Madras High Court
S.Muthukumar vs The Union Of India on 17 August, 2021
Bench: N.Kirubakaran, B.Pugalendhi
W.P.(MD)No.15231 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.15231 of 2020
and
W.M.P.No.12811 of 2020
S.Muthukumar,
Advocate,
S/o.Sankaran,
Plot No.430, L.I.G.Colony,
Anna Nagar, Madurai 625 020. ... Petitioner
Vs
1.The Union of India,
Rep. by its Secretary to Government of India,
Ministry of Communication,
Electronics and Information Technology,
No.20, Ashoka Road,
New Delhi 110 001.
2.The Secretary to Government of India,
Ministry of Law and Justice,
New Delhi – 110 001.
3.The State of Tamil Nadu,
Rep. by its Secretary to Government,
Department of Information Technology,
Secretariat, Chennai 600 009.
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W.P.(MD)No.15231 of 2020
4.The Telecom Regulatory Authority of India (TRAI),
Jawaharlal Nehru Marg,
Old Minto Road,
New Delhi 110 002.
5.The District Collector,
Madurai District,
Madurai.
6.The Commissioner of Police,
Madurai City,
Madurai 625 002.
7.M/s.Play Games 24x7 Pvt. Ltd.,
P.O.Box.17640,
Malad (W),
Mumbai 400064
Maharashtra State.
8.The Chief Executive Office (TORF)
The Online Rummy Federation of India,
011/A, Keval Tower, B.J.Patel Road,
Malad-West,
Mumbai 400 064, Maharashtra. ... Respondents
PRAYER : Petition filed under Article 226 of Constitution of India for
issuance of Writ of Mandamus directing the Respondents 1 to 6 to take
appropriate actions to ban online rummy hosted by the 7th Respondent
and other online gambling websites, apps and to direct the Respondents 1
to 4 to frame appropriate law and rules to prohibit online gambling by
considering the Petitioner's written representation dated 26.10.2020 in
accordance with law.
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W.P.(MD)No.15231 of 2020
For Petitioner : Mr.A.Kannan
For Respondents : Mr.K.R.Laxman,
Central Government Standing Counsel
(for R1 & R2)
Mr.Sricharan Rengarajan
Additional Advocate General
Assisted by Mr.M.Muthugeethaiyan
Special Government Pleader
(for R3, R5 & R6)
Mr.Jayasingh, (for R4)
Mr.P.S.Raman,
Senior Counsel
for M/s.Sasidhar Sivakumar
(for R7 & R8)
ORDER
(Order of the Court was delivered by N.KIRUBAKARAN, J) This Public Interest Litigation has been filed for a noble object of prohibiting online gambling. The Petitioner contends that precious lives are lost because of the online rummy hosted by gambling websites as people are getting addicted. Therefore, the Petitioner gave a representation on 26.10.2020, to prohibit the online rummy. As it was not considered, the Petitioner has come before this Court.
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2.When the matter came up for admission on 03.11.2020, this Court passed the following order:
“It is disheartening to note that about ten precious lives have been lost due to the online gambling. Therefore, this Writ Petition has been filed before this Court seeking for issuance of a Writ of Mandamus to direct the official respondents to take appropriate action to ban Online Rummy hosted by the seventh respondent and others.
2. One of us (The Honourable Mr.Justice B.PUGALENDHI) while disposing of Crl.O.P.(MD)No.6568 of 2020, by order dated 24.07.2020 went into detail as to how this Online Gambling in the name of online games is causing loss of lives and insisting a necessity to regulate the programmes on par with the Telangana State Government, wherein the Online Gambling has been banned by virtue of the Telangana Gaming Act (Amended Act, 2017), which prohibits all forms of gambling for money.
