With the world's largest, albeit not most deliberative, democracy having decided to pass more laws by way of the famous ancient Greek and Roman tradition of simply 'shouting' in the past session of Parliament, a new law is soon making way to the statute book. This is the 'Promotion and Regulation of Online Gaming' Act [The Bill can be accessed here]. The new law divides online gaming as a sector consisting of three categories — online money games, online social games, and e-sports — and it metes out differing treatment to each of these categories. It aims to regulate 'e-sports' and 'online social games', and prohibit 'online money games'.
The money involved in the sector, and the fact that a major company from the sector was the shirt sponsor of the Indian Cricket Team, has meant that it has attracted far more discussion than most laws get. The theme of these conversations is largely about whether it is good 'policy' to ban things, etc. — stuff that is not really the domain of this Blog. More interesting is the looming federalism battle on sports at large, as a result of not only this law but the National Sports Governance Act (another law passed in this session). By these two laws, the union government is staking a much greater claim than historically recognised in the regulation of sport. One wonders whether, and for how long, the states will stay quiet.
And, of course, the most interesting will be how the big players in this giant sector go about engaging in that most famous of Indian entrepreneurial sports — regulatory capture. The Online Gaming Act proposes to create a new regulator which will, seemingly, have some wriggle room on applying the law to the facts of each game, and decide which games are beyond the pale. In other words, the law is only the first step in what is going to be a much longer dance between the government and this sector.
In all this, what made the new law of interest for this Blog was its interplay with criminal law. The bright and gold lettering of Section 9 with jail time and fines of up to 1 Crore, and most importantly the ominous, and entirely expected move in Section 10 to confer upon police powers to arrest anyone found breaking the law without warrant, has meant that most big players have temporarily ceased operations but no word about the small ones. Law school teachers should take note and add this as an example in their classes on the principles behind criminal law-making and explaining the deterrence theory, which has long suggested that deterrence does not work in general, but certainly deters the more thinking kind of person. The slide can be updated when regulatory capture in the sector is complete to show that deterrence only works till the thinking kind of person has found a way around the locked front door to enter from the back.
The new law gives not only to the professors, but also the practitioners here. Criminal lawyers should take note of Section 16 which, according to me, has introduced a massive shift in how the law on arrest, search, seizure, has worked thus far. I've extracted it below and emphasised on the relevant parts:
16. (1) Notwithstanding anything contained in the Bharatiya Nagarik Suraksha Sanhita, 2023, any officer authorised under section 15 may enter any place, whether physical or digital, and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act.
(2) Where any person is arrested under sub-section (1) by an officer other than a police officer as referred to in sub-section (1), such officer shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or before the officer-in-charge of a police station.
(3) The provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall, subject to the provisions of this section, apply, so far as may be, in relation to any entry, search or arrest made under this section.
Explanation.—For the purposes of this section, “any place” shall include any premises, building, vehicle, computer resource, virtual digital space, electronic records or electronic storage device and the officer may, if necessary, gain access to such computer resource, virtual digital space, electronic records or electronic storage device by overriding any access control or security code, where such code thereof is not available
Before you ask, the significant change for me is not the enticing prospect of arresting digital avatars from the metaverse. Rather, its about the search and seizure power For the first time the text of the law has gone and specifically recognised that the virtual / digital plane is a different manifestation of space than the physical one. This is hugely significant, and let me explain how and why.
Thus far, the general criminal procedure law codified in CRPC 1973 and the new BNSS 2023 recognised the ability to seize items including electronic devices, but did not contain any language to deal with what comes next — i.e., searching inside a device. The text of the provisions conferring power to search were still operating on the physical, tangible plane, and talking about searching places. Absence of any clear legal regime for opening and searching devices meant that there was a basis to challenge the police forcing you to open your phone and trawling through its contents. Mind you, it didn't matter much given the obvious imbalance between nice legal argument and the brute force of a baton, but at least there was a case to be made. With Section 16, this gap in the law is being fixed, by conferring a clear and unambiguous legal basis for police invasion of digital devices.
Having such a clear and unambiguous recognition of duality between the physical and the digital realm in this special law creates a problem for the general law of search powers, where the language is still rooted to purely physical spaces. One could perhaps argue, by using Section 16, that the general power on search cannot permit invasion of digital devices in the manner that police currently engage in with remarkable alacrity.
Bye bye legal argument? Well, perhaps not.
No comments:
Post a Comment