Hookah bars cannot lawfully operate anywhere in Uttar Pradesh, Allahabad High Court holds
Justices Shekhar B. Saraf and Abdhesh Kumar Chaudhary dismiss a batch of writ petitions, holding the 2017 amendment bars every service inside a designated smoking area.
A restaurant licence does not carry with it the right to run a hookah bar, and no designated smoking area in Uttar Pradesh may lawfully have hookah served in it. Dismissing a batch of writ petitions by cafes and restaurants in Lucknow, a Division Bench of the Allahabad High Court held that the 2017 amendment to Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008 imposes an absolute prohibition on service of every kind inside such an area, and that preparing and handing over a hookah is a service however the transaction is dressed up. Justice Shekhar B. Saraf, with whom Justice Abdhesh Kumar Chaudhary agreed, directed the Registry to send the judgment to the Chief Secretary and the Director General of Police.
From a Covid-era direction to a police raid
The lead petitioner held a food service restaurant licence under the Food Safety and Standards Act, 2006, granted by the Food Safety and Drug Administration Department, and operated a cafe under a franchise at Vibhuti Khand, Gomti Nagar, Lucknow.
The sequence that brought the matter to court began during the pandemic. In a suo motu public interest litigation registered in 2020, the High Court directed the Chief Secretary on 27 August 2020 not to permit bars, restaurants and cafes to serve hookah until further orders, given the rate of coronavirus transmission in the State. The Chief Secretary followed with a communication of 5 September 2020 banning all hookah bars across Uttar Pradesh.
After restrictions eased, the Court observed on 21 February 2023, without going into the merits, that the business of running hookah bars is regulated under the Food Safety and Standards Act, and gave the interveners liberty to apply to the statutory authority for grant or renewal of a licence. In pursuance of that order, the Commissioner of Food Safety and Drug Administration issued a circular on 29 March 2023 directing the department to dispose of licence applications from hotels, restaurants and food establishments operating hookah bars where they were found to comply with the 2008 Rules as amended by the notification of 23 May 2017, and warning that non-compliance would lead to cancellation or suspension of the licence.
What followed on the ground was a police raid and a preventive order of 15 May 2023 passed by an Additional Commissioner of Police under Section 133 of the CrPC, recording that hookah bars were operating without licence or permission, that hookah smoking was taking place outside the cafe and creating public nuisance, and that hookah was being served to minors. Unable to run the business, the petitioner came to the High Court alleging a violation of Article 19(1)(g).
The relief sought across the connected petitions was a mandamus directing the authorities to issue categorical guidelines that a valid food service restaurant licence permits the holder to run a dedicated smoking space under COTPA and the 2008 Rules in which smoking hookah is facilitated, and a direction to the police not to obstruct that business.
The self-service model, and what the State said about it
Mr Harshit Singh, for the petitioners, argued that the proviso to Section 4 of COTPA read with Rule 4(1) creates an exception to the prohibition on smoking in public places by allowing a restaurant seating thirty persons or more to provide a separate smoking area, and that no separate licence is needed for a hookah bar inside it. On a harmonious reading of Rule 4(3) and Rule 4(3A), he submitted, the post-amendment framework warns, labels and controls the environment of a designated smoking area, discourages the young, protects non-smoking waiting staff from exposure and restricts prolonged hookah use — but does not eliminate the apparatus itself. Reading the 2017 amendment as a total commercial ban would contradict the preamble to COTPA.
His central submission was a model of operation. The restaurant prepares the hookah and hands it to the patron with a matchstick or lighter outside the smoking area; the patron carries it in and lights the coal himself. That, he argued, is facilitation of smoking, not service. Facilitation and service cannot be treated as interchangeable, because if every act that facilitates, assists, enables or contributes to smoking were automatically a service, a legally designated smoking area would become an illusion, which would amount to rewriting the Rule and rendering the concept redundant. He added that neither the Food Safety Department nor the municipal or police authorities have jurisdiction to regulate or license smoking or tobacco consumption. The Bench recorded its gratitude for the ingenuity with which the argument was put.
