Ability or probability: Will the Supreme Court strike down the Actual Cash Gaming ban?

The Promotion and Regulation of Online Gaming Act (PROGA) got here into power on 1 October. The goal of the Act is to advertise accountable on-line gaming whereas regulating the sector and prohibiting dangerous on-line cash video games. By mandating a complete ban on all on-line actual cash video games (ORMGs), the laws collapses the well-established authorized distinction between video games of talent and video games of probability. 

Petitions in opposition to the regulation have been filed in numerous High Courts. The petitioners embody Head Digital Works (the guardian firm of real-money gaming platform A23), Clubboom 11 Sports and Entertainment Pvt. Ltd, Bagheera Carrom (OPC) Pvt. Ltd. and others. On 8 September, the Supreme Court consolidated all pending issues for joint listening to. The Bench of Justices J.B. Pardiwala and Ok.V. Viswanathan is predicted to take up the matter for listening to after the Diwali trip. 

In advance of arguments being heard by the Supreme Court, we talk about three core points at play: 

1. Does PROGA undermine the long-standing judicial distinction between video games of talent and video games of probability?
2. Does the Union have legislative competence on a matter that has been historically thought of a state topic?
3. Do the provisions of PROGA fulfill the check of proportionality?

A longstanding judicial distinction

The distinction between talent (the place the result is determined by a participant’s experience) and probability (the place luck predominates) has been repeatedly tested in Indian courts. The Supreme Court in State of Bombay v. R.M.D. Chamarbaugwala (1957) discovered that video games during which talent predominates over probability can’t be handled as playing. This got here to be referred to as the “preponderance of skill” check in K.R. Lakshmanan v State of Tamil Nadu (1996). Several verdicts have relied on this formulation to carry video games like rummy (State of Andhra Pradesh v Ok. Satyanarayana, 1967) and horse-race wagering (Ok.R. Lakshmanan) as video games of talent. 

Relying on this line of Supreme Court precedent, the Madras High Court —in All India Gaming Federation v State of Tamil Nadu (2023)—clarified that on-line rummy and on-line poker qualify as video games of talent, and subsequently fall inside the suitable to commerce and enterprise underneath Article 19(1)(g) and Article 301 of the Constitution. Similarly, in All India Gaming Federation v State of Karnataka (2022), the Karnataka High Court struck down a laws banning all types of on-line gaming involving the chance of cash. It reasoned that the ban violated the suitable to equality underneath Article 14, because it imposed an absolute embargo on all video games of talent. In that verdict, Justice Ok.S. Dixit famous that: 

“…the Amendment Act does not critically adjust the boundaries of the existing category of protected activities, i.e. games of skill with the unprotected acts of gambling. Instead, State has created a wholly new category of medium-based-regulation when change of medium per se does not alter the true nature & content of the games.”

The skill-chance distinction is supported by empirical and mathematical analyses. In 2023, the Indian Statistical Institute, Kolkata, found that success in rummy is considerably influenced by talent. The identical yr, researchers on the Indian Institute of Technology, Delhi, concluded that on-line card video games demand a predominance of talent for constant success. 

Seen on this context, the definitions of “online game” and “online money game” underneath Sections 2(f) and a pair of(g) of PROGA explicitly negate the excellence between video games of talent and video games of probability. By advantage of those provisions and the unilateral ban established by Sections 5, 6 and seven of PROGA, variants of video games like poker and rummy would now be categorized as ORMGs, defying the excellence that has continued since 1957.

Union’s justification of legislative competence

From the studying of the textual content of the Act, it seems that the Union has justified its assumption of legislative competence for PROGA on a number of grounds. The justification is perhaps based mostly on 4 entries within the Union List: person hurt and public well being underneath Entry 52 (industries); proliferation of pervasive promoting underneath Entry 31 (wi-fi, broadcasting and different types of communication); inconsistencies throughout state-level regulatory frameworks underneath Entry 42 (inter-state commerce and commerce); and the participation of offshore jurisdictions in ways in which circumvent home regulation underneath Entry 41 (commerce and commerce with overseas nations, and import and export throughout customs frontiers).

