SKILL OR CHANCE? AMBIGUITY IN POKER’S CATEGORIZATION PERSISTS AFTER CALCUTTA HIGH COURT’S RECENT RULING

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In an earlier post (available here), I had delved into the intricacies of India’s gambling laws, and the factors used to assess whether an activity amounts to gambling and consequentially falls under the ambit of the Public Gambling Act, 1867 and other relevant state legislations. As discussed in that post, this assessment ultimately boils down to one simple question: is the activity one that is predominantly based on skill or is it predominantly based on chance/luck? In this post, I intend to analyze the ‘predominant nature’ test further, by specifically referring to its application in cases pertaining to the delineation of poker as a game of skill or a game of chance. This analysis is even more relevant in light of a recent ruling of the Jalpaiguri circuit bench of the Calcutta High Court (available here), wherein it declared that poker is a game of skill. As shall be discussed, this decision contradicts earlier decisions of the Gujarat and Bombay High Courts and adds another layer of uncertainty to the categorization of poker as gambling in India.

Decision of the Calcutta High Court: Poker as a Game of Skill

 In its ruling dated August 29, 2019,[i] the Calcutta High Court condemned the police’s intervention in a game of poker hosted in Hotel Tourist Inn in Silliguri, as it categorically stated that “since the game of poker ipso facto is not included within the purview of the West Bengal Gambling and Prize Competitions Act, 1957, without there being a specific complaint with regard to the petitioners resorting to gambling or other illegal activity in the name of poker, there cannot be any occasion for the police to interfere with such game.”[ii] While the court did not expressly characterize poker as a game of skill, in passing the aforementioned ruling, it implicitly acknowledged that poker involves certain elements of skill which exempt it from the ambit of the impugned gambling legislations.

This decision is in consonance with an earlier ruling of the Calcutta High Court as well, in the case of Shri Kizhakke Naduvath Suresh, Indian Poker Association v. State of West Bengal.[iii] The court’s decision in that case was premised on the same grounds too, as it stated that “provisions of the West Bengal Gambling and Prize Competitions Act, 1957 and in particular the definition of “gaming or gambling” under section 2(1) (b) thereof reveal that poker is not included either in gaming or gambling and, therefore, if anyone indulges in playing such game without indulging in any other overt act, which could be treated as amounting to an offence, the same does not attract police interference.” It should be noted that the Karnataka High Court too, in Indian Poker Association v. State of Karnataka,[iv] had passed a similar ruling and branded poker as a game of skill.

Conflicting Decisions of Other High Courts

 Unfortunately for poker enthusiasts, the position taken by the Calcutta and Karnataka High Courts has not been unanimously accepted across courts in India. In fact, the Gujarat and Bombay High Courts have given detailed decisions explaining why poker should be categorized as a game of chance and subjected to relevant gambling legislations.

In Dominance Games Pvt. Ltd. v. State of Gujarat,[v] the Gujarat High Court held that poker is a game of chance and accordingly, the act of conducting a poker game would be hit by the prohibitions put forth under the gambling legislations in Gujarat. The petitioner’s arguments pertaining to the substantial degree of skill involved in poker – be it in assessing a rival player’s reaction to the cards dealt to him, calculating mathematical odds, bluffing or making a turn-by-turn assessment of the game – were refuted by the court. The court instead focused on the socio-economic implications arising out of the legalization of poker, and the negative impact it could have on a society already plagued by addiction and poverty. Further, it asserted that success in poker ultimately boils down to the cards that a player is dealt (which is a purely luck based event), and did not consider bluffing or deception as a skill. The court also drew an analogy between poker and games such as flush, brag or teenpatti (which had been deemed to be games of chance by the Supreme Court), and in this light, it viewed poker as a game of chance too.

The Bombay High Court in Nasir Salim Patel v. State of Maharashtra[vi] came to the same conclusion as well. In its order, the court simply stated that “we find that in the said game, as described in the FIR, there is no element of skill and it appears to be purely a game of chance and the winner is chosen on the basis of cards, which are received by him on distribution in the said game and the winner also receives the prize in cash on the said basis.[vii] This case has been covered in greater detail in a previous update (available here).

Conclusion

 It is evident from the aforementioned decisions that the categorization of poker as a game of skill or chance in India is far from clear. Several of these decisions have even failed to comprehensively discuss the various aspects of poker which could swing the skill v. chance debate towards either side, and rather, rulings have been passed on a variety of other factors which are not directly relevant to this assessment. Given the sheer volume of support and participation in poker in India, which is only bound to increase through the spread of poker into the online realm, it is imperative that a consistent approach be developed by Indian courts in dealing with the legality of poker.

End notes:

[i] Indian Poker Association v. State of West Bengal, WPA No. 394 of 2019 (Cal HC)

[ii] ibid, 3

[iii] W.P. No. 13728(W) of 2015

[iv] W.P. Nos. 39167 to 39169 of 2013

[v] 2017 SCC Online Guj 1838

[vi] W.P. 427 of 2017

[vii] ibid, 2

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