The Law Commission of India (“LCI”) issued its 276th report (“Report”) on 5 July 2018, titled “Legal Framework: Gambling and Sports Betting including in Cricket in India”. In the first of a series of posts on the Report, we examine the terms of reference made to the LCI by the Supreme Court on this burning subject and whether the Report has done justice to these terms of reference.

The Report has been formulated pursuant to a Supreme Court directive issued in Board of Control for Cricket in India v. Cricket Association of Bihar & Ors. In its order dated 8 July 2016, the Court, while remarking on the Lodha Committee Report observed:

“…the recommendation made by the (Lodha) Committee that betting should be legalised by law, involves the enactment of a Law which is a matter that may be examined by the Law Commission and the Government for such action as it may consider necessary…”

The terms of reference for the LCI by the Supreme Court were thus to: (a) conduct a detailed study on the sphere of betting in India; and (b) evolve a regulatory framework for an Indian betting control legislation based on its findings. Upon perusal of the Report, we believe that the LCI has construed the terms of reference to be narrower that what the Supreme Court had originally intended. The Report touches upon broad principles of whether betting and gambling ought to be legalised in India, without going into the contours of any such legislation. From that perspective, we feel that the Report has hardly done justice to its terms of reference. The Report is, at best, a review of literature on selected laws that govern betting and gambling (as a related sphere to betting) in India and a few other countries. The Report, after analysing this literature thereafter refers to classic economic theory to conclude that legalisation of these activities would be the only way to regulate them and weed out the illegal betting and gambling syndicates.

While we will discuss the recommendations of the LCI in subsequent posts in this series, for the purposes of this post, it is interesting to note that the Report has made no effort to evolve the fundamental principles that the regulatory framework for an Indian betting control legislation ought to incorporate. The role of the LCI, as per its own Terms of Reference is to examine and revise existing laws and to show legislatures the way forward while enacting legislations. In fact, the LCI has come out with several draft legislations in its earlier reports (For reference, see the 241st report of the LCI on passive euthanasia here and the 271st report of the LCI on human DNA profiling here).  For inexplicable reasons, this mandate has not been fulfilled by the LCI in the context of the present Report.

While examining the regulatory position on betting and gambling in other countries, the Report has referred to the text of the applicable betting control legislations, without any regard for the socio-political or economic contexts in which: (a) these legislations were enacted; or (b) these regulatory frameworks are being enforced. The Report does not analyse any data on what outcomes have been generated as a result of regulating the betting industry in other countries, or the effects (whether monetary, social or political) of these legislations on those societies.

In India, the states of Sikkim, Goa and Nagaland have legalised betting and gambling in a controlled manner, each with certain restrictions. Given this, the Report could have called upon various stakeholders from these states to share their experiences on the enactment and implementation of these state-specific betting control legislations. The LCI could have analysed the data available on the economic and social effects of implementing such regulatory frameworks in these states, and used these inputs as data points to gain a more nuanced understanding of the issue at hand. Unfortunately, the LCI has made no effort to study the regulatory framework in these states in any amount of detail.

Given these reasons, we feel that the LCI, while delivering the Report, has failed its own Terms of Reference, as well as the Terms of Reference set out to it by the Supreme Court. Laws are not made in vacuum but are based on the socio-economic contexts of the societies they apply to. From that standpoint, merely examining various laws applicable to betting or gambling, as the Report has done, is not sufficient as a means of guiding legislative action. The outcomes of betting control legislations on the societies they govern will need to be examined, and much thought will need to be put into which mechanisms would be best suited to govern betting and gambling in the Indian subcontext. Even if the LCI is of the view legalisation of betting and gambling in India is an idea whose time has not yet arrived, it ought to have justified this stance by conducting a detailed study of the various social, economic, political and historical data that was available at its disposal.

This post is the first in a series of posts GameChanger Law Advisors are doing on the 276th Report of the Law Commission of India. Stay tuned for more!

This post was co-authored by Amrut Joshi and Viraj Joshi. Amrut is the Founder of GameChanger Law Advisors, while Viraj is an Associate in the Delhi office of GameChanger Law Advisors. Please feel to reach out to Amrut at amrut@gamechangerlaw.com or Viraj at viraj@gamechangerlaw.com

Image credits: Noah Salzman (Creative Commons)