Lucknow. Those running hookah bars in Uttar Pradesh have received a big blow from the Allahabad High Court. The High Court has made it clear that hookah bars cannot operate in Uttar Pradesh and hookah service cannot be provided even in designated smoking areas. The court said that non-smokers in a public place have the right to breathe clean air and this cannot be limited on the basis of the right of a business establishment to trade.
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Justice Shekhar B. The bench of Justice Saraf and Justice Abhdesh Kumar Choudhary has given this decision on the petitions related to hookah service in hookah bars and restaurants. In Uttar Pradesh, now the argument of providing hookah service by creating designated smoking areas in restaurants or other establishments will not work. Allahabad High Court said that after the amendment made in 2017 in the 2008 rules, no service of any kind is allowed in any designated smoking area.
That is, just saying that the customer is smoking hookah in the designated smoking area does not give the restaurant permission to provide hookah. The High Court cited the Cigarettes and Other Tobacco Products Act-2003 and its related rules of 2008. According to the High Court, the general rule is to ban smoking in public places. Designated smoking areas are an exception to this rule, but this exception only allows smoking.
After the change in Rule 4(3) in 2017, the rule says that no service can be provided in the smoking area. Allahabad High Court considered this change important and said that hookah service cannot be continued in the name of designated smoking area. An argument was also given on behalf of the petitioners that the restaurant itself will not provide hookah service, rather the hookah will be prepared and given to the customer and the customer himself will use it.
'This is not normal self-service'
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The High Court also did not accept this self-service model. The court said that preparing a hookah involves several processes – assembling the hookah, placing the tobacco in the bowl, filling with water, applying foil and preparing coal. According to the court, this is not a process that a customer without training can do like normal self-service. Therefore, merely changing the name does not take this activity out of the category of service.
The argument of 'hookah given on rent' is also rejected
It was also argued on behalf of the petitioners that the restaurant only provides hookah equipment to the customer, that is, it is not a service but is like renting the equipment. The High Court rejected this argument also. The court said that the customer uses the hookah in the same designated smoking area and the activities like preparing the hookah, lighting it, changing the coal, removing the ash and maintaining it as per requirement are done by the restaurant.
Emphasis on the right to 'clean air'
In the judgment the High Court also commented on the balance between Article 21 and Article 19(1)(g) of the Constitution. The court said that it is the fundamental right of a person who does not smoke in a public place to breathe clean air. It cannot be limited in the name of any establishment's right to do business. The High Court also said that the Food Safety Department and the municipal body do not have the statutory authority to issue a separate license for running hookah bars.
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Now providing hookah service is against the rules
However, the court upheld the powers of police action under COTPA. According to the court, under the relevant sections of the law, the police have powers related to action, search, seizure and fine. Rejecting the petitions, the High Court said that running a hookah bar and providing hookah service by a restaurant is against the rules in Uttar Pradesh.
Order sent to Chief Secretary and DGP
The High Court has also directed to send a copy of its decision to the Chief Secretary and DGP of Uttar Pradesh for information and necessary compliance. The court also said that the Uttar Pradesh government should take necessary steps against hookah service and consider issuing a notification regarding strict punishment.