From “Blue Whale Challenge to PUBG”- Is regulating Online Gaming Need of the Hour?
Written by Gururaj D. Devarhubli
“Man is a gaming animal. He must always be trying to get the better of something or other.”
Since ancient times, games, along with cinematograph films, have been a great source of entertainment. People of all age groups, be it a denarian or a nonagenarian all love games. The trend of playing games with the help of computers started in India in the 1990s where several computer games like Prince, Need for Speed, Motocross Madness, Midtown Madness, Minesweeper, Solitaire, etc. were being played. The fact that these games could be played any time at one’s convenience have given rise to their popularity. Moreover, the success of the video game collection ‘Desi Adda: Games of India’ gave easy access to the traditional games of India like kite fighting, kabbaddi, pachisi and gilli danda. Today, all the traditional games which ones were played with group of friends in a playground are now being played online with the help of computers and internet..
Even the games which do not involve any physical activity like chess and carrom which test one’s mental capability are also now being played on computers. These instances have given rise to the use of computers. Similarly, games like Asphalt 8, Temple Run, Subway Surfers, Mini Militia, etc. have increased the use of mobiles. Today, mobile companies are manufacturing smartphones exclusively for gaming purposes. Most of today’s games are developed keeping in mind the adolescents and youth, which are their primary users. Today there are numerous games to which the youth is exposed which involve different genres like action, adventure, sports, etc. Within this wide spectrum there are some games which are of such nature that arouse a particular negative behavior among children. In such scenario, it is necessary to consider several issues like regulation and censorship of online games.
The growth of the Indian Gaming Industry is highlighted by KPMG in its report titled “The evolving landscape of sports gaming in India” The report highlighted the following:
- The Online gaming industry, which generated revenue of Rs. 43.8 billion would generate revenue of Rs. 118.8 billion by 2023.
- In 2017 mobile games had a share of 89% in generating revenue by online gaming.
- The number of gamers in India increased from 20 million in 2010 to 250 million in 2018.
- Similarly, the number of game developing companies in India saw a ten percent increase from 25 million in 2010 to 250 million in 2018.
- In terms of device preference, it was highlighted that 85% of people preferred playing games on mobile while PC/Laptop and Tablets stood second and third respectively.
- India saw seven times increase in the number of fantasy sports operators within a span of two years from 10 in 2016 to 70 in 2018.
- The rate of internet penetration in India saw an increase of 34%, from 368 million in September 2016 to 560 million in September 2018.
The report further highlighted that the three key segments of online gaming are:
- Real Money Games (RMG) – It includes daily fantasy, rummy, poker, quizzing, etc.
- Mobile-centric/casual games – It includes games like candy crush, subway surfers, temple run, etc.
- E-Sports – It includes games like Counterstrike, FIFA, PUBG, etc.
With the increased penetration of internet, gambling and betting have undergone a change in the manner in which they are played. As highlighted by the KPMG Report, the gaming industry in India, particularly the online gaming has seen humongous growth both in terms of revenue as well as subscribers.
Thus, the author highlights on the aspect of regulation of online games. It gives a brief history of gaming laws in India and compares it to USA which has extensive regulations of gaming/gambling. It also analyzes the recent Sports (Online Gaming & Prevention of Fraud) Bill, 2018 along with case laws pertaining to online gaming and gambling.
2. History of Betting and Gambling in India
Betting and Gambling have been in existence since the existence of human civilization. Today, they are considered as an integral part of human civilization. The word “gambling” has different connotations and it includes gaming, betting, races, wagering, etc. Even some mythological texts, like Ramayana Mahabharata mention about gambling as a sport.
The mythological story of Nala and Damayanti, depicts that gambling existed in ancient India. In fact, laws were framed in ancient India to regulate it. Like Yagnavalkya, the Narada–Smriti and Kautilya, all advocated that gambling should exist under the control of the State.
Also, Katyayana Smriti mentions about Gambling. Verses 935 to 939 mention that:”If gambling cannot be stopped in the kingdom, it shall be regulated. Gambling should be allowed to be carried on openly in the gambling hall (the hall licensed for the purpose). The gambling hall should be provided with an ornamental arch to indicate that it is a gambling hall, so that respectable men may not mistake the nature of the place. The King should impose tax on gambling and make it a source of income. Gambling could be carried on openly after payment of tax to the King.”
