Report No. 276
A. Morality and Betting
4.6 India has been culturally opposed to gambling even though it existed in Indian society since ancient times. The textual references also suggest that these activities have never been approved by the society.
4.7 The Government generally prohibits such activities to prevent societal harm. The governmental policy may, not necessarily be in tune with existing social values. Despite being illegal, there are a few activities that the public at large, continues to indulge in. Illegal activities can be divided into two categories (A) activities, which definitely cause damage to the society viz. trade in contraband substances, and (B) activities like gambling and betting, which cause damage to the individuals but whose social impact varies59.
4.8 Whether the State has the right to regulate private morals, is a question that has often underpinned gambling prohibition laws. J.S. Mill discussed the extent to which State should be allowed to restrict liberty of individuals and highlighted the conflict between liberty of individuals to carry trade of their choosing and be involved in desired activities and the effect of such choice on the society at large. While he was indecisive on the justifiability of prohibiting activities like gambling, he implicitly recognised the need for regulation of those activities that may cause harm to others. He remarked:
A person should be free to do as he likes in his own concerns; but he ought not to be free to do as he likes in acting for another, under the pretext that the affairs of another are his own affairs. The State, while it respects the liberty of each in what specially regards himself, is bound to maintain a vigilant control over his exercise of any power which it allows him to possess over other60.
4.9 Those who argue in favour of legalising gambling, give primacy to individual autonomy and minimum State interference. Those who disfavour it, argue that immorality is a justifiable ground for restricting individual liberty, as such restrictions help in maintaining societal order. Arguments made in favour of regulating gambling, call for dissociating morality from gambling. It is believed that the connection between the two is merely derivative and associative and therefore, by freeing the concept of gambling from unwelcome moral negativity, it becomes easier to regulate it as an activity61.
4.10 In the case of Guru Prasad Biswas & Anr. v. State of West Bengal & Ors.62, the Calcutta High Court remarked that betting and gambling activities affect a person's morality and therefore infringe the right to life guaranteed under Article 21 of the Constitution.
4.11 In Gherulal Parakh v. Mahadeodas Maiya & Ors.63, the Supreme Court observed:
The word 'immoral' is a very comprehensive word. Ordinarily it takes in every aspect of personal conduct deviating from the standard norms of life. It may also be said that what is repugnant to good conscience is immoral. Its varying content depends upon time, place and the stage of civilisation of a particular society. In short, no universal standard can be laid down and any law based on such fluid concept defeats its own purpose.
4.12 The notion of morality involved in gambling can be distinguished from that in sports-betting. Sports are 'games of skill' where tentative parameters like physical skills, effort, strategy and tactics, essential purpose, etc. are also taken into consideration. Gambling necessarily entails the determination of a result based on eventualities beyond human control. In sports, however, determination of results are primarily based on skill rather than chance. If in an event, substantial amount of skill is required to place the bets, the argument of immorality of the activity does not survive.
4.13 Ideally, Constitutional morality should be the touchstone for justifying State intervention. Offending public morality cannot be a ground for determining the legality of an action. In 2002, the Haryana Assembly passed two Bills, namely the Public Gambling (Haryana Amendment) Bill of 2002, which was an essential aspect of the second Bill, i.e. the Haryana Casino (Licensing and Control) Bill of 2002 that called for allowing Casino projects in Haryana.
The Governor of Haryana had reserved the Amendment Bill for the consideration of the President under Article 200 of the Constitution of India. The Amendment Bill sought to add section 19 to the Public Gambling Act, 1867 applicable to the State of Haryana with the purpose and objective to allow casino projects as an instrument of infrastructural growth, attract global investment, promote tourism and create employment opportunities. The proposed section 19 read as:
"19. Authorised Gambling.- Nothing in this Acts shall apply to any gambling activity carried on under the authority and subject to the licence granted in accordance with any law for the time being in force."
The Amendment Bill was reserved on the following grounds, viz.:
1. "The Bills received strident criticism from different sections of society"
2. Increase in "various criminal activities such as drug running, prostitution and extortion by organised crime syndicates".
3. Difference of "socio-cultural mores and value and traditions" from the State of Goa, "whose liberation from the Portuguese rule is a comparatively recent historical development and has left that State with a unique cultural legacy"
4. "Casinos are essentially a gambling activity for which Foreign Direct Investment is barred" and "foreign investment and foreign technology collaboration in any form are reportedly prohibited in the lottery business, gambling and betting sector.".
