Should Poker be Made Legal in India?

Introduction

The game of poker has become very popular nowadays and with such popularity online gaming is no exception. The major question on which many people are stuck is whether poker is legal?

The Public Gambling Act, 1867 is a central act which prohibits gambling and being in charge of a gambling house but there are states that have formulated different laws for the gambling activities. The states of Nagaland and West Bengal have exempted card games from the definition of gambling. The permit of running casinos is given in Goa, Daman and Sikkim.

The states of Maharashtra (then Bombay) and Gujarat have the common gambling act which is the Bombay Prevention of Gambling Act, 1887. Section-13 of the Bombay prevention of gambling act says “nothing in this act shall be held to apply to any game of mere skill wherever played”. So, if skill is proved to be existing in poker then it cannot be prohibited under this act. Thus, the legality of poker is depended upon the skill factor of the game.

Constituents of skill and luck in poker

The game of poker or any card game begins with the shuffling which itself is a matter of luck or chance because no one knows what sort of cards one may get and thus it is also argued by some that the final outcome (the winner) is totally dependent on the shuffling of cards i.e. the luck factor.

On the other hand, It is seen that the professional players use their skills of decision making, alertness, making poker faces, bluffs and consistently maintaining their position in the game.

In the Research & Review Journal by Robert C. Hannum, Anthony N. Cabot “Towards Legalization of Poker: The Skill v. Chance Debate” it is given that 97% of the hands are won by highly skilled players and highly skilled players convincingly beat unskilled Players. In a game of skill players can alter the expected outcome not so for in a game of pure chance. The expected win in poker, on the other hand, depends on the skill & strategy employed by the Player. In poker, certain knowledge can be brought to bear on the decisions made during the game, resulting in a greater expected win. While there are arguably various facets of ‘skill’ in poker, the combination of these facets are expressed through one element, betting- the decision on how much money if (any) to invest. Betting strategy in poker- whether to fold or bet & how much to bet is a decision made of a players own free will & is something at which a player can become skillful. The betting methods of players can get better or even worse.

Even though betting is a part of the game, it involves skill in as much as for the purpose of betting, players will have to use the skill of assessing the rival players at the same time keeping their own reactions concealed as Poker face in order to make the other players play further & bet. The knowledge of the game & making assessments in every turn of the card or fall of the card is something involving skill. It is an element of chance to the extent of distribution of card but after that everything depends on the skills of the players. The game of Poker involves elements of skill, luck & psychology but the outcome of the game is more dependent upon the skills of the player. Also, there is no game where the element of chance or luck is absent. Same is the case with Poker.

It was ruled in the Commonwealth of Pennsylvania v. Diane Alice Dent  that Using the predominance test, in conjunction with analyzing skill versus chance using the four prong dominant factor test, it is apparent that skill predominates over chance in Texas Hold’em poker.  First, each player has a distinct possibility of exercising skill & has sufficient data available to make an informed judgment.  Second, each player has the opportunity to exercise the skill, & they do possess the skill (albeit in varying degrees. Third, each player’s skill & efforts sufficiently govern results.  Fourth, the standard skill is known by the players & governs the results. Skill comes with varying degrees of competence, but that is the case with any competition involving skill. The academic studies & the experts generally agree that a player must be skillful to be successful at poker.  Although, there is equal chance of winning or loosing but the result is determined only through skill.  Successful players must possess intellectual &psychological skills.  They must know the rules & mathematics of the game along with psychological tricks. They must know when to hold & fold & raise. They must know how to manage their money. Thus the court found that Texas Hold’em poker is a game where skill predominates over chance. Thus, it is not ‘unlawful gambling; under the Pennsylvania Crimes Code.”

Comparing poker with other games of skill and chance

The chance games do not have elements of skill involved in it and the outcome of such games is completely depended on luck. The games of roulette, craps, Keno, bingo, (traditional) slots, and lotteries are based on luck, whereas the games involving skill requires a player to take decisions and apply skill. On the other hand, poker which is a game of skill can very well be compared to games such as rummy, horse racing and chess which have been said to be games of skill in various Supreme Court Judgments.

In the case of State of Andra Pradesh v. K. Satyanarayana & Ors. It was held by Justice Hidayatulla that ” The protection of S.- 14 was not available in this case. Rummy is not a game entirely of chance like the ‘three-card game. It requires certain amount of skill because the fall of the cards has to be memories and the building up of Rummy requires considerable skill in holding and discarding cards. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out, there is an element of chance, because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone it cannot be said that Rummy is a game of chance and there is no skill involved in it of course”.

In the 1996 case of Dr. K.R. Lakshmanan v. State of Tamil Nadu and Anr. it was held taht if there is a preponderance or substantial degree of skill involved ina game then it can come under section 12 of the Public Gambling Act which says, “Act not to apply to certain games- Noting in the foregoing provision of this act contained shall be held to apply to any game of mere skill wherever played.” It was further maintained that betting in horse-racing is a skill and thus does not come under the ambit of gambling.

In 2005 the Madra High Court has also ruled that even though the games like chess and carrom are played with the payment of fees in clubs will not come under the purveiw of gambling because there is preponderance of skill.

Winning strategies used by professionals

  1. Messy stack of chips = loose player and neat stack of chips= tight player: the one’s who maintain a neat stack are conservative and are very less likely to bluff a lot.
  2. If a player makes a messy bet then cleans it up they are usually bluffing
  3. How a player buys chips: if a player makes a big show of buying chips they are going to play very aggressively
  4. The poker clack: when a player makes a sad clack sound it is to be noticed that the player has actually made a hand and is seeming to be sad.
  5. Nervous betting accompanies a strong hand: if a player is nervous then he/she is not bluffing but they bolster themselves to look rigid.

These are few of the strategies or tactics used by professional poker players. Any novice person can become professional in poker by gaining understanding and experience of the game.

Conclusion

Although there are states that have exempted poker from the perveiw of gambling still the rest of the country does not consider so. there are a lot of elements of skill involved in the game which sets the game apart from the chance games.

Although there is some element of luck involved but still there is preponderance of skill.  through the authorities cited and the various supreme court judgments which held the game of poker to be a game involving skill and excluding it from the purview of gambling. thus it should aid the Indian judiciary in excluding poker (specially the challenging Texas Hold’em poker) from the purview of gambling throughout India.

[1] http://nujslawreview.org/wp-content/uploads/2016/12/jaysayta.pdf 

[2] https://indiankanoon.org/doc/84963/

Author

  • Utkarsh Pandit

    Student of Law at Institue of Law Nirma University. He is interested in dispute resolution and litigation. He has authored several articles on Constitutional Law, Consumer Law, Information and Technology Law, Insurance Law etc.

Disclaimer

This article is authored by Utkarsh Pandit, Student at Institute of Law, Nirma University. Please do comment your views below in the comment section. It would help us to improve our content. Also, let us know if you want us to cover blogs on any other topic. The views and opinions expressed in this article are those of the author and do not reflect the views and opinions of Legally Flawless or its members.

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