Game of chance or skill? It doesn’t matter; there is no Fundamental Right to gamble

A skilled gambler can lose his savings as easily as an unskilled one. Addiction does not distinguish between games of chance and games of skill. Financial ruin does not become constitutionally insignificant because the participant exercised judgement before placing a wager.

Written by: Kumar Kartikeya

6 min readJul 4, 2026 12:37 PM IST

First published on: Jul 4, 2026 at 12:35 PM IST

The debate around online gaming has been framed in terms chosen largely by the industry itself: Innovation, technology, entrepreneurship and digital markets. The vocabulary has been carefully crafted to shift attention away from a far simpler question: When individuals stake money on uncertain outcomes in the hope of financial gain, are they engaged in a constitutionally protected activity? The Supreme Court’s decision, upholding the Tamil Nadu and Karnataka laws regulating online games played for money, answers that question in clear terms.

The importance of this judgment lies not merely in its impact on the online gaming industry but in the Court’s refusal to permit the language of constitutional rights to be appropriated by an activity that has historically remained outside the sphere of protected commerce. Constitutional adjudication is often as much about defining limits as it is about protecting freedoms. Every claim of a new fundamental right necessarily requires courts to ask whether the Constitution was intended to shield the activity in question from legislative intervention. The answer in the case of betting and gambling has consistently been in the negative.

The gaming industry’s principal argument rested on the distinction between games of skill and games of chance. According to this argument, once a game is found to involve a substantial degree of skill, the activity acquires constitutional protection under Article 19(1)(g) as a legitimate business. The Supreme Court has rightly exposed the limitations of this reasoning: That when the element of betting and gambling enters the picture, the nature of the underlying game ceases to be relevant. This observation goes to the heart of the controversy. The constitutional issue was never whether a participant requires skill to play rummy, poker or fantasy sports. The issue was whether the law must remain indifferent when money is repeatedly risked on uncertain outcomes merely because the underlying activity demands some degree of expertise.

The distinction matters because the social consequences flow not from the existence of skill but from wagering. A skilled gambler can lose his savings as easily as an unskilled one. Addiction does not distinguish between games of chance and games of skill. Financial ruin does not become constitutionally insignificant because the participant exercised judgement before placing a wager. Once money is staked in pursuit of gain, the activity acquires characteristics that have historically justified state regulation. To insist that skill alone transforms betting into a protected constitutional freedom is to ignore the very reason why gambling laws exist in the first place.

The Court’s reliance on the doctrine of res extra commercium (a thing outside commerce) rests on a very important understanding, as certain activities have never been regarded as deserving constitutional protection merely because they generate revenue. The Constitution does not recognise a right to carry on every profitable enterprise. The freedom guaranteed by Article 19(1)(g) was intended to protect legitimate occupations and businesses, not activities whose essential character is viewed as harmful to public welfare. If profitability alone became the test, there would be little principled basis for distinguishing between ordinary commerce and activities that legislatures have historically considered injurious to society. Economic activity and constitutional entitlement are not synonymous.

The consequences of accepting the industry’s position would have extended far beyond online gaming. If betting on games of skill were elevated into a fundamental right, legislative power over gambling would be significantly diminished. Every regulatory measure would invite constitutional scrutiny, not because individual liberty was genuinely threatened but because commercial interests sought constitutional immunity. The result would be a gradual transformation of Article 19(1)(g) from a guarantee of economic freedom into a shield against democratic regulation. Fundamental rights would become instruments for protecting markets rather than citizens.

The Court’s recognition of public health and public order concerns is particularly important. The states placed material before the Court regarding addiction, mounting financial losses and suicides linked to online money gaming. These concerns cannot be dismissed as paternalistic anxieties. The architecture of modern online gaming platforms is fundamentally different from traditional forms of gambling. Digital platforms are available at all hours, permit instantaneous financial transactions and are capable of reaching millions of users simultaneously. The combination of continuous accessibility and monetary incentives creates risks that legislatures cannot reasonably be expected to ignore. A constitutional framework that prevents states from responding to such realities would amount to a surrender of regulatory authority in the face of technological change.

What is ultimately at stake is the relationship between rights and responsibility in a constitutional democracy. Rights derive their legitimacy from their connection to human dignity, autonomy and democratic participation. Betting and gambling occupy a fundamentally different space. The constitutional claim rests not on liberty in any meaningful sense but on the commercial interests of those who profit from wagering activities. The Constitution was never intended to elevate such interests above the state’s obligation to protect public welfare.

The Supreme Court’s ruling reaffirms that constitutional rights cannot be manufactured through technological innovation or clever legal characterisation. Calling an activity a digital platform does not alter its essential nature. Describing wagering as entertainment does not diminish its social consequences. Referring to gambling as a game of skill does not erase the fact that money is being risked on uncertain outcomes.

The Supreme Court has reaffirmed a principle that has long formed part of Indian constitutional law: There is no fundamental right to betting and gambling, and the State retains the authority to intervene when such activities threaten public welfare.

The writer is an advocate at the Supreme Court of India and an LLM Candidate at University of Edinburgh Law School