The Supreme Court on Monday struck down the ban on sale and use of hookahs in hotels, restaurants and even airports where smoking is otherwise legally permitted.
The SC has set aside judgments passed by three high courts three years ago that upheld such prohibitions brought in by the civic bodies and police in Mumbai, Ahmedabad and Chennai.
The apex court pointed out that the definition of smoking under the Cigarettes Act included smoking tobacco in any form with the help of a pipe, wrapper, or any other instrument, which would include a hookah and the expression, "no other service shall be allowed", referred to services other than hookahs. So, the use of hookahs could be permitted in smoking zones, said a bench of Justice Ranjan Gogoi and Justice Rohinton Nariman, allowing a bunch of appeals against the judgments of the Bombay, Gujarat and Madras high courts. Gujarat and Madras HCs had relied on an August 2011 judgment of the Bombay HC, which rejected a challenge to a BMC circular issued in July 2011 that banned the stocking and sale of cigarettes and tobacco even in hotels and restaurants and prohibited use of the hookah in smoking rooms there.
The law, as it stands, prohibits smoking in all public places across the nation except in specially designated smoking rooms in hotels, restaurants and airports. The SC pointed out that the law permitted the sale of cigarettes and tobacco to adults in areas outside a 100-yard radius of educational institutions. Any other exception added by the civic administration or the police would be impermissible, said the SC judgment. C U Singh, counsel for Narinder Chadha who had gone to the SC against the Bombay HC's prohibitory order, argued the BMC circular was unlawful as it prevented the stocking and sale of tobacco even on licensed premises. The SC accepted his argument.
The law, as it stands, prohibits smoking in all public places across the nation except in specially designated smoking rooms in hotels, restaurants and airports.
The tussle revolved around Rule 4(3) framed by the Centre in 2008 to govern smoking in public places that said only smoking and "no other services shall be allowed" in smoking areas. The BMC additionally banned the "use of any apparatus designed to facilitate smoking". "The effect of the added words is that a hookah can't be provided by the hotel, restaurant or airport and it is an apparatus designed to facilitate smoking," said the SC, adding the BMC's condition was contrary to the Cigarettes Act.
The SC rejected a Madras HC judgment that had upheld a July 2011 notice that prevented hotel and restaurant owners from providing tobacco to adults.
Dismissing BMC counsel R P Bhatt's arguments that hookahs cannot be permitted in public places at all, the SC said the rule could not be used by the BMC to justify its stand on prohibiting hookahs even in designated smoking areas. "The rules must be read harmoniously... What is expressly allowed in one rule, cannot be taken away by another," it said.
Besides setting aside the Bombay HC's judgment and deleting some sections of the BMC circular, the SC rejected a Madras HC judgment that had upheld a July 2011 notice that prevented hotel and restaurant owners from providing tobacco to adults.
In Gujarat, the HC had upheld an order from the Ahmedabad police chief, prohibiting standalone hookah bars and also those in hotels and restaurants. The SC observed that the "Gujarat HC had referred to the evil effects of smoking ... and concluded that the police power to regulate included the power to prohibit". Justice Nariman, who penned the SC ruling, held that the Gujarat HC was wrong on all counts.
Mumbai hookah parlour owners Shakil Bhure and Suhail Mansoori, who had also appealed against the HC order, said they were happy that their "undivided efforts of three years paid off" and didn't go up in smoke.
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