LAST WEEK, Parliament passed the Promotion and Regulation of Online Gaming Act, 2025, after only a few minutes of debate. The law ostensibly aims to promote online gaming and protect individuals with respect to social, economic and privacy-related concerns. The Gaming Act goes on to completely ban online games involving real money, such as rummy and poker. Perhaps the foremost question on everyone’s mind is this: Why do we need the government, and the Union government no less, deciding whether adult citizens in a free country can play games?
Generally, the Union government’s legislative powers extend to either the provision of public goods that require scale, such as defence or communication, or coordination for policy measures, such as welfare, that require some uniformity or equalisation across states. In India, the Union’s powers are enumerated in the Constitution.
Games and sport are neither public goods reliant on economies of scale nor count as welfare. Legally, sport is enumerated alongside “entertainments and amusements” as a field of regulation left to the states. States are thus free to enact laws as they see fit, keeping their policy programmes in mind, as was the practice so far.
The Union government is no doubt aware that it does not hold the power to regulate either gaming or gambling. It declares, in the preamble of the Gaming Act, that it is “expedient in the public interest for the Union government to assume legislative competence over the online gaming sector…” to secure a safe, innovation-friendly digital environment while addressing the public health, public morality and financial sovereignty risks of online gaming. What the government means is clearer in the press release on the Gaming Act.
Gaming addictions and disorders abound among players of online real-money games, it says, citing the World Health Organisation. Indian youth are noted to be fast descending into financial precarity and a mental health crisis through the allure of these “predatory gaming platforms”. The only trouble is that even public health is a field of regulation assigned to states. Moreover, the law is already cognisant of the difference between gambling and gaming. The field of betting and gambling — which would cover online speculative games like fantasy cricket played for real money, for instance — is also left to the states to regulate.
The government also raises financial fraud, money laundering and cybercrime as risks associated with online real-money games. It is apparent that its claim to regulation, in an override of the states’ powers to regulate gaming, gambling, public health, and even trade and commerce, is over real-money games played online. But why must the same games that are kosher offline be subject to a prohibition online?
Governments in the past have worried about online money games because they are, ultimately, just software written through code. Offline, games like rummy or poker, although played for real money, are constrained by the mathematical possibilities of the deck of cards. There are also other constraints like the game-play impossibility of the dealer manipulating the unopened cards or the players faking their identity to defraud other players. Online, the same games are unconstrained by the rules of the game. The dealer is software created by the gaming company, and players can theoretically hide behind the internet to engage in fraud or other kinds of cybercrime. Playing rummy or poker and other such games online for real money signals to the government a sure-fire way to blow up one’s financial life against odds that are coded to be stacked against the players.
Of course, to defend the law in court, the government will have to demonstrate these claims with evidence on the architecture of online money games. But let us for a moment assume the truth of the government’s case, that online and offline poker or rummy may be differently treated in law. In constitutional law, the ends do not justify the means. Not only should the means be rationally related to the object of the Gaming Act, they should also be necessary, suitable and proportionate to achieve the objective of the Act. If not, there is no real way to justify why adults in a free country cannot have the liberty to play games of their choice for real money online, especially if they can play the same games offline.
Here are some questions that went unanswered given the scant debate in Parliament when the law was passed. Does an outright ban on online real-money games have a “rational nexus” to the object of the Gaming Act, which is to prevent a mental and financial health crisis among the Indian youth? Is the ban going to kill the existing appetite for online gaming? Is it perhaps more likely that these online money games will just go underground, unregulated, untaxed and ultimately unaccountable? What is the determining principle underlying the classification between online and offline real-money games, if there is no real way to exercise regulatory oversight and control over online money games that go “dark”, and become accessible otherwise, like through VPNs?
Why not regulate the way gaming companies set up and offer online real-money games, say through licensing requirements? Is there no way to strictly enforce a limit on who gets to play these games or a limit on the stakes they choose to play for? Would stringent fiscal controls over gaming companies not achieve these very same goals?
Isn’t the real need of the hour to offer mental health support to those who might be drawn to squandering their youth on online real-money games due to a gaming disorder? Or to perhaps generate employment opportunities for those who seek to make money online for lack of better alternatives? At what point do free adults get to choose what games they play — and take responsibility for the consequences of those choices — without the paternalistic state stepping in to guide their hand?
The writer is an advocate based in Bengaluru