The assumption of legislative competence on the grounds of public curiosity is mirrored within the Act’s textual content. However, it’s value recalling that in a Lok Sabha reply on 26 March 2025, IT Minister Ashwini Vaishnaw said that ‘betting and gambling’ are state topics, falling underneath Entry 34 of the State List. He had additionally replied that ‘police’ and ‘public order’ are state topics, making states and Union Territories primarily accountable for stopping, detecting and prosecuting crimes associated to unlawful betting and playing. 

Aspects of regulating on-line gaming are already captured underneath numerous Union legal guidelines. Particularly: the Information Technology Act, 2000, by way of its provisions on middleman legal responsibility, on-line harms and content material moderation; the Consumer Protection Act, 2019, which addresses unfair commerce practices and misleading promoting; and the Digital Personal Data Protection Act, 2023, which gives for knowledge safety and cybersecurity safeguards to mitigate dangers posed by offshore or insecure platforms. 

Does PROGA merely consolidate these current statutory frameworks right into a unified particular laws? More importantly, can a consolidation effort alone justify the belief of legislative competence?

Healthy evolution of state-level regulation

Before the introduction of PROGA, the regulatory panorama for on-line gaming in India was evolving healthily on the state stage, reflecting various approaches to talent video games, betting and licensing. Tamil Nadu had enacted the Prohibition of Online Gambling and Regulation of Online Games Act, 2022, which positioned particular restrictions on video games of talent. This laws, together with the 2025 Regulations promulgated underneath it, had been upheld by the Madras High Court in Play Games 24×7 Private Limited v State of Tamil Nadu in June 2025. 

There, a Division Bench had affirmed the state’s legislative competence to implement regulatory measures for OMRGs, together with restrictions on enjoying hours and necessary age verification. The ruling was based mostly on the state’s skill to enact legal guidelines governing on-line video games by invoking Entries 6 (public well being and sanitation) and 26 (commerce and commerce inside the state) underneath the State List.

While some states like Uttar Pradesh have amended the Public Gambling Act, 1867,, others like Nagaland, Sikkim and Meghalaya have enacted contemporary laws to introduce licensing regimes for on-line talent video games. Chhattisgarh and Haryana present exemptions for video games of talent whereas banning betting. In April this yr, Karnataka shaped a committee for drafting a extra nuanced regulatory regulation based mostly on a ‘whitelisting’ framework for official operators. All this means a sample of state-level experimentation and regulatory innovation. 

Concerns of creeping centralisation

The doctrine of pith and substance stipulates that the true nature and character of laws have to be ascertained to find out its validity. If, in substance, a regulation falls inside the legislative competence of a state, incidental encroachments upon topics within the Union List don’t render it invalid. Applying it to the context of on-line gaming, the precept implies that the state legal guidelines can’t be displaced solely on the bottom that the Union invokes broadly worded entries within the Union List. 

The Union has justified PROGA on the grounds of public curiosity, based mostly on the weather of public well being, shopper security, public morality and monetary sovereignty. However, the web gaming business has not been formally declared as an ‘Industry of Public Interest’ underneath Entry 52, as mandated underneath Schedule 7 of the Constitution. A mere reference to public curiosity within the non-operative a part of the statute doesn’t meet the mandate of a declaration. Furthermore, even when the Union decides to amend PROGA to declare ORMGs as detrimental to public curiosity—much like declarations within the Tea Act, 1953 or the Rubber Act, 1947—the priority of public well being being underneath Entry 6 of the State List can’t be totally missed.

On the opposite parts of the ‘public interest’ justification in PROGA, shopper security within the wider context of shopper safety is already an occupied discipline by the Union, and monetary sovereignty is roofed underneath Entry 36 of the Union record. ‘Public morality’, nevertheless, will not be explicitly enumerated in any legislative lists. Courts have constantly cautioned in opposition to utilizing morality as a carte blanche for state intervention, emphasising in Navtej Singh Johar v Union of India (2018) that constitutional morality should outweigh public morality, even when it’s the majoritarian view. 

