Prohibition on use of herbal hookahs: HC unhappy with Delhi govt's reply

The Delhi High Court expressed its unhappiness over the Delhi govt's response filed on the pleas of restaurants seeking to direct the state and police not to interfere with the sale of herbal flavoure

The Delhi High Court Thursday expressed its unhappiness over the Delhi government's response filed on the pleas of restaurants seeking to direct the state and police not to interfere with the sale of herbal flavoured hookahs, saying it was silent on whether the prohibition order has been reconsidered by DDMA.

The high court said it had on September 17, specifically directed the Delhi government to ask the Delhi Disaster Management Authority (DDMA) to reconsider its August 3, 2020 order prohibiting the use of herbal hookah in public places to contain the spread of COVID-19, however, the authorities failed to inform regarding this.

The court said the Delhi government was directed to file an affidavit why the last year's order was not reconsidered in light of the change of situation of the COVID-19 pandemic.

Unfortunately even though the respondent (Delhi government) has filed an affidavit trying to justify why the sale of flavoured hookah is not permissible, there is no whisper if the decision has been reconsidered by the DDMA or not, Justice Rekha Palli said.

The court granted one week's time to the Delhi government while directing it to file an affidavit specifically stating whether the DDMA has reconsidered the August 2020 order and also reasons for continuing with the decision.

It listed the matter for further hearing on October 8, saying DDMA has to at least apply its mind.

The court told the petitioners' counsel that in COVID times, the authorities are not permitting many things and it needs to be seen whether it should force them to allow this activity.

It said nobody was stopping the petitioners from running their restaurants, only hookah activity was not permissible presently.

While perusing the government's affidavit, the court said it was not in compliance with the last order and it was not happy with the response.

Delhi government standing counsel Santosh Kumar Tripathi said the situation is very alarming and people need to be disciplined.

He said he has apprised the DDMA about the court's order but he was yet to get instructions from them and sought some time for it.

On September 17, the high court had asked the Delhi government why DDMA's order prohibiting the use of herbal hookah in public places to contain the spread of COVID-19 be not re-considered when breath analyser test was being allowed now.

The high court had issued notice and sought a response from the Delhi government on five separate pleas by restaurants and bars seeking to direct the state and police not to interfere with the sale of herbal flavoured hookahs or take coercive steps against them.

Separate petitions were filed by Breath Fine Lounge and Bar, TOS, R High Speedbar and Lounge, Verandah Moonshine, and Sixth Empirica Lounge in West Punjabi Bagh, challenging the order of the Joint Commissioner of Police (Licensing Unit) prohibiting and excluding the sale or service of herbal flavoured hookahs in restaurant/bar being run by them.

The pleas said the petitioners are serving herbal hookahs for which no licence is required as they are totally without tobacco but the police are still conducting raids, seizing equipment, and issuing challans.

The petitioners' counsel had earlier said as long as the restaurants undertake not to use nicotine in hookah, they cannot be prohibited from carrying out their businesses.

The pleas have sought to declare that definition of "smoking" under the Cigarettes and Other Tobacco Products Act (COTPA), does not cover herbal flavoured hookahs and to direct the authorities not to take any extreme step of suspension or cancellation of registration certificate of the petitioners.

The Delhi government has been opposing the pleas saying for a single mistake, the entire Delhi would have to pay a heavy price, and allowing hookah consumption in public places may spread COVID-19 since people would be sharing it.

The Delhi government has said the use of hookah, be it with or without tobacco, in all public places including hotels, restaurants, eatery houses, bars, pubs, and discotheques, in the national capital is strictly prohibited as the use or sharing of hookah may further increase the spread of COVID-19.

Delhi government counsel had referred to the August 3, 2020 order passed by the Health Department which observed that in public places, use and sharing of hookah with and without tobacco (herbal hookah) may further increase the spread of coronavirus.

Now, therefore, in the exercise of powers conferred by the Delhi Epidemic Diseases, COVID-19, Regulations, 2020 under the Epidemic Diseases Act, 1897, the use of hookah (with or without tobacco, that is, herbal hookah, water pipes, and other hookah like devices) in all public places including hotels, restaurants, eatery houses, bars, pubs, discotheques, etc, of the NCT of Delhi is strictly prohibited with immediate effect, for the purpose of prevention and control of the outbreak of epidemic disease namely COVID-19 in NCT of Delhi, the Delhi government order said.