MP High Court Protects Herbal Hookah Service, Says No Blanket Ban Without Statutory Backing

The Madhya Pradesh High Court has held that authorities cannot impose a blanket prohibition on the service of herbal, tobacco-free and nicotine-free hookah in restaurants unless there is a specific statutory bar under law, while simultaneously affirming the State's power to conduct inspections and take action in cases of violations.

Justice Himanshu Joshi passed the order while disposing of a writ petition filed by M/s The High Tribe, a hospitality establishment operating in Rewa, which had approached the Court apprehending coercive action by authorities over its herbal hookah service. The petitioner was represented by Advocate Krishna Sharma, while the State was represented by Government Advocate Priyanka Mishra.

The restaurant contended that it serves only herbal hookah that is completely free from tobacco and nicotine and operates a segregated smoking area in accordance with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA), along with the relevant Rules of 2004 and 2008. It argued that repeated threats of closure and cancellation of licences amounted to an unlawful blanket prohibition not contemplated by either the central legislation or the Madhya Pradesh amendment law.

Before the Court, the petitioner argued that COTPA regulates tobacco products and prohibits smoking of tobacco in public places, but does not prohibit herbal or nicotine-free products. It further submitted that the Madhya Pradesh amendment defining a "hookah bar" specifically relates to establishments where tobacco or similar products are smoked and therefore cannot be extended to herbal preparations devoid of tobacco and nicotine.

The State, on the other hand, defended the regulatory framework by stating that hookah lounges could potentially become centres for consumption of prohibited substances under the guise of hookah service, thereby affecting public health and law and order. However, the State also acknowledged before the Court that no coercive action had actually been taken against the petitioner.

Despite this submission, the Court chose to decide the issue on merits, observing that it raised a recurring question of law of general importance. The Court identified the central issue as whether authorities could prohibit service of herbal, tobacco-free and nicotine-free hookah in the absence of a specific statutory prohibition.

Examining the statutory framework, the Court noted that COTPA primarily targets tobacco products and that the prohibition under Section 4 relates to smoking tobacco in public places. It further observed that the State amendment defining a hookah bar was directed towards establishments facilitating smoking of tobacco or similar substances and not herbal preparations free from tobacco and nicotine.

The Court held that "the mere apprehension of possible misuse, without concrete findings or inspection-based violation, cannot justify an absolute restraint amounting to a de facto blanket ban on herbal hookah."

While recognising that public health remains a matter of paramount importance, the Court clarified that authorities continue to retain powers to inspect establishments, regulate compliance and initiate action whenever violations are detected. The judgment stressed that regulatory powers must operate within the limits of the statute and cannot be expanded to prohibit activities that are not expressly barred by law.

Emphasising constitutional protections available to businesses, the Court observed, "The principle that restrictions on trade under Article 19(1)(g) must have statutory backing and must be reasonable and proportionate applies with full force." It further held that a business undertaking to comply with all applicable laws and ensure that only herbal, tobacco-free and nicotine-free hookah is served deserves protection from arbitrary coercive action.

Accordingly, the Court directed authorities not to take coercive action against the petitioner solely for serving herbal, tobacco-free and nicotine-free hookah, subject to strict compliance with COTPA, the State amendment law, municipal regulations, fire safety norms and all licensing conditions. It also authorised inspections and clarified that any violation would permit authorities to suspend or cancel licences and take action in accordance with law. The writ petition was disposed of with these directions.

Case Title: M/S The High Tribe v. The State of Madhya Pradesh and Others

Date of Order: June 15, 2026

Bench: Justice Himanshu Joshi