5. The Bills would "attract the doctrine of 'occupied field' as they occupy the same field as The Public Gambling Act, 1867 and relate to the subject matter the Act of 1867 and are repugnant to its spirit as they seek to legitimise and license gambling Activities in Casinos whereas the Act of 1867 represses public gambling.".
6. It would have "ramifications beyond the State of Haryana affecting the socio-political fabric of the entire nation as Haryana's physical proximity to the National Capital Territory of Delhi raises among other issues, the spectre of security concerns".
4.14 In 2005, the President of India withheld the assent from the Public Gambling (Haryana Amendment) Bill of 2002. In withholding the assent therefrom, the President was guided by the recommendations of various Ministries of the Central Government, which are summarised as follows:
1. The Ministry of Home Affairs (Judicial Cell) conveyed 'no comments' on the proposal.
2. The Ministry of Law and Justice (Legislative Department) conveyed 'no comments' on the proposal.
3. The Ministry of Commerce and Industry, Department of Industrial Policy and Promotion conveyed that both, Foreign Investment and Foreign Technology Collaboration, in any form, are completely prohibited in the lottery business, gambling and betting sector.
4. The Ministry of Home Affairs (Centre-State Division) stated that "in view of the national policy of discouraging gambling in all formsthey are opposed to the Public Gambling (Haryana) Amendment Bill, 2002 as it seeks to defeat the very purpose of the Original Act viz. The Public Gambling Act, 1867". They further argued "that casinos, gambling and betting sector etc. might encourage organised crimes".
5. The Ministry of Home Affairs (Judicial and Political Pensions Section), in view of the strong objection of the Department of Industrial Policy and Promotion and the Centre-State Division of the Ministry of Home Affairs, proposed that the assent of the President be withheld from the Bill.
6. The Ministry of Tourism & Culture (Department of Tourism), on the other hand, supported the proposal from the point of view of tourism development in the country.
4.15 It is noted that Ministry of Home Affairs, Government of India, while recommending to the President to withhold his assent from this Bill, distinguished the purpose and object of the Bill with the Goa, Daman and Diu Public Gambling Act, 1976, the only State enactment that allows casinos. The Ministry stated that the Goa Act of 1976 was assented by the President because it was enacted to provide for punishment for public gambling and keeping of common gaming houses whereas Haryana Amendment Bill was to authorise any public gambling activity, provided a licence is obtained.
However, the object and purpose of the Public Gambling Act, 1867 as stated by the Governor in his reference is "to provide for the punishment of public gambling and the keeping of common gaming-houses", which is identical to that of the Goa Act, thus, rendering the distinction vague.
4.16 Further, as rightly stated by the Ministry of Home Affairs, the Goa, Daman and Diu Public Gambling Act, 197664was accorded assent by the President, because, at the time of enactment, this Act did not permit games of chance/casinos to operate in Goa, Daman and Diu. It was later with the enactment of the Amendment Act of 1992; provisions were made for permitting licensed casinos/games of chance to operate through the region65. However, the assent of the President was not taken while bringing the Amendment Act 1992.
4.17 While the main argument in favour of regulating the betting and gambling is revenue generation through taxation on its proceeds, the question remains whether one can choose revenue over morality. In this regard, it is pertinent to note that in the State of Bihar the revenue collection from liquor increased from Rs.500 crore in 2005 to Rs.4,000 crores (approx.) in 2014-2015. Yet, taking note of the immorality associated with the consumption of liquor and its ill-effects on Society, the State of Bihar put a State-wide ban on the sale, consumption and production of liquor in 201566.
Other States such as Gujarat, Nagaland, Manipur and Lakshadweep too, guided by the unwritten principles and notions of morality prevalent in their States and taking into consideration the ill-effects of consumption of liquor in an uncontrolled manner, have prohibited the sale of liquor to protect the vulnerable sections of the society, in spite of huge revenue losses.
4.18 'Immorality', per se, cannot be a ground to challenge the Constitutional validity of an enactment as morality is a subjective concept. If, however, some form of morality is reflected in any provision of the Constitution, for example, if an enactment compromises the dignity of an individual, it may be challenged as being violative of Article 21 of the Constitution. Additionally, if a custom or usage has been deemed 'immoral' by a particular demographic it may be challenged by them as such.
It should also be noted that morality and criminality are not co-extensive67. Morality is a ground for imposing reasonable restrictions on individual's freedom68. It is said that the law remains in a state of flux while defining morality, for it is required that the law must continuingly evolve to accommodate the needs of changing time.