1

CNL 41- PETITIONER

BEFORE THE HON’BLE SUPREME COURT OF VIDHISTHAN

REVIEW PETITION (CIVIL) NO. ______/ 20XX

FILED UNDER ARTICLE 137 OF CONSTITUTION OF VIDHISTHAN, 1950

UNION OF VIDHISTAN AND ANR ……………………………… PETITIONER

VERSUS

SOCIETY OF ONLINE GAMES AND

ANR……………………………………….RESPONDENT

As submitted to the Chief Justice and other companion judges of the Hon’ble Supreme Court

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TABLE OF CONTENTS

Table of Authorities………………………………………………4

List of Abbreviations……………………………………………..6

Statement of Facts………………………………………………..7

Statement of Jurisdiction…………………………………………8

Statement of Issue………………………………………………..9

Summary of Arguments………………………………………….10

Arguments Advanced…………………………………………….11

ISSUE 1- Whether the Constitution 106th Amendment Act,

2021 Is Constitutionally Valid ?.................................................. 11

I.I Part XI of the Vidhisthan Constitution…………………………11

I.II Parliament has overstepped itself in

bringing 106th amendment……………………………………… 12

I.III Online gaming platforms not based on “mere chance”,

no need of Uniform law……………………………………………12

ISSUE 2- Whether the Regulation of the Online Gaming Act, 2022 violates

Fundamental rights ?...................................................................... 15

I.I. Reasons For Violation Of Article 19[1][G]……………………15

II. Chintaman Rao V. State Of Madhya Pradesh…………………...16
III. C. Kr Lakshmanan V State Of Tamil Nadu And Anr…………16
IV. Head Digital Works Pvt. Ltd. V. State Of Kerala & Ors………17
V. No Clear Distinction To Classify A Game As A Games Of Chance And Games Of Skill
VI. Article 21………………………………………………………18

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ISSUE III- Whether the Supreme Court with regards

to interpretation of the doctrine of repugnancy under
Article 254 had rightly decided the same in the case
of State of Anamudi v. Mass Media Community Inc. (2012)………19
III.II Inconsistencies in the provisions of the Kerala Chitties

Act, 1975 vis-à-vis the Central Chit Funds Act, 1982………………20

III.III Difference between “make” and “commencement”…………..21

III.IV Irreconciable Conflict and Real Conflict……………………..21

III.IV.1 Why is does not come in the ambit of “law not made”?........21

III.V Point of time for determination of repugnancy…………….….22

III.VI Principles on Repugnancy and Article 254………………….23

PRAYER……………………………………………………………26

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TABLE OF AUTHORITIES

 Javed vs State of Haryana AIR 1947 PC 60

 Calcutta Gas Ltd. v. State of Bengal 1962 AIR 1044, 1962 SCR Supl. (3) 1
 Rakesh Vaishnav & Ors v. Union of India & Ors WP No(s).1118/2020
 Union of India v. Rajendra Shah and others LL 2021 SC 321
 Ramalingam v. The Union of India & Another WP No. 6356/2005
 State of Bombay Vs R.M.D Chamarbaugwala AIR 1957 SC 699
 Head Digital Works Pvt. Ltd. v State of Kerala & others WP (C) No. 7785/2021
 Varun Gumba vs. Union Territory of Chandigarh WP(C) NO. 7785 OF 2021
 D. Krishnakumar vs. State of A.P 2002 (5) ALT 806, 2003 CriLJ 143
 Executive Club vs. State of A.P 1998 (5) ALD 126, 1998 (2) ALD Cri 569, 1998 (2)
ALT Cri 207, 1999 CriLJ 35
 Chintaman Rao v. State of Madhya Pradesh 1950 SCC 695.
 ’KR Lakshmanan V State of Tamil Nadu and Anr (1996) 2 SCC 226.
 Head Digital Works Pvt. Ltd. v State of Kerala & Ors WP (C) No. 7785/2021
 Manoranjitham Manamyil Mandram v. State of Tamil Nadu AIR 2005 MAD 261.
 State of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr (2012) (2012) 7 SCC
106.
 Subrahmanyan Chettiar v. Muttuswami Goundan, AIR 1941 FC 47 : (1940) 2 FCR 188
 Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : 1983 SCC (Cri) 143;
  I.T.C. Ltd. v. State of Karnataka, 1985 Supp SCC 476; 
 M. Karunanidhi v. Union of India, (1979) 3 SCC 431 : 1979 SCC (Cri) 691; 
 State of Orissa v. M.A. Tulloch and Co., AIR 1964 SC 1284 : (1964) 4 SCR 461
 Tika Ramji v. State of U.P., AIR 1956 SC 676 : 1956 SCR 393;
 Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust); 
 Hingir-Rampur Coal Co. Ltd. v. State of Orissa, AIR 1961 SC 459 : (1961) 2 SCR 537;