Mr Pankaj Khare, for the State, answered that a licence under the food safety statute confers no authority to run a hookah bar, because hookah is not a food product and is not governed by that Act. Before the 2017 amendment, Rule 4(3) prohibited “other service” — food and eateries — inside the designated smoking area; after the amendment the service of hookah itself stands prohibited there. As for self-service, he submitted it is not practically possible, because consuming hookah requires the continuous active involvement of waiting staff to replenish coal and tobacco and to clear residue ash, and that continuous assistance is service.
An Indian invention, and the law built around it
The Bench paused to define the object of the dispute. A hookah — also shisha, goza, argileh or narghile — is an apparatus for smoking tobacco through a water pipe, a large table-top pipe with a mouthpiece on a flexible hose, its bottom filled with water, the tobacco heated by burning charcoal or embers, with the smoke drawn through the water bowl and inhaled as vapour.
It originated in India in the sixteenth century, in the regions of Rajasthan and Gujarat, coinciding with the introduction of tobacco, before spreading to Persia, Turkey and the Arab world. Its invention is attributed to Hakim Aboul Futteh Ghilani, an Iranian physician in the court of Emperor Akbar. Early hookahs were made from coconut with hollow bamboo stems, and smoking one became a marker of nobility and social standing among the Indian elite. After a long period out of favour it regained popularity over the last decade, and bars and cafes opened hookah rooms — which is how the question reached the Court. The judgment opens, by way of contrast, with King James I's seventeenth-century denunciation of tobacco as a custom dangerous to the lungs.
An exception that must be read narrowly
The Bench began with the architecture of the statute. Tobacco smoking in India is regulated by COTPA and the Rules of 2008, and the Bench treated the preamble as the raison d'être of the legislation, the part that reveals its true purpose.
Read that way, the preamble disclosed both international and national obligations. The international ones come from the resolutions of the World Health Assembly of 15 May 1986 and 17 May 1990: to ensure effective protection of non-smokers from involuntary exposure to tobacco smoke; to protect children and young people from addiction; to legislate for the protection of citizens, with special attention to pregnant women and children; to impose progressive restrictions discouraging tobacco use; and to work towards eliminating all direct and indirect advertising, promotion and sponsorship. The national obligation is the protection of public health by prohibiting consumption of tobacco products, as enjoined by Article 47 among the Directive Principles. COTPA, the Bench concluded, is a special legislation framed to protect non-smokers, which authorises the State to impose progressive restrictions on tobacco smoking to meet those obligations.
The definition of a public place in Section 3(l) expressly includes restaurants, alongside auditoriums, hospital buildings, railway waiting rooms, amusement centres, public offices, court buildings, educational institutions, libraries and public conveyances, while excluding open spaces. The Bench read all of this against the Supreme Court's direction in Murli S. Deora prohibiting smoking in public places, which preceded the Act.
From that premise it held that the designated smoking area in the proviso to Section 4, being an exception to a general prohibition, must be read strictly and narrowly, in a way that advances rather than undermines the dominant prohibitory philosophy and public health object of COTPA. It also held that the power to regulate an activity under COTPA inherently includes the power to prohibit it altogether where the object of the regulatory framework demands it.
The decisive textual point was what the 2017 amendment did to Rule 4(3). By expunging the word “other” from the phrase “no other services”, the amendment converted a limited bar into an absolute and unqualified prohibition on all services within a designated smoking area, admitting no exception of any nature or description — food, beverages, tobacco products, herbal products and hookah alike. That deletion, the Bench held, specifically and irrevocably overrode the interpretation the Supreme Court had placed on the earlier text in Narinder S. Chadha.
