Hookah smoking permitted in designated smoking areas, rules Supreme Court

The Supreme Court yesterday struck down the legality of provisions in certain circulars which banned hookah smoking and sale of cigarettes in designated smoking areas..A Division bench of Justice Ranjan Gogoi and Justice Rohinton Nariman overturned the judgments of three High Courts – Bombay, Gujarat and Madras while allowing the appeals challenging the provisions in the circulars on the ground that it was violative of the parent Act and Rules – Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 (Cigarettes Act) and Prohibition of Smoking in Public Places Rules, 2008 (Rules)..Senior advocate RP Bhat appeared for Municipal Corporation of Greater Mumbai. Senior Advocates Sajan Poovayya, CU Singh and Advocate Nakul Dewan were among the lawyers who appeared for appellants. .The case pertained to a circular issued by Bombay Municipal Corporation on a direction by the Bombay High Court to ensure compliance with the Act and Rules. The circular sought to regulate smoking in restaurants, hotels etc. by laying down provisions for a designated smoking area. However, the circular also laid down the following:.“The Smoking area shall be used only for the purpose of smoking and no other service(s) or any apparatus designed to facilitate smoking shall be provided.”.The effect of this was that hookah could not be used in designated smoking area..Further the circular also prohibited keeping, selling or providing.“any tobacco or tobacco related products in any form whether in the form of cigarette, cigar, bidis or otherwise with the aid of a pipe, wrapper or any other instrument in the licensed premises.”.Regarding the ban on sale of cigars and other tobacco products, the Court held the following:.“It will be noticed that Section 6 of the Cigarettes Act permits the sale of cigarettes and any other tobacco products, except to persons under 18 years of age and in an area within a radius of 100 yards of any educational institution. It is clear that any condition which prohibits the sale of cigarettes or any other tobacco products in premises licenced by the Municipal Corporation would amount to adding another exception which would be impermissible in law.”.With respect to ban on apparatus designed to facilitate smoking like hookah, the contention of the Corporation was that it was prohibited under Rule 3(1) (c) of the Rules. It had also relied on Rule 4 (3) of the Rules which prescribed that,.“A smoking area or space shall be used only for the purpose of smoking and no other service(s) shall be allowed.”.However, the Court held that Rule 3 (1) (c) was applicable to public places where smoking is prohibited and not to smoking zones..It held that,.“Rule 3 would only apply where there is a total prohibition of smoking in all public places as is clear from Rule 3(1)(a) which makes it is incumbent on the owner, proprietor, etc. of a public place to ensure that no person smokes in that place. It is in that context that ashtrays, matches, lighters and other things designed to facilitate smoking are not to be provided in public places where smoking is prohibited altogether. On the other hand, where smoking is allowed in a smoking area or space, sub-rule (3) of Rule 4 makes it clear that such place can be used for the purpose of “smoking”.”.The Court then proceeded to hold that the definition of smoking under Section 3 (n) of the Act includes hookah and the words “no other service shall be allowed” which are used in Rule 4(3) of the Rules refers to services other than the providing of a hookah..On the above grounds, it overturned the judgment of the Bombay High Court and struck down the legality of the impugned provisions in the circular..The Court also struck down the vires of similar provisions in circulars issued by Tamil Nadu and Gujarat.