The debates on legalising betting in sports against the backdrop of the Indian Premier League scandal evoke two broader questions regarding our law and policymaking, and the way we respond to scandals such as these. First, what moral authority does the state have to ban conduct such as betting? Second, should ineffi cacy of law be a valid ground to repeal or change the law?
A draft of this article fi rst appeared in two parts on the blog “Polity in India”
The recent betting and match fixing scandal of the Indian Premier League (IPL) has brought shame to the country and the sport. It has also compelled the lawmakers to re-examine their laws and policies to check such practices. One of the solutions being offered is to legalise betting in sports in India.1 It is believed that the ban on betting is impossible to be fully implemented and the legalisation will help regulate betting, instead of driving it underground, allow regulated betting to act as a potential source of funds, and help reduce instances of match-fixing and spot-fixing.
Even while this IPL scandal has exposed intricate links between fixing and betting, the latter is being proposed as a solution to the former. There is a difference between fixing and betting. I do not think anyone would support legalised or regulated fixing. Fixing is deplorable; it turns a match to a scripted episode, denies honest players a chance to win (or lose) a game on their effort (or the lack of it), and undermines the faith the fans repose in the game and the players. However, legalisation of betting in sports is being seen as one of the solutions to mitigate the practice of fixing.
Legalisation of Betting
There are mixed reactions to this proposal to legalise betting. On one hand, it seems that betting causes fixing, because bookies are willing to pay players and fix the game to make substantial profits by changing the odds in their favour and winning bets. On the other hand, it is argued that legalisation will help monitor the conduct of bookies, take betting away from criminals to financed bookies, who have incentive to report corruption, and provide regulatory authorities with a data source to rely on when investigating cases of suspicious bets and fixing.2
It is also argued that the law should rather allow controlled betting than waste resources imposing a blanket ban, which in any case, is impossible to be fully implemented.3 Whether legalisation of betting will actually help check fixing or not is debatable. It is argued by some that such experiments in the past have not worked, for example, fixing exists in football even in countries where betting is legal, and spot-fixing occurred in cricket in England in 2010 involving Pakistani players, although betting is legal in England.4
Here, I do not want to pronounce upon the merit of this proposal. These recent debates evoke two broader questions regarding our law and policymaking and the way we respond to scandals such as these. First, what moral authority does the state have to ban conduct such as betting? And second, should inefficacy of law be a valid ground to repeal or change the law?
State’s Moral Authority
The debate on legalisation of betting raises interesting questions around the moral authority of the state to ban betting. There is no doubt that the state has legal authority to pass laws on betting. Entry 34 of the State List in the Constitution allows states to make laws on betting and gambling and Entry 62 allows imposition of taxes on such luxuries. Further, Entry 40 of the Union List allows the centre to regulate lotteries. But should a state interfere in activities such as betting by criminalising such conduct?
What could be the justifications behind criminalisation of betting? Criminal law is usually invoked in cases involving a public wrong, causing a harm or threat of harm to another person. However, in case of betting, it is possible that two parties consensually enter into a betting arrangement, where one loses and the other wins, and there is no harm caused to anyone else. Some acts are criminalised based on the threat to the unity and integrity of the nation, like the offence of sedition. It is unlikely that betting poses such a risk. The state also sometimes criminalises conduct that it perceives as immoral or which is likely to offend the morality of the society. The law criminalising homosexual conduct was one such law. It is debatable if betting is considered “immoral” in this sense, and also whether the state can or should pass laws illegalising conduct which is immoral but may not be harmful or violative of any person’s right. If betting is a “victimless crime”, the debate over its legalisation raises interesting questions around the liberty of citizens, the government’s role in modern India and the legitimacy of the state to take decisions on behalf of the people to prohibit acts it considers undesirable. Interestingly, the Constituent Assembly debates reveal the intention of Constitution-makers to prohibit betting. The insertion of the entry on betting and gambling was opposed on the ground that such insertion might lead to legalisation of such activities. One of the members, Shri Lakshminarayan Sahu, argued that mention of such activities should have no place in a Constitution built on the ideals of truth and non-violence practised by Mahatma Gandhi. It was when chairman Ambedkar clarified that insertion of the entry will, in fact, empower the state to prohibit such activities, that the motion to insert the entry was passed.5
The negative stance towards betting and some of the justifications behind its criminalisation are visible in Supreme Court judgments. The Court has referred to the Vedas, Mahabharat and other ancient texts to conclude that the Indian lawmakers have always viewed gambling as a “sinful and pernicious vice”. Such practices leave people indebted and homeless, disrupt families, destroy wealth, disavow values like honesty and truth and lower the standard of living. Interestingly, there were also references to texts like that of Kautilya who would have allowed regulated gambling and enabled the state to earn revenue from it. The Court has developed a distinction between games of chance and games of skill and allowed games such as horse racing and rummy to legally exist as falling in the category of games of skill.6
Irrespective of whether betting in cricket is a game of chance or skill, should a state prohibit even games of chance? Should it be the state’s business to criminalise activities to ensure that people spend their time and money in productive activities instead of getting addicted to wasteful acts which might have some negative effects in society? What about activities like drinking and smoking, which are perhaps more “harmful” than betting, in terms of harming the person doing the act, disrupting families, increasing risk of other crimes, and involving much larger number of people. Even if it may not involve any skill, betting might be a form of private entertainment for some people.
