Is ‘Andar Bahar’ a game of chance or skill? Why Karnataka HC will re-examine

In State of Bombay v RMD Chamarbaugwala (1957), the court held that competitions where success depends substantially upon skill fall outside the concept of gambling. Such activities are legitimate business activities protected under Article 19(1)(g) of the Constitution, which guarantees the right to practice any profession, occupation, trade, or business.

It rejected the idea that even a small amount of skill is enough to take a game outside the ambit of gambling laws. Instead, it held that a competition “in order to avoid the stigma of gambling must depend on a substantial degree upon the exercise of skill.”

The principle was then applied in State of Andhra Pradesh v K Satyanarayana (1968), where the SC considered the game of rummy. The court acknowledged an element of chance whenever cards are shuffled and dealt, but held that rummy is a game of skill, as it “requires a certain amount of skill because the fall of the cards has to be memorised”.

In 1996, in Dr K.R Lakshmanan v State of Tamil Nadu, the SC said that a game of skill is one in which success depends on the player’s “superior knowledge, training, attention, experience, and adroitness,” while a game of chance is one in which “chance predominates over skill.” Since most games contain an element of both, the court said it is the “dominant element” that determines a game’s legal character.

The latest case

Andar Bahar is a card game in which players bet on which of two sides, Andar or Bahar (inside or outside), will receive a matching card first. After a card is placed face up, players bet on whether a matching card will appear first on the inside or outside as cards are dealt alternatively.

A petition was filed seeking the quashing of criminal proceedings that arose from information the police received in August 2020 that “10 to 20 unknown persons” were gambling by staking money in the Thokuru village of Mangaluru Taluk.

The prosecution’s case is that the accused persons, including the petitioners, were “playing a game known as Andar Bahar by placing money at stakes.” Police seized around Rs. 63,815 in cash, 16 mobile phones, playing cards and seven vehicles and booked them under Sections 79 and 80 of the Karnataka Police Act, 1963.

They argued that the proceedings deserved to be quashed because Andar Bahar is a game of skill, and that Karnataka’s courts have consistently taken this view since 1977, holding that wagering money on the game did not transform it into a game of chance.

That argument led the court to examine whether the precedent itself remained correct.

The precedent

The 1977 case arose from a police raid in the Bellary district, and 14 people were prosecuted for gambling through Andar Bahar. The trial court convicted them, and the Sessions Court upheld that conviction.

When the matter reached the High Court, Justice DB Lal found that the prosecution had failed to establish the nature of the game itself.

“The prosecution has not adduced any evidence to show as to how the game ‘Andar Bahar’ is actually played,” the court held. It said that the prosecution had relied almost entirely on the opinions of police witnesses, who described it as a game of chance.

Justice Lal held that the prosecution had therefore failed to prove that the accused were participating in a game of chance. He also rejected the argument that betting money automatically converted the game into gambling. “Even if any betting was resorted to and even if any pledge of movables was made in support of that betting, that by itself did not convert a game of skill into a game of chance…These facts by themselves never proved that a game of chance was being played or that no skill was involved in that game so that it could be considered to be a mere game of chance.”

Since a single judge cannot overrule a coordinate bench decision, the question of the status of the game has now been placed before a larger bench. A coordinate bench has the same number of judges as an earlier bench, so the earlier bench’s decisions are binding unless the matter is sent to a larger bench. Here, since a single-judge bench decided Eeranna, only a larger bench could overrule it.