Back
Rules Hookah Service Prohibited in Designated Smoking Areas in UP
In a landmark verdict that reshapes the hospitality landscape in Uttar Pradesh, the has unequivocally declared that hookah service cannot be provided even within designated smoking areas in restaurants. The decision, delivered on , by a Division Bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary, dismisses a batch of over 80 writ petitions filed by restaurant owners, cafes, and lounges that sought to legitimize hookah bars under the existing legal framework.
The Challenge: Hookah Bars Under Fire
The leading petition, , along with connected matters, arose from police crackdowns on establishments operating hookah facilities. The petitioners, holding valid food service licenses under the , argued that they had the right to run hookah bars within designated smoking areas as permitted by . They contended that a temporary COVID-era ban imposed in had lapsed, and that no specific state-level prohibition on hookah existed.
The police, however, had conducted raids and issued preventive orders under , recording that hookah was being served to minors and that smoking was occurring in open spaces, creating a . The petitioners claimed harassment and violation of their under .
The Turning Point: The Rule Amendment
The court zeroed in on the
amendment to
. Prior to the amendment, the rule stated that a smoking area
"shall be used only for the purpose of smoking and no other service(s) shall be allowed."
The
in
had interpreted this to mean that smoking through a hookah was permissible, as hookah was not an "other service" but the very act of smoking.
The amendment fundamentally altered the legal landscape. It substituted the phrase "no other service(s)" with the simple, :
"No service shall be allowed in any smoking area or space provided for smoking."
The court held that this single deletion of the word "other" was intentional and overrode the earlier interpretation.
Justice Saraf, authoring the judgment, observed:
"The substitution of 'no other service(s)' with 'no service', is in our view a deliberate removal of the single qualifying word 'other' that has transformed the legal position from a
to an
."
Self-Service and Rental Arguments Fail to Hold Water
The petitioners advanced creative arguments, proposing that hookah could be offered on a "self-service" model where the apparatus is prepared outside the smoking area and handed over to customers, or that providing the hookah amounted to "renting" equipment rather than rendering a service.
The court rejected both contentions emphatically. It noted that the process of preparing and operating a hookah—which involves assembling the apparatus, placing tobacco, heating charcoal, and replenishing coal—intrinsically requires expertise and cannot be performed by untrained patrons.
"The self-service model hypothetically synthesised by the petitioners to skirt around the clutches of the COTPA and the amended Rules is not a viable model,"
the court stated.
On the rental analogy, the bench drew a critical distinction: in a true rental, the user has absolute control and can use the item anywhere. A hookah customer, however, is confined to the .
"The factum of mandatory consumption of hookah inside the
by the patron makes it abundantly clear that he is being provided a 'service' only,"
the court reasoned.
Right to Clean Air Prevails Over Commercial Interest
The constitutional balance was a central theme. The court held that the right of non-smokers to breathe clean air in public places under of the Constitution cannot be sacrificed at the altar of business interests.
"The
in a public place is a fundamental right guaranteed under
of the
, that cannot be abridged by commercial interest of an establishment having Right to Trade under
of the
,"
the judgment declared.
Licensing Confusion Resolved: Police Powers Upheld
The bench accepted the petitioners' argument that neither the Food Safety Department nor municipal corporations have jurisdiction to license or regulate hookah bars, as tobacco falls outside the purview of food safety laws. However, it firmly rejected the challenge to police enforcement powers, holding that empower police to search, seize, and impose penalties for violations, including serving minors.
The Verdict: Hookah Service Banned
All writ petitions were dismissed. The court directed the Registry to send a copy of the judgment to the Chief Secretary and the Director General of Police of Uttar Pradesh for compliance.
In its epilogue, the court noted that states like Gujarat, Maharashtra, and Karnataka have already enacted stricter hookah bans with enhanced penalties. Expressing concern that a single hookah session can be as harmful as smoking 100 cigarettes, the court expressed the expectation that Uttar Pradesh would follow suit and issue a notification imposing stringent punishment for hookah service in designated areas.
The ruling leaves no ambiguity: in Uttar Pradesh, hookah service is dead letter in restaurants, regardless of the presence of a . The battle between commerce and public health has ended decisively in favor of the latter.