3. The Telangana Government further moved a Bill to amend the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986, by including “Gaming Offender”, who commits or abets the commission of offences punishable under the Telangana Gaming Act, 1974. Paragraph Nos.37 to 40 of the said order are extracted hereunder:
“37. It is to be noted at this juncture that except the decisions in Varun Gumber's case [High Court of Punjab and Haryana]; Gurdeep Singh Sachar's case [Bombay High Court]; and Chandresh Sankhla's case [High Court of Rajasthan] which dealt with the fantasy sport - Dream11, none of the precedents referred supra deal with online gaming. The decisions discussed supra are in respect of recreational clubs and not specifically refer about any virtual area, like, Internet. Neither the Public Gaming Act, 1867, nor the Tamil Nadu Gaming Act, 1930, specifically speaks about such virtual area, as the advent of such online games are very recent. In fact, the Hon'ble Supreme Court, while dealing with an appeal, has held that the issue pertaining to online rummy has not arisen at all, till date.
38. India has a rich heritage with a diverse range of 4/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 sports / games. Sports is not only an important source of entertainment, but also imparts value of hard work, discipline and co-
operation. To regulate the physical sports / games, we are having a legislative set up, but having such a set up to deal with the emerging online games / virtual games is the need of the hour. A comprehensive regulatory framework by a regulatory body is necessary to regulate the online sports and to curb any illegal activities as well. In fact, such regulation of online sports would encourage investment in the sector, which could lead to technological advancements as well as generation of revenue and employment.
39. We should not loose sight of the fact that nowadays, almost in all the social media, youngsters are being attracted, to play such online games, by alluring with prize money. Gaming sites are also partaking a slice on the winning hand, as of a virtual gambling house. In fact, these online games lure the unemployed youth that they can earn money by playing these games.
40. Saint Thiruvalluvar in 934th and 939th couplet of Thirukkural described the evils of gambling as follows:
rpWik gybra;J rPuHpf;Fk; Njpd;
tWik jUtbjhd;W ,y;. ... 934
which means—
“There is nothing else that brings poverty like gambling which causes many a misery and destroys one's reputation.” cilbry;tk; Cz;xsp fy;tpvd;W Ie;Jk;
milahthk; Mak; bfhspd;. ... 939 which means-
“Gambling would preclude the Five Rathnas, viz., Reputation, Education, Wealth, Food and Cloth, from reaching the person.”
4. In paragraph No.51, one of us (the Honourable Mr.Justice B.PUGALENDHI), insisted the necessity for having a legislation with regard to the prohibition of online gaming. Paragraph No.51 of the said order is extracted hereunder:
“51. Therefore, this Court hopes and trusts that this Government shall take note of the present alarming situation and pass suitable legislation, thereby, regulating and controlling such online gaming through license, of course, keeping in mind the law of the land as well as the judicial precedents in this regard. This Court is not against the virtual games, but, the anguish of this Court is that there should be a regulatory body to monitor and regulate the legal gaming activities, be it in the real world or the virtual world. Needless to say that if the Government intends to pass a legislation in this regard, all 5/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 the stakeholders should be put in notice and their views should be ascertained.”
5. Though the said order has been passed in July 2020, nothing has been done so far. It is also brought to the notice of this Court by Mr.A.Kannan, learned Counsel appearing on behalf of the writ petitioner that apart from the State of Telangana, the States of Assam, Odisha and Andhra Pradesh also enacted laws to ban Online Rummy games or to regulate such games.
6. A similar issue was raised before the Gujarat High Court and the First Bench of Gujarat High Court in R/Writ Petition (PIL) No.146 of 2020, by order dated 29.09.2020, directed the State of Gujarat to deal with the Online Games involving gambling appropriately. Paragraph No.18 of the said order is extracted hereunder:
“18. Our final order is as under:
(I) We direct the State of Gujarat to consider this writ application as a representation. If the online games involve gambling and if they are being played in the State of Gujarat, then it is expected of the State to deal with the same appropriately as gaming is a subject matter of List II of the Schedule VII of the Constitution of India.
(II) If any website is operating in the State of Gujarat or is engaged in any gambling games, the State shall deal with the same in accordance with law, rules, regulations and the policy, as may be applicable.
(III) The State shall also examine whether such games result in money-laundering or violation of laws relating to foreign exchange as well.
(IV) We expect the State Government to promptly look into theaforesaid issues and take an appropriate decision in accordance with law in larger public interest before it is too late.”
