The on Tuesday prohibited restaurants in Uttar Pradesh from operating hookah bars or offering hookah services even in “Designated Smoking Areas”, citing violations under the Cigarettes and Other Tobacco Products (COTPA) Act.
LiveLaw reported the development, saying that the High Court held that a non-smoker’s right to breathe clean air in public spaces cannot be compromised to protect the commercial interests of an establishment exercising its right to conduct business. The court noted, “The right of the non-smoker to breathe clean air in a public place is a fundamental right guaranteed under Article 21 of the Constitution of India, that cannot be abridged by commercial interest of an establishment having Right to Trade under Article 19(1)(g) of the Constitution of India.”
A two-judge bench of Justices Shekhar B Saraf and Abdhesh Kumar Chaudhary dismissed a series of connected petitions regarding the operation of bars and hookah services in restaurants.
Further, the two-judge bench noted that under Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008, as amended in 2017, read with COTPA, providing hookah service even in a ‘Designated Smoking Area’ is also banned.
The court was not considering whether smoking through a hookah was prohibited by itself. Instead, it examined whether restaurants and similar establishments could offer hookah services within a Designated Smoking Area, the report noted.
The court noted that COTPA generally prohibits smoking in public places, with Designated Smoking Areas being a limited exception. However, it clarified that allowing smoking in such an area does not mean restaurants can offer hookah services there, as amended Rule 4(3) bars the provision of “any service” within a smoking area.
Calling the provision of hookah services in restaurants and the operation of hookah bars a “flagrant violation of Rule 4(3) and contrary to the scheme and object of COTPA”, the Allahabad High Court rejected the practice.
The petitioners argued that restaurants in could opt for a ‘self-service model’, wherein the hookah would be prepared and handed over to customers, who could then smoke it without the assistance of restaurant staff. However, the proposed arrangement was also rejected by the High Court, which observed that preparing a hookah involves multiple steps, including putting together the hookah, adding tobacco to the bowl, filling the base with water, covering it with foil and placing hot charcoal on top.
The court said, “The self-service model hypothetically synthesised by the petitioners to skirt around the clutches of the COTPA and the amended Rules is not a viable model as procedural operation of hookah intrinsically involves ‘service’ which needs to be carried out by the one having expertise in it and is not an operation that can be carried out by patrons who are not trained and are novices.”
Further, the petitioners argued that providing hookah apparatus to customers should be seen as a rental rather than a service, a notion rejected by the court.
