Allahabad High Court bars hookah in UP restaurants

The Allahabad High Court on Tuesday barred restaurants in Uttar Pradesh from operating hookah bars as it violates the Cigarettes and Other Tobacco Products (COTPA) Act [Aftek Foods and Beverages Pvt. Ltd and another v State of UP and Others]

A division bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary passed the ruling on a petition moved by various restaurant owners against police interference in their business of running hookah bars.

"The operation of hookah bars and the rendering of hookah services by the restaurants within the State of Uttar Pradesh constitutes a flagrant violation of Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008 as amended in 2017 and is in direct contravention of the scheme and object of COTPA," the Court ruled.

The Court urged Uttar Pradesh government to take all necessary steps to enforce the prohibition, including issuing a notification for imposing stringent punishment for the service of hookah in all designated smoking areas.

The Court said the food safety department and the municipal corporations have no power to regulate or issue licenses for hookah smoking in restaurants or the establishment of hookah bars.

However, the Court made it clear that the police have the power to search, seize, confiscate and impose penalties upon establishments for disobeying the mandate of the COTPA Act.

The ‘service’ of hookah is absolutely impermissible even in designated smoking areas, the Court added.

"The 2017 amendment to Rule 4(3) imposes an absolute and unqualified prohibition on all services within a Designated Smoking Area. The prohibition so enacted admits no exception to service of any nature or description whatsoever and includes service of food, beverages, tobacco products, herbal products and hookah," the Court said.

The Court said that the right of a non-smoker to breathe clean air in a public place is a fundamental right guaranteed under Article 21 of the Constitution of India.

The right cannot be abridged by the commercial interest of an establishment having the right to trade under Article 19(1)(g) of the Constitution of India, it added.

The Court said it was a myth that hookah is less harmful than cigarettes.

"Hookah is as addictive as a cigarette, as harmful as a cigarette, and contains the same toxic chemicals as a cigarette," the Court said.

It added that while every packet of cigarettes carries a mandatory statutory health warning, a similar caution is required in case of hookah to fill a regulatory gap that demands urgent legislative attention.

While the Court agreed that there is no specific prohibition or ban on hookah tobacco smoking, it said any encouragement of hookah smoking by providing the hookah apparatus, tobacco and rendering services intrinsically linked to it cannot be permitted keeping in mind the rules.

"The very rationale of ‘no service’ in a smoking area is to protect the non-smoking personnel and waiting staff," the Court said.

The Court rejected the argument that  smoking hookah is similar to smoking cigarettes in the smoking area. 

"The Designated Smoking Area as provided in proviso to Section 4, being an exception to the general rule of prohibition of smoking in public places must be read strictly, narrowly, and in a manner that advances rather than undermines the dominant prohibitory philosophy and overarching public health objective of the COTPA," the Court said.

The judgment was passed on a batch of 81 petitions.

Advocate Harshit Singh represented the petitioners.

Advocate Pankaj Khare represented the State.

[Read Judgment]