Karnataka High Court reserves verdict on challenge to Hookah Ban

The Karnataka High Court on Monday reserved its judgment in a batch of petitions challenging the ban on hookah and hookah bars in Karnataka [R Bharath and ors v. State of Karnataka]..Justice M Nagaprasanna also asked whether that the government could have regulated hookah use better if it had tackled the practice before it became rampant. "If you allow it to become rampant, it becomes difficult to regulate. 10 or 20 years back, where was all this (regulation or a ban)? Now after it has become rampant, you have woken up?" the judge orally remarked.However, he went on to add that such measures may be "better late than never.".The judge alluded to the State's more recent ban on the use of certain color dyes in food items such as Gobi Manchurian (an Indo-Chinese dish with cauliflower as the prime ingredient) as well."The additives cause cancer, not just today, but 25 years back also. It has been banned in Western countries. The colour they used in Gobi Manchurian is the colour they say is used to dye clothes," Justice Nagaprasanna observed..During earlier hearings, the judge had observed that the root of the case before it concerned whether the State had the competence to issue a blanket ban on hookah.Appearing for a petitioner, Senior Advocate K Suman asserted that the State does not have any such power, more so since a Central government legislation, namely the Cigarettes and Other Tobacco Products Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distributions) Act, 2003 (COTPA), already held the field. The COTPA, Suman had argued, permitted smoking in designated areas, where food is not served. .This stance was refuted by the State government represented by Advocate General Shashi Kiran Shetty, who asserted that the COTPA only deals with cigarettes and not hookah. He argued that the State, on the other hand, has the power to impose a ban in the interest of public health. Public health is a subject in Entry 6, List II (containing a list of subjects on which States can legislate) of Schedule VII of the Constitution of India, he pointed out.He added that the State government also had an obligation to carry out measures to promote public health according to Article 47 of the Constitution. .Meanwhile, another petitioner contended that the State's hookah ban, in fact, violates the right to equality under Article 14 of the Constitution of India as it favours cigarette producers. He pointed out that hookah is not an intoxicating drink or drug to warrant a complete ban. "Article 14 has directly been curtailed. Once a consumer of hookah is prohibited, he will go smoke cigarettes ... At least with hookah, we have the option of smoking herbal extracts. There are no herbal cigarettes (they have to smoke tobacco)," the counsel had argued. .Herbal hookahs were also the focus of Senior Advocate Kiran Javali's submission. The senior lawyer argued on Monday that the State government's ban cannot be applied to ban herbal hookahs that do not use any tobacco extract. .As the final hearing drew to a close, another counsel who supported the State's ban contended that hookah service is an illicit trade. He added that hookah traders have been defrauding the government by not paying any tax or cesses, unlike tobacco producers. "How much have they defrauded the government? For over ten years hookah industry is going on. One hookah a day is ₹ 250 - (that means) ₹ 1000 crores per day is the business - (or over) ₹ 36 lakh crores a year," the lawyer argued..AG Shetty added that it was only in the public interest that hookah has now been banned. He further informed the Court that apart from the notification banning hookah (which has been challenged), a bill for such a ban has been passed in the Legislative Assembly. "Hookah as such, it affects health quite seriously. It is not that we are promoting cigarettes," the AG added..Advocates Jayasimha KS, Mahesh Chowdhary and Mahesh S were also among the counsel who made submissions for the petitioners challenging the hookah ban.