Vide order dated September 29, a bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary dismissed a batch of connected petitions concerning the operation of hookah bars and the provision of hookah services in restaurants. It 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).

A bench comprising Justice PS Narasimha and Justice Alok Aradhe issued notice on a special leave petition filed by M/S. Good Luck Food And Beverages challenging the High Court's judgment. It has also issued notice on a prayer for interim relief.

High Court's judgment

The High 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.

The issue before the High Court 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 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.

It further 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.

Ultimately, the bench 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 High Court heavily relied on the 2017 amendment to Rule 4(3). It 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.

In the concluding portion of the judgment, the High 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.

It 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 High 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.

The matter will be heard on November 27.