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 Pt. Rishikesh v. Salma Begum, (1995) 4 SCC 718

 T. Barai v. Henry Ah Hoe SCC pp. 186-87, para 15
 I.T.C. Ltd. v. State of Karnataka SCC p. 496
 M. Karunanidhi v. Union of India

STATUTES

1. THE CONSTITUTION OF INDIA

2. The Regulation of the Online Gaming Act, 2022

BOOKS

MP JAIN, INDIAN CONSTITUTIONAL LAW (8th ed. 2018).

THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION

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LIST OF ABBREVIATIONS

S.NO ABBREVIATION EXPANSION

1. § Section

2. ¶ Paragraph

3. & And

4. Anr. Another

5. SCC Supreme Court Cases

6. Ed. Edition

7. HC High Court

8. SC Supreme Court

9. Hon’ble Honourable

10. UOI Union of India

11. v. Versus

12. Acc. According

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STATEMENT OF FACTS

Vidhisthan, a developing country, is an active member of the international community as well as

the United Nations Organization.

That the Central Government, in order to facilitate the bringing in of the law regulating such
online gaming platforms, introduced The Constitution 106th Amendment Act, 2021 which has
made, inter alia, following changes, in the Entry 34 of List II of Schedule VII “34. Betting and
gambling subject to the provisions of List I” This Amendment received the assent of the
President and came into force in the Month of September, 2021.

That pursuant to the Amendment, the central government has enacted “The Regulation of the
Online Gaming Act, 2022” (The Central Act). It covers online games such as poker, rummy and
fantasy leagues and makes playing these games a punishable offence.

That the government has relied on the report prepared by the Law Commission to study the
effects of online gaming on youth. That the State legislature of Harit Pradesh enacted a law
regulating online gaming in the state in the Month of October 2021 (the State Act). After the
enactment of the Central Act, many provisions of the State Act became repugnant to the former.
However, the Central Government has not extended the application of the Central Act as per
Section 1. The State Government, pending the application of the Central Act in the State,
continued with the application of the State Act. That Nvideon Games, an online gaming platform
challenged the validity of the State Act before the High Court, State of Harit Pradesh by relying
on the findings of the Supreme Court of Republic of Vidhisthan judgment of State of Anamudi v.
Mass Media Community Inc. (2012). That the Society of Online Gamers (SOG), a private
Association of members of the online gaming industry, has challenged the Constitutional
Validity of the Central Act and also of the 106th Amendment Act, 2022 and the State
approached the Supreme Court in order to review its ruling in the State of Anamudi case. The
State submitted that the Supreme Court erred in interpretation of the doctrine of repugnancy
under Article 254 and has conflated it with the doctrine of occupied field. Hence the decision
should be reviewed. That both the petitions (one filed by Society of Online Gamers and one filed
by Nvideon games) are clubbed together and are listed for final hearing.

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STATEMENT OF JURISDICTION

The Counsel for the Petitioner, Society of Online Gamers (SOG), most humbly submitted that
the Petitioner has approached this Hon’ble Supreme Court under Article 32 of the Constitution of
Vidhisthan. The Nvideon Games, the petitioners have approached the Supreme Court of
Vidhisthan by filling a review petition under Article 137 of Constitution. The Hon’ble Supreme
Court of Vidhisthan has clubbed the petitions. The court has exercised its power under article
139A of the constitution.

Article 32 in The Constitution Of India, 1950-

32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

All of which is respectfully submitted.

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STATEMENT OF ISSUE

ISSUE 1

Whether The Constitution 106th Amendment Act, 2021 Is Constitutionally Valid?

ISSUE 2

Whether the Regulation of the Online Gaming Act, 2022 violates Fundamental rights?

ISSUE III

Whether the Supreme Court with regards to interpretation of the doctrine of repugnancy under
Article 254 had rightly decided the same in the case of State of Anamudi v. Mass Media
Community Inc. (2012)?

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SUMMARY OF ARGUMENTS

ISSUE1- Whether The Constitution 106th Amendment Act, 2021 Is Constitutionally Valid?

The counsel humbly submits that 106th constitutional amendment is not constitutionally valid and
is a clear violation of Article 246 of the Vidhisthan constitution and the union government has
misused its power and brought this particular amendment and seized the power from the state to
make laws and regulations on betting and gambling.