With the passage of time, the forms and ways of betting and gambling have changed. Today, people gamble and bet over phone, SMSs, Skype etc. Easy access to internet betting sites, having a global presence has made regulation of betting a serious challenge. Telecommunication technology and global bank transfers have linked betting hosts into networks. But despite these developments, ‘skill’ or ‘chance’ is still a decisive factor in determining the legality of gambling and betting in India.
3. Regulation of the Gambling/Gaming Industry
Position in USA
Based on the style of being played, the games can be divided into the following three basic formats: (a) lotteries; (b) wagers; and (c) gaming. All lotteries are gambling, however, not all forms of gambling are lotteries. The same holds true for gaming and wagering. Lotteries and games of chance depend on the generation of random numbers within set parameters: possible results available from fifty-two cards, two dice, three reels, etc. Sports betting depend on odds and payoff calculations, measured against results transmitted real-time. All these formats, therefore, are particularly adaptable to the use of computer software and online communication—in other words, the Internet.
The legal distinctions between the different formats and the individual permutations of a given game or style of play are based on historic accidents as much as any technical differences. Precedent, tradition, the moral sentiments of the time, and political currents has as much to do with a game’s legal status as its actual operation or mechanics of play. For example, during the 1820s and 1830s, and again at the end of the nineteenth century, a series of scandals led to the widespread repression of lotteries in the United States. Many states demonstrated their reforming zeal by outlawing lotteries in their state constitutions. In some cases, these prohibited lotteries were defined as including all activities with consideration, chance, and prize, which would include all forms of gambling. This prohibitionist zeal later resulted in unintended consequences, such as the legalization of tribal casinos, when courts ruled that tribes could operate any form of gambling permitted in the state and states had state lotteries.
The concept of pooling wagers, betting on a winning number or token, to be drawn by chance, dates from remote antiquity and retains its appeal today. Lotteries have come to be identified as a distinct genre, more because of their unique legal position as state approved and sponsored entities, rather than any major difference between lotteries and other number-picking games such as keno or bingo. But, even if the different categories are the result of tradition and legal fiat, classifying a game as a lottery, rather than as a form of gaming, can determine whether the game may be legally offered online.
Jurisdictions are free to decide for themselves what is, and is not, a lottery. Governments have looked at factors such as whether a game is 100% chance, whether there are paper tickets involved, whether players have to go to a particular place to participate in the play of a game and whether there is a pooling on bets to create the prize.
The most common types of lotteries are those operated by governments. However, even these state lotteries may be completely private enterprises, licensed by the local government. Because virtually every jurisdiction prohibits non-authorized lotteries, completely privately owned and operated lotteries are rare today.The expense and trouble are considerable, customer trust is hard to establish, and most operators prefer to engage in a lottery that has government backing.
Today, government-sponsored lotteries are by far the most numerous. These have been enormously successful, because they are usually monopolies and the approval of the government is generally held to indicate an honest, reliable game. In practice, very few governments actually operate their own lotteries. Most grant licenses to private operators, which include use of the State’s name and endorsement. Government permits range from merely selling licenses—the approach in many offshore locations—to requiring complete background checks and continuing oversight of operators, as in Europe, Australia, and the United States.
Charity raffles are almost always operated pursuant to rules laid down by state, provincial, or municipal authorities. There is a common misconception that private individuals can conduct raffles, such as selling their home on the Internet, so long as some of the profit goes to charity. In fact, these are almost always illegal. Some states, such as California, expressly prohibit charities from selling raffle tickets online. Some states still outlaw all raffles. But even the states that do permit drawings require that the funds go to the charity and not to any private individual.
Although lotteries can encompass almost every type of gambling, including sports betting in Europe and video lottery terminals in the U.S. that are indistinguishable from slot machines, the most common lottery games are instant (scratcher-type) and drawings.
