Karnataka High Court Upholds State Govt's Ban On Storage, Sale, Consumption And Advertisements Of All Types Of Hookah Products

A single judge bench of Justice M Nagaprasanna had reserved the judgment on March 11, after hearing both sides. As per the notification, hookah bar is a cause of fire hazards and violates state fire control and fire safety laws. Consumption of hookah in hotels, bars and restaurants makes food items unsafe for public consumption and may adversely affect public health, the notification further states.

The State government has also ordered that violators will be booked under COTPA (Cigarette and Tobacco Products Act ) 2003, Child Care and Protection Act 2015, Food Safety and Quality Act 2006, Karnataka Poisons (Possession and Sale) Rules 2015, Indian Penal Code and Fire Control and Fire Protection Act.

Advocate General K Shashi Kiran Shetty had submitted that no service should be allowed inside a smoking area but hookah bars include 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.

AG had said that the notification was issued in the public interest and it can be sustained under Article 162. Moreover, the State government can issue the notification when a bill to regulate the sale/consumption of hookah is pending assent from the Governor, he added.

The petitioners have primarily argued that the COTPA Act provides that if there is smoking, there should be a separate designated area for it. 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,” the counsel inquired.

Petitioners further argued that the COTPA Act 2003 was brought into force and the pivotal role played by the Act is regulation. It was stated that 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,” the petitioners argued.

Another counsel argued that while Article 47 of the Constitution aims at regulating intoxicating drinks and drugs, hookah is 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.

“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 counsel submitted.

Accordingly, the ban was upheld and the pleas were rejected.

Case Title: R BHARATH AND State of Karnataka & ANR

Case No: WP 4461/2024 & others

Citation No: 2024 LiveLaw (Kar) 188