ISSUE 2- Whether the Regulation of the Online Gaming Act, 2022 violates Fundamental rights?

It is humbly submitted before the hon’ble supreme court that the Regulation of the Online
Gaming Act, 2022 violates Fundamental rights such as article 19 [1] [g] 1 and article 212 of the
constitution as such a ban is disproportionate to the objective states aim to achieve.

ISSUE 3- Whether the Supreme Court with regards to interpretation of the doctrine of
repugnancy under Article 254 had rightly decided the same in the case of State of Anamudi v.
Mass Media Community Inc. (2012)?
It is humbly submitted when the State of Kerala intended to amend the State Act in 2002, it was
bound to keep in mind the fact that there is already a Central law on the same subject, made by
Parliament in 1982, though not in force in Kerala, whereunder there is a pro tanto repeal of the
State Act. Therefore, the State Legislature ought to have followed the procedure in
Article 254(2) and ought to have obtained the assent of the President and therefore it was rightly
decided in the case of State of Anamudi v. Mass Media Community Inc. (2012) [which is pari
materia with the case of State of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr
(2012)3]

1
INDIA CONST. art. 19, cl. 1 (g).
2
INDIA CONST. art. 21.
3
(2012) 7 SCC 106.

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ARGUMENTS ADVANCED

ISSUE 1- Whether the Constitution 106th Amendment Act, 2021 is constitutionally valid

The counsel humbly submits that 106th constitutional amendment is not constitutionally valid and
is a clear violation of Article 246 of the Vidhisthan constitution and the union government has
misused its power and brought this particular amendment and seized the power from the state to
make laws and regulations on betting and gambling.

I.I Part XI of the Vidhisthan Constitution-

Part XI of the Vidhisthan constitution deals with relationship between the union and the states.
Article 246 mentions about the bifurcations that on what subject should the union make laws (list
I), on what the state should make laws (list II) and lastly on what subjects both union and state
together make law (list III). Schedule VII of the constitution enumerates the subject matters of
particular lists.

That article 246(3) clearly mentions that the state legislature has power to make laws and
regulations on the subjects mentioned under list II of the seventh schedule of the constitution and
the central government has no power to interfere on this matter and make laws on any subject
which falls under the state list.

That the state list consists of sixty-six items. The selection of these items are made on the basis
of local interest and it envisages the possibility of diversity of treatment with respect to different
items in the different states of union.

That the Apex Court in the case of Javed vs State of Haryana4 had already established the fact
that the Vidhisthan constitution gives autonomy to the Centre and the states within their
respective fields.

The counsel would like to highlight the point that betting and gambling is a state subject which
falls under Entry 34 of List II of Schedule VII. Therefore only respective states are empowered

4
AIR 1947 PC 60

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to make laws on betting and gambling in their territory and central government has no power to
bring any model law, also making The Regulation of the Online Gaming Act, 2022 invalid.

That the amendment would have only be valid when this particular subject matter was not
included in the state list as per article 246(4). Further the subject matter like betting and
gambling could not be included in exceptional cases as mentioned under article 249,250,252 and
253.

That in terms of Article 249 where Rajya Sabha has declared, by a resolution approved by not
less than two-thirds of the members present and voting, that it is required or reasonable, in the
national interest for Parliament to lay down laws in respect of any matter mentioned in the State
List referred to in the resolution, it becomes lawful for Parliament to lay down laws for the whole
or any part of the proceedings

The counsel agrees to the fact that Vidhisthan’s constitution has a quasi- federal characteristics
but we also follow the principle of separation of power. The sole purpose of dividing subjects
was to reduce the burden from the union and also at the same time to balance the tussle of power
between the Centre and state.

I.II Parliament has overstepped itself in bringing 106th amendment-

The counsel humbly submits that Parliament has overstepped itself in bringing 106th amendment
The Supreme Court ruled in Calcutta Gas Ltd. v. State of Bengal 5
that each entry should be
given the “widest possible” and “most liberal” construction, and each general term in an entry
should be interpreted to cover any supplementary or subsidiary subjects that may properly and
reasonably be stated to be contained by it. This is a key principle for interpreting the entries.

The counsel strongly argues that despite the fact that Central Government can’t make laws on the
subject matters of state list still central government has twisted rules, foraying into states' ambit,
to pass the 106th constitutional amendment

The counsel would also like to cite the case of three farm laws Rakesh Vaishnav & Ors v.
Union of India & Ors6. Parliament was backed for its legislative incompetency the Union List
does not give the parliament the authority to pass agricultural legislation. Entry 14 of the State
5
1962 AIR 1044, 1962 SCR Supl. (3) 1
6
WP No(s).1118/2020

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List mentions agriculture. As a result, states have complete authority to enact agricultural
legislation.

