iGaming Business magazine iGB 112 Sept/Oct 2018 | Seite 136

Regulation
“They recommended a ban in the first place
and it was mistaken to mean regulation. In the
next paragraph they said that if a ban didn’t work
regulation could be considered at a later point in time.
“What the Law Commission actually meant by
their clarification is that they want a stronger law to
ban everything.”
Sayta concedes, however, that the report is “totally
convoluted” and that the Commission was looking to
have it “both ways” with its recommendations.
The sitting on the fence stance of the Commission
is perhaps understandable given the country is less
than a year away from an election and none of the
main political parties are likely to make gambling a
priority in the run-up to the election.
But logically, it’s hard to see that the Commission
would have bothered to outline such specific guidance
for regulation if it wasn’t at least on the cards.
It even outlines various specific consumer
protection measures in the report, though not all of
these are seen as workable.
“It’s slightly unlikely for it to happen in the absence
of legislation but it is the best case we have right now.”
The other salient point here is that as India’s
individual states have the power to make their
own laws, some may feel emboldened by the
Commission’s report to legislate within their own
borders long before it becomes a priority for the
country’s central government.
According to Adhikari, this is more likely to happen
in those states that have already put in place some kind
of gambling regulation, such as Nagaland and Goa.
“It could be possible that these states that are
heavily dependent on gaming and tourism for their
revenue might look at it as an opportunity,” he says.
Two states in India – Sikkim and Nagaland –
already have licensing regimes for online skill gaming
and while thus far the only foreign operator to jump
into the regulatory fray has been PokerStars via its
partnership with Sachiko Gaming Pvt Ltd, experts say
it’s likely others will shortly be joining it.
Positioning for change
“Given the timing of
the report’s release so close
to an election , those with
an eye on India would be wise
to temper their expectations”
Role of the courts
It’s also worth pointing out it was the Supreme Court
that asked the Law Commission to investigate the
matter in the first place, rather than the government.
While Sayta says this is “significant in the sense that
it wasn’t a priority for the government”, Gaggar says it
may mean the courts will play a big role in deciding
how things move forward.
“I have a feeling it is not just going to be a political
story. I foresee action in the court playing a sentinel
role in this going forward.”
Ranjana Adhikari, co-head of the media,
entertainment and gaming practice at law firm
Nishith Desai Associates, points out that there is a
relevant Supreme Court case pending, that of Geeta
Rani v Union of India.
“The question before the Supreme Court is whether
or not sports betting is a game of skill and whether or
not it is already legal in India, which is the entire debate.
“If the Supreme Court says it is a game of skill it
doesn’t matter if you have legislation in place. It is
above board and you can offer it.
132

iGamingBusiness | Issue 112 | September/October 2018
“All the operators who are looking at India are
conscious that it is still going to take them a couple
of years before sports betting could officially be a
product that they could look at,” says Adhikari.
“In the meantime, some of them have adopted an
approach of exploring other areas to capture the
eyeballs of consumers.
“So they may be looking into entering into daily
fantasy sports because it is looked at as a game of
skill in India.”
Gaggar says the report has provided further
impetus. “Since this report has come out I can share
with you that I’ve had four different companies get in
touch to say that they would like to obtain a licence, so
it is clearly going in that direction.
They are thinking that a licensing regime is going
to happen at a central level, but in the meantime they
want to get their act together at a state level.”
While current foreign direct investment (FDI) laws
make it tricky for foreign companies to operate in
India, the Law Commission report recognises that
there would need to be a change in the country’s
FDI policy if a licensing regime was put in place as
foreign investment and technology would be needed
in the market.
Overall, for foreign operators the Law Commission’s
long-awaited report is being viewed as largely positive,
although given the timing of its release so close to an
election, those with an eye on India would be wise to
temper their expectations.
“It’s definitely going to be a slower process than
most people anticipate so everybody just needs to be
very patient,” concludes Adhikari.