Delhi High Court Asks Centre To Decide Plea Against "Illegal" Online Sale Of Hookahs Without Proper Health Warning

The Delhi High Court on Tuesday directed the Centre to treat as a representation a Public Interest Litigation (PIL) petition seeking immediate action against the "illegal online sale of hookahs" on e-commerce platforms without specific health warnings.

During the hearing a division bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela orally said to the counsel appearing for the Centre, "He (petitioner) is highlighting a very important point. You must decide it. He is saying that the field is covered by a statutory provision. It is not being implemented. Which is the implementing agency. You must lay down a standard of procedure".

Perusing through the petition, the court noted that the petitioner–JagatMitra Foundation had not made any representation to the respondents before approaching the high court. 

Observing that it shall ask the Centre to decide the PIL as a representation, the bench thereafter ordered, "Accordingly present writ petition is disposed of with a direction to the respondents 1 and 2 to treat the petition as a representation and pass appropriate orders including necessary action in accordance with law within three months. In the event the petitioner is not satisfied...the petitioner shall be at liberty to file appropriate proceedings in accordance with law. Rights and contentions of all the parties are left open". 

The PIL sought directions to the respondents–including the Union of India through the Ministry of Health and Family Welfare to take immediate action against the illegal online sale of hookahs on e commerce platforms without proper specified health warning and establish mechanism for age verification and regulating online sale of hookahs. The plea stated that hookah is being sold in public places results in second hand smoke which is a health risk for people.

It further alleged that sale of hookahs violates the public's right to health and safety under Article 21 of the Constitution of India. The plea further claimed that the "uncontrolled sale and promotion of tobacco products" to various e-commerce platforms is a direct violation of various existing framework specifically the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (COTPA). 

During the hearing the petitioner foundation represented through one Gaurav Aggarwal argued, "Even if the smoking area is in a different place, but still the smoke from the hookahs does not know boundary of the walls and even gets absorbed into the food articles being served. In contravention of COTPA...all restaurants and hotels are serving food articles in that...which is in violation of the Act". 

At this stage the high court orally asked Aggarwal, "Have you made any representation before coming to the court?". To this Aggarwal said that certain RTIs had been filed and they are still receiving replies to the same. Aggarwal further said that this was a "major public health issue" and general public should not be exposed to such kind of smoke. 

At this stage the high court orally said, "You are saying that the statutory field is totally occupied. You are saying that the field is totally covered and it is only a question of implementation then. First you have to make a representation. And please mention a few instances where it is happening". 

Aggarwal said that yesterday he bought certain articles which are being used in hookahs and he was "surprised to see a young child bringing the articles from a paan shop which is in contravention of the law". 

The high court however said that while it was not disputing what Aggarwal was stating however it asked him to first write a representation to the Centre on the issue. 

"Let them decide it or we can direct this writ petition to be treated as a representation to the respondent," the high court orally said to which the petitioner agreed. 

Case title: JagatMitra Foundation v Union of India through the Ministry of Health and Family Welfare and Ors. 

Citation: 2024 LiveLaw (Del) 919