Further in the case of Union of India v. Rajendra Shah and others 7 constitutional validity of
97th constitutional amendment was contested because ‘cooperative societies’ is a matter listed
under state list. In other words, only the State Legislature has the power to pass legislation
governing cooperative societies. The two judges bench of the Gujarat High Court observed that
the 97th Amendment Act was unconstitutional because inserting Part IX-B without the necessary
ratification was ultra vires.

Another case which is pending in this honorable court is of Ramalingam v. The Union of India
& Another8 The State has the sole authority over dams, embankments, and other types of water
storage units, as well as over any works, land, and structures it owns or controls, including the
rights to the land. Entry 56 cannot be expanded by Parliament to cover only dams and
embankments under state control, making Dam safety act, 2021 invalid and unconstitutional.

The counsel states through these cases that there have been many cases and there are many cases
pending in which the parliament has overstepped itself and encroached subject matters of the
state list which is against the essence of the constitutional morality and wrong towards state
autonomy.

I.III Online gaming platforms not based on “mere chance”, no need of Uniform law-

It’s humbly submitted that betting and gambling was a state subject prior to this amendment
making every state possessing power to make their own laws on this subject. There are many
states in Vidhisthan like Sikkim, Nagaland and Goa casinos are main source of income for the
people of which they do pay tax to the government. Therefore bringing up a model law will end
their main source of income.

The counsel would like to further submit that Hon’ble High Court of Punjab and Haryana, the
Hon’ble Bombay High Court, Hon’ble High Court of Rajasthan as well as the Apex Court has
settled that fantasy games are “games of skill” and does not fall under the purview of betting and
gambling.

7
LL 2021 SC 321
8
WP No. 6356/2005

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In the case of State of Bombay Vs R.M.D Chamarbaugwala9 the Apex Court interpreted terms
skill and chance. ‘Skill gaming’ is where one uses his intellect, knowledge, training, and
attention to influence the ultimate result. The ‘game of chance’ is one where the result depends
on mere luck. However, there might be cases where the game shows an overlap between the two.
Where we find superior knowledge to be dominating, will be the one game of skill.

It can be observed in the case of Head Digital Works Pvt. Ltd. v State of Kerala & others 10 that
a Skill game does not depend on the stakes but the skill, knowledge and expertise of the parties
involved in it, further the Court also restricted the powers of the state. The State does not have
the power to legislate upon skilled gaming under the purview of ‘public order and ‘police’ as
they are considered to be business activities protected by Article 19(1)(g) of the
Constitution. Therefore the central government should also not be entitled to make any model
law on regulating online gaming.

Further in the case of Varun Gumba vs. Union Territory of Chandigarh11 it was held that The
online games in Dream Fantasy 11 are games of skill and not games of chance. D.
Krishnakumar vs. State of A.P12 held game of rummy that involves playing for stakes is not an
offence and lastly Executive Club vs. State of A.P 13 it was held Rummy is a game that is
predominantly based on the skill of the player.

The counsel concludes that if online gaming platforms including fantasy leagues, rummy and
poker are considered to be a game of skill and does not fall under the ambit of betting and
gambling which are game of chance then there is a no need of online gaming regulation which
will be working as a model law in the country therefore making 106 th amendment
unconstitutional because constitution has not granted the power to the central

9
AIR 1957 SC 699
10
WP (C) No. 7785/2021
11
WP(C) NO. 7785 OF 2021
12
2002 (5) ALT 806, 2003 CriLJ 143
13
1998 (5) ALD 126, 1998 (2) ALD Cri 569, 1998 (2) ALT Cri 207, 1999 CriLJ 35

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ISSUE 2- Whether the Regulation of the Online Gaming Act, 2022 violates Fundamental
rights?

It is humbly submitted before the hon’ble supreme court that the Regulation of the Online
Gaming Act, 2022 violates Fundamental rights such as article 19 [1] [g] 14 and article 2115 of the
constitution.

I.I VIOLATION OF ARTICLE 19-

I.I.1 REASONS FOR VIOLATION OF ARTICLE 19[1][g]-

Many State Governments have made an attempt to ban online gaming activities. However,
different High Courts, upon challenge, have declared such bans to be unconstitutional as
violative of freedom of trade and profession as guaranteed under the Constitution of
Vidhisthan16.

