Gambling, betting, sports, entertainment and recreation falls in the state list as per the Constitution. Thus, most states have enacted their own laws on the subject, though there is a central legislation on the subject, i.e. the Public Gambling Act, 1867 (“PGA”). The state gaming legislations as well as the PGA prohibit gaming for profit or gain for the owner, occupier, user or keeper of a ‘common gaming house’. Further, most gaming legislations also prohibit gambling in a public place (even if there is no profit or gain for the organisers). Gambling statutes in all states with the exception of Assam and Odisha also exempt ‘games of skill’ or ‘games of mere skill’ from the ambit of anti-gambling legislations. A division bench of the Hon’ble Supreme Court in MJ Sivani v. State of Karnataka has defined the words ‘game’ and ‘gaming’ to mean playing any game for money or money’s worth. Further, a three-judge bench of the Hon’ble Supreme Court in Dr. KR Lakshmanan v. State of Tamil Nadu & Another has noted that an offence of ‘gaming’ under the Tamil Nadu Gaming Act, 1930 or the Madras City Police Act, 1888 can only be made out when there is betting and wagering, i.e. staking anything of value on a game of chance. Further, Black’s law dictionary defines ‘gaming’ as quoted as follows: "The practice or act of gambling. An agreement between two or more persons to play together at a game of chance for a stake or wager which is to become the property of the winner, and to which all contribute. The element of gaming are the presence of price or consideration, chance and prize or reward." This definition of ‘gaming’ has been quoted with approval by the Hon’ble Bombay High Court. It therefore emerges that an offence of ‘gaming’ or ‘gambling’ can only be made out if there is any staking of money or money’s worth on a particular game.
From the above discussion, it is clear that for an activity to fall within the definition of ‘gaming’ or ‘gambling’ there has to be staking or wagering of money involved. While there is considerable force in the argument that poker could be classified as game of skill and indeed, there have been legislative provisions in some states and rulings of some High Courts to that effect, regardless of whether poker is classified as a game of skill or chance, if poker is played without any consideration or staking of money, it would fall outside the ambit of ‘gambling’ or ‘gaming’. Consequently, it follows that playing online poker, without money or money’s worth being staked or wagered by the player is not illegal. Based on the business model of Khelo365.net - that money or money’s worth is not wagered or staked by players on Khelo365.net and that any player can play on the website for free and win prizes in cash or kind, it is opined that Khelo365.net is not illegal under Indian gambling laws.