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Clean air a fundamental right, no hookah bars in restaurants: Allahabad HC
In a judgment dismissing 80 petitions filed by restaurant and hookah bar owners, the court held that a designated smoking area (DSA) is only a separate enclosure where customers can smoke on their own. The establishment cannot prepare or serve hookah there, or send a waiter inside to provide food or even water.
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A hookah may have water in its base, tobacco in its bowl and charcoal on top, but restaurants and cafes cannot legally offer it as a service, even inside a designated smoking area, the Allahabad high court’s Lucknow bench ruled on Tuesday.
In a judgment dismissing 80 petitions filed by restaurant and hookah bar owners, the court held that a designated smoking area (DSA) is only a separate enclosure where customers can smoke on their own. The establishment cannot prepare or serve hookah there, or send a waiter inside to provide food or even water.
A double bench of Justice Shekhar B Saraf and Justice Abdhesh Kumar Chaudhary held that the fundamental right of non-smokers to breathe clean air in public places outweighs the right to carry on a business involving prohibited smoking activities.
The court completed the hearing on August 18 and reserved its order. The judgment was uploaded on the high court website on Tuesday.
The petitioners argued that they had created separate DSAs in accordance with the Cigarettes and Other Tobacco Products Act, 2003 (COTPA), and could therefore offer hookah smoking. The court rejected the contention, holding that hookah smoking inherently involves preparation, assistance and commercial supply of hookah, flavour and coal.
These activities are prohibited under amended Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008, the court said.
The bench observed that a hookah cannot ordinarily be operated by a customer without assistance from the establishment. Its preparation involves filling the base with water, placing shisha, making holes in foil and heating charcoal until it becomes red and ashy. Continuous assistance may then be required for replenishing coal, changing tobacco and cleaning ash.
A novice patron, the court said, cannot be expected to perform these tasks, making hookah service fundamentally different from smoking tobacco independently inside a DSA.
“Operation of hookah bars and rendering of hookah services by restaurants constitutes flagrant violation of Rule 4(3) as amended in 2017 and direct contravention of the scheme and object of COTPA,” the court held.
It also clarified that the food safety department and municipal authorities have no power to issue separate licences for operating hookah bars.
Regarding local regulation, advocate Siddharth Shanker Dubey, who represented the Lucknow Municipal Corporation (LMC) in the case, said the civic body has no existing framework to regulate hookah parlours in the city. He said the high court’s ruling relied on the existing legal framework governing hookah services.
“The right of the non-smoker to breathe clean air in a public place is a fundamental right under Article 21 that cannot be abridged by commercial interest of an establishment under Article 19(1)(g),” the court held.
Court cites WHO, health concerns
The bench referred to the WHO 2019 Report on the Global Tobacco Epidemic, which classifies India’s smoke-free policy as moderate. It also noted that Gujarat, Punjab, Rajasthan, Maharashtra and Karnataka have enacted state amendments banning hookah bars and providing for sentences of one to three years and fines of up to ₹50,000.
India ratified the WHO Framework Convention on Tobacco Control on June 14, 2004, as a founding party, undertaking an obligation for 100% smoke-free indoor public places, workplaces and public transport, the court said.
The court also referred to health concerns associated with hookah use, saying a single one-hour session involves an estimated 200 puffs, equivalent to 100 cigarettes.
The bench said it expected the state government to take necessary steps, including considering a notification on the lines of other states imposing stringent punishment for hookah services in DSAs.
The registry was directed to send a copy of the judgment to the chief secretary and DGP of Uttar Pradesh for information and compliance forthwith.
