Gambling is an act of wagering or betting money or something valuable on an event that may happen or may not happen. The term gambling may be defined as ‘the betting or staking of something of value, with the consciousness of risk and hope of gain, on the outcome of a game, a contest, or an uncertain event whose result may be determined by chance or accident or have an unexpected result because of the bettor’s miscalculation.’
The Public Gambling Act, 1867 is India’s main legislation governing gambling activities. It is one of the oldest laws which were implemented in India. The Act completely prohibits gambling in the country. Also, the operation of public gaming houses is prohibited. The Act also imposes penalties for those who violate the provisions of this Act. However, with the passage of time and technological advances, and due to various limitations in the Act, the application of the Act has become difficult. We shall understand this Act and its relevancy in this blog.
Overview of the Act:
The Public Gambling Act, 1867 is legislation that is enacted to regulate gambling in India and is one of the main gambling laws in India.
The Act completely prohibits gambling in India. However, the Act does not define the term ‘Gambling’. The Act prohibits owning, operating, and visiting gaming houses that promote gambling.
As per Section 3 of the Act, owning, operating, and having charge of a gaming house is prohibited. Anyone found owning or operating the gaming house will be penalised up to two hundred rupees or imprisonment for a term not exceeding three years. Section 4 of the Act also prohibits visiting the gaming house and penalises any person found in the gaming house a fine of up to a hundred rupees or one-month imprisonment. The Act, through Section 13, has laid provisions against gambling and betting on animal and bird fights on the public street and imposed a penalty of either a fifty-rupee fine or imprisonment not exceeding one month. However, the Act is only applicable to games of chance. It does not regulate and apply to the games of skills.
Hence, in simple words, the Act completely prohibits gambling in India. Also, owning, operating, and visiting a gaming house that encourages gaming is prohibited. However, the Act only regulates the game of chance, whose outcome is uncertain and not the game of skill, where the outcome is decided mainly by the skill of the person.
Limitations and relevancy of the Act:
The Public Gambling Act, 1867 is one of the oldest legislations in India, which was enacted to prohibit and regulate gambling. However, in the modern era, the Act has become outdated and vague and it also suffers from certain limitations. It is because of technological changes and due to certain ambiguities in the Act due to which people are taking advantage of loopholes in the Act.
There are certain limitations in the Act which need to be solved to keep the Act relevant. They are as follows:
- No definition of Gambling: One of the major challenges is the lack of a comprehensive definition of gambling in the Act. The Act does not define the term gambling. Hence, it becomes difficult to interpret what constitutes gambling and what does not, to effectively and consistently enforce the law, which is itself a major loophole.
- Prohibition and regulation of public gambling only: Since the Act was enacted, it has not been amended to regulate new forms of gambling. Section 3 of the Act regulates and prohibits only public gambling houses. However, new forms of gambling such as horse racing, lottery systems, and online gambling do not come under the purview of the Act. However, the lottery in India is regulated by the Lotteries (Regulation) Act,1998, and the Indian government has recently introduced new rules for online gambling.
- Lack of uniformity in the application of provisions: The Public Gambling Act is central legislation. However, gambling is inserted in List Two of the Seventh Schedule of the Constitution of India. This means that the States can make their laws and regulations related to gambling and can make gambling legal, overriding the provisions of this Act. So, there is no uniform applicability of the Act in the country.
- No stringent punishments: The punishments which are given in the Act, mainly under Section 3, Section 4 and Section 13 are not stringent. The provisions only prescribe fines up to two hundred rupees, which is nominal and imprisonment of a few months. Such nominal fines may encourage people to violate the provisions of the law and escape with minimal punishment.
Some countries have allowed gambling in their country and have enacted comprehensive laws regulating the same. Here are some countries which have legalised and permitted gambling:
- United Kingdom: In the UK, gambling has been made legal. The UK allows various types of betting and gambling such as online gambling, sports betting, casino, lotteries, etc. The Gambling Act 2005 regulates gambling in the country. It has also established UK Gambling Commission which oversees gambling operators and ensures consumer protection.
- USA: In the USA, each state can decide whether to allow gambling or not. However, at the national level, online betting and gambling are regulated by the Unlawful Internet Gambling Enforcement Act.
- Australia: In Australia too, gambling is allowed. However, the government heavily regulates gambling through various laws such as Interactive Gambling Act, Betting and Racing Act and the Gambling Regulation Act.
- Japan: Japan is a country with strict and conservative gambling culture. Only a few forms of gambling are allowed by their laws. Under Articles 185 to 187 of the Japanese Penal Code, gambling is largely prohibited except for only a few forms like horse racing, motor vehicle racing, football pools and public lottery. All the forms which are allowed are largely regulated and supervised by the Ministry of Education, Science, Sports and Technology
Analysis of the Act and need for changes:
The Public Gambling Act, 1867 is an old legislation aimed at prohibiting gambling in India. However, it has become outdated and does not cater to developments in the gambling industry. It has become less relevant due to redundant provisions and the inclusion of gambling in the state list. It is ambiguous and has several limitations. One of them is that the Act does not define the term ‘gambling’ making it harder for enforcement of the law. Hence it is needed to insert a definition for the same. Another problem is that Act only regulates public gambling and no other forms of gambling such as lottery, online gambling, sports betting, etc. Hence the Act needs to be amended to bring new forms of gambling into its ambit. Provisions for regulation of the game of skills are also needed as many platforms have built their business models around it. The Act should also be amended to make penalties more rigorous. Also, regulations related to the prevention of illegal gambling operations and procedures to identify and penalise the operators are needed as gambling is now a state matter, so, if the government wants to make this Act more dominant, it must make comprehensive changes to the Act. Also, there is growing demand to regulate gambling instead of prohibiting it as times have changed and gambling is already legal in some states and union territories and awareness among people of the risks involved has increased.
The Public Gambling Act, 1867 is an important law dealing with gambling in India. It prohibits gambling in India and penalises the offenders. However, the Act has become outdated and fails to efficiently regulate the gambling industry. It fails to regulate new and emerging forms of gambling and has certain ambiguities which make its implementation difficult and such limitations create loopholes. Hence, new amendments are needed to block loopholes and also regulate new forms of gambling and there is growing demand to regulate gambling instead of completely prohibiting it.
Author(s) Name: Aditya Nisal (Savitribai Phule Pune University, Pune)