Sannidhi: Good evening and welcome to the Law and Other Things podcast. For those joining us for the first time, Law and Other Things is one of India’s oldest public law blogs, founded nearly 20 years ago by scholars and practitioners committed to making constitutional conversations accessible, rigorous, and publicly engaged. Over the years, the blog has served as a forum where academics, lawyers, judges, and students have reflected on developments in constitutional law, administrative law, federalism, rights adjudication, and institutional design. Our aim has always been to bridge the gap between the courtroom and the classroom, and between doctrine and democratic debate.
This podcast initiative grew out of the same vision. We wanted to create a space where complex constitutional questions could be unpacked through candid, in-depth conversations with leading practitioners and scholars. It is therefore a privilege to host Senior Advocate Mr. Arvind Datar for today’s discussion. Mr. Datar is one of India’s most distinguished constitutional lawyers, with decades of experience before the Supreme Court and various High Courts. Mr. Datar, thank you so much for joining us. We are truly delighted to have you with us.
The main topic around which today’s podcast is based is your recent landmark victory in Madras Bar Association versus Union of India. Without further ado, let’s get into our first point of discussion.
The Tribunals Act actually said its provisions would apply notwithstanding anything in any judgment, order, or decree of any court. That’s a pretty bold statement. How did the Supreme Court react to the legislature essentially declaring its law above prior rulings? Have you seen this kind of language before? And what does it signal about the tussle between the government and the judiciary here?
Arvind Datar: This non-obstante clause has been used in the recent past, used earlier also, but recently, if they want to get over a judgment, they simply say, notwithstanding any judgment, decree, order of any court, tribunal, authority, and they pass whatever law they want. But as you see in Justice Nagesh Warao’s judgment, he has referred to a number of cases that this is impermissible. If a judgment says that A plus B is equal to C, then the law can’t say, notwithstanding any judgment, A plus B will not be equal to C. So you can’t have a legislative overruling of a judgment. But you can remove the basis of the judgment. You can remove the basis of the judgment by altering what the provision says. Suppose, for example, the Supreme Court says that shares are movable property. Then you can’t simply say shares are not movable property. You can’t do that. But you can say the definition of a share will not fall within the definition of goods under the Sale of Goods Act. So you can amend the definition so that the basis of the judgment is removed. In other words, the amendment should be such that if the amendment was the law, the court could not have passed the judgment. Just putting a non-obstante clause is not a permissible way of getting over a judgment. Otherwise, any judgment can just be got over by simply saying, notwithstanding anything contained, whether it’s a Sales Tax Act or a Labour Act, you cannot simply say notwithstanding. You have to follow…
Sannidhi: Thank you so much for that detailed response, sir. We truly appreciate you taking the time to unpack these complexities for our listeners.
Building on what you just said, the government argued that the court’s earlier prescriptions on things like tenure and age were just suggestions, and that ultimately these are policy matters for Parliament to decide. How did the Supreme Court counter that argument? Where did the judges draw the line between valid legislative policy choices and breaches of constitutional principles like judicial independence?
Arvind Datar: See, these are not suggestions. Right from Sampath Kumar, they have made it clear. See, these tribunals have taken away the role, taken away the jurisdiction of the High Courts or the Supreme Court, and now they are doing what the courts were doing. The observation of Justice Bhagwati was that in the administrative tribunals, if you put a person for just five years, by the time he gets to know the matter, it will just be for… it will take one or two years for him to understand the subject. It is a brand-new branch of the law. And he said that five years is too short a period. Let it be an automatic extension of at least five years. So this is the verdict. Similarly, this five-year period was emphasized by the first R. Gandhi, first NBA case in 2010, saying that it should be an automatic extension, unless the member is found… there are some allegations of corruption or other impropriety, he should be continued, extension should be automatic.
