A prominent question discussed among the poker community of India/Kerala these days is will Kerala government make playing poker legal in the state? However, the question itself is incomplete till we ask another more significant question. The question is it legal to play online poker in the state of Kerala? Perry4Law Law Firm believes that to appreciate the legal position of poker in the state of Kerala, we must first analyse whether playing poker is legal or illegal in Kerala. Further, we must also understand whether running of a poker business in Kerala is legal or not. If the answer to both these questions is in affirmative, then only we can proceed further to decide whether playing of online poker and running of an online poker website are legal or illegal in Kerala.
Many online poker and online rummy websites have simply ignored this essential legal exercise and they are already in legal tangles. It is obvious that offline and online poker are totally different fields and their legal obligations, liabilities and rights are also different. Most of the rummy and poker websites and businesses are violating Indian laws by simply applying the traditional and untested legal principles to modern days gaming conditions. If this was the case there was nothing that could have prevented the central government or Supreme Court of India from declaring online poker or online rummy legal in India. On the contrary, the central government refused to give its opinion and the Supreme Court decided not to legally analyse the legality of online rummy and online poker in India.
If this is the position, it is strange that some online poker and online rummy websites in India are claiming that playing and running of such businesses are legal in India without any legal compliance. Just like any other business, neither online poker nor online rummy are legal in India till these websites comply with techno legal requirements as prescribed by Indian laws. Similar rules apply to online fantasy sports in India that are required to comply with techno legal requirements of Indian laws.
Recently members of the All India Gambling Federation (AIGF) met the Kerala government seeking a revision to existing norms on gambling. However, the Kerala government has not given any assurances regarding this as the government had to first consider the issue in detail. This action of Kerala government is in line with the communication/recommendations of Perry4Law Organisation (P4LO) that it had/gave to the Kerala government recently. We discussed about the media reports that claimed that Kerala is considering declaring games like poker, online games, etc as games of skills. However, when it comes to online poker, online rummy, etc this becomes a tricky issue and we conveyed this fact to Kerala government very clearly and with a good set of techno legal research works of Perry4Law Organisation (P4LO). We would update our readers in this regard whenever we have any further information from Kerala government and if the same is not detrimental to the interests of Kerala government and our own interests.
Perry4Law Organisation (P4LO) is presently working in the direction of providing a techno legal framework for online gaming industry in general and online gambling industry in particular. Online gaming field requires consolidation but the same is not possible till there is a common set of legal framework that all States of India follow. Perry4Law Organisation (P4LO) is also in touch with other states in this regard and we have got positive response from them so far. We are very optimistic that even the state of Kerala would cooperate with us in this regard.
The Kerala Games Act 1960 is very stringent regarding gambling and gambling related activities. For instance, Section 11 of the Act provides that it shall not be necessary, in order to convict any person of keeping a common gaming house or of being concerned in the management of any common gaming house, to prove that any person found playing at any game was playing for money, wager, bet or stake. However, Section 14 of the Act provides that nothing in the foregoing provisions of this Act shall be held to apply to any game of mere skill wherever played. The terms “wherever played” here means played within the territorial boundaries of the state of Kerala alone and not outside the same. Section 14A of the Act provides that the Government may, if they are satisfied that in any game the element of skills is more predominant than the element of chance, by notification in the Gazette, exempt such game from all or any of the provisions of this Act, subject to such restrictions and conditions as may be specified in the notification. Thus, it is possible for the state of Kerala to exempt offline games like poker, rummy, etc from the applicability of this Act. However, when it comes to online poker, online rummy, online fantasy sports, etc the state of Kerala cannot has its way so easily. Even if offline poker is declared to be exempt in Kerala that would be subject to many terms and compliances that offline poker businesses have to follow. These terms, conditions and compliance requirements can be prescribed by the state of Kerala only once it analyses the legal situation in great detail. And this is exactly what the state of Kerala has intimated to AIGF.
The offline and online poker, rummy and online fantasy sports stakeholders must also not take the Kerala Act very lightly. Section 19 of the Act provides that any police officer not below the rank of a Sub Inspector of Police may arrest without a warrant any person committing in his view any offence made punishable by this Act. Online poker, online rummy and online fantasy sports websites can be easily prosecuted in Kerala if they fail to comply with cyber law due diligence (pdf) and many more techno legal requirements as prescribed by Indian laws. Kerala government is not very enthusiastic when it comes to online gambling and related activities. For instance, the Kerala Gaming (Amendment) Act, 2005 has banned online lotteries in the state of Kerala. It means that Kerala is moving in the direction of banning online gambling rather than promoting it despite the contrary claims of media reports.
Perry4Law Organisation (P4LO) may provide its techno legal suggestions to Kerala government in this regard if requested to do so by the Kerala government. As far as gaming and gambling stakeholders are concerned, we would like to stress that they must ensure techno legal compliances to stay on the right side of the law.