The counsel would like to plead that there is clearly a violation of Fundamental Right 19
[1] [g]17 as
A. Although the state has power to legislate over skill-based gaming, complete ban is arbitrary,
illegal and violative of Article 19 (1) (g) and is not covered under 19[6] as a reasonable
restriction.
B. Such a ban is disproportionate to the objective states aim to achieve.
C. There is absence of any empirical data or study regarding the ill effect of real-money gaming
provided by the state to justify total prohibition.

II. CHINTAMAN RAO V. STATE OF MADHYA PRADESH-

14
INDIA CONST. art. 19, cl. 1 (g).
15
INDIA CONST. art. 21.
16
PROPOSITION ¶ 4.
17
INDIA CONST. art. 19, cl. 1 (g).

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The counsel would like to plead that in the case law of Chintaman Rao v. State of Madhya
Pradesh18, Honourable Supreme Court of India has defined “reasonableness” as a test for the
purpose of Article 19(1)(g).

Hon’ble Constitution Bench noted the importance of striking the right balance between social
control and individual freedom as articulated the limitation under Article 19(6) in the following
terms:

Para 6. The phrase “reasonable restriction” connotes that the limitation imposed on a
person in enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public. The word “reasonable” implies
intelligent care and deliberation, that is, the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the right cannot be said to contain
the quality of reasonableness and unless it strikes a proper balance between the freedom
guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article
19, it must be held to be wanting in that quality.

III. C. KR LAKSHMANAN V STATE OF TAMIL NADU AND ANR-

The counsel would like to plead that the supreme court in the case of ‘’KR Lakshmanan V State
of Tamil Nadu and Anr’’19, in which it had observed that for a game to be considered as a game
of skill when the success of the game predominantly depends upon (1) superior knowledge, (2)
training, (3) attention, (4) experience and (5) adroitness of the player.
The test has since been used to determine whether the game is of a skill or of chance.
Talented players have the right to utilise their abilities and earn a living from them, and only
justifiable limitations should be placed on that right.
In the case of online games played for skill, the prohibition enacted in the state cannot fully
barred any possibility to develop such talents, and if it does, the restriction would be irrational to
the point of being clearly arbitrary20.
18
Chintaman Rao v. State of M.P., 1950 SCC 695.
19
KR Lakshmanan v. State of Tamil Nadu (1996) 2 SCC 226.
20
Priyansh Priyadarshi, ‘Regulating the Playgrounds’, The Contemporary Law Forum, (December 9, 2022)
<https://tclf.in/2022/12/09/regulating-the-playgrounds/> (Last visited on January 29, 2023).

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IV. HEAD DIGITAL WORKS PVT. LTD. V. STATE OF KERALA & ORS.-

The Kerala High Court in the case of Head Digital Works Pvt. Ltd. v State of Kerala & Ors 21.,
struck down a notification seeking to exclude ‘online Rummy when played for stakes’ (i.e.,
essentially seeking to ban online Rummy when played for stakes). It noted that:
Skill in playing a game was not in any manner dependent on stakes. Playing for stakes or not
playing for stakes was not a criterion to determine if a game is a game of skill.
The notification was arbitrary, illegal and in violation of Articles 14 and Article 19(1)(g) of the
Constitution of India.
The notification had the effect of a complete prohibition of online Rummy played for stakes, and
was not a reasonable restriction under Article 19(6) of the Constitution.

IV. NO CLEAR DISTINCTION TO CLASSIFY A GAME AS A GAMES OF CHANCE AND

GAMES OF SKILL-

It is humbly contended before the hon’ble court that in the case law of ‘’Manoranjitham
Manamyil Mandram v. State of Tamil Nadu’’ 22, it was held by the court that a game can be
classified as a game of chance or skill on the basis of facts and circumstances of each case.

The counsel would like to plead that a Prohibition of online gambling and of online games of
chance is unreasonable when it is dependent on facts and circumstances of each case to classify
a game as a game of chance or skill.

Talented players have the right to utilise their abilities and earn a living from them, and only
justifiable limitations should be placed on that right. In the case of online games played for skill,
the prohibition enacted in the state cannot fully barred any possibility to develop such talents,
and if it does, the restriction would be irrational to the point of being clearly arbitrary23.

21
All India Gaming Federation v. State of Karnataka & Ors, WP 18703/2021
22
Manoranjitham Manamyil Mandram v. State of Tamil Nadu AIR 2005 MAD 261.
23
Priyansh Priyadarshi, ‘Regulating the Playgrounds’, The Contemporary Law Forum, (December 9, 2022)
<https://tclf.in/2022/12/09/regulating-the-playgrounds/>

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V. ARTICLE 21-

According to Article 21, no person shall be deprived of his life or personal liberty and the state
must protect the life and personal liberty of the people living in India.

