 gave power to the States to legislate on gambling and betting i.e. permit it or prohibit it. If this entry was absent, States would have no power to legislate on this subject and only Union government could legislate it under its residuary power i.e. entry 91 of List I or by providing specified entry in List I.

Dr. Ambedkar also stated that if the two members are keen that there should be no betting and gambling, then the proper thing would be to introduce an Article in the Constitution itself making betting and gambling a crime, not to be tolerated by the State. The last observation of Dr. Ambedkar regarding making betting and gambling a crime by introducing an article in the Constitution, in order to accommodate the concerns of the above two members, it seems was not acceptable to any member and the entry 45 was passed unamended. Thus, it can be seen that Constituent Assembly did not feel the necessity to outlaw betting and gambling completely and favored providing states with the power to legislate in future, to permit it by regulating or prohibit it.

In the contemporary times, sports betting in India is most contentious from the standpoint of legalisation as it involves leisure and no attributes of crime. Sports betting's prevalence in India is analysed by KPMG. According to it, India's betting includes card parties at Diwali as well as rummy played in local clubs including betting through exchange of cash in the local cricket associations. The figures speak for itself about the growing betting market in India which is estimated to be about 300000 Cr.Also the magnitude of sports betting in India can be realised from the India-Bangladesh match that attracted bets over 149 Cr, cricket being the prominent sports in India.Online betting has also taken an upward surge due to increase in internet subscribers.

The popularity of Dream 11 a fantasy cricket league, is a testimony to the increased online gambling. The saga of IPL spot fixing in 2013 which led to the arrest of three players, official or office bearer of BCCI brought sports betting under public scrutiny. When this matter reached the Supreme Court, the Mudgal Committee was appointed to inquire into the allegations. Also these incidents led to the scrutiny of the role played by BCCI. The Supreme Court when disposing off the case, directed the constitution of Lodha Committee under the chairmanship of Justice R.M. Lodha. The task of the committee was to examine and make suitable recommendations in practices and procedures of the BCCI.

The Law Commission of India in pursuance of the reference of Supreme Court in a case, submitted its 276th report on Legal Framework of Gambling and Sports Betting and including cricket in India. The commission favours legalisation of betting with proper regulatory mechanisms to set off its harmful consequences. The Law Commission Report also records a note of dissent.

As far the current legal framework on sports betting is concerned, it is patchy, there is no law in India which is central to sports betting. Accordingly, it is governed by laws related to Gambling. Since betting and gambling are state subjects under entry 34 of list II of the Constitution, there are numerous laws regulating gambling like Bombay Prevention of Gambling Act, 1887, Meghalaya Prevention of Gambling Act, 1970. There was a Public Gambling Act 1867 which was applicable to whole of India. But being a pre-Constitutional law, it is inapplicable now as betting and gambling are state subjects. Almost all the Acts have exempted games of skills from their ambit.

Issues concerning gambling and betting have been dealt by the Constitutional Courts in India and the Courts have laid down important principles in its judgments relating to gambling and betting. In State of Bombay v R.M.D. Chamarbaugwala, one of the question before the Court was whether promotion of Prize Competition be characterized as "trade or business" within the meaning of Article 19(1) (g) or "trade, commerce and intercourse" within the meaning of Article 301.

The Court after referring to ancient Indian literature such as Rigveda, Mahabharata, views of ancient Hindu seers such as Manu and Brihaspati concluded that activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, could not be intended to be raised to the status of trade commerce or business and be a subject matter of fundamental right under Article 19(1)(g) or under Article 300 of the Constitution. The Court added that gambling cannot be one of the activities with the meaning of "trade", "business", "commerce" or "intercourse".

In R.M.D. Chamarbaugwala v Union of India, the Prize Competitions Act was challenged as being violative of Article 19(6) because the definition of prize competitions included not only the competitions in which success depended on chance but also those in which success depended to a substantial degree on skill. The Court referring to history of the Act opined that legislatures intended to enact a law to control and regulate prize competitions of gambling nature and not prize competitions in which success depend substantially on skills. The Court severed the applicability of law over the prize competitions which depend to a substantial degree on skills and upheld its applicability on prize competitions in the nature of gambling.