Now, this became five years. That five years was made three years. Three years was struck down in Roger Matthew by Justice Gogoi’s bench. Now, they said, make it five years mandatory. As a kind of, I don’t know, prestige issue or just to prove a point, they said, no, we’ll make it four, we’ll not make it five, because the Supreme Court says five, I will not make it five, I’ll make it four. So I don’t know who is benefiting by this. Suppose I have joined the Company Law Tribunal and you appointed me for four years or five years. By the time four years are over, I’ve understood the law. I’ve developed a lot of domain expertise. Suppose tomorrow, as a young member, you become a member of the Company Law Tribunal or say, for example, the Securities Appellate Tribunal. You learn securities law. After three or four years, you get a very good grip of the subject. Now, the taxpayer’s money has been used to pay your salary and you have developed human capital. After all, this is all human capital. And you have developed knowledge. By funding four more years, there is no doubt that your disposal will be much higher because you have understood the subject. By four years, you have fairly got a full grip of the subject, and the next four years, you can dispose of many more cases and lay down better law.
Now, a person comes for four years and then he is gone, and he can’t go back to the same branch of law. If you are in the Company Law Tribunal, you can’t come back and practice through the Company Law Tribunal. There is no company law in the courts. So if you are a company law expert, who will come before? That’s why you find all the people in the Company Law Tribunal, nobody knows company law in the judiciary. All have come from the IRS or have come from the district judiciary or are advocates who have never practiced company law and will never again practice company law. What kind of a system are we developing?
This is not a policy matter, and ultimately, I think the aim is to get the best possible tribunal, get the best possible talent for most cases. If you have people without… tomorrow if you appoint me, say, in a PMLA tribunal, I have no knowledge of criminal law. I’ll do a mess. But after four years, I’ll get some knowledge. Why ask me to go after four years? Let me continue for another five years. Why make it a prestige point? But they are adamant that it can’t be more than four years. I don’t understand.
Sannidhi: That actually clarifies the issue beautifully for us, sir. I think you’ve really unpacked the constitutional tension at the heart of it.
Taking that forward, one big outcome of this case is that the Supreme Court didn’t just strike down provisions, it also directed the government to set up a National Tribunals Commission within four months. What does this Commission expect it to do? And why is it seen as a solution to persistent tribunal woes? In your view, will creating this independent oversight body finally address the problems that have led to repeated court interventions?
Arvind Datar: In the UK, when you had the major Tribunals Reforms Act, reforms were made after the recommendation of the Lord Legate Committee. One of the most important things suggested was that a tribunal should be perceived to be independent. The point is justice should not only be done but should be seen to be done. The public must feel that, look, if I go to this tribunal, I am not going to one more government department. I am going to a place where there are independent members like judges. That’s why it’s called quasi-judicial. It’s not judicial, it’s quasi-judicial.
When I was a junior, the Income Tax Appellate Tribunal dealt with income tax cases. It was under the Law Ministry. It was completely independent. It was a fantastic tribunal. So the suggestion was that, like in England, the tribunals come under the Lord Chancellor, under the Law Ministry. Here also, we said that, look, you can’t have the Excise Tribunal under the Finance Ministry, you can’t have the Labour Tribunal under the Labour Ministry. Then you are just like a department. You are depending on your ministry for your staff, for funds, etc. Invariably, people will perceive it to be a wing of the government. What justice can I get, you know, where I am aggrieved by a government order and I am going to the government to challenge it? What kind of justice would I get?
In Chandra Kumar, they said, have an independent nodal ministry for this. That has never come, despite the judgment being 28 years old. It was recommended in Roger Matthew that we have a Tribunals Commission because once you have a Tribunals Commission that can take care of the infrastructure needs, it can be under the Law Ministry. That Tribunals Commission can be headed by judges, sitting judges, retired civil servants in a particular combination. They can take care of selection, staffing, promotion, housing. Just as the Ministry of Justice takes care of the judiciary, you can completely take care of all the needs. And once it’s a National Tribunals Commission, they don’t have to bother about their parent ministry. A welcome measure, but I don’t know if they are going to implement it because many judgments of the Supreme Court, they don’t implement at all. Very unfortunate, but at least see the point is we have to ask, is it in the interest of the nation? Is it promoting ease of doing business? Will it promote Viksit Bharat? You can’t have a large country where the tribunal system is not perceived to be independent. You want to be a first-world country, the third-largest economy and so on, then have tribunals like what they are in the UK, Germany, and so on, which are completely independent. You can’t want to be a first-world country and have a third-world, fourth-world kind of bureaucratic setup.
Thank you so much for that response, sir. Your experience in these matters really shows in the way you’ve broken that down for us. Thank you for walking us through it so clearly.
