Karnataka HC: Playing online games protected under Article 21 (Right to Life)

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On Monday, a special bench of the Karnataka High Court comprising of Chief Justice Ritu Raj Awasthi, and Justice Krishna S. Dixit struck down certain provisions of the Karnataka Police (Amendment) Act, 2021 as ultra vires the constitution.

The parties in the petitions challenging the Karnataka online gaming ban law concluded the oral arguments before the High Court on 22 December 2021. The petitioners include gaming companies, individuals, and industry bodies. The Karnataka Police (Amendment) Act, 2021, notified on October 5 makes all forms of gaming for stakes, including online, a cognizable and non-bailable offence.

The petitioners include gaming companies Mobile Premier League, Games24x7, Gameskraft, Head Digital Works Private Ltd, and Junglee Games along with industry bodies like All India Gaming Federation (AIGF) and Federation of Indian Fantasy Sports (FIFS). The case which was initially listed before a single bench of Justice Krishna S Dixit was later transferred to a division bench of Chief Justice Ritu Raj Awasthi and Justice Krishna S Dixit.

The matter came up for hearing for the first time on 22 October 2021 and was listed on 12 days in total. A battery of senior advocates Dr. Abhishek Singhvi, Mukul Rohatgi, Gopal Jain, Sajan Poovayya, DLN Rao, Arvind Datar, and CA Sundaram appeared in the matter.

This third win by gaming companies in recent months by gaming companies. The petition which was initially listed only for interim relief was heard for final arguments based on the concurrence of all the parties involved. The petitioners relied on the recent judgments of Madras and Kerala High Court and also decades-old cases like RMB Chamarbaugwala, State of Andhra Pradesh vs. K. Satyanarayana. The Advocate General (AG) appearing for the government tried to differentiate between the earlier decisions and the present facts. The AG argued that games of skill would lose their nature when the public at large is invited.

Playing games protected under Article 21

An interesting argument taken by the petitioners is that the ban violates Article 21 since playing games & sports fall within the umbrella of ‘right to life & liberty’ and also a violation of the doctrine of privacy laid down by the Supreme Court in K.S. Puttuswamy case. Probably, for the first time, a Court in India agreeing with the petitioners held that playing online games is protected under Article 21.

The Court held that the jurisprudence over the years broadened the contours of the right to life & personal liberty, exponentially. “The thin line between entertainment and information often becomes elusive. Games arguably may not convey a discernible message, but even the noncognitive forms of expressions can be a means of promoting self-development and therefore, do not readily fall within the ‘unprotected category of expression,” the Court held. “These provisions of our constitution having become expansive by the judicial process do not deny protection to ‘abstract painting’, ‘avant-garde music’ and ‘nonsensical poetry’. Therefore, the games of skill fall within the protective contours of Article 19(1)(a) & Article 21, of course, subject to reasonable restriction by law.

The Court referred to the jurisprudence laid down by the US Courts over the years. In one case, Justice Antonin Scalia of the US Supreme Court observed that the basic principles of freedom of speech do not vary with a new and different communication medium. In another case, a US Court held that video games too constitute a form of expression presumptively entitled to constitutional protection and that they do not fall into any ‘categories of unprotected speech’.”Given the possibilities of expression in any medium, the guarantee enacted in Article 19 (1) (a) & (g) and Article 21 have to be broadly construed as to protect all forms of activities that further the self-realization of value,” the Karnataka High Court held.

The Court also held that the ‘scare argument’ of deleterious effect adopted by the Advocate General representing the Karnataka government is not supported by the empirical data to support a sweeping ban as in the present case.