ARTICLE: SKILL, CHANCE AND PARLIAMENT: TESTING INDIA'S ONLINE MONEY GAMING BAN, AUTHOR: Himanshu dhar
The Promotion and Regulation of Online Gaming Act, 2025 bans every online money game, whatever mix of skill and chance decides the result. It has been in force since 1 May 2026, and the Supreme Court has agreed to hear the challenges to it finally. This article argues that State of Tamil Nadu v Junglee Games India Pvt Ltd (2026) has changed the terms of that fight. The old debate over skill and chance, and most fundamental rights arguments, have lost their force. What remains is federal: whether Parliament can impose a national ban on a subject that Junglee Games treats as a State subject. The article concludes that the Union's reliance on Entries 31, 42 and 97 of List I is vulnerable.
ARTICLE
ABSTRACT
The Promotion and Regulation of Online Gaming Act, 2025 bans every online money game, whatever mix of skill and chance decides the result. It has been in force since 1 May 2026, and the Supreme Court has agreed to hear the challenges to it finally. This article argues that State of Tamil Nadu v Junglee Games India Pvt Ltd (2026) has changed the terms of that fight. The old debate over skill and chance, and most fundamental rights arguments, have lost their force. What remains is federal: whether Parliament can impose a national ban on a subject that Junglee Games treats as a State subject. The article concludes that the Union's reliance on Entries 31, 42 and 97 of List I is vulnerable.
Keywords: online money games; Promotion and Regulation of Online Gaming Act 2025; Entry 34 List II; legislative competence; res extra commercium
1. INTRODUCTION
The Promotion and Regulation of Online Gaming Act, 2025 (PROGA) moved fast. The Bill was introduced in the Lok Sabha on 20 August 2025, cleared both Houses by the 21st, and received the President's assent on 22 August. The Act and the Promotion and Regulation of Online Gaming Rules, 2026 came into force on 1 May 2026. Section 5 forbids any person to offer an online money game, and section 2(1)(g) defines that term by stakes, so a game is caught whether it depends on skill, chance or both.
Gaming companies challenged the Act on legislative competence and under Articles 14 and 19(1)(g). On 8 September 2025 the Supreme Court transferred the High Court petitions to itself on the Union's application. On 5 August 2026 a bench led by the Chief Justice agreed to hear the batch finally and told the parties to complete their pleadings. No ruling on the merits had been reported when this article was written in November 2026.
In between, on 27 May 2026, the Court decided State of Tamil Nadu v Junglee Games India Pvt Ltd, and on 15 October 2026 it dismissed the review petitions against that decision. This article argues that Junglee Games has moved the centre of the dispute. Skill versus chance now matters far less. The question that remains is whether Parliament, rather than the States, may impose the ban.
2. THE SCHEME OF THE ACT
PROGA prohibits offering, aiding or facilitating an online money game (section 5), advertising one (section 6) and processing payments for one (section 7). Offering a game carries imprisonment of up to three years, a fine of up to one crore rupees, or both. Advertising carries up to two years, a fine of up to fifty lakh rupees, or both (section 9). The offences under sections 5 and 7 are cognizable and non-bailable (section 10).
Sections 3 and 4 point the other way. They commit the Central Government to recognising and registering e-sports and online social games, and the definition of an online money game leaves e-sports out. The statute therefore draws its line at money staked, not skill employed, which is why the older skill cases settle so little today.
3. THE OLDER QUESTION: SKILL AND CHANCE
For decades Indian courts treated skill as a safe harbour. In State of Andhra Pradesh v K Satyanarayana, Hidayatullah J held that rummy is "mainly and preponderantly a game of skill" and that a club offering it was not, for that reason alone, a common gaming house. In Dr K R Lakshmanan v State of Tamil Nadu the Court held that wagering on horse racing, a game in which winning depends substantially on skill, was not "gaming" under the State laws before it. Gambling itself was never a fundamental right. R M D Chamarbaugwalla v Union of India held that gambling is res extra commercium and lies outside Articles 19(1)(g) and 301, while competitions of substantial skill are protected business activity.
The Madras and Karnataka High Courts built on that distinction to strike down State prohibitions on online rummy and poker played for stakes.
4. WHAT JUNGLEE GAMES DECIDED
On 27 May 2026 a bench of Pardiwala and Mahadevan JJ allowed the States' appeals and set those judgments aside. The central step was to read Entry 34 of List II, "betting and gambling", as one set expression. The Court rejected the High Courts' reading, which it called a constitutional aberration, and held that staking money on an uncertain outcome is the common core of both words. A skill game played without stakes is not gambling. Played for stakes, it is betting, and the protection skill once earned does not follow it there.
