Karnataka High Court: While considering the instant petitions challenge to the notification dated 07-02-2024, issued by the Health and Family Welfare Department, imposing a complete ban on sale of Hookah in any public place in the State of Karnataka, the Bench of M. Nagaprasanna, J.*, rejected the petitions holding that the action of the State is in strict consonance with Art. 47 of the Constitution and was completely tenable in law. The Court had reserved its judgment on the matter on 11-03-2024.
The Court stated that Hookah contains many of the common toxins as cigarettes and 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 sessions are said to be typically around an hour in length, which is an estimated 200 puffs per session. If it is 200 puffs per session, it is equivalent to 100 cigarettes, in any of these sessions. Hookah, is, as addictive as a cigarette; as harmful as a cigarette; has the same chemicals as a cigarette”.
Background: The petitioners in the instant petitions have their respective trade licences to run restaurants and all are involved in the sale/service of hookah to its patrons.
Government of Karnataka issued the impugned notification dated 07-02-2024, imposing a blanket ban on sale of hookah and in all its forms. The ban was imposed taking recourse to two enactments namely, The Cigarettes and Other Tobacco Products (Prohibition of Advertisem*nt and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (‘COTPA’) and the Karnataka Poisons (Possession and Sale) Rules, 2015.
The petitioners contended that COTPA is a Central legislation, promulgated in 2003, it holds the field in regard to sale and regulation of such sale of cigarettes and other allied products i.e., tobacco products in its entirety. Since the field is occupied by a Central legislation, the State by a notification could not impose a ban on sale of hookah.
Per contra, the respondents argued that sale of hookah and health disaster that it generated became a cause of concern for the State Government. Therefore, obligation of the State Government to regulate health care of citizens was invoked not under any statute but under Art. 47 of the Constitution, which states that it is the duty of the State to raise the level of nutrition and the standard of living and to improve public health.
Court’s Assessment: Upon perusing the impugned notification and the contentions advanced by the parties, the Court had to examine that whether the impugned notification would stand the test of law.
The Court noted that Art. 47 of the Constitution directs the State that standard of living of its people and improvement of public health is the primary duty of the State. Referring to a number of Supreme Court decisions, the Court noted that in a welfare State, therefore, it is the obligation of the State to ensure the creation and sustaining of conditions congenial to good health.
Taking note of another focal point in the instant petition- Art. 19(1)(g) of the Constitution which encompasses the Right to carry Trade, the Court again referred to several Supreme Court decisions ranging from regulation of soft drinks to slaughter of cows etc., wherein it had harmonised Fundamental Rights and Directive Principles of State Policy and held that Directive Principles of State Policy and held that Part-III and Part-IV of the Constitution will have to be read together. Therefore, the Directive Principles of State Policy, merely because it is in Part-IV, could not mean that the State has no power to regulate, taking the foundation of any legislation to the Directive Principles of State Policy, be it legislation or a Government order. Furthermore, the High Court while placing reliance on some more Supreme Court decisions, noted that the Supreme Court had emphasised that The paramount duty is cast upon the States and its authorities to achieve appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 r/w Article 47 of the Constitution.
There, after detailed analysis of the dictums laid down by the Supreme Court on the Constitutional aspects of ban/regulating trade activity hazardous to public health, the High Court pointed out that that in certain circ*mstances State has a duty and an obligation under Article 47 of the Constitution to ensure nutrition and improvement of standard of living and public health and also to bring in prohibition of consumption of intoxicating drinks and of drugs which are injurious to health. It was noted 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 can bring in such law or order to ensure that public health does not suffer. “Public health has different hues and forms, emanating from manifold circ*mstances and myriad activities of the citizens of the country”.
Therefore, in the light of Article 47 of the Constitution and its interpretation, the Court found that 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.
Perusing the origin and history of Hookah, the Court noted that Tobacco, right from its advertisem*nt till its distribution, is regulated by the COPTA, 2003 and the COTP Rules, 2004 framed thereunder. Section 4 of COPTA deals with prohibition of smoking in public place. It was pointed out that the rigour under Section 4 which deals with prohibition of smoking in a public place would become applicable to all the items in the schedule appended to Section 3(p) of COPTA, which included cigarette, tobacco, pipe tobacco and ‘hookah tobacco’.
It was noted that relevant COTP Rules mandate the display of statutory warning vis-à-vis consumption of cigarettes and display of signs regarding smoking and non-smoking areas. In 2017, the COTP Rules were amended to mandate that no service shall be allowed in any smoking area or space provided for smoking, which is still in existence today [Rule 4(3)].
The Court noted that the manner of service to smoke hookah with or without tobacco, needs rendering of services in the designated area, as it requires external human hand to place all the apparatus on the tables like food or alcohol would be served on those tables. It is, therefore, on the face of it, a service.
The Court pointed out that without any service being permitted hookah cannot be inhaled. It requires whole lot of apparatus, a human hand in the form of a waiter at a restaurant and therefore, it is not as simple as it is sought to be projected by the petitioners, that hookah tobacco is already covered under the COTPA and as such no prohibition can be imposed. The State has not transgressed its jurisdiction in notifying a complete ban as hookah is undoubtedly requires a service and if service is prohibited by a Central legislation, the State is only implementing the same.
The Court took note of the fact that After issuance of the impugned notification to ban hookah, the State notified a Bill to amend the Cigarettes and Other Tobacco Products (Prohibition of Advertisem*nt and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Central Act 34 of 2003) in its application to the State of Karnataka. It was further noted that Bill has been cleared by both the Houses and is on the table of the Governor for its assent.
The Court hence pointed out that then ban imposed in terms of the notification dated 07-02-2024 if read with the afore-stated Bill that is tabled, would in no way be contrary to the Act and the Rules. The Rules are clearly in favour of the State to ban any service in a smoking area.
In its concluding observations, the Court pointed out the hazards of hookah smoking on respiratory system which have been highlighted by several expert research studies. Furthermore, it was noted that the studies found convincing connection between lung and bladder cancers and hookah smoking. “The defence all over is that Hookah is less harmful than Cigarettes. The studies again are otherwise, that Hookah exposes users to nicotine, an addictive chemical. The study is still on, whether Hookah may also contain higher levels of arsenic, lead, nickel and 15 times more carbon monoxide than cigarettes. Hookah, at public places, is typically used in groups, with the same mouthpiece being passed around. The risk of contacting contracting diseases like hepatitis, herpes is more. It is again a myth that smoking of hookah carries less risk of tobacco related diseases than smoking cigarettes.”
With the afore-stated analyses, the Court thus rejected the petitions finding no merit in them.
[R. Bharath v. State of Karnataka, WP 4461 of 2024, decided on 22-04-2024]
*Judgment by Justice M. Nagaprasanna
Advocates who appeared in this case :
Appearing for petitioners- Kiran S, Javali, Sr, Adv along with Kiran Gowda M., Adv. Advocate Sunil Kumar B.N., K. Suman, senior counsel along with Adv. Siddharth Suman, Adv. Mahesh S., and Govindaraju K., Adv. A. Mahesh Choudhary and Krishika Vaishnav, and Adv Jayasimha K.S., for Adv. K.L. Shreenivasa
Appearing for respondents- K. Shashi Kiran Shetty, AG with Navya Shekhar, Additional Government Advocate for the respondents Adv. Pavan Kumar and Adv. Ravishankar S.S for impleading applicant
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