For scratchers, the player uncovers a certain number of hidden dots and squares over dots or squares on the scratcher card or similar device. Scratchers are similar, if not identical, to older forms of paper instant tickets, the pull-tab and punchboard. Pull-tabs are still quite common, especially in bingo opera- tions, and are identical to scratchers, except that players pull off a piece of paper rather than scratch off a latex covering to reveal the hidden symbols. Punch- boards, which are rare today, consisted of a board with many covered holes. Players would pay the operators for the right to punch out one of the holes, which contained small slips of paper. If the slip indicated it was a winner, the player was paid by the operator.
Scratchers, pull-tabs, and punchboards were often described in the law as “paper slot machines.” The similarity to modern electromechanical slots is clear when these games are offered on stand-alone video machines or on the Internet. A player “buys” one of these tickets, which may be merely data stored in a cartridge or computer with no physical counterpart. The image of the ticket appears on a screen. The player presses a button or rubs the screen to reveal symbols which are often identical to those found on conventional slot machines.
These games are often made expressly legal by statutes and regulations. The Indian Gaming Regulatory Act in USA, for example, includes “pull-tab” as a Class II game similar to bingo that can be played wherever bingo is played. The Act allows electronic aids, and video pull-tab dispensers can be found in tribal bingo halls across the nation.
Instant games rarely have large prizes. Number drawings, like lotto, are the opposite, often offering life-changing, multi-million dollar jackpots. For state and national lotteries, the drawing is usually held at least weekly, often televised.
A particular lottery program or business can, and usually does, offer both types. When lotteries were first reintroduced in the late twentieth century, the lottery format was a stand-alone offering, not mixed with other formats. As competitive pressures grow, however, more and more lottery authorities are authorizing additional and subsidiary games such as keno to be offered as additional attractions.
Lotteries were outlawed in the U.S. from the 1890s until the 1960s as a result of cheating and corruption scandals at the end of the 19th century. New Hampshire brought back the lottery system in 1963 and other States subsequently followed. At one point of time, 42 out of 50 States including the District of Columbia sponsored them.
The lottery system was reintroduced in the 21st century which was backed by modern methods to sell and distribute lottery tickets. The most important development was the introduction of a wire link from the point of retail sale to the central lottery computer server. These electronic sales are referred to in the lottery industry as “online” to distinguish them from the paper-based scratchers. However, the distinction has been interpreted in different ways by different categories of people. When State lotteries refer to “online games”, it almost always seems to include the lottery not played on internet while in case of other gaming operators it seems to include those games played on the Web or through a closed network.
The generic definition of “wager” is to risk something on the occurrence or non-occurrence of a particular event outside of the bettor’s control. All wagering is gambling except paying an entry fee to compete in a contest of skill. The reason for the exclusion is that a contestant who “puts his money where his mouth is” has a great deal of input to, if not absolute control over, the results.
Betting on races from homes and offices, first by phone and then by computer, started slowly. In 1990, the New York State Legislature amended the state’s Racing, PariMutuel Wagering and Breeding Laws to allow telephone betting by both residents and non-residents. The statute was in direct contrast with the State’s Penal Law. While the latter prohibited bookmaking, as well as receiving and forwarding money wagered on horse races, the former explicitly allowed telephone betting by both residents and non-residents.
The expansion of remote wagering on races was necessary to meet competition presented by faster, less skillful forms of gambling introduced by the state lotteries and casinos. The legalization of lotteries and other forms of gambling in the US signaled the end of the near-monopoly that horse racing had enjoyed over the gambling public since the Depression in 1920s.
The remote wagering, however, had to face one hurdle in the form of the Interstate Wire Act. The said Act expressly prohibited taking bets by interstate telecommunication facilities. However, it exempted those bets which are legal both at the place where the bet originates as well as where it is taken. The major focus of the Act were illegal bookies and to eliminate “the wire”, the telegraph which were being used by them to extract instantaneous information on horse races. The Act, however, did not cover a situation where a bet is taken by a licensed OFF-Track Bettor (OTB) from accepting wagers out-of the State. To overcome this situation, the Congress expanded the definition of “interstate off-track wager”. As per the amended definition, an “interstate off-track wager” means a legal wager placed or accepted in one State respect to the outcome of a horserace taking place in another State and includes pari-mutuel wagers, where lawful in each State involved, placed or transmitted by an individual in one State via telephone or other electronic media and accepted by an off-track betting system in the same or another State, as well as the combination of any pari-mutuel wagering pools.