It is humbly contended before the hon’ble court that Right to play games and sports comes under
the ambit of article 2124.

The online gaming industry has been buzzing with activity in the country. Given the increasing
population of young people in the Republic of Vidhisthan and the widespread use of mobile
phones and the internet, business has already grown tremendously and still has plenty of room
for growth. Revenue is projected to grow at a CAGR of 22.1 percent from about USD 600
million in FY18 to USD 1.6 billion per FY 23. Local and foreign investors have shown great
interest especially in dream sports and fantasy leagues.12

Section 725 of The Regulation of the Online Gaming Act, 2022 provides prohibitions on playing
of online games and providing online game services.

The counsel would like to plead that there is a violation of article 21 as a prohibition imposed
by The Regulation of the Online Gaming Act, 2022 is taking away the personal liberty of people,
business houses, investors.

It is humbly contended before the hon’ble court that in case law of Junglee Games India Pvt.
Ltd. v. State of Tamil Nadu26 Kerala High court, while striking down a notification seeking to
ban online Rummy when played for stakes, held that playing for stakes or not is not a criterion
for determining whether a game is of skill or chance. Players have the right to make a living off
their skills.

24
INDIA CONST. art.
25
The Regulation of the Online Gaming Act, 2022, § 7, No. 78, Acts of Parliament, 2022 (India).
14
Junglee Games India Private Limited v. State of T.N., 2021 SCC OnLine Mad 2762.
26
Junglee Games India Private Limited v. State of T.N., 2021 SCC OnLine Mad 2762.

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A Prohibition of online gambling and of online games of chance is unreasonable as it takes away
the right of players to make a living off their skills.

ISSUE III- Whether the Supreme Court with regards to interpretation of the doctrine of
repugnancy under Article 254 had rightly decided the same in the case of State of Anamudi
v. Mass Media Community Inc. (2012)

It is humbly submitted when the State of Kerala intended to amend the State Act in 2002, it was
bound to keep in mind the fact that there is already a Central law on the same subject, made by
Parliament in 1982, though not in force in Kerala, whereunder there is a pro tanto repeal of the
State Act. Therefore, the State Legislature ought to have followed the procedure in
Article 254(2) and ought to have obtained the assent of the President and therefore it was rightly
decided in the case of State of Anamudi v. Mass Media Community Inc. (2012) [which is pari
materia with the case of State of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr
(2012)27]

III.1 State of Anamudi v. Mass Media Community Inc. (2012) [which is pari materia with the
case of State of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr (2012)28]

The lis in the present case arose under the following circumstances. Many of the private chitty
funds remained out of the regulatory mechanism prescribed in the Kerala Chitties Act, 1975 by
registering themselves outside the state but continued to operate in Kerala. Because of this,
investor protection became difficult. Consequently, section 4 of the said 1975 Act was amended
vide Finance Act 7 of 2002. By the said amendment, sub section (1a) was inserted in Section 4.

This amendment intended to bring in chitties registered outside the state having 20% or more of
its subscribers normally residing in the state within the ambit of said 1975 Act. Being aggrieved
by the said amendment, the private chitty firms challenged the vires of section 4(1a) of the 1975
act as repugnant under Article 254(1) to the central chit funds act, 1982.

27
(2012) 7 SCC 106.
28
(2012) 7 SCC 106.

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III.II Inconsistencies in the provisions of the Kerala Chitties Act, 1975 vis-à-vis the Central
Chit Funds Act, 1982-

The impugned judgement of the Division Bench accepted the contention advanced on behalf of
the private chitty firms that there are inconsistencies between the provisions of the two Acts.

However, the Single Judge held that absent notification under Section 1(3) of the (Central) Chit
Funds Act, 1982 bringing the said 1982 Act into force in the State and absent framing of the
Rules under Section 89 of the said 1982 Act, it cannot be said that the Kerala Chitties Act, 1975
stood repealed on the enactment of the said 1982 Act, which is the Central Act; whereas the
Division Bench declared Section 4(1)(a) of the 1975 Act as extra-territorial and, consequently,
unconstitutional, hence, the State of Kerala came to this Court by way of appeal.

III.III Difference between “make” and “commencement”-

For the purposes of this decision, the point which needs to be emphasised is that
Article 245 deals with conferment of legislative powers whereas Article 246 provides for
distribution of the legislative powers. Article 245 deals with extent of laws whereas
Article 246 deals with distribution of legislative powers. In these articles, the Constitution
Framers have used the word “make” and not “commencement” which has a specific legal
connotation. [Section 3(13) of the General Clauses Act, 1897.]29

Further, Article 250 and Article 251 also use the word “make” and not “commencement”.