In Kishan Chander v State of Madhya Pradesh, one of the provisions of The United State of Gwalior, Indore and Malwa (Madhya Bharat), Gambling Act was challenged as ultra vires the Constitution being violative of Articles 19 and 21 on the grounds of reverse burden of proof upon the offenders. The Court held the provisions of the Act to be constitutional and in the ensuing discussion held that the gambling being an evil and rampant, coupled with difficulty in its detection, the law to root out gambling is in public interest. Thus, the inclination of the Court is towards the view that gambling has to be eradicated but such laws should pass the constitutional tests of procedural safeguards like burden of proofs.

In State of Andhra Pradesh v Satyanarayana and Ors, the Court had to consider whether the premises of a particular club was being used as a "Common gambling house" and whether the respondents who were present there at the relevant time and playing "Rummy" could be said to be gambling. The Court held that "Rummy" is not a game entirely of chance, but it requires certain amount of skill, the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holding and discarding cards. It is mainly and predominantly a game of skill.

In Dr. K.R. Lakshmanan v State of Tamil Nadu, one of the questions with which the Court was concerned was whether "horse-racing" is a game of skill and thus prohibited under the Madras City Police Act 1888 and the Madras Gaming Act, 1930. Relying upon the dictum of two Chamarbaugwala cases and Satyanarayana case, the Court held that competitions where success depends on substantial skills are not "gambling" and even if there is an element of chance, if the a game is preponderantly a game of skill, it would nevertheless be a game of "mere skill".

The Court held that horse-racing depends upon special ability which is acquired by training such as speed and stamina of horses. Also jockeys have expertise in art of riding. All this makes "horse-racing" a game where success depends substantially and predominantly on skills. The Court held "horse-racing" is neither gaming nor gambling and the penal provisions of two aforesaid Acts are not applicable to it.

In M.J. Sivani and Ors v State of Karnataka, the question was whether the video games were required to be regulated under the Mysore Police Act,1963 and notifications issued under Madras Police Act 1888 and orders of Tamil Nadu government. The Court held that video game is associated with stake or money or money's worth on the game's result, irrespective of the fact whether it is a game of pure chance or game of mixed skill and chance and the Court opined that unregulated video gaming not only pose a danger to public peace and order and safety but the public will fall a prey to gaming where they always stand to lose in playing the games of chance. The Court held the restrictions in the above case were not arbitrary or unbridled.

In Bimalendu De v Union of India, the PIL was filed before the Calcutta High Court to prohibit the transmission of two television programme, 'Kaun Banega Crorepati' and 'Jackpot Jeeto' are violative of provisions of various statutes, illegal and unconstitutional and it was submitted that this programme is nothing but gambling. The Court held that KBC is not gambling since the essential ingredient of gambling i.e. wagering or betting is missing in it. The contestants do not have to pay or put any stake in the hope of any prize or reward, but their skills are put to test. Thus, KBC is a game of skill and does not amount to gambling.

In Gerulal Parakh v. Mahadeodas Maiya, the question before the Court was whether the partnership to carry on the business in wagering was legal and enforceable in the Court of Law. The Court referred to the history of law of gambling in India, references of sacred Hindu texts and opined that though gambling was controlled in some respects it was never absolutely prohibited referring to various Acts passed in various provinces to regulate Gambling. The Court was essentially of the view that in India, although gambling was detested yet it has been tolerated all throughout the centuries.

Thus, it can be seen that the line of decisions emphasis that competition in which success depends to a substantial degree on skills and not on chance cannot be prohibited but only competition depended upon chance which are in nature of Gambling can be prohibited.

