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The Allahabad High Court has held that hookah bars cannot operate in Uttar Pradesh and hookah services can not be provided even in "Designated Smoking Areas".

The Court stressed that the right of non-smokers to breathe clean air in a public place cannot be abridged by the commercial interests of an establishment claiming a right to trade.

A Bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary thus dismissed a batch of connected petitions concerning the operation of hookah bars and the provision of hookah services in restaurants.

The Court held that hookah service in a Designated Smoking Area is also prohibited under Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008, as amended in 2017, read with the Cigarettes and Other Tobacco Products Act, 2003 (COTPA).

The issue before the HC was not whether smoking tobacco through a hookah, in isolation, was prohibited. The question was whether restaurants and similar establishments could provide hookah as a service in a Designated Smoking Area.

The Court answered the question in the negative.

The High Court observed that the general rule under COTPA is prohibition of smoking in public places, while the Designated Smoking Area is an exception to that general prohibition.

The Court noted that while a Designated Smoking Area permits smoking, it does not permit a restaurant to provide hookah service, because the amended Rule 4(3) prohibits "any service" in a smoking area.

Furthermore, in a significant observation concerning Articles 21 and 19(1)(g) of the Constitution, the Bench said thus:

"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".

The Court ultimately held that "operation of hookah bars and rendering of hookah services by restaurants in the State of Uttar Pradesh" is a flagrant violation of Rule 4(3) and contrary to the scheme and object of COTPA.

The Court heavily relied on the 2017 amendment to Rule 4(3). The Bench also referred to the Supreme Court's judgment in Narinder S. Chadha v. Municipal Corporation of Greater Mumbai. It noted that the language of Rule 4(3) had subsequently been amended.

Under the pre-amendment Rule 4(3), the smoking area or space was to be used only for smoking and "no other service(s) shall be allowed". In Narinder S. Chadha, the Supreme Court implicitly allowed service of hookah in smoking zones, but only 'service' of food items and other eateries besides hookah was prohibited.

However, the Central Government subsequently substituted Rule 4(3) in 2017. The amended provision now states: "No service shall be allowed in any smoking area or space provided for smoking".

The Allahabad High Court treated this change in language as material. The Court therefore held that the Supreme Court's interpretation in Narinder S. Chadha had to be understood in the context of the earlier statutory language, and that the amended Rule 4(3) now prohibits the provision of hookah service even within a Designated Smoking Area.

The Court therefore rejected the contention that hookah service could continue merely because the customer smoked inside an officially designated smoking area.

The petitioners had also argued that restaurants could adopt a "self-service" model.

Under the proposed arrangement, the hookah could be prepared and handed over to the customer, who would then smoke it without assistance from the restaurant.

The Court did not accept this submission. It noted that preparing a hookah involves several steps, including assembling the apparatus, placing tobacco in the bowl, filling the base with water, preparing the foil and placing heated charcoal.

The Bench observed that the process requires expertise and cannot realistically be treated as an ordinary self-service activity.

"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", the Court said.

Hookah Is A 'Service', Not Merely Rental Of Equipment

The petitioners also argued that supplying a hookah apparatus to a customer constituted a rental rather than the provision of a service. The High Court rejected this argument.

The Bench distinguished the arrangement from ordinary rental transactions, in which possession and control of the rented property are transferred to the customer.

In the case of a hookah provided by a restaurant, the customer remains within the Designated Smoking Area and is required to consume the hookah there. The Court observed thus:

"The factum of mandatory consumption of hookah inside the Designated Smoking Area by the patron makes it abundantly clear that he is being provided a 'service' only".

The Court also considered the assistance ordinarily required to operate a hookah, including replenishing charcoal, removing ash, and changing tobacco.

On an overall consideration of the activity, the Bench held that preparing, assembling, delivering, lighting, replenishing and maintaining a hookah for consideration amounts to rendering a service.

The High Court, however, accepted the petitioners' contention that certain authorities lacked jurisdiction to grant licenses for operating hookah bars.

The Court held that the Food Safety Department and Municipal Corporation cannot issue licenses authorizing the operation of hookah bars.

It reasoned that the statutory framework governing food safety does not confer such authority in relation to hookah bars and that the Municipal Corporation also lacks a statutory provision empowering it to issue a separate hookah-bar licence.

At the same time, the Court rejected the challenge to police enforcement powers under COTPA.

It held that Sections 12, 13 and 15 of COTPA empower police authorities to take steps for enforcement of the Act, including powers relating to search, seizure, confiscation and penalties in appropriate cases.

The judgment therefore makes clear that the existence of a Designated Smoking Area does not, by itself, authorise a restaurant or hookah bar to provide hookah services.

The Court rejected attempts to characterize the transaction as self-service or rental and held that the substance of the transaction, rather than the terminology adopted by the establishment, has to be considered.

The connected petitions were accordingly dismissed.

In the concluding portion of the judgment, the Bench referred to legislative measures adopted by various States, including Gujarat, Punjab, Rajasthan, Maharashtra and Karnataka, which have enacted provisions specifically dealing with hookah bars and providing for enhanced punishment and fines.

The Court observed that it expected Uttar Pradesh to “rise to the occasion” and take necessary steps, including consideration of issuing a notification providing for stringent punishment for the service of hookah in Designated Smoking Areas.

The Court also referred to the health concerns associated with hookah smoking and noted the misconception that hookah is necessarily less harmful than cigarettes.

A copy of the judgment was directed to be sent to the Chief Secretary and Director General of Police, Uttar Pradesh, for information and necessary compliance.

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