The Karnataka High Court in a recent judgment dated 10th January 2021 quashed criminal proceedings against Karnataka Premier League (KPL) cricketers and bookmakers who were charged with fixing matches and noted that match-fixing does not amount to the offense of cheating under the Indian Penal Code, 1860 (IPC).
In its order in response to a quashing petition filed by domestic cricketer CM Gautam as well as some bookmakers and others, Justice Sreenivas Harish Kumar noted that although match-fixing may indicate dishonesty, indiscipline and mental corruption for which BCCI can take action against errant cricketers and officials, including banning them, no ingredients of the offense of cheating can be made out.
Match-fixing not a specific offense
Justice Kumar quashed the allegations of cheating and criminal conspiracy leveled against Gautam, other cricketers, and bookmakers on the ground that the essential elements for invoking the offense of cheating under Section 420 of IPC, i.e. deception, dishonest inducement of a person to deliver any property or alter or destroy any valuable security are not met.
The High Court did not accept the argument of the Karnataka government that cricket lovers buy tickets to watch the match and are induced to part with their money to watch a fair game but are deceived by cricketers who pre-decide the outcome by engaging in match or spot-fixing with bookies.
The court while rejecting this argument observed that spectators buy tickets to watch cricket matches voluntarily and are not induced to buy such tickets, and thus the key ingredient of inducement to deliver any property or valuable security, is required to prove the offense of cheating is missing.
Karnataka High Court’s judgment is in line with other investigations and court rulings on the murky issue of match-fixing and spot-fixing in cricket.
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In the year 2000, while investigating allegations of match-fixing against former India cricket captain Mohammad Azharuddin and others, the Central Bureau of Investigation (CBI) on the basis of legal opinion received from jurists and legal experts concluded that the conduct of match-fixing by cricketers could not be brought within the parameters of ‘cheating’ as defined under the IPC and as such the errant cricketers cannot be prosecuted for the same.
In 2015, while discharging cricketer S. Sreesanth and 35 others of the offense of cheating as well as the draconian Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Additional Sessions Judge of Patiala House, New Delhi, Judge Neena Krishna Bansal ruled that the offense of cheating cannot be invoked in cases of instances of fixing in cricket matches.
Judge Bansal reasoned, on the same lines as the Karnataka High Court, that in the case of fixing in cricket matches, there is no wrongful loss caused to spectators and further the offense of cheating cannot be committed in rem (against the public at large) and must be against a specific person.
Clean chit to cricket betting?
Apart from ruling that match-fixing does not amount to any specific offense, both the Karnataka High Court and Additional Sessions Judge made observations in their respective judgments that gave a clean chit to cricket betting.
The Karnataka High Court in its judgment noted that ‘cricket is a sport and therefore even if betting takes place, it cannot be brought within the ambit of ‘gaming’ found in Karnataka Police Act.’
Additional Sessions Judge Bansal in her 2015 judgment also similarly stated that various skills such as hand-eye coordination, stamina, strength, and mental agility. Thus, it was ruled that since cricket is a game of skill, betting on the game would not amount to an offense.
This particular view stems from a provision in the Gaming Acts of most states exempting games of skill from the ambit of gambling or betting. Further, previous rulings of the Supreme Court in the context of the card game of rummy and betting of horse races have ruled that such activities are games involving a preponderant degree of skill and therefore outside the ambit of gambling.
It may however be noted that after charge sheets were filed by the Karnataka Police against Gautam and others, the state government amended its gaming law, the Karnataka Police Act in 2021, to broaden the definition of gaming, to include risking of money on any unknown event, including on games of skill is made an offense. Further, playing online games, including skill-based games involving wagering or betting has also been made an offense.
Interestingly, petitions by several online gaming companies and industry bodies challenging the constitutional validity of these amendments, on the grounds that betting on games of skill as ruled by the Supreme Court falls within the right to the trade and commerce guaranteed by the constitution, and that a complete ban on such activities is arbitrary and unconstitutional have been filed before the Karnataka High Court.
The High Court after extensively hearing arguments from both the gaming companies and the state government has reserved its judgment in the matter and is expected to pronounce its verdict in the coming few weeks.
Notably, similar amendments to its Gaming Act passed by the Tamil Nadu government were struck down by the Madras High Court in August 2021 on the grounds that a complete and overarching ban on wagering or betting on games of skill is manifestly arbitrary, paternalistic, disproportionate and violation of the right to trade and commerce.
An appeal against this decision is currently pending in the Supreme Court, which ultimately will have to pass a conclusive ruling on the correct interpretation of its previous rulings on betting on horse racing and rummy, the scope and meaning of games of skill, and whether states can completely ban games of skills if played for stakes or wager.
Need for new law on match-fixing
Judicial rulings have now confirmed the long-held view that deliberately altering the outcome of sports matches for monetary gains does not amount to any offense, although sports bodies can take disciplinary action against officials and sports-lovers indulging in such acts.
However, given that instances of fixing are now known to be deeply ingrained in cricket and defile the purity of the gentleman’s game while making a mockery of spectators who expect a fair match, a separate law is needed to clearly define cheating or manipulation of sporting events and punish all those responsible for or abetting such manipulation. Disciplinary action by sports associations can be seen as nothing more than a slap on the wrist of players, who would still not be required to either pay monetary fines, disgorge their ill-gotten gains or serve time in prison. Further, disciplinary action of cricket boards cannot extend to other abettors or conspirators of fixing such as bookmakers or support staff etc.
It can be argued that some legal provisions in certain states such as Section 130 of the Maharashtra Police Act and Section 108 of the Delhi Police Act provide for the punishment of cheating for malpractice in wagering on any sport or game for any unlawful gain can be applied in cases of match-fixing. However, even these provisions are grossly inadequate as they do not clearly provide punishment for sportspersons and all conspirators nor do they envisage or encompass all situations of manipulation of sporting events.
The central government had in 2013 attempted to draft new legislation, the Prevention of Sporting Fraud Bill to criminalize sporting fraud, i.e., any attempt to manipulate the outcome of sporting events or exchange inside information with a punishment of up to five years imprisonment and a fine of ten lakh rupees or five times the economic benefits derived from such manipulation.
Lok Sabha MP Dr. Shashi Tharoor had also introduced a similar private member’s bill in 2018 called the ‘Sports (Online Gaming and Prevention of Fraud) Bill’. The Bill also defined the offense of sports fraud and provided punishment for the same while paving way for licensed and legalized online sports betting subject to stringent restrictions.
Unfortunately, Dr. Tharoor’s private member’s bill has lapsed following the end of the tenure of the 16th Lok Sabha and the central government has shown no inclination to introduce and pass the 2013 legislation that was drafted and put out in the public domain.
Until strong legislation to curb the menace of manipulation and fixing in sport is passed by the Parliament, incidents of spot-fixing and match-fixing will continue unabated at all levels of sport, as players are aware that ultimately, they would go scot-free despite defiling the sanctity of the game. It is unfortunate that the central government has not considered eradicating the menace of match-fixing its priority and allowed the rot in cricket (and other sports) to thrive.
Jay Sayta is the Editorial Advisor of g2g.news and a technology & gaming lawyer. Views expressed are personal.