Banked vs. Non-banked
Card games can be classified into two: (a) “banked”; and (b) “non-banked” or “round” games. In a banked or banking game, the players compete against one player, usually the gaming establishment, rather than against one another. The term arises from the definition of a bank: in a banking game there is literally a fund of money against which players bet. The banker does not, in fact, make a bet. Rather, the banker “fades” or matches, up to the house limits, the bets made by the players.
In 1804 Henry Clay defined banking games as being “those in which one player is continually opposed to all the others . . . In other games, the single player that may be opposed to two or three others usually takes the responsibility upon himself, and for one deal only, so that any advantage he may have is temporary. In banking games, on the contrary, the opposition is continual.”
The distinction between a “banking” and “non-banking” game was well-recognized as the former term had a more legal significance which extended beyond merely describing a type of game. “Banking” games required a different procedure in criminal cases than non-banking gambling games. In a criminal indictment charging a defendant with betting on a non-banking gambling game, it was “necessary to set out the names of the persons by whom the game was played, because, unlike the banking games, it is the playing which constitutes and identifies the particular game.”
In Cumming v. State, where the house did not bet but merely took flat five cents for each two throws, was held as not a “banking” game. Similarly, in State v. Bradley it was held that poker is not a banking game. Thus, to be a banking game there must have been “one against the many—the exhibitor, with an interest in the game, against the bettors.”
Banking games are usually also percentage games—that is, the house participates in the game, taking on all other players, with a percentage advantage in its favor. Roulette is the easiest example, since the presence of the zero and double-zero make the house’s advantage obvious. There are 38 numbers on an American roulette wheel: 18 red, 18 black, and two green. A player who bets on a single number is paid off at odds of 36 to one. But the true odds are 38 to one. Similarly, a player who bets on black is paid even money if he wins. But he has only 18 ways to win but 20 ways to lose. The house makes its money in percentage games, not so much from taking the bets of the losers, but by underpaying the winners.
Casino gambling is thus one of the few businesses in the world where the operator makes its money by beating its own customers at games of chance
Other Table Games
Apart from “banking” games, there are “non-banking” or “round” games such as poker. These games are played among individual players with no house participation and no single participant has a continuous advantage. In Poker, for example, the operator is not a player, there is no house and the losses go to other players. Online poker operators derive their revenue from renting “seats,” charging per hand or by taking a percentage of winnings, known as “raking the pot.” Internet poker has obviously become big business, attracting both professionals and amateurs.
Though skill games are not gambling, even if played for money and awarding valuable prizes but it can be regulated. The federal and various state governments are also free to decide whether a game is pre- dominantly skill. The result is a wide variety in the way the same games are treated under the law.
The term “skill game” (sometimes “amusement” or “novelty”) means “a game whose outcome is decided primarily by skill rather than chance.”
Games such as backgammon, whose moves are controlled by dice, and mahjong, which depends on the draw of randomly mixed tiles are not gambling. The reasons for the exclusion are that these games have too much skill or are otherwise not designed to work well in mass-market casinos. These games were introduced as entertaining sidelines and were never considered serious gambling games by most members of society.
Position in India
The Finance Act of 1994, under Section 65B (15) defined “Betting or Gambling”. It provides that:
“Betting or Gambling” means putting on stake something of value, particularly money, with consciousness of risk and hope of gain on the outcome of a game or a contest, whose result may be determined by chance or accident, or on the likelihood of anything occurring or not occurring.
“Lottery”, enumerated under Entry 40 of List I of the Seventh Schedule of the Constitution of India, has been generally excluded from the ambit of “gambling”, which is a State subject under Entry 34 of List II of the Seventh Schedule. The Public Gambling Act, 1867 (as applicable to States such as Himachal Pradesh and Madhya Pradesh) as well as section 2 (i) of the Delhi Public Gambling Act, 1955, suggest the same. The Goa, Daman and Diu Public Gambling Act, 1976, expressly define the term ‘gaming’. It provides that ‘gaming’ includes:
- Wagering or betting and includes wagering or betting on the digits of a numerical figure arrived at be manipulation in any manner whatsoever, or on the order of the digits, or on the digits themselves or on pictorial representations;
- Any transaction by which a person in any capacity whatever employs another person in any capacity whatever or engages for another in any capacity whatever, to wager or bet with any other person; and
- the collection or soliciting of bets, receipts or distribution of winnings or prizes in money or otherwise in respect of wagering or betting or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution, but does not include a lottery.
