As Addictive & Harmful As Cigarettes But Does Not Contain Any Warnings: Karnataka HC Upholds Hookah Ban

The Karnataka High Court has upheld a notification issued by the Karnataka State Government banning the sale, consumption, storage, advertisement and promotion of all types of hookah products within the State.

It was held that the actions of the State were in strict consonance with Article 47 of the Indian Constitution to ensure public health and prohibition of intoxication and drugs that would be injurious to public health.

In that context, the Bench of Justice M Nagaprasanna observed that, "The obligation under Article 47 is not restricted to intoxicating drugs or drugs only. Under the label of improvement of public health, State definitely does have a play in the joints to bring in such law or order to ensure that public health does not suffer. Public health has different hues and forms, emanating from manifold circumstances and myriad activities of the citizens of the country. Therefore, in the light of Article 47 of the Constitution and its interpretation, it is the duty of the State to ensure public health and prohibition of intoxication and drugs that would be injurious to public health. It is not that intoxication or drugs are to be regulated by statutes, it has to be regulated sometimes under the fountainhead of the statutes – The Constitution of India."

The Court also highlighted that, "It is again a myth that smoking of hookah carries less risk of tobacco related diseases than smoking cigarettes. Hookah contains many of the common toxins as cigarettes. If cigarettes can cause lung cancer or respiratory illness, hookah is catching up to it, as hookah sessions allow smokers for prolonged amount of usage, therefore, they are exposed to high concentrations of toxins. It is a fact that a session of hookah is more harmful than a pack of cigarettes... Hookah, is, as addictive as a cigarette; as harmful as a cigarette; has the same chemicals as a cigarette. Every packet of cigarette must contain a warning that it is injurious to health; every bottle of alcohol would contain a warning that it is injurious to health, but Hookah does not. Therefore, the action of the State is in strict consonance with Article 47 of the Constitution of India, apart from it being completely tenable in law."

Senior Counsel Kiran S Javali appeared for the petitioner, while AG Shashi Kiran Shetty and AGA Navya Shekhar appeared for the respondent.

The petitions raised a challenge to a notification dated 07-02-2024 issued by the Health and Family Welfare Department, by which a complete ban on the sale of Hookah in any public place in Karnataka was imposed.

The ban was imposed taking recourse to two enactments, ie, The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, the Prohibition of Smoking in Public Places (Amendment) Rules, 2017, and the Karnataka Poisons (Possession and Sale) Rules, 2015.

The Court held that, "The Rules are clearly in favour of the State to ban any service in a smoking area and what is now sought to be done is exactly the same. Therefore, I do not find any merit in any of the contentions so advanced by the learned senior counsel and the respective learned counsel for the petitioners, as the contentions of the learned Advocate General in defence of the notification are overwhelming and clearly outweigh the submissions so made by the petitioners."

Finding no merit in the petitions, the petitions were dismissed.

Appearances:

Petitioner: Senior Counsel Kiran S Javali

Respondent: AG Shashi Kiran Shetty, AGA Navya Shekhar

Cause Title: R Bharath vs State of Karnataka & Anr.

Click here to read/download the Judgment