To Bet or Not To Bet: A Case for Legalization

Betting has been manifested to such a large extent in the country as explained earlier, that it would be pretentious to ignore the call for its legalization. The legalisation of betting from both moral and economic point of view are discussed to substantiate the proposition.

1. The Moral Dilemma
   
   1. It has generally been the perspective that betting is immoral as can be seen from the ancient texts and also government acts on the same assumption. But through the passage of time, the social mores of the Indian society are undergoing change. As the society never remains static and changes with the time, the laws regulating the conduct of the society must yield to that change. People across the world including Indians, have surplus money due to increased standard of living and increase in per capita income; they do not find it immoral to bet now. Further, an individual indulging in betting should not be a concern to the State so long as no harm is caused to the society.
      
      This is in consonance with John Stuart Mill's Harm Principle. Upholding an individual's personal autonomy is the duty of the State and the Supreme Court of India has also been vocal about it. The State cannot substitute its own morality over the people. The morality that has to be followed in a republican democratic country like India is that of Constitutional morality which gives primacy to individual autonomy.
       
   2. The Law Commission Report points out that the argument of morality has more reference to gambling as compared to betting. Gambling purely involves speculation of the outcome over an event which is beyond one's control. Whereas in sports betting skills are required for results to unfold. If skills are needed in sports betting, then argument of morality shouldn't even be invoked to oppose its legalization.
       
   3. Thus, morality as an argument shouldn't be invoked to test legalisation of betting. However, even if it is invoked, the appropriate morality should be constitutional morality. Constitutional morality is an evolving aspect and takes within its sweep such an idea of society which provides to its citizens with right to live with dignity, individual freedom, and corresponding duties of citizens towards each other when enjoying individual freedom, freedom from interference by state and its institutions, freedom from interference by social groups.
      
      This is the order of the society as intended by Constitution makers. In such an order of society, the idea i.e. morality of what is right and wrong, moral or immoral; would not depend upon views of individuals or larger units comprising such individuals whether it be called as community or society. But it would depend upon the morals and values as envisaged in the Constitution. Therefore, when the question whether sports betting should be legalised or not is considered from the point of view of constitutional morality, the constitutional moralist would have to see what is the best possible way to enhance freedom and liberty as Constitution is a guarantee for freedom and liberty while at the same time ensure such a way does not affect the society and innocents. From such point of thinking, one would never arrive at conclusion of prohibiting sports betting completely.
       
2. Integrity in sports
   Illegal sports betting has resulted into underground betting which involves underworld criminals. This connection of criminals with sports and sport players destroys the integrity of the sports. Certain types of betting go to the extent of influencing the conduct of players. In match fixing, players underplay to lose the match whereas in spot fixing a particular element in match is focused and bets are placed on the conduct of the players on that element.
   
   These activities are strictly against the spirit of sports and age old rules of fair play. Eventually viewers due to rampant occurrence of such events consider matches as fixed in the event their favourite team loses. Some sports or games like WWE are well known amongst the viewers to be scripted. Since sports involves honour of the nations and hopes of their countrymen and women, it is necessary to protect the sports from being sabotaged by these criminal activities. Further legalising sports betting will enable the bettors to bet in transparent environment and the match fixing or spot fixing being unethical will only remain underground which will enable the investigating authorities to easily nab them and minimise their activities.
    
3. Banking on the Economics
   Sports betting has become an economic phenomenon. As pointed out earlier the betting market in India is estimated to be 300000 Cr. The following are the arguments from economic viewpoint to legalise betting.
   
   1. The legalisation of the sports betting will streamline betting operations and would help them become a part of the mainstream economy. The legalised betting in UK employs over 100000 people and contributes 6 billion pounds to the country's GDP with gambling sector reaching 24.6 billion pound.A market worth such a high stake is a potential hub for job creation. The booming market can thus be put to provide employment opportunities to young people by adopting the method of legalisation. Betting in a designated area provided by the Government will go a long way in generating employment.
       
