Report No. 276

Chapter IV

Constitution of India and Betting

4.1 During the Constituent Assembly Debates on 02 September 194956, a motion was taken up to add Entry 45, (present entry 34) dealing with betting and gambling, under List II of the Seventh Schedule. The move was strongly opposed by Prof. Shibban Lal Saksena, Shri Lakshminarayan Sahu and Sardar Hukam Singh. Prof. Saxena felt that gambling was a crime and that gambling and betting should be banned.

Shri Sahu opposed the move by observing that we were guided by the lofty ideals of Mahatma Gandhi and that the lessons learnt from the Mahabharat were not to be forgotten. He felt that even taxation on such items did not appear proper. The Members of the Constituent Assembly were of the view that Constituent Assembly must prohibit betting and gambling.

4.2 However, Dr. Ambedkar had a different view. He explained that not mentioning betting and gambling would not mean that there will not be any betting and gambling in the country at all. He apprehended that if this entry was omitted, there would be absolutely no control over betting and gambling activities at all. He felt that if Entry 45 under List II were to be there, it would either be used for the purpose of permitting betting and gambling or for the purpose of prohibiting them. If the entry didn't exist, the provincial governments would be absolutely helpless in these matters.

Another consequence that Dr. Ambedkar pointed out was that in the absence of the proposed Entry 45 of List II, 'betting and gambling' would automatically find a place in List I under Entry 91. He was of the opinion that if there is a strong objection to adding Entry 45 under List II, then there must be an Article in the Constitution itself explicitly declaring betting and gambling as an offence. He explained that the entry would act as a preventive measure and the States would have full power to prohibit gambling. Hence the Entry on 'betting and gambling' was included in the State list to empower the States to make laws either to prohibit betting or gambling or to regulate it, according to the socio-economic requirements of the State. This stance provided the scope to accommodate different notions of morality prevailing in various States.

4.3 According to Constitutional experts, the Constitution provides for a quasi-federal structure, entailing that it is federal in form but unitary in spirit57. The Legislative powers are distributed between the Centre and the States under Article 246 of the Constitution of India, on various subject matters enumerated in three legislative lists of the Seventh Schedule. According to Entry 40 of List I, the Parliament has the power to legislate on 'Lotteries organized by the Government of India as well as the Government of any State'. Article 249 of the Constitution empowers the Parliament to legislate with respect to a matter in the State List in the National Interest while Article 252 empowers the Parliament to legislate for two or more States on request made by such States. Thus, in the event that, the Parliament legislates on the subject of gambling and betting, such a law will not stand vitiated on the ground of lack of competence or that it infringes the legislative powers of the States.

4.4 The power of the State governments to make laws on gambling can be traced to Entry 34 List II of the Seventh Schedule of the Constitution. Thus, the States have exclusive power to make laws on this subject including power to prohibit or regulate gambling etc. in their respective territorial jurisdiction. In H. Anraj v. State of Maharashtra58, the Supreme Court observed:

there is no dispute before us that the expression "Betting and gambling" includes and has always been understood to have included the conduct of lotteries. Quite obviously, the subject 'Lotteries organised by the Government of India or the Government of a State' has been taken out from the legislative field comprised by the expression "Betting and gambling" and is reserved to be dealt with by Parliament.

Since the subject 'Lotteries organised by the Government of India or the Government of a State' has been made a subject within the exclusive legislative competence of Parliament, it must follow, in view of Act (sic) Art. 246(1) and (3), that no legislature of a State can make a law touching lotteries organised by the Government of India of (sic) or the Government of a State. This, as we said, is but recognition of the prevailing situation under the Constitution. The Constitutional position cannot be altered by an act of the State legislature.

4.5 The ideals and objectives envisioned by the framers of the Constitution are embodied in Directive Principles of State Policy. They provide a blueprint for the States to formulate new laws while keeping in mind the spirit of good governance. Article 38 of Constitution of India provides that the State shall secure social order for promoting welfare of its people by securing justice, social, economic and political.

Article 39 of the Constitution directs the State to provide adequate means of livelihood to every citizen and to make sure that the economic system does not lead to unfair accumulation of wealth, rather the ownership and control of the resources of the community are so distributed as best to sub serve every class of society. It is also expected that the State oversees that children and youth are protected against exploitation, both moral and material.