7. This Court takes judicial notice of the media reports wherein number of persons died due to Online Gambling. The following persons had committed suicide due to Online Gambling:
(i) Police man K.Saravanan
(ii) Mr.Nitish of Chennai
(iii)Mr.Venkata Subramanian and his wife Pattu Meenakshi, Theresa Street in Nagamalai, Madurai District.6/17
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8. From the media reports, it is evident that because of continuation of Online Gambling, they lost money and were unable to pay the debts which have been raised for Online Gambling and therefore, they committed suicide.
9. When this matter is called today, Mr.Sricharan Rengarajan, learned Additional Advocate General appearing for the State, on instructions, would submit that the Government has seriously considered the issue and is taking necessary action to deal with the same and he seeks ten days' time to come out with the instructions with regard to the said issue and report to this Court.
10. This Court hopes that appropriate, adequate and immediate measures would be taken by the Government in order to ensure that no precious life hereinafter will be lost.
11. Mr.K.R.Laxman, learned Central Government Standing Counsel takes notice for the respondents 1 and 2.
12. Mr.Sricharan Rengarajan, learned Additional Advocate General assisted by Mr.M.Muthugeethaiyan, learned Special Government Pleader takes notice for the respondents 3, 5 and 6.
13. Mr.Jayasingh, learned Counsel takes notice for the fourth respondent.
14. Mr.P.S.Raman, learned Senior Counsel for M/s Sasidhar Sivakumar takes notice for the seventh respondent.
15. Considering the seriousness of the issue involved in this writ petition, this Court suo motu impleads “the Chief Executive Office (TORF), the Online Rummy Federation of India, 011/A, Keval Tower, B.J.Patel Road, Malad-West, Mumbai-400064, Maharashtra” as eighth respondent. The Registry is directed to carry out necessary amendments in the cause title.
16. Mr.P.S.Raman, learned Senior Counsel for M/s Sasidhar Sivakumar also takes notice for the newly impleaded eighth respondent.” Subsequently, when the matter came up for hearing before this Court on 7/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 18.11.2020, Mr.Sricharan Rengarajan, learned Additional Advocate General, Assisted by Mr.M.Muthugeethaiyan, learned Special Government Pleader would submit that after the Writ Petition was admitted by this Court, the Hon'ble Chief Minister of the State made a public statement that online gambling would be banned and the Government is contemplating to bring an Ordinance/Act and the moralities are being worked out. The order passed by this Court on 18.11.2020 is usefully extracted as follows:
"This writ petition has been filed seeking for the issuance of a Writ of Mandamus, to direct the respondents 1 to 6 to take appropriate action to ban Online Rummy hosted by the 7th respondent and other Online Gambling Websites, Apps and to direct the respondents 1 to 4 to frame appropriate law and rules to prohibit Online Gambling, by considering the representation made by the petitioner on 26.10.2020 in accordance with law.
2. When the matter came up before this Court on 03.11.2020, this Court observed that no precious life should be lost, because of the Online Gambling and Mr.Sricharan Rangarajan, learned Additional Advocate General appearing for the State represented that the Government is contemplating to bring Ordinance/Act to prohibit/regulate Online Gambling and therefore, he sought for ten days' time to report the steps taken by the Government in this regard.
3. When the matter is called today, Mr.Sricharan Rangarajan, learned Additional Advocate General, would submit that after the matter was admitted by this Court, the Hon'ble Chief Minister of Tamil Nadu 8/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 made a public statement stating that the Online Gambling would be banned and the Government is contemplating to bring Ordinance/Act. It is also stated that the modalities are being worked out and therefore, he seeks one week time to file an affidavit stating as towhat are all the steps taken either to bring an Ordinance or Act or Amendment banning the Online Gambling. Since it is a very serious matter and many lives are lost, timely action would do justice.
4. Since the Hon'ble Chief Minister already made it clear that the Government decided to prohibit the Online Gambling, appropriate steps alone have to be taken. Therefore, considering the number of deaths in various parts of India due to the Online Gambling, this Court would like to know as to what are all the steps taken by the Government and when the Ordinance/Act would be passed by the Legislature. An affidavit has to be filed by 24.11.2020.