Head Note to Article 250 it refers to power of Parliament to legislate with respect to any matter
in the State List if a Proclamation of Emergency is in operation. The word “made” also finds
place in Article 250(2). In other words, the verb “make” or the verb “made” is equivalent to the
expression “to legislate”. Thus, making of the law is to legislate with respect to any matter in the
State List if Proclamation of Emergency is in operation. Therefore, Constitution Framers have
deliberately used the word “made” or “make” in the above articles.

III.IV Irreconciable Conflict and Real Conflict-

However, the principle of federal supremacy in Article 246(1) cannot be resorted to unless there

is an “irreconcilable” conflict between the entries in the Union and State Lists. The said conflict

29
Subrahmanyan Chettiar v. Muttuswami Goundan, AIR 1941 FC 47 : (1940) 2 FCR 188

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has to be a “real” conflict. The non obstante clause in Article 246(1) operates only if

reconciliation is impossible.

Hence, the State Legislature has full power to legislate regarding subjects in the Concurrent
List, subject to Article 254(1) i.e. provided the provisions of the State Act do not come in
conflict with those of the Central Act on the subject.

III.IV.1 Why is does not come in the ambit of “law not made”?

In the present case, the (Central) Chit Funds Act, 1982 is a law made. The Chit Funds Bill was
passed by both the Houses of Parliament and received the assent of the President on 19-8-1982.
Thus, the law-making process ended on 19-8-1982. Section 1(3) is a piece of conditional
legislation. Merely because by that section the legislation has postponed the enforcement of
the Act, it does not mean that the law has not been made.

On the enactment of the (Central) Chit Funds Act, 1982 on 19-8-1982, intending to occupy the
entire field of chits under Entry 7 of List III, the State Legislature was denuded of its power to
enact the Kerala Finance Act 7 of 2002. However, a law enacted by the State Legislature on a
topic in the Concurrent List which is inconsistent with and repugnant to the law made by
Parliament can be protected by obtaining the assent of the President under Article 254(2) and the
said assent would enable the State law to prevail in the State and override the provisions of the
Central Act in its applicability to that State only. Thus, when the State of Kerala intended to
amend the State Act in 2002, it was bound to keep in mind the fact that there was already a
Central law on the same subject, made by Parliament in 1982, though not in force in Kerala,
whereunder there is a pro tanto repeal of the State Act. Therefore, the State Legislature ought to
have followed the procedure in Article 254(2) and ought to have obtained the assent of the
President.30

III.V Point of time for determination of repugnancy-

30
Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : 1983 SCC (Cri) 143; I.T.C. Ltd. v. State of Karnataka, 1985 Supp
SCC 476; M. Karunanidhi v. Union of India, (1979) 3 SCC 431 : 1979 SCC (Cri) 691; State of Orissa v. M.A.
Tulloch and Co., AIR 1964 SC 1284 : (1964) 4 SCR 461 Tika Ramji v. State of U.P., AIR 1956 SC 676 : 1956 SCR
393; Clyde Engg. Co. Ltd. v. Cowburn, (1926) 37 CLR 466 (Aust); Hingir-Rampur Coal Co. Ltd. v. State of
Orissa, AIR 1961 SC 459 : (1961) 2 SCR 537; Colin Howard's Australian Federal Constitutional Law, 2nd Edn.;
Nicholas: Australian Constitution, 2nd Edn., p. 303

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The key question that arises for determination is as to from when the repugnancy of the State Act
will come into effect? Did repugnancy arise on the making of the Central Act, 1982 or will it
arise as and when the Central Act is brought into force in the State of Kerala?

There is a need to quote Articles 245(1), 246(1), (2) and (3), 249(1) and (3), 250(1) and
(2), 251 and 254 of the Constitution-

Repugnancy arose when the (Central) Chit Funds Act, 1982 received the assent of the President
and on its publication in the Official Gazette and not on its commencement, which till date is not
there in the State of Kerala. In consequence, the Kerala Chitties Act, 1975 became void on 19-8-
1982 when the (Central) Chit Funds Act, 1982 was made after receiving the assent of the
President.

Applying the said tests, it is held that the Kerala Chitties Act, 1975 became void on the making
of the Chit Funds Act, 1982 on 19-8-1982, [when it received the assent of the President and got
published in the Official Gazette] as the Central 1982 Act intended to cover the entire field with
regard to the conduct of chits and further that the State Finance Act 7 of 2002, introducing
Section 4(1)(a) into the State 1975 Act, was void as the State Legislature was denuded of its
authority to enact the said Finance Act 7 of 2002, except under Article 254(2), after the (Central)
Chit Funds Act, 1982 occupied the entire field as envisaged in Article 254(1) of the Constitution.