Further, ‘betting and gambling’ is explicitly a state topic underneath Entry 34 of the State List. The query is whether or not Parliament can justify regulating an business that falls squarely underneath the State List by invoking basic Union List entries. If this precedent is allowed, it could actually elevate issues of creeping centralisation in different domains the place the Constitution explicitly grants the states legislative exclusivity. 

If digital connectivity is used as a justification for Union intervention, it may open the floodgates for legal guidelines being enacted throughout a number of sectors reminiscent of healthcare, training, and leisure, merely as a result of these sectors function by way of on-line platforms. Such a precedent would undermine the federal spirit of the Constitution by eroding the autonomy of states. 

Does PROGA cross the proportionality check?

The doctrine of proportionality is a necessary device for making certain that the State’s actions are honest and affordable. This precept is designed to stop the State from taking actions which can be extra extreme than needed to attain its targets. In Modern Dental College v State of Madhya Pradesh (2016), the Court endorsed a four-prong proportionality check to find out whether or not a restriction is permissible: goal, suitability, necessity and proportionality stricto sensu.

The aspect of suitability or official objective requires that the measure be rationally related to its goal. PROGA seeks to stop gambling-related hurt, defend shopper welfare and deal with dependancy. However, the failure to tell apart between talent and probability renders its method overinclusive. Games like on-line rummy, fantasy sports activities, and chess, which rely predominantly on talent, find yourself banned solely as a result of they contain actual cash. Such a measure lacks a rational nexus to its said targets, because the hurt related to playing arises not from financial stakes per se however from video games of pure probability and unregulated betting.

The third prong of necessity could also be decided by way of the “least intrusive test” specified by Modern Dental College. This requires that no less restrictive alternative may obtain the identical objective. In the case of PROGA’s ban on ORMGs, the reply relating to alternate options is evident—the Tamil Nadu mannequin. Instead of an outright ban, the Union may have applied licensing, age verification, cut-off dates and accountable gaming frameworks. 

One of the grounds invoked by the Union to ban ORMGs is the hurt they pose to public well being. The Tamil Nadu laws takes the same method however it prohibits “online gambling” and regulates “online games” whereas conserving public well being and welfare in focus. This method mitigates hurt whereas preserving the financial rights of official companies, which makes it clearer why the Union’s blanket ban fails the need check. 

The fourth aspect of proportionality stricto sensu balances the advantages of State motion in opposition to its antagonistic results on particular person rights. The financial and constitutional value of PROGA’s prohibitions is substantial: it infringes on Article 19(1)(g) (proper to commerce), Article 14 (equality earlier than regulation) and Article 301 (freedom of commerce and commerce). The inclusion of “social games” and “e-sports” as official and permissible classes underneath PROGA additional exposes the inner inconsistency of the laws. Both “social games” and “e-sports” depend upon digital interplay and talent, but they’re exempted solely as a result of they don’t contain real-money stakes. 

If the priority is dependancy or hurt, the exclusion of e-sports undermines the general public well being rationale; if the priority is wagering, the blanket ban on skill-based video games like rummy or fantasy sports activities turns into logically inconsistent. This selective permissibility fails each the equality and proportionality exams, suggesting that the laws targets financial points somewhat than precise hurt.

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The Supreme Court’s resolution on PROGA might be pivotal in defining the boundaries of talent and probability, the bounds of Union legislative competence and the rules of proportionality in regulating on-line gaming. The ruling has the potential to not solely decide the destiny of RMGs in India but in addition to supply an essential clarification on the steadiness of legislative energy between the Union and the states. 

Dr. Sudhanshu Kumar is an Associate Professor, Harsha N is an Assistant Professor, and Aditi Pangotra is a Research Associate at NLSIU. The group is engaged in a funded analysis challenge on on-line gaming legal guidelines. The views expressed listed below are solely these of the authors and don’t signify the views of NLSIU or the funding organisation.