On September 29, the Allahabad High Court delivered a ruling stating that hookah services in designated smoking areas are not permissible under existing laws. The court emphasized that the initial experience of smoking may seem innocuous, but it is not.
In their decision, Justices Shekhar B. Saraf and Abdesh Kumar Chaudhary dismissed multiple petitions submitted by restaurant owners. They clarified that a 2017 amendment to smoking regulations imposes a complete ban on the provision of hookah services in these designated areas, and encouraged the Uttar Pradesh government to consider implementing more stringent anti-hookah regulations.
This issue first gained attention during the COVID-19 pandemic when the Allahabad High Court initiated a public interest litigation in 2020, leading the Uttar Pradesh government to prohibit hookah bars due to health concerns related to shared smoking devices. Subsequently, a statewide ban on hookah bars was enacted to mitigate the spread of the virus.
The matter re-emerged in February 2023 when the High Court noted that the operation of hookah bars falls under the Food Safety and Standards Act of 2006, allowing restaurant owners to seek licenses from relevant authorities for their businesses. In March of that year, the food safety commissioner instructed officials to handle applications that adhered to smoking regulations. However, following police raids against establishments serving hookah without proper licenses or to minors, restaurant owners contested that their rights to conduct business were being infringed despite having valid food licenses and designated smoking areas sanctioned by the Cigarettes and Other Tobacco Products Act of 2003 (COTPA).
The legal debate revolved around COTPA and its associated regulations. While Section 4 of COTPA prohibits smoking in public areas, it permits designated smoking zones in specific venues, such as hotels with a minimum of 30 rooms, restaurants accommodating over 30 patrons, and airports. Importantly, hookah tobacco is classified as a tobacco product under this statute.
The Prohibition of Smoking in Public Places Rules 2008 stipulates the requirements for these smoking zones, including a rule mandating that designated smoking areas be isolated from other parts of the premises. Before 2017, a provision stated that such areas could be exclusively used for smoking without any additional services. However, a subsequent amendment removed the phrase “other service(s),” enforcing a total ban on any services in smoking areas.
The FSSA governs food intended for human consumption and outlines the licensing framework for restaurants and food establishments. The court had to determine whether such food licenses affected the operation of hookah bars.
In its ruling, the court acknowledged that neither the food safety department nor municipal corporations had jurisdiction over hookah services, as the FSSA pertains solely to food for nutritional consumption, while tobacco products do not meet this criterion. The court noted, “FSSA deals only with food for human consumption for nutritional value, while tobacco products are neither consumed for nutritional value nor are they primary food items.”
Nonetheless, the court dismissed claims that police actions during raids exceeded their authority. COTPA grants police the power to search, seize, and confiscate tobacco products in cases of suspected violations.
The Supreme Court previously interpreted the earlier version of Rule 4(3) to allow hookah facilities in designated smoking areas, provided food and beverages were not served. However, the Allahabad High Court ruled that this interpretation is no longer valid following the 2017 amendment, which fundamentally altered the prohibition from a conditional to an absolute one. The court determined that since the preparation and serving of hookah constitutes a service, offering hookah in a designated smoking area is not allowed.
The petitioners contended that despite the ban on tobacco hookah, establishments should be permitted to offer herbal hookah, which does not contain tobacco or nicotine. The High Court rejected this argument, asserting that the prohibition applies to all forms of hookah service within designated smoking areas. The court reasoned that regardless of the type of hookah offered, the act of setting up and maintaining the apparatus involves service, and thus falls under the ban.
The court also dismissed the notion that hookah consumption could be considered “self-service” by allowing patrons to rent the apparatus. It concluded that the preparation and maintenance of hookah necessitate staff involvement, thereby linking it to the services provided by the establishments.
“‘Service’ encompasses all commercial actions performed by a business for its customers. Activities such as preparing, assembling, delivering, lighting, replenishing, and maintaining a hookah for a patron constitute a service according to the amended Rule 4(3),” the court explained.
Furthermore, the court distinguished between cigarette smoking and hookah consumption, noting that while a cigarette can be smoked independently, hookah use requires preparation and continuous staff assistance.
In closing, the court remarked, “It is a myth that hookah is less harmful than cigarettes. Hookah is equally addictive and harmful, containing the same toxic substances as cigarettes.” The ruling underlines the importance of regulatory compliance in maintaining public health standards.
