Hookah is not less risky than cigarettes: Karnataka High Court

It is a common misconception that smoking hookah is not as dangerous as smoking cigarettes, observed the Karnataka High Court on Monday while upholding the State's hookah ban in Karnataka [R Bharath and ors v. State of Karnataka]..Justice M Nagaprasanna voiced concern that while cigarettes are completely regulated all over the world, hookah is "let loose."."The defence all over is that Hookah is less harmful than Cigarettes. The studies again are otherwise ... It is again a myth that smoking of hookah carries less risk of tobacco related diseases than smoking cigarettes. Hookah contains many of the common toxins as cigarettes. If cigarettes can cause lung cancer or respiratory illness, hookah is catching up to it, as hookah sessions allow smokers for prolonged amount of usage, therefore, they are exposed to high concentrations of toxins. It is a fact that a session of hookah is more harmful than a pack of cigarettes. Hookah sessions are said to be typically around an hour in length, which is an estimated 200 puffs per session. If it is 200 puffs per session, it is equivalent to 100 cigarettes, in any of these sessions. Hookah, is, as addictive as a cigarette; as harmful as a cigarette; has the same chemicals as a cigarette," the Court observed. .The Court added that hookah is generally smoked in groups, with the same hookah instrument being passed around leading to a higher risk of diseases such as hepatitis and herpes.The Court further noted that while cigarette packs and alcohol contain statutory warnings regarding their health risks, hookah does not. The Court, therefore, held that the State government's decision to ban hookah in Karnataka was within its duties under Article 47 (duty to ensure nutrition and improvement of standard of living and public health) of the Constitution of India. .The Court also questioned why the State took so long to curb the use of hookah when it is projected to be as dangerous as smoking 100 cigarettes. "A complete puff of hookah taken in using a water-pipe is equivalent to 100 cigarettes. Herbal hookah, as observed hereinabove, is a storehouse of carbon monoxide which is poisonous. With all these being in public domain, it is ununderstandable as to why the State had kept quiet all these days to leave these places to mushroom into hundreds. It is averred that there are about 800 hookah places/hookah bars in the State of Karnataka. Therefore, they have been completely unregulated till today," the Court remarked. .1. Hookah involves use of tobacco, falls under COTPA: The Court noted that "hookah tobacco" is also brought within the definition of "tobacco" under Section 3 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA). Hence, the ban on "smoking in public places" under Section 4 of the COTPA also applies to hookah, the Court said. .2. Hookah is a service; prohibition on smoking and providing service in same place applies: The Court noted that after an amendment in 2017, Rule 4 (3) of the Prohibition of Smoking in Public Places Rules, 2008 lays down that "no service shall be allowed in any smoking area or space provided for smoking." The Court reasoned that since hookah necessarily requires the setting up of an apparatus (water pipe, hot coal, hot water along with nicotine or herbal hookah etc.), it is a form of service. Hence, hookah smoking "flies on the face of sub-rule (3) of 2017 Rules", the Court held. In this context, the Court added that the State government was merely implementing the Central government's directive under COTPA..3. Herbal hookah can also be banned since it involves use of molasses, if not tobacco: The Court rejected the argument that since herbal hookah does not contain tobacco or nicotine, it cannot be banned. The Court found that herbal hookah would still contain molasses, which is a prohibited substance under Section 43 of the Karnataka Prohibition Act, 1961. "Any quantity of molasses being present in herbal hookah cannot be made use of unless there is expression permission from the hands of the State ... Therefore, merely because herbal hookah does not contain tobacco, it does not mean that it is to be unregulated, as the key component is molasses and molasses is regulated," the Court held..4. On State's competence to regulate or ban hookah: The Court noted that the State has powers to regulate matters concerning public health under Entry 6 of List II of the Seventh Schedule of the Constitution. The Court further held that the State is merely implementing the Central government's ban on providing services in smoking areas. Further, the Court noted that the Poisons Act, 1919, also covers nicotine. No fault can be found with the State government for invoking the Poisons Act to take action against tobacco or nicotine-laced hookah, the Court said. "The Rules are clearly in favour of the State to ban any service in a smoking area and what is now sought to be done is exactly the same," the Court concluded while dismissing the petitions challenging the Karnataka hookah ban. .Senior advocates Kiran S Javali, and K Suman along with advocates Kiran Gowda M, Sunil Kumar BN, Siddharth Suman, Mahesh S Govindaraju, A Mahesh Choudhary, Krishna Vaishnav, Jayasimha KS, KL Shreenivasa, and Muiz Ahmed Khan Usmani appeared for various petitioners who challenged the ban. K Shashi Kiran Shetty along with Additional Government Advocate Navya Shekhar represented the State. Advocate Ravishankar SS appeared for certain applicants in intervening applications. .[Read Judgment]