Can cops force shops to close at night?

The State police has been clamping down on functioning of shops and eateries during night hours, but a recent Madras High Court order has termed it illegal. With work culture changing and night shifts

Published: 21st April 2019 04:09 AM  |   Last Updated: 21st April 2019 04:09 AM   |  A+A-

Representative picture of a police patrol vehicle near shops open after 10 pm at Moore Market in Chennai | Ashwin Prasath

Express News Service

CHENNAI : A recent order of the Madras High Court has busted a bubble of the Tamil Nadu police in something it has been following for a long time. The order pointed out that the police has no authority to ask shops and eateries to close down at night. The high court’s conclusion is significant especially because the State police has been, for decades, clamping down on activities of common man in public places during the night hours.

This is achieved by forcing all shops, eateries and tea shops to close. Any person found in a public place, like in a playground or beach, is told to leave. In some places, the cops set 10 pm as the deadline and in some areas, 11 pm. This often varies from officer to officer.

The practice has been in existence for long and it has become common knowledge that one will get questioned and told to leave by the police if they are out during the night hours. But the order by Justice K Ravichandrabaabu on March 14, which went by the rule book, has said what police are doing is not legal. There is no rule or law that empowers police to ask a shopkeeper to close down in the night hours, let alone ordering a person to leave a public spot. When Express spoke about the issue to many police officers, the usual reason cited by them was that it makes their job easier if there are less people outside in the night hours. A few of them agreed that there is no law that allows them to do it.

Legality
The high court passed the recent order while hearing a petition filed by the Vasantha Bhavan Hotel at Adyar. The hotel had submitted that the police had been compelling the hotel to close at 10 pm and had even taken hotel staff and managers to the police station for refusing to obey the diktat. When the court asked the government counsel on what legal basis the police are forcing the hotel to close at 10 pm, the only justification the state’s counsel could submit was a clause in the colonial Madras City Police Act 1888. 

Section 39 of the Act empowers the city police commissioner to set timings for establishments like eateries and places of public entertainment. However, the police failed to convince the court because even though the act gives the power to the police commissioner, no order has been passed so far on the opening and closing hours of the shops. The court said in the absence of any legal order passed by the police, they should not disturb shops running during night hours.

Big hotels may approach the courts to get such reprieves from the police. Or some, like a few popular hotels in T Nagar, can even openly advertise that are open till 2 am, but still manage to evade the police radar. But many running smaller eateries and wanting to tap the business available due to increasing night shifts cannot afford either of these two.

The victims
“At least once in a week, I will be taken to the police station. Vendors like us have contacts with personnel in ranks of sub-inspectors and constables. Whenever the local inspector or other senior police officer is on patrol, we will be taken to the station as a warning and will let off,” said Basheer* who roams the city in a cycle and sells tea at night near Royapettah. By “contact”, he means greasing the palms of the lower level cops with whatever he could afford. For Basheer, much of his livelihood depends on selling tea during the hours, to people returning from late-night cinema shows or night shift work.

The vagaries of the cops is evident from what the shop keepers tell. “I may do good business during night hours also since there are lot of people who work in the night. But police insist I can’t have my shop open after 11 pm,” says Kumaran* who runs an eatery in Adyar. He says police personnel don’t insist on the same when it comes to a few shops that sell juice and cigarettes close to his eatery. When Express spoke to one such shop owner pointed out by Kumaran, he said, “We pay some money to the personnel everyday but if they come to know that the inspector or a senior police officer is on patrol, they would ask us to close the shop for the day to avoid further problems.”

Former Madras High Court judge K Chandru says police are able to wield power over eateries because of some provisions in the Madras City Police Act. “Section 34 of the Act says that a few establishments like eateries must get license from the police. Even if a single fried item like ‘bonda’ is sold, police can say it is an eatery. Most of them do not get the license. So police take advantage of this and compel the shopkeepers to close,” says Chandru.