Thus, repugnancy arose on the making and not commencement of the (Central) Chit Funds Act,

1982. On 19-8-1982, the Kerala Chitties Act, 1975 ceased to operate except to the extent of
Section 6 of the General Clauses Act, 1897.31

III.VI Principles on Repugnancy and Article 254-

In T. Barai v. Henry Ah Hoe32 this Court has laid down the following principles on repugnancy:

Article 254 of the Constitution makes provision firstly, as to what would happen in the case of

conflict between a Central and State law with regard to the subjects enumerated in the
Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal
rule that in the event of a conflict between a Union and a State law in the concurrent field, the
former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent
31
Pt. Rishikesh v. Salma Begum, (1995) 4 SCC 718
32
SCC pp. 186-87, para 15

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subject is ‘repugnant’ to a Union law relating to that subject, then, whether the Union law is prior
or later in time, the Union law will prevail and the State law shall, to the extent of such
repugnancy, be void.

To the general rule laid down in clause (1), clause (2) engrafts an exception viz. that if the
President assents to a State law which has been reserved for his consideration, it will prevail
notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a
concurrent subject. In such a case, the Central Act will give way to the State Act only to the
extent of inconsistency between the two, and no more. In short, the result of obtaining the assent
of the President to a State Act which is inconsistent with a previous Union law relating to a
concurrent subject would be that the State Act will prevail in that State and override the
provisions of the Central Act in their applicability to that State only. The predominance of the
State law may however be taken away if Parliament legislates under the proviso to clause (2).

“The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant

State law even though it has become valid by virtue of the President's assent. Parliament may
repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to
the State law with respect to the ‘same matter’.

Even though the subsequent law made by Parliament does not expressly repeal a State law, even
then, the State law will become void as soon as the subsequent law of Parliament creating
repugnancy is made. A State law would be repugnant to the Union law when there is direct
conflict between the two laws. Such repugnancy may also arise where both laws operate in the
same field and the two cannot possibly stand together e.g. where both prescribe punishment for
the same offence but the punishment differs in degree or kind or in the procedure prescribed. In
all such cases, the law made by Parliament shall prevail over the State law under Article 254(1).”

In  I.T.C. Ltd. v. State of Karnataka33

The Central and the State legislation cover the same field then the Central legislation would
prevail. It is also well settled that where two Acts, one passed by Parliament and the other by a
State Legislature, collide and there is no question of harmonising them, then the Central
legislation must prevail.”

33
SCC p. 496

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Referring to the case law M. Karunanidhi  v.  Union of India34 the test for determining
repugnancy has been laid down by the Supreme Court as under: 

It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that
where there is a direct collision between a provision of a law made by the State and that made by
Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to
the provisions of clause (2), the State law would be void to the extent of the repugnancy. This
naturally means that where both the State Legislature and Parliament occupy the field
contemplated by the Concurrent List then the Act passed by Parliament being prior in point of
time will prevail and consequently the State Act will have to yield to the Central Act.

Before any repugnancy can arise, the following conditions must be satisfied:

(1) That there is a clear and direct inconsistency between the Central Act and the State Act.

(2) That such an inconsistency is absolutely irreconcilable.

(3) That the inconsistency between the provisions of the two Acts is of such a nature as to bring
the two Acts into direct collision with each other and a situation is reached where it is impossible
to obey the one without disobeying the other.

 Thus, when the State of Kerala intended to amend the State Act in 2002, it was bound to keep in
mind the fact that there is already a Central law on the same subject, made by Parliament in
1982, though not in force in Kerala, whereunder there is a pro tanto repeal of the State Act.
Therefore, the State Legislature ought to have followed the procedure in Article 254(2) and
ought to have obtained the assent of the President.

34

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PRAYER

In the light of the facts presented, issues raised, arguments advanced, and authorities cited, it is
humbly prayed before this Hon’ble Court that it may be pleased to:

1. Hold that the 106th constitutional amendment act of 2021 is constitutionally invalid.
2. Holds that the Regulation of the Online Gaming Act, 2022 is violative of Fundamental rights
3. Declare that decision given in the case of State of Anamudi v. Mass Media Community Inc.
(2012) is rightly decided.

AND/OR

Pass any other order, which the court may deem fit in the interest of justice, equity and good
conscience.

And for this act of kindness the Petitioner shall forever be duty bound.

Date: **

Place:

Sd/-

Counsels on behalf of Petitioner

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