This also raises the question whether criminal law is the appropriate law to regulate betting. Undesirable conduct in society can be regulated through other means such as civil law, tort law and tax law. Criminal law involves a higher level of condemnation of a conduct. Should betting be subject to that?
There is an implicit assumption about the illegality of betting in the Constituent Assembly debates and the Supreme Court judgments. The recent debates on legalisation of betting have also largely failed to engage with the wider questions about the state’s moral authority to ban betting. The debates have largely focused on the practicalities of implementation and the economics of regulation. The exercise of the power of the state to ban or regulate the conduct has remained unquestioned. While there is no doubt that such practical concerns are significant, the questions around the role of the state and liberty of the people are more interesting. As a state, India needs to consider if it should deal with certain private acts which may have some negative offshoots for society through the medium of law, and, if yes, what will be the best legal strategy to regulate such conduct.
Efficacy of Betting and Fixing Laws
Two common justifications behind legalisation of betting are that a betting ban is impossible to be implemented and legalisation will help control instances of spot-fixing and match-fixing. I want to question whether inefficacy of a law (i e, whether a law is generally followed by people) should be a valid ground to repeal or change the law. Assuming these justifications are, in fact, correct, should that be a good reason to legalise betting? There are two aspects of the efficacy argument involved here: one, betting laws themselves are incapable of being fully enforced; and two, legalisation of betting will make another law (anti-fixing law) more efficacious.
Beginning with the first aspect, I believe that the argument in favour of changing betting laws due to their non-enforceability has been received quite comfortably and without much challenge. Similar arguments to legalise conduct or relax norms because of the perceived impossibility to implement them have been made in other contexts like prostitution and illegal migration. In India, many laws remain unenforced and many crimes happen despite strict criminal laws. I do not believe anyone would argue that we should, for instance, legalise rape just because rapes will anyway continue to occur. What about anti-piracy measures under copyright laws? Besides, when decades-old laws on banning betting has remain unenforced, there can certainly be no guarantee that a law regulating betting will get enforced and will not suffer from problems of corruption or inefficiency.
Of course, no one is so naïve as to argue for legalisation on the sole ground that implementation is not possible. However, we need to examine if this should be a ground at all. I feel there is some laziness involved in making the argument to change laws just because they are not being implemented. The fact that we can argue for legalisation of prostitution, but not rape has got nothing to do with implementation, but about substantive questions about what conduct we consider legal and illegal. I am not saying that the consideration of actual enforcement of a law is irrelevant to lawmaking. However, the fact of inefficacy triggers a host of other issues that should be considered; by itself inefficacy and non-implementation are not the grounds to change a law.
So what are these other considerations? At first, we need to examine if a law is actually “impossible” to be enforced. Many laws may be easy to make but difficult to implement. Is the question really about the impossibility of enforcement or inadequacy of our enforcement mechanisms? Road traffic laws may be “impossible” to be fully implemented, but when they are strictly and correctly enforced by concerned authorities through fines and other penalties, these laws may become more efficacious. Legal philosopher Hans Kelsen has a fascinating point of view on this. He states that the validity of a law is not conditional on the law being efficacious.7 In fact, according to him, if a norm is anyway followed by all, then the enactment of the very law is meaningless.8 This indicates that some discord between the law and reality is bound to exist. We may think of ways to make existing enforcement mechanisms better or consider adopting different enforcement mechanisms, without changing the substantive law.