He says that the provision of the Act, brought in during colonial rule, itself rests on weak legal grounding. “Now we have the Shops and Establishments Act which regulates the opening and closing hours of shops. There is a separate Act to deal with hotels and restaurants. Then why should we still have this provision in the City Police Act? The legal provision serves no other public good. If properly challenged, the courts may strike it down also,” he says. 

The Tamil Nadu Shops and Establishments Act 1947 sets the timings for the opening and closing of shops, but the same does not apply to hotels and restaurants. However, the enforcement agency for the Shops and Establishments Act is the labour department, and not the police. Even under the Act, a range of shops are given exemptions from normal opening and closing hours.

Beyond legality
Beyond the question of legality, a pertinent question is whether metropolitan cities like Chennai should make its citizens stay indoors during the night hours. With a growing economy, there are many companies that operate through the night and encouraging people’s movement during these hours may also bring in much-needed economic growth and decongest the city in the day.On the other hand, the main concern of police officers seems to the possibility of crime if there is too much public movement in the night hours.

Police officers Express spoke to have similar opinions. “It might be easy for us to say that we should not disturb the public at night and shops should be running throughout the night. One of our major roles is to prevent crimes from happening. We all know that crimes happen during the night and keeping the common public indoors and closing the shops makes it easy for the police to recognise thieves and culprits,” said inspector Kannan, attached to the law and order wing. 

“Even if we say shops can run throughout the night, it is not like all the people are going to come out of their houses, depriving themselves of sleep, to enjoy the nightlife. This might happen on weekends but on regular days, it is mostly in the night that the law violators operate,” said another senior police officer.

A retired police officer said shortage of manpower makes it difficult to police the city in the night also. “If there are less people outside, police will also need only less manpower,” he said. M Priyamvadha, Associate Professor at Department of Criminology, University of Madras says, “Compared to others major cities in the country, Chennai hasn’t been into night life as of now.

Mainly because they do not want being stopped and questioned by the police and also since there are no eateries open after 11pm.” She says a solution can be better planning of the available manpower so that cops can be used for the additional work in the night hours, if the shops are allowed to remain open. “For example, we have been using a lot a manpower for traffic monitoring and bandobast, which can be effectively channelised towards other duties of the police,” she said.

There are those who argue that keeping shops open through the night may perhaps help in improving the law and order situation. “If shops are open at night and a lot of people are out, any person will feel safer to step out of the houses. Only when the streets are empty, the thieves take advantage of it,” says T Vellaiyan, President of Tamil Nadu Vanigar Sangangalin Peravai.

“In the license that we get from the labour department, it is mentioned that we can keep shops open until 1.30am but police do not allow us to stay open for that long. They say that anti-social elements will roam on the roads if we have the shops open. This cannot be true. Police should discuss with traders and hotel owners and come up with a list of specific places where the shops can be open round the clock, so that police can patrol those places,” he says.

But the police may also soon be forced to change their view on the issue. The Central government has recently framed a model ‘Shops and Establishments Act’ that allows all shops to be open round the clock. Following the push from the Central government, many states, including Tamil Nadu have passed the new law, but are yet to notify and implement it. If the government pushes for shops to be open 24/7, the police may no longer be able to justify their stance of keeping shops shut during night hours. (*-names changed)

Order soon, says city commissioner 
On the reasons behind asking shops to not operate through the night, Chennai city police commissioner AK Viswanathan said, “The shops should be closed because miscreants might use the opportunity to create problems.” On the recent court order, he said, “We will soon promulgate an order as directed by the high court to close down shops after 11 pm. The issue of corruption may be prevalent at lower levels in the force and may not be coming to the notice of the higher officers.”

Cops’ view
The main concern of the police seems to the possibility of an increase in crimes if there is too much public movement during the night hours
They say most of the miscreants prefer to operate in the night
They also cite lack of manpower in the department. If more people spend their time outdoors at night, then more cops are needed to ensure safety, they say 

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