'A Democratic Republic, Not A Police State': Madras HC Holds Police Not Empowered To Regulate Timings Of Eateries

Madras High Court has held that police cannot decide the working hours of eateries and restaurants under the guise of law and order problems. The court also observed that it is the bounden duty of police authorities to provide appropriate protection to the eatery shops/hotels/restaurants.

Justice Krishnan Ramasamy pointed out that the police does not have the authority to shut down eatery shops/ restaurants by citing law and order problems when they are not accorded such powers after the amendment to Section 35 vide Chennai City Police (Amendment) Act, 2007.

By virtue of the amendment, 'Eating houses, hotels, wine shops' were removed from the list of 'places that must be licensed'; these were amended as places that could be run with a 'No Objection Certificate' that could be obtained from the Commissioner with regards to traffic clearance. Therefore, after the amendment, the police couldn't regulate the opening and closing time of eateries, especially at night time when there is not much traffic.

Section 39 of the Act empowers the Police Commissioner to make rules for regulating the times during which the places referred to in Sections 34 and 35 shall be allowed to be opened, for ensuring law and order as well as public safety. Prior to the 2007 amendment, Police Commissioner could make rules regulating the timings in respect of the places referred to in the original Sections 34 and 35 of the Act, including eateries and restaurants.

"...by virtue of the Chennai City Police (Amendment) Act, 2007, the power of the Commissioner to issue licence in respect of eating houses, hotels, etc., was taken away and made the Municipal Corporation to grant licence, however, subject to producing no objection certificate from the Commissioner in regard to traffic clearance. Therefore, by virtue of amendment of Section 35 of the Act, except issuing no objection certificate in regard to traffic clearance...the Commissioner has no power to regulate the opening and closing timings of the said establishments and as such, the police authorities have no role to interfere with the business activities of the same and fix the timings", the court noted in the order.

In 2019, G.O Ms No. 60 by Labour and Employment Department, under Tamil Nadu Shops and Establishments Act, 1947 notified that all shops and establishments can be kept open 24*7 as per the convenience of the owners throughout the year, initially for a period of three years. The court noted that an 'establishment' under the TN Shops & Establishments Act include 'restaurant, eating-house, residential hotel' etc. Moreover, Section 13 of the Same Act empowers the state government to fix the opening and closing time of 'establishments' that come under the purview of the Act.

Referring to the notification by the Department, the court underscored that it is open to the petitioner to fix his own timings depending on the arrival of customers and workmen engaged. :

"Thus, when the said notification is in favour of the petitioner, then, the second respondent Police has no jurisdiction or authority to interfere with the business activities of the petitioner and dictate the closure timings."

"...there are two rights in stake here. First, the right of the hotel/restaurant owner to run his business or trade guaranteed under Article 19(1)(g). Second is the right of the customers to consume food which is a part of Article 21. If the State wants to regulate the first right, then the restriction can only be through a law. Such restriction must be reasonable and proportional. Admittedly there is no legal prohibition to operate a restaurant/eatery at late night. Without such a statutory power the Police cannot try to force or coerce these persons to shut their hotels/restaurants simply because they anticipate a law and order issue", the court iterated.

The right to practise any profession or to carry on any occupation, trade or business as enshrined in Article 19(1)(g) of the Constitution will be vitiated if the respondent police continue to interfere with the business activities of the petitioner, the court added. The court also referred to the Kerala High Court judgment in R.Ravikumar v. Sub Inspector & Another (2016) to underline that eateries that are open late at night cannot be shut down merely based on the apprehension about anti-social elements. 

The court then went on to censure the police and called their actions 'shameless and deplorable', being 'the law enforcers and protectors of the people', insisting the petitioner close the shop by 10.30 pm while the police should ideally be confronting the anti-social elements that disrupt law and order.

"... in the present case, it is unfortunate to note that the respondent police, instead of extending their helping hand and protecting the interest of the petitioner and ignoring their duties, in a blind-fold manner, insisting him to close the shop, which would show that we are living in a totalitarian regime.", the court added to its observations in the order.

"If no time limit is prescribed in the licence, the petitioner, on his own, can fix the timings for his business depending upon the arrival of customers, over which, the second respondent police has no role or jurisdiction to interfere with the business of the petitioner in any manner. All the more, what the respondent-Police is expected to do is that, to ensure that no untoward incident takes place at the premises or in the eatery shop and in case of need, they are expected to render all possible assistance to prevent such incident from being taken place, rather than anticipating that, law and order problem would arise, if the petitioner is allowed to run the shop after 10.30 p.m.", the court observed while also referring to Section 23 of Chennai City Police Act, 1888 that says about the duties if police officers.

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