As regards the Indian Judiciary, the Hon’ble Supreme Court of India defined gambling as follows:
“Gambling in a nut-shell is payment of a price for a chance to win a prize. Games may be of chance, or of skill or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are all modes of chance…A game of skill, on the other hand – although the element of chance necessarily cannot be entirely eliminated – is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even Rummy are considered to be games of skill.”
The Calcutta High Court in Bimalendu De v. Union of Indiadefined gambling as:
“Making a bet occurs when there is a chance for profit if a player is skilful and lucky…A play for value against an uncertain event in hope of gaining something of value…It involves not only chance, but a hope of gaining something beyond the amount played. Gambling consists of a consideration, an element of chance, and a reward…The elements of gambling is payment of a price for a chance to win a prize.”
By referring the Strouds Judicial Dictionary and the Black’s Law Dictionary, the Supreme Court defined “Gaming” as follows:
“Gaming is to play any game whether of skill or chance for money or money’s worth and the act is not less gaming because the game is not in itself unlawful and whether it involved or did not involve skill.”
Even though Betting and Gambling are primarily wagers and are considered synonymous, there is a slight distinction between the two. Explaining the distinction between the two, the Madras High Court highlighted that:
“The principal distinction between gaming and betting or wagering is thus immediately apparent; in gaming the stake is laid by the players upon a game, the result of which may depend to some extent upon the skill of the players, but in a bet or wager, the winning or losing of stake depends solely upon the happening of an uncertain event.”
Therefore, one may conclude that wagering includes gambling, betting and gaming. An important distinction between betting and gambling is that in gambling, the stakes or wager is placed on an event without any clue of the outcome; whereas, in betting the stakes are placed on an event, the outcome of which is based on the performance of the players, influenced by their skill.
On the question of whether gambling and betting are a game of chance or skill, the Courts in India have varied opinions.
In RMD Chamarbaugawala v. Union of India, the Supreme Court relied on the ‘skill test’ to decide whether an activity is gambling or not. The court held that competitions which substantially involve skills are not gambling activities but are commercial activities, protected under Art. 19 (1) (g).
Based on the same test, the Apex Court in State of Andhra Pradesh v. K. Satyanarayana & Ors. held rummy preponderantly to be a game of skill and not of chance. The Court further observed that, “it requires certain amount of skill because the fall of the cards has to be memorized and the building up of rummy requires considerable skill in holding and discarding cards”. The expression ‘mere skill’ means presence of skill of a substantial degree.
On the question of whether a horse racing is game of skill or chance, the Supreme Court highlighted the distinction in K.R Lakshamanan v. State of Tamil Nadu & Anr. and stated that:
“In a game of skill […] although the element of chance necessarily cannot be entirely eliminated, is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player.”
On the question of whether horse-racing is a game of skill or chance, it was observed that the outcome in a horse race depends on several factors like form, fitness and inherent capacity of the animal, the ability of the jockey, the weight carried and the distance of the race, which are all objective facts capable of being assessed by persons placing the bets. Thus, unlike lottery, the prediction of the result of the race is an outcome of knowledge, study and observation.
In Pleasantime Products v. Commissioner of Central Excise, Mumbai – I, the Supreme Court, while considering whether ‘scrabble’ is a puzzle or a game, held that scrabble is a game. It was also observed that, unlike puzzle where the outcome is fixed, scrabble is a game of skill as the skill of player influences the outcome.
In M.J. Sivani case, the Supreme Court, while determining the issue of the legality of prohibition on video games, under Section 2 (7) of the Mysore Police Act, 1963, observed that, even if video games were considered to be games of skill, the outcome could be manipulated by tampering with the machines. Therefore, the court refused to grant protection to these games.
From the analysis of the above cases, two principles can be established:
- Prize competitions and contests, where the winner is determined by draw of lots are in the nature of gambling and cannot be extended protection under Article 19(1)(g) of the Constitution of India.
