Hookah Bar Business Must Yield To Right To Breathe Clean Air: Allahabad HC [Read Order]

Lucknow: The Allahabad High Court, Lucknow Bench, has dismissed a bunch of writ petitions filed by restaurant and cafe owners across Uttar Pradesh, holding that hookah bars cannot lawfully operate within the State and that offering hookah service in a Designated Smoking Area violates the Prohibition of Smoking in Public Places Rules, 2008, as amended in 2017.

A Bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary, deciding Writ-C No. 10713 of 2023, M/s Aftek Foods and Beverages Pvt. Ltd. and another vs. State of U.P., along with a large number of connected petitions, was examining a plea for a mandamus directing the State to permit restaurants holding valid food-service licenses to run dedicated hookah smoking spaces under the Cigarettes and Other Tobacco Products Act, 2003 (COTPA), and to restrain police interference with such business.

The Court held that the proviso permitting a Designated Smoking Area, being an exception to the general prohibition on smoking in public places, “must be read strictly, narrowly, and in a manner that advances rather than undermines” the prohibitory philosophy of COTPA, and that the power to regulate an activity under the statute “necessarily and inherently includes the power to 'prohibit' that activity altogether.”

Examining the 2017 amendment to Rule 4(3) of the 2008 Rules, the Court held that it imposes “an absolute and unqualified prohibition on all services within a Designated Smoking Area,” having specifically expunged the word “other” from the earlier rule to override the interpretation in Narinder S. Chadha, and that the bar admits no exception for food, beverages, tobacco products or hookah.

Rejecting the petitioners' proposed “self-service” model as a workaround, the Court held that the preparation and handling of hookah “intrinsically involves 'service' which needs to be carried out by the one having expertise in it,” and that providing a prepared hookah apparatus to a customer confined to the smoking area is a service rather than a mere equipment rental.

Balancing competing rights, the Court held that the fundamental right to carry on trade under Article 19(1)(g) “must yield to . . . the far more fundamental . . . right of every non-smoker to breathe clean air,” guaranteed under Article 21, read with the State's duty under Article 47 to improve public health.

The Court further held that while the Food Safety Department and municipal corporations lack jurisdiction to license hookah bars, the police retain power under Sections 12, 13 and 15 of COTPA to search, seize, confiscate and penalise establishments that violate the smoking prohibition.

Answering the reference question in the negative, the Court held that the operation of hookah bars in Uttar Pradesh “constitutes a flagrant violation” of Rule 4(3) and dismissed all the connected writ petitions, directing that a copy of the judgment be sent to the Chief Secretary and the Director General of Police, Uttar Pradesh for compliance.

In an epilogue, the Court noted that a single hour-long hookah session, involving about 200 puffs, is “equivalent in harm to smoking 100 cigarettes,” and expressed hope that the State would impose stringent penalties on hookah service in Designated Smoking Areas, as several other States have already done.

Case Title: M/s Aftek Foods and Beverages Pvt. Ltd. Thru. Auth. Signatory Vishnu Kumar Gupta and Another vs. State of U.P. Thru. Addl. Chief Secy., Deptt. of Food Safety and Drug Admin., U.P., Lko. and Others (with connected writ petitions)

[Read Order]