5. In the meanwhile, the Central Government has to come up with their stand with regard to the prayer sought for by the petitioner.
6. Call the matter on 24.11.2020 at 2.15 p.m."
3.Heard Mr.A.Kannan, learned counsel appearing on behalf of the Petitioner; Mr.K.R.Laxman, learned Central Government Standing Counsel appearing on behalf of R1 & R2, Mr.Sricharan Rengarajan, learned Additional Advocate General, Assisted by Mr.M.Muthugeethaiyan, learned Special Government Pleader appearing on behalf of R3, R5 & R6, Mr.Jayasingh, learned counsel appearing on behalf of R4 and Mr.P.S.Raman, learned Senior Counsel for M/s.Sasidhar Sivakumar appearing on behalf of R7 & R8.
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4.When the matter came up for hearing before this Court on 24.11.2020, Mr.Sricharan Rengarajan, learned Additional Advocate General, Assisted by Mr.M.Muthugeethaiyan, learned Special Government Pleader would produce the Ordinance viz., Tamil Nadu Ordinance No.11 of 2020, banning, wagering or betting in cyberspace by suitably amend the Tamil Nadu Gaming Act, 1930, the Chennai City Police Act, 1888 and the Tamil Nadu District Police Act, 1859. The Explanatory statement reads as follows:
“Gaming by means of cards, dice etc., in the form of betting or wagering has been banned in the cities of Chennai, Madurai, Coimbatore, Salem, Tiruchirapalli and Tirunelveli by the Chennai City Police Act, 1888 (Tamil Nadu Act III of 1888) read with Tamil Nadu Act 32 of 1987 and Tamil Nadu Act 51 of 1997 and in the rest of the State by the Tamil Nadu Gaming Act, 1930 (Tamil Nadu Act III of 1930). Playing games like Rummy, Poker etc., using computers or mobile phones, for money or other stakes, which are addictive in nature, hace developed manifold, in the recent times. As a result, innocent people get cheated and incidents of suicide are reported. In order to prevent such incidents of suicide and protect the innocent people from the evils of online gaming, it has been decided to ban wagering or betting in cyber space by suitably amending the relevant enactments. Accordingly, the Government hvae decided to amend the Tamil Nadu Gaming Act, 1930 (Tamil Nadu Act III of 1930) and extend its application throughout the State for the purpose and to make consequential amendments to the Chennai City Police Act, 1888 (Tamil Nadu Act III of 1888) and the Tamil Nadu District Police Act, 10/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 1859 (Tamil Nadu Act XXIV of 1859).
2.The Ordinance seeks to give effect to the above decision.
A perusal of the ordinance would reveal that the following amendments have been brought in:
“3. Definitions.— In this Act, unless there is anything repugnant in the subject or context,—
(a) “common gaming-house” means any house, room, tent, enclosure, vehicle, vessel, cyber cafe or any place whatsoever in which instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel, cyber cafe or place, whether free of cost or by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel, cyber cafe or the place;
and includes any house, room, tent, enclosure, vehicle, vessel, cyber cafe or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming;
(b) “gaming” does not include a lottery, but includes wagering or betting in person or in cyber space.
Explanation.— For the purposes of clause (b) and section 3-A, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, 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;
(c) “Government” means the State Government;
(d) “instruments of gaming” includes cards, dice, gaming table or cloth, board, computers, computer system, computer network, computer resource, any communication device or any other article 11/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 used or intended to be used as a subject or means of gaming, any document or electronic record, used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or otherwise, including through electronic transfer of funds, distributed or intended to be distributed in respect of any gaming;
(e) the words ‘computer’, ‘communication device’, ‘computer network’, ‘computer resource’, ‘computer system’, ‘cyber cafe’,and ‘electronic record’ used in this Act shall have the respective meanings assigned to them in the Information Technology Act, 2000. 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. (2) Whoever wagers or bets in cyberspace shall be punished with imprisonment which may extend to two years or with fine not exceeding ten thousand rupees or with both”
3. In section 4 of the 1930 Act, in sub-section (1), in clauses (b), (c) and (d), after the expression “enclosures, vehicle, vessel”, the expression “cyber cafe” shall be inserted.