That leads us naturally to the next concern. In the case, the court struck down provisions of the Tribunals Reform Act on the ground that they were verbatim or near-verbatim reenactments of clauses already held unconstitutional in earlier rulings. Does this judgment expand the scope of judicial review to include legislative process, specifically attempts to override binding judicial directions?
This actually is tied up with your first question on notwithstanding. Here, they did not even do notwithstanding. Here, only one part did notwithstanding. The tribunals ordinance was struck down somewhere on 11th July or something. And within three weeks, they passed the same Act, which, in my experience of four and a half decades, is unheard of. I have not seen anywhere in history where the Supreme Court has struck down certain provisions and you simply reenact the same provisions again. Perhaps unprecedented.
I’ll give this point that, look, there is a particular section. I strike it down. You can’t enact the same section. You’ll have to remove the basis, make a new law, try to get over the judgment. Ultimately, Parliament can make the law. It can change the basis of the law. For example, they say sale will not include works contract because sale only means transfer of property. Then you have the 46th Amendment. They say sale will also include… amend the Constitution, amend the Act, amend the rules. But you can’t simply pass the same rule in the same law all over again. Not only is it legislatively impermissible, but it is not showing due respect to the courts which have laid down the law.
Sannidhi: Thank you so much, sir. Another important case that you’re involved in at this point in time is Gamescraft v. Union of India. I have had the opportunity to listen to you argue that case because I was interning during that time. I had gone and written on the taxation aspect of it with an advocate on record in Taxmann also. So you have really, really inspired me in that case and how structured, sharp, and innovative your arguments were. So my next question would be on that case.
The whole sunrise sector of the online gaming industry is on the brink of disappearing due to the change in tax rates and the erasing of the distinction between games of skill and games of chance, which has been held since the R.M.D. Chamarbaugwala case. So what is your take on the present status of the industry and how the case is going to take its course in the coming hearings? Your take on that would be great, sir.
Arvind Datar: Well, as far as the law is concerned, from 1957, Chamarbaugwala’s case, where they discussed the prize competition back in 1955, it has been consistently held that playing games of skill is like having a business. You are protected by Article 19(1)(g). That distinction cannot be erased by mere legislation. What they can do is levy the same amount of tax. They say whether you are playing a game of skill or a game of chance, I will levy a tax. So that’s permissible. But you can’t prohibit a game of skill today under law, in my opinion, because you would have to amend the Constitution for that. Perfectly legitimate. You can’t take away my Article 19(1)(g) right.
Fortunately, the new Act which has come, which has not yet been notified, has completely crippled, or if I may say, destroyed the whole industry. There are newspaper reports that a lot of gaming has gone underground. The government lost 18,000 crores of revenue by this particular ban. By levying 40% tax, it’s one thing to say you can play the game and one thing to say I’ll levy 50% tax. Nobody is going to play at all. Because if you levy 50% tax, every 10 rupees I play as a winning bet or as an entry fee, if 3 rupees are going to go as tax, 10 rupees are going to go as platform fee, then all of us are going to share the remaining 3 or 4 rupees. It’s one way of ultimately destroying the whole sport. I have never understood this rationale of planning this.
The argument that people are committing suicide, people are doing this and that and so on, so is alcohol. You are permitting that. So that’s not an argument. In any game, if there are 1 million people playing, if 10% commit suicide, that doesn’t mean ban the whole game. There are people, extremes, who will get addicted. Like recently, some young girls jumped off on the Korean game. Very unfortunate. So this is part of it. And I don’t know who is winning. Ultimately, websites in Dubai and so on are making money at our expense and we are losing all the tax revenue.
I thought that after the meetings with the Finance Ministry and altering the taxation proposal, things were going smoothly. 28% was the tax, people had reconciled to it. A sudden ban is apart from this. More than 3–4 billion dollars had come as investment by private equities abroad. They came in thinking that they would invest in India. So many people—every gaming company has large teams, 800, 900 engineers working. They keep on updating the software, regulating… It’s a huge set of techniques. Everybody has lost their job. And for what? So people have worked for 3–4 years, developed skills as gaming experts. Now they’ve all lost their jobs. And 3 billion investment has come. Overnight, you could at least say that, look, we’ll be phasing it out over 4 years or 5 years or give some reasons or at least make some provisions. And the rules now are even more draconian. Gaming is over as far as India is concerned.
