Human beings have engaged in betting since antiquity. For a long time gambling was an activity that took place only in exclusive casinos. Not everyone could afford or access these places. Online gambling, which became a reality around 1995, allowed gambling to be a past time for many more people. Software that simulates games of chance had been in existence for a while. The use of internet became common place and inexpensive and was crucial to the establishment of gambling websites. Another necessary factor was the mechanism to make and receive payments online in a secure manner. The final piece of the jigsaw puzzle was the creation of authorities that licensed and regulated gambling operators.
Once gambling websites were established around 1995 they began to proliferate quickly. The period 2000 to 2006 was a boom time for the online gambling industry. This is because online gambling offers many advantages over land based gambling. The biggest advantage is that players can engage in online gambling from home. All that they need is a home joker gaming computer or lap top with an Internet connection. Players no longer have to spend money to travel to the casino
No spending time and money to travel to casinos or going on holidays to Las vegas. Players can come home and immediately log on to their favorite online gambling site.
Online gambling is exceptionally convenient for people who are afraid of posh casinos, with well dressed staff efficiently conducting operations and knowledgeable players who are proficient at the art and science of gambling. Internet gambling is an anonymous activity. Many of these games are played solo with the online casino software. Even in multiple player games there is no need to be face to face with other players. Most of players use nicknames and no one need know from which part of the world they are from. They can make their mistakes without fear of being made fun of and can learn the ropes at their own rate without worrying about losing a lot of money. And formal dressing can be dispensed with.
Another major advantage of gambling websites is that it delivers greater average returns to the player. The costs involved in setting up and operating internet gambling sites is much lower than that for land casinos. Because there is no real estate, there are no expensive buildings and minimal staff to pay. Thus making gambling sites do not need to make a lot of money to cover their costs and provide a return to their owners. Because of the competition in the online gambling industry, the savings are handed on to the players in the form of larger average returns. This is particularly evident in online slots where the average return is around 95%. Where as land based slots the average return may be well below 90%.
Online gambling today covers a wide range of product verticals. Sports betting can be conducted online. Players have access to the most current odds and can even engage in live betting through online gambling. Poker is yet another well-liked form of gambling. Players can play both fast cash games and in online tournaments. Online casinos offer gambling on blackjack, baccarat, roulette, craps, video poker, online slots and other games. Other forms of online gambling can include bingo and financial betting.
Internet Casinos Inc. (ICI), the world’s first online casino, started operating from August 18, 1995, with 18 different games. Since then more than 1, 400 websites, mostly domiciled in small Caribbean islands, have given rise to an industry that grosses over $3 billion a year. In fact no business on the internet earns more revenue than online gambling. Out of the estimated 14. 5 million online gamblers, almost 30 per cent are from Asia.
A bet can be placed in minutes. Anyone with a credit card can set up an offshore currency account with a gambling site, leaving them free to place bets on sporting events like Wimbledon, cricket, horse racing and Formula One, or join a virtual casino to play slot machines, roulette, blackjack, poker etc. Companies like Flutter and Betmart accept bets on anything from who is going to win the Nobel Prize to whether Madonna is getting a divorce or not. Bets can range from a nickel to thousands of dollars and according to whether you win or lose the amount is automatically adjusted to your account. The final balance can then either be mailed to you or left for future bets.
The law relating to online gambling in India needs to be understood within the country’s socio-cultural context. At the outset, gambling, although not absolutely prohibited in India, does not receive express encouragement by policy makers. The Indian organized gambling industry is estimated to be worth around US$8 billion. While stringent laws have checked the proliferation of casinos and high street gaming centres as in many other countries, barring the state of Goa, the lottery business remains the most post popular form of gambling.
