Monday, March 02, 2015

A fresh attempt to seek notification of an Act passed years ago

Jay Sayta is a final year law student at the National University of Juridical Sciences Kolkata and runs; India's first and only website on gaming laws.
Jay started in 2010 as a resource to monitor developments in the gaming industry. In a short span of four and a half years years, has become a premier resource for everyone associated with the Indian gaming industry.   Jay has also articulated his views on topics like legality of games of skill, benefits of legalising sports betting, need for bringing reforms in sports bodies like BCCI, need to curb the malaise of match-fixing etc.   Here, he answers a few questions on his latest public interest litigation (PIL) petition filed in Bombay High Court seeking the notification Maharashtra Casinos (Control & Tax) Act 1976, which legalised casinos, gaming and wagering. 

Q How is your petition different from the earlier ones filed in the High Courts and in the Supreme Court, all of which, ultimately upheld executive's discretion as to the timing when it would notify an Act or a part of it? What additional grounds, which were not argued earlier, you raise in this petition? 

A. I have filed a petition against the Maharashtra government for not notifying the Maharashtra Casinos (Control & Tax) Act, 1976, a little known legislation which legalises gambling and wagering through licenses in the state of Maharashtra. The Act has been passed by both the Houses of the Legislature and assented by the government; however it has not been notified under Section 1(3) and rules/notifications have not yet been prescribed under this Act.

We have inspected and got copies of the relevant files from the Law Department, Government of Maharashtra. There is nothing on record to show that the government has considered notifying the Act or applied its mind on the issue. In the other cases, there have been some difficulties or practical reasons brought on record.  

Secondly, the Supreme Court decision in Aeltmesh Rein v. Union of India (1998) 4 SCC 54 still operates and as per that decision, Courts can issue directions to the government to consider bringing a legislation or part of it into force. This is the first case where an entire legislation has not been brought into force for 38 years. Surely such a case of gross oversight or non-application of mind of the executive demands judicial intervention. The UK House of Lords has also said in Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) that a situation where the executive never enforces a statute while continuing another legislation can never arise. In this matter, 38 years of executive inaction gives the impression that the government never intends to implement this legislation and the courts should thus intervene.

We are also additionally adding the ground that this is a fraud on the Indian constitution and violation of the doctrine of separation of powers as the executive is taking away legislative functions by keeping the Act in abeyance for such a long period of time. Various academicians and jurists including writers on this blog have indicated that AK Roy's judgment should be reviewed or at least future cases of executive inaction should be viewed differently keeping in mind the Fire Brigades Union and Aeltmesh Rein decisions.

Q. Why are you so passionate about the issue? 

A. I run a website on gambling laws in India. I started this website in 2010 because there was little research on this area and I strongly believed that the current gambling legislations are archaic and there is a need to change them. We need to legalise gambling and betting as it will be a great source of revenue for the governments. Additionally legalising gambling will reduce sources of revenue for the underworld and criminal elements thereby reducing black money and terror financing. It will also reduce fixing and cheating in sport. I have written about this in journals, online portals, newspapers etc. and also spoken on this in various fora.

Q. What do you think is the real reason for the state government not notifying the Act?  Are there any pressure from interested lobbies not to notify it?

A. There is no reason on record. Maybe the government simply forgot about this Act and didn't apply its mind. In any case, this is a politically sensitive issue and has moral dimensions and I would imagine that to be the main reason why the government hasn't notified this Act (though interestingly government has considered several proposals to setup casinos in the state, but I don't think they have linked those proposals to this Act or thought seriously about legalising casinos).

Q. Are there any other similar Acts, which remain unnotified in Maharashtra? 

A. I am aware of at least one another unnotified legislation, i.e. the Maharashtra Dog Race-Courses Licensing Act, 1976 which legalises dog races and betting thereof and was passed by the legislature around the same time. I am not aware of any other Maharashtra legislations which have remained unnotified for such a long period of time.

Q. Have you researched this subject at the national level? I am intrigued, for instance, about Section 16 of the Petroleum and Natural Gas Regulatory Board Act, which was not notified in 2007, when the Act's other provisions came into force, but got notified in 2010. The PNG Minister at that time said in Parliament that the text of the Bill did not reflect the intent of the statute. How the Government changed its view within three years of the other provisions coming into force is not clear. Also, the PNGRB seems to have taken the view that the provision, even though it was notified in 2010, took a retrospective effect from 2007. 

A. I have not looked at the provisions of the Petroleum and Natural Gas Regulatory Board Act in detail. I think the factual background of my case is slightly different. We will have to wait for the government's response before we could draw an analogy with the Petroleum matter.  

Q. Do you think a fresh challenge is possible in the Supreme Court, citing additional grounds, which were not raised in previous cases, the last one being Union of India v. Gajanan Mahajan Sansthan. 

A. I do think a fresh challenge in the Supreme Court is possible citing additional grounds not raised in Union of India v. Gajanan Mahajan Sansthan, (2002) 5 SCC 44. I have mentioned several grounds in response to your earlier question which are unique and have not been raised earlier. You can also refer to my petition for additional grounds which is available here.
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