On February 7, a notification was issued by the Karnataka government. The notification bans the sale and consumption of hookah in the state of Karnataka for the purpose of protecting public health.
As per the notification, hookah bars infringe the fire safety laws. Moreover, according to the notification, the food becomes "unsafe for public consumption" because of hookah. The notification issued by the health ministry also states that in case of violation of the law, the violators will be booked as per the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act of 2003, abbreviated as COTPA, along with multiple other central and state laws.
Next, on February 20, a bill was introduced by the Karnataka government. The bill proposed to ban the opening of hookah bars "in any place". The bill also came with various other restrictions. It was on the very next day that the bill was passed, thereby amending the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act The bill penalized anyone opening a hookah bar in the state of Karnataka with imprisonment of 1 to 3 years, along with a fine of up to 1 lakh INR.
Now, the result of such a regulation was not entirely peaceful. Many restaurant owners in the state of Karnataka sought to challenge the notification in the Karnataka High Court. It was Justice M Nagaprasanna who heard the matter on February 13. The judgment of the case was reserved on the 11th of March.
The view of the restaurant owners
The leader petitioner of the case was R Bharath. The petitioner argued that the notification by the government is actually an act of "illegal interference". The petitioners are of the view that the only prohibitions in the COTPA are actually on smoking, sale to underage individuals, and the advertisement of tobacco products, and not on the sale and consumption of hookah.
The petitioners are of the view that as per Section 4 of the COTPA, hookah smoking isn't prohibited as far as it is consumed in the designated smoking area. In this sense, the COTPA doesn't ban hookah smoking.
It has also been argued by the petitioners that the state government does not hold the required legal authority to introduce such a notification, as per the COTPA to issue any such notification. Moreover, R Bharath had all the required trade licenses and certificates in order to run his business in a legal manner.
Therefore, Bharath claims that the notification actually infringes the rights of business owners like him, which is actually a clear violation of Article 19(1)(g) of the Indian Constitution which confers the the Indian citizens with the right to “to practice any profession, or to carry on any occupation, trade or business.”
All these arguments from the petitioners' side demanded the Karnataka High Court to quash the government notification, while also instructing the state government of Karnataka to not interfere with the trade of the petitioners.
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The rationale behind hookah ban- as given by the Karnataka state government
While the petitioners challenge the legal authority of the state government to issue such a notification, the state government opined that it holds the authority to issue such a notification. The state government says that issuing such a notification actually falls under the category of Entry 6 of the State List, which is that of "Public health and sanitation; hospitals and dispensaries". The State List is mentioned in the 7th Schedule of the Indian Constitution. The state government opined that the state legislatures hold the authority to enact laws on matters mentioned in the State List.
Additionally, another rationale given by the state of Karnataka was related to Article 162 of the Indian Constitution. The Article provided the state government with the "executive power" in subjects where the legislatures can make laws. This gives authority to the state legislatures to issue notifications to ban the sale and consumption of hookah in the state.
Not to miss, the government also talked about Article 47 of the Indian Constitution, which actually put a duty on the government to “endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
Articles 36 to 51, falling under Part IV of the Indian Constitution mention the directive principles of state policy, which are actually guidelines and principles for the states and centers to work upon. Though not enforceable, the directive principles of state policy play a significant role in guiding law-making in the country. Now, it is important to note that Article 47 which expects the government to "endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health,” is actually a directive principle of state policy, and thus it justifies the actions of the state of Karnataka in this sense.
Moreover, the state government of Karnataka also stated that there were actually no designated smoking areas in the hookah bars and restaurants in the state. The state claimed that the complete floors of such places are actually marked as designated areas for hookah smoking.
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A bit about COTPA
The World Health Organization resolutions in the years 1986 and 1990 prompted the Indian government to bring about the Cigarettes and Other Tobacco Products Act (COTPA) in the year 2003. The Act regulated the sale of tobacco products. It also bans the sale of tobacco products near educational facilities and restricts of advertising of such products. Violations of such regulations can lead to fines and imprisonment. Smoking of tobacco products is banned in public places according to Section 4 of the Act, with designated spaces required in specific public establishments. Also, individuals under the age of 18 are prohibited from purchasing tobacco products. Advertising of the same is also strictly prohibited. If done, it can attract penalties for not only individuals but also for media outlets. Not to miss, the packaging of tobacco products must also include warnings, as per the Act.
Hookah bans in other states and the amendments to the Act
The Karnataka government welcomes Section 4A to the COTPA as an amendment that says that no person shall open or run any hookah bar on his own or on behalf of any other person, in any place including bars, pubs, restaurants, or eating houses, by whatever name it is called.
Well, the state of Karnataka is not the only one to bring about such changes. In the year 2018, similar amendments were brought about by the state of Maharashtra. In the year 2020, an identical amendment was enacted by the state of Rajasthan as well. Not to miss, the state of Tamil Nadu also brought a similar amendment in the year 2022, which, however, is pending at the Madras HC.
Finally, why is hookah consumption frowned upon?
Hookahs are actually water pipes that are made to use to smoke forms of tobacco that come in a wide array of flavors like mint, cherry, coconut, chocolate, watermelon, and more. Hookahs are generally considered very bad for health, as the charcoal required to heat the tobacco actually poses health risks by producing huge amounts of carbon monoxide, metals, and other chemicals that can cause cancer. Despite being passed through water, the smoke emitted from a hookah contained high levels of such toxic agents. Additionally, tobacco juices coming from hookahs can actually irritate the mouth. This further can lead to the risk of getting oral cancers. Numerous toxic agents can be found in hookah smoke and tobacco that can cause bladder, oral, or lung cancers.
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