Allahabad HC bars hookah sale in restaurants, hookah operation in UP, cites COTPA violation | Today’s news

The Allahabad High Court on Tuesday banned restaurants in Uttar Pradesh from running hookah bars or offering hookah services, including in “designated smoking areas”, citing violation of the Cigarettes and Other Tobacco Products Act (COTPA).

LiveLaw reported on the development, saying the Supreme Court ruled that a non-smoker’s right to breathe clean air in public spaces cannot be compromised to protect the commercial interests of a business exercising its right to do business. The court observed, “The right of a non-smoker to breathe clean air in a public place is a fundamental right guaranteed by Article 21 of the Constitution of India, which cannot be curtailed by the commercial interest of an establishment entitled to trade under Article 19(1)(g) of the Constitution of India.”

What did the court say?

A two-judge bench of Justices Shekhar B Saraf and Abdhesh Kumar Chaudhary dismissed a number of related petitions relating to the operation of hookah bars and hookah services in restaurants.

The two-judge bench further noted that under Rule 4(3) of the Smoking in Public Places Rules, 2008, as amended by 2017, as amended by COTPA, provision of hookah services even in a “Designated Smoking Area” is also prohibited.

The court did not address whether smoking tobacco in a hookah in itself is prohibited. Instead, it looked into whether restaurants and similar establishments could offer hookah services within a designated smoking area, the report said.

The court noted that COTPA generally prohibits smoking in public places, with designated smoking areas being a limited exception. However, he clarified that allowing smoking in such an area does not mean that restaurants can offer hookah services there, as amended Rule 4(3) prohibits the provision of “any service” in a smoking area.

Describing the provision of hookah services in restaurants and the operation of hookah bars as “clear violation of Rule 4(3) and contrary to the scheme and object of COTPA”, the Allahabad High Court struck down the practice.

Proponents are calling for a “self-service” model

The petitioners argued that restaurants in Uttar Pradesh could opt for a “self-service model” where hookah would be prepared and handed over to customers, who could then smoke it without the assistance of restaurant staff. However, the proposed arrangement was also rejected by the High Court, which noted that making a hookah involves several steps, including assembling the hookah, adding tobacco to the bowl, filling the base with water, covering it with foil and placing hot charcoal on top.

The court stated: “The self-service model hypothetically synthesized by petitioners to circumvent the cracks of COTPA and the amended rules is not a viable model because the procedural operation of a hookah inherently involves a ‘service’ that must be performed by one skilled in the art, and is not an operation that can be performed by untrained, novice customers.”

Further, the plaintiffs argued that the provision of hookah equipment to customers should be considered a rental rather than a service, which the court rejected.