Non-efficacy may help us question some more substantive aspects as well. We may look at the “mischief” that the law seeks to remedy and reconsider if we really do want to regulate that mischief. For example, as stated above, it may be considered whether the state should criminalise victimless conducts like betting. If yes, what is the best way to address the mischief – stricter criminal laws as was done in recent amendments on rape laws,9 or decriminalisation coupled with regulation as is being argued in the case of betting? If majority of people are disobeying a law, it might be a good ground to examine our motives and strategies, but not by itself to change the law.
We also need to consider some of the “side-effects” of existing laws. Arguments for relaxation in betting (and prostitution and migration) laws involve not only the continuation of the banned conduct, but also that these laws drive illegal conduct underground, furthering the mischief. Drawing from Justice O W Holmes’ bad man theory,10 instead of eradicating the evil, the law may instead drive the bad man to engage in it more clandestinely, causing greater harm. This brings us to the second aspect that legalisation of betting will help address the bigger problem of fixing. The argument is to decriminalise one conduct to check another crime, probably a higher evil (like relaxed migration laws may help reduce vulnerability of migrants to exploitation and forced prostitution). Again, rather than treating this as a ground for legalisation itself, there is a need to examine the motives and regulation strategies of the conduct sought to be legalised. There is also a need to examine the strategies being used to counter the higher evil, in this case, fixing. What other possible strategy may prevent a “bad man” from engaging in a wrongful conduct? If the motives behind criminalising the lesser evil are justified, the improved efficacy of the other law cannot by itself be a ground for decriminalisation.
Thus, while concerns around efficacy and non-implementation are valid, we need to use these concerns to question and address the more significant issues. If the real problem lies elsewhere, we must not lazily use these as excuses to change the law.
While the IPL betting and fixing scandal has got people thinking about different ways to control betting and fixing, these debates have ignored certain bigger questions. We need to question both the moral authority of the state in prohibiting and banning certain acts and also our own reasoning when we demand change in our laws. Perhaps we should use moments of legal uncertainty and possible change such as these to engage with these larger questions on the ethics of lawmaking in India.
Postscript
The recent comments on legalisation of betting made at the session on ethics and integrity in sports organised by the Central Bureau of Investigation (CBI) on 12 November 2013 revived the debate on this issue. While former cricketer Rahul Dravid commented that betting should be legalised if it leads to better governance and lesser corruption,11 CBI Director Ranjit Sinha created a controversy by drawing comparison between betting and rape. In my article I argued that inefficacy and non-implementation of laws by themselves cannot be grounds to change the law and legalise an activity like betting. For instance, no one could argue for legalising rape just because rapes continue to occur despite criminal laws. However, allegedly, Sinha in fact made this shocking argument when, while making a case for legalising betting since the ban cannot be enforced, he said: “do we have the enforcement agencies… it is very easy to say… if you can’t enforce it, it is like ‘if you can’t prevent rape, enjoy it’. It is better to legalise it and earn some revenue rather than throwing your hands up and letting things happen as it were”.12 He later clarified that he was in fact trying to use the context of rape to argue that simply because laws cannot be enforced does not imply that laws should not be made.13 Either ways, the entire episodeexposes the absurdity of the argument that an activity should be legalised merely because laws have failed in their implementation.
Notes
3 Amit Shanbaug (2013) op cit.
5 Constituent Assembly Debates, Volume IX, 2 September 1949.
6 Dr K R Lakshmanan vs State of Tamil Nadu, AIR 1996 SC 1153; State of Andhra Pradesh vs K Satyanarayana (1968) 2 SCR 387; State of Bombay vs RMD Chamarbaugwala, AIR 1957 SC 699.
8 Hans Kelsen (2007), “The Dynamic Aspect of Law”, The Philosophy of Law, viewed on 14 June 2013 (http://www.philosophy.hku.hk/courses/law/KelsenNormValidity.htm).
10 Oliver Wendell Holmes (1897), “The Path of the Law”, Harvard Law Review, 10: 457.