   2. Betting being illegal generates unaccounted money and thus perpetuates black money in the economy thereby increasing corruption. Also, Prohibition on sports betting is detrimental to the persons who are involved in the betting process. To the bettor there is no legal recourse if the bookie refuses to pay winning amount and the bookie is helpless if bettor who is playing on the credit of the bookie fails to pay. This is because betting agreement is void.
       
   3. Similarly, when the bets are placed on online platforms domiciled in other countries with reference to India bettor is still in vulnerable position. This is because online platforms require amounts to be deposited before placing of the bets, leaving bettors languishing for remedy in case the online bookies fail to pay the winning amount. Additionally, the bettor will face criminal prosecution for indulging in the prohibited act in India though the online site operated from other jurisdictions where betting is not prohibited.
       
4. Taxation
   
   1. Sports betting can be a good source of revenue if its subject to tax. It has always been the philosophy that 'sinful' goods should be taxed and essential goods shouldn't not be. It is always a difficult question as to who is to determine which is sin good. However, betting shouldn't be taxed from the angle of it being sin or undesirable activity. Rather it should be taxed from the standpoint that it engages people in such a way so as to form a separate market. Due to the size of the market, taxation of betting can yield good results. The law commission also supports the same view.
      
      If figures are needed to bolster this view, then according to FICCI report, government is losing a total revenue of Rs 19000 Cr as a result of prohibition. Further, the lotteries in Kerala received a net revenue of 682 Cr through taxation in 2012. An American study with reference to American situation has pointed that it will lead generate 1.3 billion dollars in revenue. This would be in addition to licensing fees, higher income tax on winners, increase in the collection of indirect taxes by additional travel and tourism. One of the demerits of prohibition on sports betting is that governments are compelled to spend revenue to execute the prohibition. The taxation will also lead to transparency.
       
   2. Taxation in a sense can benefit the bettors too. The losses on the betting can be deducted when computing the total income. But these losses should not exceed the decided winning amount. The IRS of USA allows such deduction. In India, necessary changes in Income tax law should be made for it.

Regulation: A Bet on Better Betting

While arguing for legalisation of betting, it is necessary to scrutinise its evil effects so as to develop legislative policy for regulating it. The following are the effects of sports betting.

1. Health or psychological
   Betting tends to become addictive if restraint is not exercised. Loss chasing is a condition where the bettor keeps on betting till it recovers the accruing losses akin to drug addiction. It also includes cravings and withdrawal symptoms when they are disallowed to bet.
    
2. Corruption:
   
   1. Uncontrolled betting will lead to corrupt practices in sports like spot-fixing and match-fixing. According to a news report which was also quoted in the Law Commission Report, bets worth Rs. 1300 Cr are made on every One Day International that India plays. Al Jazeera's May 2018 investigation documents that millions of dollars are paid as bribe to the players of top teams, which goes through the route of middle men. Such is the magnitude of corruption when betting is illegal.
       
   2. In the face of such consequences it is necessary to regulate betting whilst legalising it. The Lodha Committee referred in Part I recommended that betting should be regulated to curb match fixing. Illegal betting will bring disrepute to the entity indulging in betting activities. But if betting happens in open, integrity of sports is maintained because the element of transparency will eliminate the perception of rigged outcomes in matches. Further the Lodha Committee in its report distinguished between match fixing and sports betting. It called for punishment of the former and regularisation of the latter. The Lodha Committee calls for the regulatory regime in which the betting houses should be registered so that they can come within the ambit of law. The betting houses can thus be under the supervision of the regulators. Further licenses should be issued to the persons who wish to bet. Their age as well identity should be properly recorded so that it may come handy during investigations. Also it should be made mandatory to furnish the details of the income of players, administrators and other persons related to sports activities. Finally, for violation of the conditions of licenses strict punishment should be handed.
       
   3. Other measures include restricting minimum age for betting to 18 or 21 years, issuing licenses to operators after due scrutiny and it should be made compulsory for them to report suspicious activity. A commission must be set up to supervise betting activities.

