Legalisation of betting & gambling in India: Did the Law Commission of India refer to mythology in the guise of history?
In the second post in our series analysing the 276th report (“Report”) issued by the Law Commission of India (“LCI”), we scrutinise Chapter II of the Report, titled “History of betting and gambling”. In this post, we examine the sources referred to by the LCI in this chapter and discuss the desirability of relying on mythology as a source of law-making in the socio-political context of contemporary India.
Chapter II of the Report, while purportedly examining the history of betting and gambling in India, primarily refers to mythological and religious texts of the region, including the Ramayana, Mahabharata, Vedas and the Smritis. Verses from these texts have been examined in detail by the LCI in the Report to arrive at the conclusion that betting and gambling, while prevalent in those times, has always been considered a social evil in the Indian subcontinental region. In this respect, we feel that the LCI has made the classic mistake of passing off mythology as history.
Mythology is generally considered to be a collection of tales that have some basis in the past and usually seek to give moral or spiritual teachings, while history is generally considered an attempt to create a factual account of the past. Although it would be inappropriate to create a strict dichotomy between the two- both are ultimately creations of the human imagination, the fact still remains that history is limited by the existence of facts and evidence from the past that are verifiable to some degree, while mythology has no such limitations of time, chronology or evidence. (For more on this, please see here).
Our contemporary legal frameworks are positivist in their approach- we place evidence, verifiable sources and the written word of the law on a far greater pedestal than the morality of our actions. A natural consequence of this is that history, with its evidence-based approach (even if flawed in many ways) is frequently referred to while examining legal propositions, while mythology has limited utility in modern-day rule making. We feel that this distinction has been missed by the LCI completely. The LCI, in chapter II of the Report has failed to examine any contemporary historical accounts of betting & gambling in India, instead focussing its energies on looking through mythological texts to justify its position on betting & gambling.
In India, the judiciary has accepted legal propositions rooted in mythological texts in the past, with a caveat that such mythological sources are usually applicable only in the sphere of personal laws, or while considering questions of customs, practices and societal norms. Betting & gambling certainly do not fall under any of these categories, and therefore we feel referencing such sources in the present context by a body mandated to assist in formal rule making in India is quite futile. Contemporarily, decisions of courts supersede any mythological texts, and as precedents, such decisions of the courts have a binding force. The Mysore High Court, in the case of Madanvali v. Babu Padmanna Tamadaddi, held that the duty of a judge administering Hindu Law is not so much to inquire as to whether a disputed doctrine is fairly deducible from the earliest authorities, but to ascertain the law as laid down by the superior Courts in India, as well as by the Privy Council.
Further, the Indian Constitution includes betting & gambling within the ambit of Entry 34 under List II of the Seventh Schedule. This entry was the subject of much discussion in the Constituent Assembly, when several members of the Constituent Assembly strongly opposed the inclusion of the entry in the Constitution on the basis that gambling was a crime and that the lessons learnt from the Mahabharata must not be forgotten. Dr. B. R. Ambedkar, in response to this expressed a different view and understood the potential harm that could be caused by omitting this entry in the Constitution. He reasoned that the mere act of not mentioning betting and gambling would not stop all betting and gambling activities in the country. He noted that by omitting this entry, regulators would lose complete control over all such activities. Therefore, he felt that an Entry under List II was required to allow regulators to either allow and regulate such activities or to prohibit them. This position was adopted, and the Indian Constitution hence contains a framework to regulate betting and gambling.
Given the positivist nature of contemporary rule making and the fact that India already has a constitutional framework to regulate betting & gambling, we feel that any references to mythological texts have very limited utility in the Report. Even if the LCI wished to contextualise the current issue vis-à-vis the treatment of betting and gambling in the past, we feel that the LCI could have focussed its energies on drawing from sources that are more relevant to our modern society- i.e.- it could have drawn from history rather than mythology.
Lastly, we also feel that some of the sources that the LCI has cited in Chapter-II are quite questionable. The Report has referred to unverified websites on the internet (http://www.gypsyware.com/gamblingHistory.html and https://www.gambling.net, amongst other such sources) in its footnotes. We feel that unverified websites of this nature cannot be deemed legitimate sources to guide law-making and that the LCI, while examining a subject of such importance, ought to have based its research on more credible sources available at its disposal.
This post is the second 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 Viraj Joshi and Pranav Chinnaswamy. Viraj is an Associate in the Delhi office of GameChanger Law Advisors, while Pranav is a 5th Year B.A., LL.B student of Jindal Global Law School interning with us over the summer. Please feel to reach out to Viraj at email@example.com