Why handing over a hookah is a service
On the self-service model the Bench was unpersuaded. Preparing a hookah requires heating the charcoal until it turns red and ashy without allowing flames, and the operation needs expertise; it is not something a novice patron performs. Beyond preparation, hookah smoking requires constant intermittent assistance from waiting staff. And the restaurant supplies both the apparatus and the tobacco for a price — the fact that consideration passes is itself what makes the supply a service. The Bench drew on the definition of “restaurant service” in the Finance Ministry's notification of 28 June 2017 under the Central Goods and Services Tax Act, 2017, and on a survey of the elements of the term, to hold that a purposive activity performed for a patron for consideration is a service.
The analogy to a self-drive car rental was rejected. A person who rents a car has absolute possession and control of it and may drive wherever he chooses; a patron handed a prepared hookah is confined to the designated smoking area. Providing the apparatus is therefore a service and not a rental.
The Bench also placed the asserted right in constitutional order. The fundamental right to carry on trade or business under Article 19(1)(g) must yield to the right of every non-smoker to breathe clean air free from involuntary exposure to tobacco smoke in a public place, guaranteed under Article 21, and to the duty of the State to improve public health under Article 47. A non-smoker's right under Article 21, it held, cannot be abridged by the commercial interest of an establishment.
Who may license, and who may enforce
On the jurisdictional question the Bench agreed with the petitioners in part, and the agreement did them no good. Neither the Food Safety Department nor the Municipal Corporation has jurisdiction to issue licences regulating hookah bars in Uttar Pradesh — which removes the premise of the 2023 circular under which such applications were being processed, and leaves no licensing route at all.
Enforcement is a different matter. Sections 12, 13 and 15 of COTPA, the Bench held, confer power on the police to ensure compliance with Sections 4 and 6, and that power includes search, seizure, confiscation and the imposition of penalties on establishments that disobey those provisions.
What the Court said after deciding
Having answered the question in the negative, the Bench added an epilogue of observations it said had weighed on its judicial conscience. It recorded that the World Health Organization's 2019 report on the global tobacco epidemic classifies India's smoke-free policy as merely moderate, and that Gujarat, Punjab, Rajasthan, Maharashtra and Karnataka have enacted State-level amendments to COTPA specifically banning hookah bars while raising the quantum of sentence and fine for contraventions. India ratified the WHO Framework Convention on Tobacco Control on 14 June 2004 as one of its founding parties, undertaking binding obligations to legislate for wholly smoke-free indoor public places, indoor workplaces and public transport.
It then placed on judicial record what it called a fact of grave medical significance: a single hookah session of about an hour involves an estimated 200 puffs and is equivalent in harm to smoking 100 cigarettes. Hookah, it said, is as addictive and as harmful as a cigarette and contains the same toxic chemicals, and the belief that it is gentler is a myth. Every cigarette packet carries a mandatory statutory health warning; a similar caution for hookah, the Bench held, would fill a regulatory gap that demands urgent legislative attention. It recorded its expectation that the State would take all necessary steps, including a notification on the lines of the other States, imposing stringent punishment for the service of hookah in designated smoking areas.
The judgment then closes on something rarely found in a law report. Under a heading recording his own experience of tobacco smoking, Justice Saraf set out several paragraphs in verse — an account of a first cigarette offered by a senior, of resolutions made and broken some forty times a year, of the cough and the failed patches and gum — written, he said, to educate young people against a habit he describes as deleterious and indelible. The Bench also thanked counsel on both sides and the research associate who assisted it.
Order
The Bench held that the operation of hookah bars and the rendering of hookah services by restaurants within Uttar Pradesh is a flagrant violation of Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008 as amended in 2017, and is in direct contravention of the scheme and object of COTPA. All the writ petitions were dismissed.
The Registry was directed to send a copy of the judgment to the Chief Secretary, Government of Uttar Pradesh, and to the Director General of Police, Uttar Pradesh, forthwith, for information and necessary compliance.