Written By Siddharth Addy
1. Background: –
Gone are the days when the young crowd use to wait for weekends to play cricket, football and so on. Everyone used to gather around in fields for a fun outdoor activity. However, since the advancement of technology we see there has been a sharp decline in outdoor gaming and now it has been taken over by E – Sports or famously known as Fantasy sport games, these games could be played via internet.
The anatomy of this games is, the player poses to be a filed manager or general manager or both in this game, they build roster through draft and create a lineup of team which would face off against other teams. The two most prominent games of fantasy sport in India are cricket and football.
Now the underlying concern herein is the commercialization of this industry has shown a growing interest in the people and more and more people are engaged in the activity of fantasy sports, the governments have an opposing view to the same and are of the opinion the same should be banned, now the point of concern here is that game of chance is concerned as illegal and is offence under the Gambling Act. In the next we would analyze between game of skills and game of Chance and come to concurring opinion on the same.
2. Game of Skill -Vs- Game of Chance: –
The Fantasy Sport is an online skill based tactical game which involves significant amount of application of mind; the player of the game is required to create and manage its own team and based on the final score at the end of the league the player with maximum score will win the game. The fantasy sport is a “game of skill” and not a “game of chance” as it involves many procedures which the users need to follow like, analysing the player, their statistics, opponent etc. which means the game does not fall under the ambit of the Public Gambling Act, 1867 as Section 12 of the said act says that game of ‘mere skill’ is not gambling .It is to be considered that fantasy sport owners have fundamental right under Article 19(1)(g) which gives them the right to lawful trade.
In the matter of Dr. K.R. Lakshmanan v. State of Tamil Nadu and Anr., where the Supreme Court has interpreted the word mere skill to include games which are preponderantly of skill and have laid down that (i) the competitions where success depend on substantial degree of skill will not fall into the category of ‘gambling’ and (ii) despite there being an element of chance, if a game is preponderantly a game of skill, it would nevertheless be a game of ‘mere skill.’
The legality of a fantasy sport game in India is based on the fact, that the game is a “game of skill” and not a “game of chance.” “Game of Chance” is a game whose outcome is mainly based on random assumption and luck factor while “game of skill” is mainly based on skills. In the matter Varun Gumber v. Union Territory of Chandigarhand&Ors., the Punjab and Haryana High Court expressed that, gambling is not protected by Article 19(1)(g) of the Constitution, fantasy game of the respondent could not fall under gambling as the game required substantial skills.
Previously, the courts in India have used the ‘predominance of skill test ‘to determine whether horse racing and card games like rummy and poker are ‘game of skill’ or not. In the matter of State of Andhra Pradesh v. K. Satyanarayana &Ors., the court stated that a game of ‘mere skill’ cannot be considered as gambling, also in the matter Dr. K.R. Lakshmanan v. State of Tamil Nadu and Anr, betting on horses is also considered as a ‘game of skill’ in India not a ‘game of chance,’ hence not gambling.
In the matter of Varun Gumber v. Union Territory of Chandigarh in the Punjab and Haryana High Court and also the matter of Gurdeep Singh Sachar v. Union of India in the Bombay High Court, both cases dealt with the fantasy sporting game Dream11.
Both the judgement upheld that Dream11 is a ‘game of skills’ and it does not fall under the ambit of the Public Gambling Act, 1867, the judgement was passed on the basis of the respondent’s submission.
The submission states that the users require to deploy considerable skill in drafting the fantasy team, the users are also required to know the rule and point system deployed by the game, the rate of success increases when the user has superior knowledge of the real game and they should have good judgement and attention skills, for example the selection of captain and the vice-captain, which needs good judgment of the real game, the performance of virtual team’s captain fetches the user x2 points and the vice-captain fetches x1.5points.
3. Conclusion: –
The game of fantasy sports has seen an increased trend in worldwide, the only underlying concern is that the addictive nature of the game shall not subject its players to gambling, The major concern is fantasy sport is to decipher the fact that it is a game of substantial skill, we refer to the case of State of Andhra Pradesh v. K. Satyanarayana &Ors where it was held that the courts in India have used the ‘predominance of skill test’ we see that the game of fantasy sports requires substantial skills therein the same is not an offence under section 12 of Public gambling Act, 1867.
However, it is undeniable that it is addictive in nature and is in nascent state, careful assessing of rules and set standards are to be drafted to regulate to ensure the future success of fantasy sport in India.