- Games where preponderance of skill dominates cannot be considered gambling and are protected under the Constitution.
4. Need for Regulation
There are no specific Central Laws governing online gambling in India. Among States, only Sikkim and Nagaland have enacted laws which expressly permit online gambling/gaming.
While the Sikkim On-line Gaming (Regulation) Act, 2008 restricts the offering and playing of “online games and sports games” to the physical premises of gaming parlors through intranet gaming terminals within the territory of the State, the Nagaland Prohibition of Gambling and Promotion and Regulation of Online Gaming Act, 2016 on the other hand, seeks to provide for pan-India application of licenses obtained there under.
Some of the major problems related to illegal gambling and betting activities are the exponential growth of illegal trade and commerce, and corrupt practices such as spot-fixing and match-fixing being employed in sports, particularly cricket, the most popular sport in India.
As per the data available from the Delhi Police, in 2016 itself 1098 cases have been registered under the Gambling Act while in 2017 it increased to 1273. The Delhi Police terms gambling as a “connecting crime”. It connects the gambler with other criminal activities. In order to regain the lost money or in an attempt to ‘invest’ more money into gambling, expecting more return, when gambling is not in a regulatory framework, an illegal gambler is bound to end up in committing other crimes like chain snatching, looting, stealing, etc. Legalizing gambling and betting effectively regulating such activities could curb creation of more and more criminals.
The Sports (Online Gaming and Prevention of Fraud) Bill, 2018
In light of the absence of regulation at the Central level, Shashi Tharoor, Member of Parliament has introduced a private member’s bill titled “The Sports (Online Gaming and Prevention of Fraud) Bill, 2018. The Preamble mentions that it is a Bill “to establish an effective regime to maintain the integrity of Sports in India by preventing and penalizing Sports Fraud, regulation of Online Sports Gaming, and for matters connected therewith or incidental thereto.” To prevent fraud committed through Online Gaming and to prevent illegal betting websites, the Bill seeks to set up a licensing mechanism. Under the said mechanism, any person who wants to operate on Online Gaming Server must obtain a license under the Act, failing which an imprisonment of three years or a fine will be imposed under the sad Act. Section 2 (b) defines the term “bet”. The term with all its grammatical variations means any money or a valuable security or a thing staked by a person on behalf of himself or through an agent or any person procured or employed, acting for or on his behalf, to be lost or won on the happening or determination of an unascertained thing, event or contingency of or in relation to a game or sport and shall include acceptance of a bet. The Bill also seeks to define the term “Online Gaming Website” which means games involved in the prediction of the results of a sporting event and placing a bet on the outcome, in part or in whole, of such sporting event, by means of a telecommunication device. Similar to the Competition Act, 2002 which establishes the Competition Commission of India to regulate and promote “fair” competition, the Bill seeks to establish the Online Sports Gaming Commission. The main functions of the Commission are:
- To oversight the functioning of Online Gaming Websites;
- To track illegal Online Sports Gaming;
- To track suspicious betting patterns of persons including licensees;
- To Co-coordinate with State and Central law enforcement agencies to curb illegal Online Sports Gaming;
- To make periodical or regular reports to the Central Government on any matter pertaining to Online Sports Gaming;
- To suggest appropriate measures to control or curb illegal Online Sports Gaming;
- To issue, suspend or revoke licenses and to determine fees for license applications and license renewals; and
- Any other matter referred to by the Central Government.
In totality, the Bill would be an effective step to organize the gaming industry which is largely unorganized and lacks regulation. With the growing rate of the gaming industry and with the affordability of smartphones, it becomes imperative to establish a regulatory mechanism for the online gaming sector in India. Commenting on the same, Shashi Tharroor while introducing the above Bill highlighted its advantages:
- It will generate considerable revenue;
- It will generate employment;
- Development of tourism as it may work as a complimentary industry;
- It will protect the vulnerable sections of the society; and
- Prevent any kind of inconvenience at the hands of the law enforcement authorities.
Thus, from the above it is clear that rather than imposing a complete ban on online gambling/gaming, there is a need to regulate the industry. The first step towards the regulation would be the passing of the Sports (Online Gaming and Prevention of Fraud) Bill, 2018.
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