4. In section 5 of the 1930 Act, in sub-section (1), for the expression “not inferior to a Judicial Magistrate of the second class or any police officer not below the rank of Deputy Superintendent of Police”, the expression “or any police officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police, as the case may be” shall be substituted.
5. In section 6 of the 1930 Act, after the expression “Any cards, dice, gaming table or cloth, board”, the expression “electronic record, computers, computer system, computer network, computer resource or any communication device” shall be inserted.
6. In section 8 of the 1930 Act, for the expressions “five hundred 12/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 rupees” and “three months”, the expressions “ten thousand rupees” and “two years” shall, respectively, be substituted.
7. In section 9 of the 1930 Act, for the expressions “two hundred rupees” and “one month”, the expressions “five thousand rupees”and “six months” shall, respectively, be substituted.
8. In section 11 of the 1930 Act, for the expression “sections 5 to 10”, the expression “section 3-A and sections 5 to 10” shall be substituted.
9. In section 12 of the 1930 Act, for the expressions “one hundred rupees” and “three months”, the expressions “five thousand rupees” and “six months” shall, respectively, be substituted.
10. After section 13-A of the 1930 Act, the following section shall be inserted, namely:— “13-B. Offences by companies.— (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in-charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.— For the purposes of this section.— (a) “company” means any body corporate and includes a 13/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 firm or other association of individuals; and (b) “director” in relation to a firm, means a partner in the firm.” By the above amendments, the online gaming or betting in cyberspace has been prohibited and notified as an offence. Therefore, the prayer sought for by the Petitioner has been complied with. This Court appreciates the Government for acting swiftly without loss of time, considering the observations made by this Court on 03.11.2020, when this Court admitting the Writ Petition and brought the ordinance within a period of two weeks on 20.11.2020.
5.The said amendment was challenged by the private companies which are running online rummy in W.P.Nos.18022 of 2020 and batch, in which the Hon'ble First Bench of this Court was pleased to quash the said amendment and the relevant paragraph is extracted as follows:
"123. Accordingly, the impugned Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (Act 1 of 2021), which amends the Tamil Nadu Gaming Act, 1930, is declared to be ultra vires the Constitution in its entirety and struck down as a consequence. Nothing herein will prevent an appropriate legislation conforming to the constitutional sense of propriety being brought in the field 14/17 https://www.mhc.tn.gov.in/judis/ W.P.(MD)No.15231 of 2020 of betting and gambling by the State."
From the above order, it is clear that the Hon'ble First Bench of this Court observed that there is no prohibition for the State Government to bring appropriate legislation, conforming to the constitutional scheme After taking into consideration the judgment passed by this Court, the Hon'ble Minister, made a statement in the press that the State Government is going to bring new legislation in this regard. It is a fact that many lives are being snatched away by this kind of websites and this Court hopes and trusts that the State Government would come out with appropriate new legislation or new amendment to address the menace at the earliest, preferably within a period of six months from the date of receipt of a copy of this order.
6.With the above observations, Writ Petition is disposed of.
No costs. Consequently, connected Miscellaneous Petition is closed.
(NKKJ) (BPJ)
17.08.2021
(1/2)
sai
To
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W.P.(MD)No.15231 of 2020
1.The Union of India,
Rep. by its Secretary to Government of India, Ministry of Communication, Electronics and Information Technology, No.20, Ashoka Road, New Delhi 110 001.
2.The Secretary to Government of India, Ministry of Law and Justice, New Delhi – 110 001.
3.The State of Tamil Nadu, Rep. by its Secretary to Government, Department of Information Technology, Secretariat, Chennai 600 009.
4.The Telecom Regulatory Authority of India (TRAI), Jawaharlal Nehru Marg, Old Minto Road, New Delhi 110 002.
5.The District Collector, Madurai District, Madurai.
6.The Commissioner of Police, Madurai City, Madurai 625 002.
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and B.PUGALENDHI, J.
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