Lessons from Across the Globe:

1. United Kingdom
   In UK, betting is regulated by the Act of Parliament with a Commission appointed to oversee the betting activities. The role played by the Commission is important from Indian point of view because spot fixing in Indian cricket is rampant. Secondly, another important aspect to be imbibed from English betting regime is the scrutiny by the betting shops of the credit of the bettors. This helps in saving bettors from the debt trap.
    
2. Germany
   The Inter State Treaty postulates protection of youth players. It envisages prevention of fraud. It prohibits exhibition of sports betting advertisements during PR before the sport is broadcasted. It can be seen that German regime offers an insightful cue to preventive measures to mitigate the harmful consequences of betting. Even the German judiciary leaves an imprint for Indian judiciary to deal with betting liberally. In one case the German Court was of the view that sports betting should be considered in the same light as stock broking which involves skill.
    
3. France
   Close to Germany, France also allows betting only to those operators which have the authorsiation and approval from government. A highlight of the French regime worth considering is that profits from betting have helped in financing football which is a major game. India can also use the proceeds of betting of licensed operators operating through government's arm in promoting and improving the quality of sports and sports players.
    
4. Australia
   On the southern side of the globe, Australia also regulates gambling. A good feature of its Gambling Act is that it prohibits click to call in play betting services. Here, an automatically directed call is made in the app and bet is placed in a matter of few seconds so that dealing with the customers will be only through the spoken conversations between individuals. Australian Communication and Media Authority Act establishes an authority which can give information to International organisations of suspicious prohibited activities.
    

Conclusion: Resolving the Legal Conundrum
Legalisation of sports betting is the logical and democratic way forward to respond to the growing and varied needs of the present generation of the society. Sports betting through the times of yore has been tolerated and even the erudite Constituent Assembly did not take the harsh path of total prohibition and left it to the will and aspirations of future generations. The judicial pronouncements have unequivocally laid down the principle that games or competition in which success substantially depends upon skills and not on chance cannot be prohibited. Most importantly constitutional morality as espoused by the Constitution of India also point towards legalising sports betting.

The legalisation however should not become a breeding ground for corruption and adverse health effects, and effective regulation will aid in combating such malaise. The examples of regulation and legislation of other jurisdictions should guide Indian law- makers and they will be better encouraged by the dictum of Justice Oliver Wendell Holmes that "the life of the law has not been logic: it has been experience". The Parliament of India can take cues from the Sikkim's Legislation which legalised online gambling in 2009. An attempt was made by Shashi Tharoor to regularise betting who tabled a Bill in the Parliament, which lapsed unfortunately.

Legalising betting through appropriate regulations will enable India to become a hub of legalised betting so far as cricket is concerned because cricket is most popular in India. The countries must come onto terms with the fact that the chain of sports betting is spreading worldwide through online networks. New technologies such as cryptocurrencies will provide enough scope to escape the clutches of law enforcement agencies of countries. Thus, legalisation with regulations is necessary.

For the purpose of compliance and inspection of wrong doings, a statutory body or commission should be set up. The efforts of the countries should not be restricted to their domestic realm but they should look beyond their borders to deal with sports betting. In near future there is a need for various countries to come together and regulate betting through world organisational mechanisms which will be better able to tackle the evils of sports betting. So, a joint effort by all the countries is desirable to track the offenders and restore the glory and integrity of the sports activities. Hence, a correct stance would be Pro-Betting instead of Prohi-Betting.

The author Disha Jain is an Independent Legal Practitioner and an Equity Derivatives Trader. She has diverse experience in publishing- she authored a Chapter on Death Penalty with Springer Nature, Singapore. Recently, she got featured in the Book, "Contemporary Issues on the Laws of Insolvency and Bankruptcy". Disha is an adept writer and a regular contributor to the Legal Fraternity through writing Articles, Legal Analysis, Book Chapters and Book Reviews. She has been featured in Newspaper as well.