SC to hear today constitutional challenge to Online Gaming Act; plea says ban on games of skill violates ‘fundamental right’

In its counter-affidavit filed on Tuesday, the Centre has argued that the plea for interim protection cannot be heard at this stage. “Though the Act has received the Assent of the President, no Notification has been issued by virtue of Section 1(3)…the provisions which have been impugned in the present Writ Petition are not in force,” the government said, adding: “Any hearing and consequential order on the interim relief sought by the Petitioner would be premature as the Petitioner is not affected in any manner whatsoever.”

Can be regulated, not banned: Petitioner

Head Digital Works said offering games of skill for stakes is a lawful business protected by Article 19(1)(g). It argued that the Act “violates Article 19(1)(g) by imposing a blanket ban”, resulting in the suspension of operations and “civil death”. It said the law collapses the long-standing distinction between skill and chance. “Earning income from a game of skill is a protected fundamental right, and it can be regulated but not prohibited,” the petition stated.

The company submitted that the government’s stated concerns could have been addressed “through strict regulation and monitoring”, including licensing, age-gating and spending limits. It called the framework “manifestly arbitrary” for treating all money-based games alike. On the advertising ban, it said Section 6 “unduly infringes the right to free speech” since skill-based games are “a form of expression of mental agility and strategic decision-making.”

The Centre, however, maintained that “the competence to regulate the digital sphere is entirely with the Parliament”. The affidavit noted that the industry, including the petitioner, had earlier argued before the Supreme Court that regulation of online gaming “lies entirely with the Union”. “Having contended the same unanimously, it is not permissible for the Petitioner to approbate and reprobate,” it said.

No right to trade at cost of lives: Centre’s affidavit

On the rights issue, the Centre submitted that online money gaming is res extra commercium, i.e., the activity is not considered a legitimate business at all, so it does not get any protection as a trade under Article 19(1)(g). “Playing games of skill with stakes and offering the same can never amount to trade and commerce,” it said. Since the activity is outside legal commerce, Parliament “has unfettered powers to bring in such an enactment that introduces an absolute prohibition.”

It cited data showing public losses of around Rs 20,000 crore per year, and 32 suicides in Karnataka and 20 in Telangana linked to online money gaming between January 2023 and July 2025. “There can be no right to profession or trade at the cost of human lives,” the affidavit stated.

The Supreme Court is also hearing a linked Public Interest Litigation filed by the Centre for Accountability and Systemic Change (CASC), seeking immediate blocking of illegal betting and gambling apps, restrictions on offshore transactions and stronger safeguards for minors.

CASC said the new law is “silent on the question of a national-level ban” and allows betting apps to operate as “social” or “e-sports” games. The bench has twice directed the Union to file a response to the PIL, but no reply has been filed yet.