Though gambling is not illegal, it is a highly controlled and regulated activity. Modern India is a quasi-federal Constitutional democracy and the powers to legislate are distributed at the federal as well as the state levels. Gambling features in List II of the Constitution of India, this implies that the state governments have the authority to enact laws in order to regulate gambling in the respective states. Thus, there is no single law governing gambling in the entire country. Different states have different laws governing gambling in addition to the laws that have an application across the country. While some states have banned lotteries, other states allow state government lotteries marketed and distributed in other lottery playing and promoting states through private entities.
The courts have defined gambling as ‘the payment of a price for a chance to win a prize’. The dominant element of skill or chance shall determine the nature of the game. A game may be deemed to be gambling if the element of chance or luck predominates in deciding its outcome. As a result, Indian courts have held that betting on horse racing and a few card games are not gambling. The right to undertake the business of gambling and lotteries is not considered as a fundamental right protected by the Constitution of India. It may however be pointed out that the state government run lotteries make significant contributions to the state exchequer of several state governments and the Union government, and hence there is a resistance to complete prohibition.
This Act provides punishment for public gambling and for keeping of a ‘common gaming house’. This Act also authorises the state governments to enact laws to regulate public gambling in their respective jurisdictions. The penal legislations in respective states have been amended in accordance with their policy on gambling. However, this legislation does not have any direct impact on online gambling unless a wide interpretation is given to the definition of common gaming house so as to include virtual forums as well.
The ICA is a codified umbrella legislation that governs all commercial contracts in India. Under the ICA, a wagering contract is the one which cannot be enforced. The Act lays down; ‘Agreements by way of wager are void, and no suit shall be brought for recovering anything alleged to be won on any wager or entrusted to any person to abide by the result of any game or other uncertain event on which any wager is made’. Gambling, lottery and prize games have held to be wagering contracts and thus void and unenforceable. While a wagering contract is not illegal, it cannot be enforced in a court of law. Thus, the courts will not entertain any cause of action that arises out of a wagering contract.
This Act provides a framework for organizing lotteries in the country. Under this Act, the state governments have been authorized to promote as well as prohibit lotteries within their territorial jurisdiction. This Act also provides for the manner in which the lotteries are to be conducted and prescribes punishment in case of breach of its provision. Lotteries not authorized by the state have been made an offence under the Indian Penal Code. Several non-lottery playing states, like Gujarat and Uttar Pradesh, have prohibited the sale of other state-government lotteries under this Act.
Section 294A deals with keeping lottery office. It says that whoever keeps any office or place for the purpose of drawing any lottery not being a State lottery or a lottery authorised by the State government, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
And whoever publishes any proposal to pay any sum, or to deliver any goods, or to do or forbear doing anything for the benefit of any person, on any event or contingency relative or applicable to the drawing of any ticket, lot, number or figure in any such lottery, shall be punished with fine which may extend to one thousand rupees.
As pointed out earlier, the online lottery is the most popular form of internet gambling in India. Most companies marketing and distributing or conducting state government-sponsored lotteries through the internet are not allowed to sell their services in the states that banned lotteries. In most cases, these marketers and distributors limit their online services to consumers who are residents of the states where a lottery is permissible. Notwithstanding the fact there has been no reported case of breach by any company promoting online lotteries, most of these companies (as a safeguard) seek an undertaking from their consumers relating to their residence.
There have been instances where one state has banned the lottery of other states, including online lotteries. In a recent case, the Karnatka High Court upheld the decision of the Karnataka government to make itself a ‘lottery free zone’ by imposing a ban on lotteries of all other states, including online lotteries under the Lotteries (Regulation) Act 1998. The state government, in this case, directed the closure of the terminals and kiosks selling the online lotteries.
If the websites are hosted and operated from outside India, it may be difficult for the Indian authorities to issue any directive to close them down or prohibit their access without using its blocking powers under the ITA. The authorities have little to worry about, as Indian foreign exchange laws do not permit remittances outside India for gambling related activity, such as the purchase of lottery tickets, football pools and sweepstakes. As a result, a gambling website hosted outside India aiming at receiving money from within India cannot do so through legal channels.