Sannidhi: Sir, that reminds me of the recent 2025 Act that came in, the Promotion and Regulation of the Online Gaming Act, and also particularly the federalism issue that is embedded in that Act, about how betting and gambling fall under the State List, but the Union, to justify their legislative competence, had given reasons like Entry 52 of List I, which said that in public interest we can take care of some industries. So what would be your take on the federalism angle of that Act and how does that Act relate to the ongoing Gamescraft case in the Supreme Court?
Arvind Datar: See, I don’t think Parliament can get into it unless they amend the IDR Act, the Industries (Development and Regulation) Act, or identify it under the Essential Commodities Act. Normally, all trade and commerce are State subjects. But apart from that, the larger issue is whether it’s Parliament or whether it’s the State legislature. You can’t ban games of skill. In a democratic, republican democracy where Article 19(1) rights are there, you can’t ban it. So one is a federalism issue, number one, because betting and gambling are State subjects. For example, Sikkim may want to permit gambling, Goa may want to permit a casino. How do you do it online? If you can have physical casinos, why not have an online casino? What’s the logic? They say online is coming under Entry 31, telecommunication. The court will have to test it. But there is a federalism issue and the larger issue is how do you get over a five-judge judgment which has stood the test of time for almost 60–70 years.
Sannidhi: Yes, sir. There was this one argument I was recently making in my research paper on it, and I had come across this argument which said everything that becomes an online format now—if we go by the same argument that the Union is making—everything that becomes online, the Union would have legislative competence. The pith and substance test does not really allow that because just because it becomes an online format, because of the digital economy which is happening a lot more, anything being sold on websites, even if it is in the State List, then the Union should get competence
Arvind Datar: Even for agriculture because I promote seeds online or give inputs to farmers online. That doesn’t mean you get control. You’re absolutely right.
Sannidhi: Understood, sir. Taking that forward, sir, another important doctrine that is muddled in the whole gaming cases is res extra commercium. Could you trace the theoretical origins of the res extra commercium doctrine and explain how it evolved as a constitutional tool for excluding certain activities from the protection of trade and commerce? In your view, is its application in India, particularly in areas like gambling, liquor, and online gaming, conceptually coherent, or is it doctrinally ill-suited to the structure and rights framework of the Indian Constitution?
Arvind Datar: R.M.D.C. misunderstood res extra commercium. They thought res extra commercium means commercial activity that is extra-commercial, like extra-judicial, extra-legal methods. So what we say is something beyond. So they thought res extra commercium means something which can’t be taken as commercial activity like drinking, gambling, and so on. That is not the meaning of res extra commercium. Res extra commercium has a different meaning in Roman law, as I wrote in my article. But anyway, I didn’t want to waste time. I said at least in India for 70 years, we’re using res extra commercium in our own way. So for India, res extra commercium means commercial activities which are socially harmful. We’ll keep it at that.
It has taken its own meaning, like some particular word may have a different meaning in America, may have a different meaning in England. So now that’s the meaning of the word. For example, if you take the word gay, gay means something very joyful and so on in the actual dictionary, but now gay means a sexual orientation. That’s now the new meaning of the word. So it’s okay, fine. I’m not on that. And again, I can say that games of skill can never be res extra commercium. At the most, games of chance can be. And beyond a point, you leave a person alone. I mean, stop this moral policing. You can’t play online games, it’s affecting morals, this, that, and so on. Just leave people alone. Somebody wants to play cards in the evening, he’s enjoying life. If I want to play poker, yes, I’ll play poker. Just leave it. The right to be left alone is such an important right.
Sannidhi: Understood. The government went to the extent of completely removing the difference and said merely the minute you stake money, the difference between games of skill and games of chance is gone, and because you stake money…
Arvind Datar: That was the argument in the case also. The moment you put a stake, it’s done.
Sannidhi: Okay, sir. Thank you so much, sir. That was a very, very insightful interview for us. And we hope to see you in the future.
Arvind Datar: Wish you all the best. Wish all your colleagues and classmates all the best. Thank you. God bless.
Sannidhi: Thank you, sir. Thank you. Thank you to our listeners for listening to the LAOT podcast. We will come with more content soon.
[Ed Note: The Podcast has been conducted, edited and transcribed by P. Sannidhi from the LAOT team and published by Vedang Chouhan.]