Hookah Ban Issued In Larger Public Interest Keeping In Mind Public Health: State Tells Karnataka High Court

The State Government on Wednesday submitted before the Karnataka High Court that it had, keeping in mind public health and larger public interest, exercised power under Article 47 of the Constitution of India had issued the notification banning the sale, consumption, storage, advertisement and promotion of all types of hookah products within Karnataka, with immediate effect.

Advocate General K Shashi Kiran Shetty submitted “Let's assume there is a smoking area, no service should be allowed inside there. Hookah (bar) here includes full service. There is no designated area for serving hookah. Entire floors are marked as designated areas for hookah smoking. Designated areas can only be for eating.”

He argued that though the petitioners said they had designated areas, it was seen that the whole floor was designated for hookah smoking.

To a query posed by the court about the competence of the State government to issue the notification when a bill to regulate the sale/consumption of hookah is pending assent from the Governor, Shetty said that the notification was issued in public interest and under Article 162 it can be sustained.

It was submitted that public health came within the state legislature and the impugned notification was issued by the state health department which did not lack competence. 

He added, “Notification cannot be found fault with, it doesn't call for interference as it is in regard to public health.”

A single judge bench of Justice M Nagaprasanna quizzed the state on how they would regulate non-tobacco hookah and how far the provisions of law would have to be diluted.

In response, Shetty said “We want to prohibit and not regulate. Like the State has banned Gutka, Arrack, lottery etc.” He also mentioned that five states have already amended the Cigarettes and Other Tobacco Products (COTPA) Act along the same lines, and Karnataka has also brought an amendment."

He completed his submission by saying that ultimately health was most important for the larger public interest and that no citizen would say banning hookah is bad. 

The petitioners argued that the COTPA Act provides that if there is smoking, there should be a separate designated area for it. If the Act itself provides no blanket ban can be imposed, it was submitted. 

One of the petitioners who claimed to sell herbal hookah referred to Section 3 (b) of the Act which defines cigarettes as any roll of tobacco wrapped in paper or in any other substance not containing tobacco. “If my product does not have tobacco or nicotine, could they have by a blanket order banned it,” counsel inquired.

Another counsel for the petitioners argued that no food was being served in the area reserved for hookah and that that ensured compliance with the COTPA Act.

It was said “COTPA Act 2003 was brought into force, and the pivotal role played by the Act is regulation. Smoking could be injurious but there are preventive measures provided under the statute itself. This statute is comprehensive for providing all kinds of situations. Thus as long as the rules are followed I am protected. When there is a designated place for hookah smoking which is regulated in regards to who will be allowed etc how can it affect public health.”

Another counsel had argued that while Article 47 of the Constitution aimed at regulating intoxicating drinks and drugs, hookah was not an intoxicating drink or a drug. It was argued that there were no reports which showed hookah intoxicates and there are no fatal incidents reported in society due to its consumption.

It was claimed “Due to the ban Article 14 has been curtailed. The Schedule in the Act includes cigarettes and hookah. Therefore, permitting cigarette tobacco and prohibiting hookah tobacco, is indirectly giving licences to sellers of cigarette tobacco and curtailing the rights of hookah tobacco. It is arbitrary. The ban also violates Article 19 (1) (g) in regards to carrying out business.”

The court will continue hearing the matter on Thursday. It has asked the petitioners to place on record the menu card supplied in the Hookah bars.

Case Title: R BHARATH AND State of Karnataka & ANR

Case No: WP 4461/2024 & others