Three consequences matter for PROGA. First, the Court held that betting and gambling are res extra commercium, so no one can claim a fundamental right to carry them on, and that proportionality review "does not arise". That removes most of the Article 19(1)(g) challenge for any operator that takes stakes, however skilful its game. Second, the Court found no manifest arbitrariness in treating skill and chance alike once money is staked, because betting and gambling are activities in their own right. The Article 14 attack on PROGA's single standard is weakened accordingly. Third, the Court left some ground open. It separated a tournament entry fee, with prizes announced in advance, from a stake, and commentators note that it did not settle on which side of that line fantasy sports fall.
The reasoning has a limit. Junglee Games concerned State statutes. The Court's conclusions at paragraph 376 say nothing about Parliament's power, the 2025 Act, or Entries 31 and 97 of List I. Those entries appear in the judgment only in the submissions of counsel.
5. THE FEDERAL QUESTION
That reasoning leaves a problem for the Union. If betting on skill games falls within Entry 34 of List II, the subject of PROGA's central prohibition looks like a State subject, and under Article 246(3) the States have exclusive power over List II matters. The Union's counter affidavit of 25 November 2025, as reported, places online gaming under Entry 31 of List I (communication), ties the platforms' inter-State reach to Entry 42 (inter-State trade and commerce), and says that because no State entry directly addresses online gaming, the residuary power in Entry 97 applies.
That position sits uneasily with what the Union's own Minister told the Lok Sabha on 26 March 2025: that betting and gambling are State subjects, and that the Constitution gives the States the authority to legislate on them. A ministerial answer binds no court, but it shows how the Union read the entries before the Act.
Each argument meets an objection. Entry 97 reaches only a matter "not enumerated in List II or List III", so it is unavailable if the Act is in pith and substance a law on betting. Entry 31 concerns communication, while the core prohibition regulates stakes, not the medium. Entry 42 has a difficulty of its own. Chamarbaugwalla held that gambling is not trade, and Junglee Games now classes betting as res extra commercium. The challengers can say it is hard to rest a prohibition on trade and commerce when the Court has said the activity lies outside commerce. Under the pith and substance doctrine, an incidental effect on another list is forgiven, a core intrusion is not. Junglee Games did not decide whether Parliament may legislate on this subject, so the point stays open. Its reasoning that betting and gambling is a State subject, however, hands the challengers a ready argument.
The Constitution offered other routes. Under Article 249, a two thirds majority of Rajya Sabha members present and voting can authorise Parliament to legislate on a State List matter in the national interest, for a year at a time. Under Article 252, Parliament may legislate for States whose legislatures ask it to by resolution, and others may adopt the law later. There is no sign that Parliament took either route.
6. ASSESSMENT
The Union has real arguments. Online money games ignore State borders, State laws on them have varied widely, and the Centre says the industry itself argued earlier that only the Union could regulate it. Parts of the Act, such as the rules on financial intermediaries, may be defensible under other entries, so the Court could sustain some provisions and strike others. The harms the Union relies on, including addiction, losses and suicides, are also the harms the Court accepted in Junglee Games as grounds for State action on public order, which cuts both ways.
Still, the central prohibition is the part most likely to be seen as a law on betting. The exemption for e-sports and social games has drawn criticism as inconsistent, but because it tracks the absence of stakes it fits the logic of Junglee Games and is unlikely to carry much weight. If the Court applies the pith and substance test strictly, reliance on Entries 31, 42 and 97 looks vulnerable.
A decision against the Union would not make online money games lawful. It would return the matter to the States, and Tamil Nadu and Karnataka already hold prohibitions that the Court has upheld. The result would be a patchwork of State laws instead of one national rule.
7. CONCLUSION
After Junglee Games, the fate of PROGA is unlikely to turn on whether rummy is a game of skill. It will turn on federalism, and on whether the use of a digital medium is enough to pull a State subject into the Union's field. A ruling for the Union would confirm wide central power over digital activity. A ruling against it would confirm that the manner of delivery does not change the nature of the subject. Parliament can still avoid the uncertainty, by seeking State resolutions under Article 252 or by amending the Seventh Schedule, which would need ratification by at least half the State legislatures. Until the Court rules, the Act stays in force and operators must comply.