At a function in Mumbai on January 13, Nitin Gadkari briefly railed against casinos. The Union Minister for Road Transport, Highways and Shipping declared that he will never permit casinos on islands that are being opened up for tourism because “people will also not tolerate such things”. If India wants to promote tourism on the 1,300-plus islands, he prescribed, it should create ayurvedic facilities there.
Gadkari’s statements were surprising for two reasons. First, gambling and betting are state subjects, far from the remit of Gadkari’s ministry. Secondly, the remarks came days after media reports indicated that the Maharashtra government is seriously contemplating implementing a four-decade-old law – the Maharashtra Casinos (Control & Tax) Act, 1976 – which legalised gambling in the state. By condemning casinos, Gadkari, one of the senior-most Bharatiya Janata Party leaders from Maharashtra, was perhaps indicating to Chief Minister Devendra Fadnavis that their party doesn’t approve of the state’s initiative to allow casinos.
Background of the legislation
The Maharashtra Casinos (Control & Tax) Act, 1976 was passed by the assembly and approved by the governor on July 22, 1976. Among other things, it envisages a regulatory and licensing regime for games of chance, including betting and wagering, played by means of a machine, instrument or otherwise.
The Act authorises the state government to frame rules and guidelines to regulate different categories of games, adverts by casino companies, age restrictions on entry into casinos, credit facilities that can be offered to players, and bar on proxy participation, etc. It allows the government to impose taxes on casino companies at a rate not exceeding 25%. Its statement of objects and reasons says that the legislation was passed to increase tourist footfall and especially attract foreign tourists.
Many of the issues mentioned in the 40-year-old legislation such as credit facilities to players, prevention of underage gambling and addiction, regulation of gambling ads are relevant even today for gaming regulators across the globe. One would have expected that after 1976, the successive governments in Maharashtra would have used the law to fill up the coffers and regulate an activity that was described as an “inevitable vice” in the legislative debate preceding the passage of the law.
Instead, the law remains stillborn even today – which is a travesty.
Implement the law
When a law is passed by the legislature, it reflects the will of the people. The government’s job thereafter is to implement the legislation. However, Section 1(3) of the Casinos Act says that the law will come into force on such date as the “state government may by notification appoint”.
Such a provision is usually included in statutes to allow the government to apply its mind on framing appropriate guidelines and regulations. In such instances, the government doesn’t have the discretion to decide whether to implement the Act but rather to decide the appropriate time of implementation. An inordinate or indefinite delay in implementing a properly passed law means that the government has failed in its constitutional obligation of implementing the supreme will of the people.
Seized with a similar circumstance relating to the non-implementation of a provision of the Advocates Act for more than 25 years, the Supreme Court had noted:
“But, we are of the view that this decision [referring to a previous five-judge bench decision of the Supreme Court which states that courts cannot compel the government to bring a law into force] does not come in the way of this Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for bringing Section 30 of the [Advocates] Act into force has arrived or not. Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law.”
It was against this background that I filed a Public Interest Litigation in the Bombay High Court in February 2015, requesting it to direct the government to either notify the casino law or, alternatively, take a decision on its implementation after holistically considering all issues involved. In four hearings, the High Court gave the government time to formulate a stand. Yet the government maintained a stony silence, perhaps fearing a backlash from the moral brigade.
Finally, on October 9, 2015, my legal counsels asked the court to give the government six months to consider implementing the law in a rational manner. The judges, in their order, left it open for me to approach the court again if I was not satisfied with the government’s response. It is likely that the government has started moving files, if only out of fear of committing contempt of court if they failed to at least consider the issue.
Casinos are good
It is acknowledged by most experts that gambling is a social reality that cannot be wished away. On the streets, at race courses (albeit legally), in social gatherings, or on the phone with bookmakers, a good number of people indulge in gambling. But since most forms of gambling are by and large illegal in India, the money wagered through illegal betting or gambling houses is unaccounted for. As the Supreme Court-appointed Special Investigation Team on black money, gambling is a major source of black money.
Most jurists and commentators – including former Chief Justice of India RM Lodha, in his report on cleaning up the Board of Control for Cricket in India – have recommended legalising and taxing betting and gambling to curb illegal activities by unscrupulous operators and enable states to bolster finances.
Currently in India, Goa and Sikkim are only the two states which allow casinos. The establishments earn the two states crores in taxes, provide employment, and attract tourists from all over India and abroad.
From Russia to United Kingdom and Macau to Kazakhstan, many countries are filling their coffers by allowing casinos or some other forms of regulated and licensed betting or gaming. Perhaps next time, Nitin Gadkari should make remarks on casinos after adequate research.
The author runs glaws.in, India’s first and only website monitoring gambling, betting and lottery laws in India.