Hookah As Addictive And Harmful As Cigarettes: Karnataka High Court While Upholding Ban

It is a myth that smoking of hookah carries less risk of tobacco related diseases than smoking cigarettes, the Karnataka High Court said yesterday while upholding a notification issued by the State government banning the sale, consumption, storage, advertisement and promotion of all types of hookah products within the State.A single judge bench of Justice M Nagaprasanna said the State had rightfully discharged its duty under Article 47 of the Constitution to ensure public health and prohibit intoxicants and drugs that are injurious to public health.“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. Every packet of cigarette must contain a warning that it is injurious to health; every bottle of alcohol would contain a warning that it is injurious to health, but Hookah does not. Therefore, the action of the State is in strict consonance with Article 47 of the Constitution of India, apart from it being completely tenable in law,” the order read.Court added, “Hookah, at public places, is typically used in groups, with the same mouthpiece being passed around. The risk of contracting diseases like hepatitis, herpes is more. 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.”The bench then explained that for consuming cigarettes, an individual need not have a separate apparatus and thus, does not need any service except creation of a smoking zone. However, hookah cannot be consumed unless there is proper apparatus which is provided by the restaurant owners. Hence, it said,“If hookah requires service that needs to be rendered, it cannot be in the corner of a designated place and apparatus to smoke through hookah cannot be carried in the pocket by the smoker who wants to go into a designated area, smoke and come out. It requires all the overtones of a service, as akin to food and alcohol. If the aforesaid activity is pitted on the amendment to the 2017 Rules [Prohibition of Smoking in Public Places (Amendment) Rules, 2017], what would unmistakably emerge is the prohibition in furtherance of the amendment brought into the Rule, as no service should be allowed in any smoking area or space provided for smoking.”Court rejected the petitioner's contention that tobacco is already covered under the COTPA and as such no prohibition can be imposed. It noted that under List-II in the 7th Schedule to the Constitution, State has the power to make laws relating to public health, industries governed by the State Government and prohibition of certain consumptions as a public policy.“In certain circumstances State has a duty and an obligation under Article 47 of the Constitution of India to ensure nutrition and improvement of standard of living and public health and also to bring in prohibition of consumption of intoxicating drinks and of drugs which are injurious to health. The obligation under Article 47 is not restricted to intoxicating drugs or drugs only.”Court further clarified that hookah tobacco uses nicotine which comes within Poisons Act and the Rules framed by the State. "Therefore, no fault can be found with the State Government invoking Poisons Act or the 2015 Rules framed thereunder insofar as tobacco/nicotine found in hookah,” it held.Herbal HookahComing to the contention of restaurant owners to permit herbal hookah, Court pointed that usage of herbal hookah cannot be without molasses which is also a prohibited substance under the Karnataka Prohibition Act, 1961. Thus, it held,“The submission that it is herbal hookah and the Act does not impose a ban and, therefore, the State cannot impose a ban, on the face of it is unacceptable, as the Act may not have the power to ban herbal hookah but the State under the 2015 Rules and the Prohibition Act, for the purpose of protection of health of the citizens, is empowered to ban the same, invoking the powers conferred under the Constitution itself. 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.” Case Title: R BHARATH AND State of Karnataka & ANRCase No: WP 4461/2024 & othersCitation No: 2024 LiveLaw (Kar) 188Order will be uploaded shortly

Hookah As Addictive And Harmful As Cigarettes: Karnataka High Court While Upholding Ban

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