Hookah Service Barred Even in Designated Smoking Areas

Source: Allahabad High Court

Why in News? 

A Bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary of the Allahabad High Court, while deciding a batch of connected petitions, held that the operation of hookah bars and the provision of hookah services by restaurants in Uttar Pradesh is prohibited, even within a Designated Smoking Area.  

• The Court held that such activity violates 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). 

What was the Background of the Case? 

• A batch of connected petitions was filed before the Allahabad High Court concerning the operation of hookah bars and the provision of hookah services in restaurants across Uttar Pradesh. 
• The question before the Court was not whether smoking tobacco through a hookah was, by itself, prohibited. The issue was whether restaurants and similar establishments could offer hookah as a service to customers within a Designated Smoking Area. 
• The petitioners advanced several arguments in support of continuing hookah services: 
  • First, that hookah service was permissible within a Designated Smoking Area, relying on the Supreme Court's decision in Narinder S. Chadha v. Municipal Corporation of Greater Mumbai (2014). 
  • Second, that restaurants could adopt a "self-service" model, under which the hookah would be prepared and handed over to the customer, who would then smoke it without any assistance from the establishment. 
  • Third, that supplying a hookah apparatus amounted to a rental of equipment rather than the rendering of a service. 
  • Fourth, that the Food Safety Department and the Municipal Corporation lacked jurisdiction to grant or regulate licences for hookah bars, and that the police lacked enforcement powers under COTPA. 

What were the Court's Observations? 

On the Scheme of COTPA and Designated Smoking Areas: 

• The Court observed that the general rule under COTPA is a prohibition on smoking in public places, and the Designated Smoking Area is only an exception carved out of that general prohibition. 
• While a Designated Smoking Area permits a person to smoke, it does not permit a restaurant to provide hookah as a service, since the amended Rule 4(3) prohibits any service in a smoking area. 

On the Effect of the 2017 Amendment and Narinder S. Chadha: 

• The Court noted that the pre-amendment Rule 4(3) required the smoking area to be used only for smoking, with "no other service(s)" allowed. Interpreting this language, the Supreme Court in Narinder S. Chadha had implicitly permitted the service of hookah in smoking zones, while prohibiting the service of food and other items. 
• However, in 2017 the Central Government substituted Rule 4(3) to provide that "No service shall be allowed in any smoking area or space provided for smoking." 
• The High Court treated this change in language as material. It held that Narinder S. Chadha must be read in the context of the earlier statutory text, and that the amended Rule 4(3) now bars the provision of hookah service even within a Designated Smoking Area. 

On the Self-Service Model: 

• The Court rejected the self-service argument. 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, which require expertise. 
• The Court held: "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." 

On Hookah as Service and Not Rental: 

• The Court distinguished the arrangement from an ordinary rental, in which possession and control of the property pass to the customer. Here, the customer is required to remain within the Designated Smoking Area and consume the hookah there. 
• The Court observed: "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." 
• Taking into account the ongoing assistance ordinarily required, such as replenishing charcoal, removing ash and changing tobacco, the Court held that preparing, assembling, delivering, lighting, replenishing and maintaining a hookah for consideration amounts to rendering a service. 
• It emphasised that the substance of the transaction, and not the label adopted by the establishment, is determinative. 

On Articles 21 and 19(1)(g): 

• The Court held that the right of a non-smoker to breathe clean air in a public place is a fundamental right under Article 21, which cannot be abridged by the commercial interests of an establishment claiming a right to trade under Article 19(1)(g). 

On Licensing Authorities: 

• The Court accepted the petitioners' contention that the Food Safety Department and the Municipal Corporation cannot issue licences authorising the operation of hookah bars. The food safety framework confers no such power, and the Municipal Corporation has no statutory provision empowering it to issue a separate hookah-bar licence. 

On Police Enforcement Powers: 

• The Court rejected the challenge to police powers, holding that Sections 12, 13 and 15 of COTPA empower police authorities to enforce the Act, including through search, seizure, confiscation and penalties in appropriate cases. 

On the Need for State Legislation: 

• The Court referred to legislative measures taken by Gujarat, Punjab, Rajasthan, Maharashtra and Karnataka specifically dealing with hookah bars and providing enhanced punishment and fines.  
• It expressed the expectation that Uttar Pradesh would "rise to the occasion", including by considering a notification providing stringent punishment for serving hookah in Designated Smoking Areas. 
• The Court also noted the health concerns associated with hookah smoking and the misconception that hookah is necessarily less harmful than cigarettes. 

Conclusion: 

• The Court held that the operation of hookah bars and the rendering of hookah services by restaurants in Uttar Pradesh is a flagrant violation of Rule 4(3) and contrary to the scheme and object of COTPA.  
• The connected petitions were dismissed, and a copy of the judgment was directed to be sent to the Chief Secretary and the Director General of Police, Uttar Pradesh, for information and necessary compliance.

What is the Cigarettes and Other Tobacco Products Act, 2003 (COTPA)? 

About: 

• COTPA is a Central legislation enacted to prohibit the advertisement of, and to regulate the trade, commerce, production, supply and distribution of, cigarettes and other tobacco products. 
• It aims to protect public health, particularly of non-smokers, from the harmful effects of tobacco use and second-hand smoke. 

Key Provisions: 

• Section 4: Prohibits smoking in any public place. However, the proviso permits hotels having thirty or more rooms, restaurants having seating capacity of thirty or more, and airports to provide a separate provision for a smoking area or space. 
• Section 12: Empowers authorised officers to enter and search premises where they have reason to believe that provisions of the Act are being contravened. 
• Section 13: Empowers authorised officers to seize tobacco products and related materials in cases of contravention. 
• Section 21: Prescribes a fine for smoking in a public place in contravention of Section 4. 

What is Rule 4 of the Prohibition of Smoking in Public Places Rules, 2008? 

About: 

• The Rules were framed by the Central Government under COTPA to give effect to the prohibition on smoking in public places. 
• Rule 4 deals with the provision of a separate smoking area or space in hotels, restaurants and airports that qualify under the proviso to Section 4, and prescribes conditions for such areas, including physical separation, adequate ventilation and location away from entrances and exits. 

Rule 4(3) — Pre-amendment: 

• "The smoking area or space shall be used only for the purpose of smoking and no other service(s) shall be allowed." 

Rule 4(3) — Post-2017 amendment: 

• "No service shall be allowed in any smoking area or space provided for smoking."