Plea in Delhi HC, challenges IT Amendment Rules 2023 in relation to online gaming
Jul 07, 2023
New Delhi [India], July 7 : A petition has been moved in Delhi High Court challenging constitutional and legislative validity of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 in relation to online gaming.
The bench of Justice Satish Chander Sharma and Justice Sanjeev Narula sought assistance of Additional Solicitor General (ASG) Chetan Sharma in the matter and posted the matter for July 13, 2023.
The plea has been moved by an NGO namely Social Organization for Creating Humanity stating that there should not only be effective control and regulation of online games and gambling or betting activities but there should also be an effective mechanism for such regulatory measures and that the same conform to the four corners of powers granted under the Constitution and other legislative provisions.
The Impugned Rules seek to create a framework for regulating online gaming, including online real-money games by classifying them as 'intermediaries' under the IT Act, 2000 and imposing several due diligence requirements and compliances such as Know Your Customer (KYC) verification, appointment of grievance redressal and nodal officers, taking registration and membership of Self Regulatory Body (SRB), and tasks these SRBs with certifying certain categories of online real money games as permissible online games etc, stated the plea.
It is submitted that online gaming platforms and apps clearly do not fall within the category of intermediaries as contemplated under Section 79(2) of the IT Act. Online gaming platforms actively select and modify the transmission information on their websites/ apps as they decide the content of the online games, the nature and category of games to be hosted, the stakes to be played and the rules of the game and the user that have to be matched against each other in competing in various category of games etc.
The IT Amendment Rules 2023 are beyond the legislative competence of the union government. Entry 34 of List II of the Seventh Schedule of the Constitution of India clearly and categorically gives power to state legislatures to enact laws on the subject of 'gambling and betting., plea stated.
The power to enact laws on gambling and betting extends to all forms of gambling and betting, including online gambling and betting. The Minister in charge of the Respondent Ministry has on several occasions stated in parliament that the power to regulate all forms of gambling and betting falls within the domain of state legislatures.
It is further submitted that even in the case of 'games of skill' which fall outside the ambit of 'gambling and betting, the regulatory power lies with the states by virtue of entries 1 (Public Order); 26 (Trade & Commerce within the state) and 33 (Sports, Entertainments and Amusements) of List II of the Seventh Schedule of the Constitution, plea read.
