Use Of Hookahs In Restaurants, Pubs Violates State's Fire Safety Act, COTPA: Delhi Govt Tells High Court

The Delhi Government has told the Delhi High Court that the use and service of hookahs in restaurants and pubs is in contravention of State's Fire Prevention & Safety Act, 1986.

"Customers are using & handling hookah Instrument/ apparatus in which charcoal/fire is burning which can be mishandled by children or adults and is therefore a grave fire hazard and has reported to have caused huge fire in pubs, restaurants illicitly serving hookah…Therefore, prohibition on serving of hookah is an essential measure to prevent fire and for the safety of life and property."

The same is also stated to be a violation of the Cigarettes and Other Tobacco Products Act, 2003. The affidavit filed by the Delhi Government states,

"...its use in open spaces will violate section 4 of COTPA, 2003. It is submitted that as per section 4 of COTPA, 2003 and rules made there under any device designed to facilitate smoking like ashtrays, lighters, matches or other things are prohibited in public places. Hence, use of herbal hookah will facilitate use of tobacco hookah use in open spaces."

The affidavit is filed in pleas filed by restaurant and pub owners, challenging an order of the Joint Commissioner of Police prohibiting sale and service of herbal hukkahs.

Earlier, the Court had asked the Delhi Government to reconsider its order.

The petitioners had submitted that they serve hookahs in open spaces and do not allow sharing of pipes. 

Now, the Delhi Government has submitted it cannot permit serving or use of herbal hukkahs even in open spaces or with the use of disposable pipes because it still affects the health of children and promotes tobacco hookah in the garb of herbal hukkahs.

"It is submitted that Bars/Restaurants/Eatery houses do not take any separate license for serving of hookah and are registered under the Food Safety & Standards Act of 2006 and Regulation 2.1.1(5) of the Food Safety & Standards (Licensing and Registration of Food Business) Regulation, 2011 as 'Food'. Allowing its use in open spaces will further worsen the scenario as Food Products can be consumed in all public places in eating areas/zones/canteens or as per prevailing rules/norms of that particular public place like schools, colleges, universities, markets, court premises, offices, temples, cinema halls, public transport, food courts in Shopping Malls etc. by individual persons. This will raise a grave concern and hence keeping public health interest above vested interest of the petitioners considering herbal hookah as food product is not at all justified for use in open spaces and controlling use of flavored herbal hookah in other public places will be extremely challenging hookah," it adds.

It is also pointed out that smoking of hookah either in open/closed spaces is also a violation of Section 269 and 270 of the Indian Penal Code, i.e., Negligent/Malignant act likely to spread infection of disease dangerous to life, as there is a risk of spreading infectious diseases such as oral herpes, tuberculosis, hepatitis, influenza, Coronavirus.

In view of the stand taken by Delhi Government, the Court directed the petitioners to file their response and the case was adjourned to November 12.

The petitioners had contended that individual hukkahs are provided to the customers in the restaurants and eatery houses run by them and that they are not shared with other customers at any cost.

Earlier, the Court had asked the Disaster Management Authority of the Delhi Government to consider and resolve the issue of allowing restaurants and bars to serve and sell Herbal Hukkahs, on an urgent basis.

Case Title: Breathe Fine Lounge & Bar v. GNCTD