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The state subsequently issued directions prohibiting hookah bars statewide to prevent the spread of coronavirus.

The issue resurfaced after the High Court in Feb 2023 observed that the business of running hookah bars was regulated under the Food Safety and Standards Act 2006 and restaurant owners were free to approach statutory authorities for grant or renewal of licence.

A month later, the food safety commissioner issued a circular directing officials to process applications that complied with the smoking rules. When police later conducted raids and took action against places serving hookah without licences or serving it to minors, restaurant owners moved the High Court. They argued that police raids violated their right to carry on trade despite holding valid food licences and having set up designated smoking areas permitted under the Cigarettes and Other Tobacco Products Act 2003 (COTPA).

The law

The case turned on COTPA and the rules framed under it. Section 4 of COTPA prohibits smoking in public places but allows designated smoking areas in hotels with at least 30 rooms, restaurants with a seating capacity of 30+ persons, and airports. Hookah tobacco is also recognised as a tobacco product under the law.

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The Prohibition of Smoking in Public Places Rules 2008 establishes the conditions for these smoking areas:

* Rule 4 requires designated smoking areas to be segregated from the rest of the premises.

* Until 2017, Rule 4(3) stated that a smoking area could be used only for smoking and that “no other service(s) shall be allowed” there.

* In 2017, the Centre amended that rule, removing the word “other”. It now states that “no service shall be allowed in any smoking area or space provided for smoking.”

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The FSSA regulates food intended for human consumption and provides the framework for licensing restaurants and food businesses. The case required the court to also examine if such licences have any bearing on the operation of hookah bars.

What the High Court said

One of the main arguments was that neither the food safety department nor the municipal corporations have any statutory authority over hookah. The court agreed, saying that FSSA concerns food meant for human consumption and tobacco does not fall within that consumption. It said, “FSSA deals only with food for human consumption for nutritional value and includes the primary food, while tobacco products are neither consumed for nutritional value nor is a primary food.”

The court, however, rejected the argument that police officers were acting beyond their powers while conducting search and seizure. COTPA authorises police officers to search, seize, and confiscate tobacco products where violations are suspected.

The Supreme Court in Narinder S. Chadha v. Municipal Corporation of Greater Mumbai (2014) interpreted the earlier version of Rule 4(3) to mean that while food and beverages could not be served in designated smoking areas, hookah facilities themselves were permissible.

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The High Court said that this interpretation no longer survives after the 2017 amendment. It said this change was decisive, as “the substitution of ‘no other service(s)’ with ‘no service’…transformed the legal position from a qualified prohibition to an absolute prohibition,” it said. Since preparing and operating a hookah involves a service, the court found that serving hookah inside a designated smoking area is prohibited.

The petitioners argued that even if tobacco hookah was barred, places should be permitted to offer herbal hookah because it does not contain tobacco or nicotine. The High Court rejected that argument and held that the ban is on providing hookah service inside a designated smoking area. Since serving any hookah, whether tobacco-based or herbal, involves setting up and maintaining the apparatus, the prohibition applies regardless of what is being smoked.

The court was also unconvinced in characterising hookah consumption as “self-service” or by renting out the hookah apparatus. It held that preparing and maintaining a hookah requires staff involvement and expertise, making it impossible to separate the ordeal from service being provided by the establishments.

“‘Service’ is an expression of the widest possible amplitude that encompasses every commercial act performed by an establishment for its patron in the course of a trade or business. These elements such as preparing, assembling, delivering, lighting, replenishing, and maintaining a hookah for its patron for a consideration leads one to the inescapable finding that providing hookah in a restaurant amounts to ‘service’ as per the amended Rule 4(3),” the court held.

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The court rejected the comparison between hookah and cigarette smoking, saying that while a cigarette can be smoked without any assistance, hookah consumption necessarily involves preparation and continuous staff involvement.

“It is a myth that hookah is less harmful than cigarettes. Hookah is as addictive as a cigarette, as harmful as a cigarette and contains the same toxic chemicals as a cigarette,” the court said. It also noted that a typical one-hour hookah session can involve around 200 puffs, which is equivalent to 100 cigarettes.

The restaurant owners argued that the restriction on hookah operations violated their fundamental right to carry on business under Article 19(1)(g). The state contended that non-smokers have a fundamental right under Article 21 to be protected from passive smoking. The state also argued that, under Article 47, it is constitutionally obligated to improve public health and restrict substances injurious to health.

The court held that the right to carry on trade is not absolute and must give way where public health is at stake, and that the right of non-smokers to breathe clean air outweighs the commercial interests of establishments offering hookah services.

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It said, “Fundamental right to carry on any trade or business under Article 19(1)(g) of the Constitution of India must yield to, and is legitimately restricted by the far more fundamental and constitutionally overriding right of every non-smoker to breathe clean air free from involuntary exposure to tobacco smoke in a public place, guaranteed under Article 21 of the Constitution.”