Hookah session is more harmful than cigarettes, says Karnataka High Court upholding its ban in state

On 21 February, the Karnataka Legislative Assembly passed a Bill banning the sale and consumption of hookah across the state.

Also Read: Karnataka government bans hookah bars with immediate effect

The government order

The Bill amended the previous Cigarettes and Other Tobacco Products Act (COTPA) with the aim of safeguarding citizens’ health from lung-related diseases.

It says that individuals engaged in the sale of hookah or operating hookah parlours would face fines of up to ₹1 lakh and imprisonment for up to three years if found guilty.

The state government also mandated that offenders will be prosecuted under various laws including COTPA (Cigarette and Other Tobacco Products Act) 2003, Child Care and Protection Act 2015, Food Safety and Standards Act 2006, Karnataka Poisons (Possession and Sale) Rules 2015, Indian Penal Code, and Fire Control and Fire Protection Act.

On 7 February, Karnataka’s Health and Family Welfare Minister Dinesh Gundu Rao announced a comprehensive ban on hookah across the state as part of efforts to combat tobacco-related diseases.

On 11 March, following hearings from both sides, a single judge bench presided over by Justice M Nagaprasanna reserved judgement.

According to the notification, hookah bars pose fire hazards and violate state fire safety regulations. Moreover, the consumption of hookah in hotels, bars, and restaurants compromises the safety of food items intended for public consumption and poses potential risks to public health.

Also Read: Why does Karnataka want to ban hookah bars?

The petition

The ban faced opposition from petitioners who claimed to sell ‘herbal hookah,’ contending that their product could not be banned as it lacks tobacco or nicotine.

They further argued that while the Constitution allows for the regulation of intoxicating drinks and drugs, hookah does not fall into either category. Additionally, they pointed out that there have been no reports of fatal incidents resulting from hookah consumption.

Representing the state government, Advocate General K Shashi Kiran Shetty asserted that the notification was issued in the public interest and could be upheld under Article 162.

He also argued that the state government has the authority to issue such notifications, especially when a bill to regulate the sale and consumption of hookah is awaiting assent from the Governor.

The petitioners primarily argued that the COTPA Act stipulates the need for a separate designated area for smoking and does not allow for a blanket ban. They emphasised that the Act itself does not permit such sweeping restrictions.

Also Read: Karnataka bans ‘coloured’ cotton candy, warns against use of colouring agents

Cites lack of tobacco or nicotine

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.

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.

(Edited by Muhammed Fazil)