Night and Law: A Tumultuous History

This is the fourth article in the series ‘Law and Justice: A Journey through History’. Read the first, second and third articles.

The rule of law is the bedrock of any modern society. It ensures the equality of all before the law. Through notions of justice, punitive mechanisms and multiple avenues of enforcement, law shapes social relationships and also in turn gets reconstituted and challenged by actors and contexts. In these moments law takes on another attribute – that of virtue. As we explore the troubled relationship between law, justice and society in the following essays, we will note how law struggles to negotiate a delicate balance between its punitive trait and as a messiah for justice. The essays in this series will uncover some fascinating aspects of law by turning to the archives of law. This will help uncover the commonalities between history, legal history, and socio- legal studies and also foster greater dialogue between historians and lawyers in South Asia. The essays for this special series will be curated by Nitin Sinha (Leibniz-Zentrum Moderner Orient, ZMO Berlin), Sukhalata Sen (Former Assistant Professor, National Law School of India University, Bengaluru) and Vidhya Raveendranathan (Centre for Modern Indian Studies, University of Göttingen).

I. Historical vignettes of night

Historical accounts suggest that in the second half of the 18th century in Calcutta, the following things could have happened, simultaneously or otherwise, in one night.

English sahibs and memsahibs went out in the evening until late in the night, either to a theatre or to a ball, or to a private social gathering. They dined, danced and drank imported madeira wine.

Some of their servants such as the khidmutgar, the hookahbardar and the punkah bearer accompanied them inside the building; others, such as a set of palanquin bearers numbering around eight to 12, or coach drivers with syces, waited outside, smoking their own hookahs.

Washed in lumba pealas of laal sharab, that is, the long glasses of red wine as servants joked behind their backs, the masters and mistresses were carried home by these bearers and coach drivers, where the half-asleep durwan or chowkidar (gatekeepers) let them in.

Most likely, the same khidmutgar or the head bearer then helped the sahib slip into the night dress; the ayah did the same to her memsahib.

The merriment of the masters and mistresses was work time for some servants. Certain tasks required long spells of waiting either at home, or in the dark by the light of the mashaal, the torch, or just under the moonlight. The night was not the same for all: it was pleasure for some and a burden for others.

The same evening and the night, a group of international seamen may have roamed around the streets of Calcutta. They visited taverns and punch houses and got drunk. They sought the services of prostitutes. They forcefully made their way into the huts of ordinary men and women. They picked up fights with them on flimsy grounds and beat them badly. They not only broke the law but became one of the prime reasons for instituting the law to govern the night.

The crimes committed in the night were of multiple types. Some of these cases were reported in courts and to the police. One of the not-so-infrequent complaints to a local court in Calcutta was of break-ins during the night.

In 1766, Kistnou was ordered the punishment of 12 rattan lashes for “making a disturbance in plaintiff’s [Bechou] house in the night time”. Gowee was ordered five rattan lashes for “getting drunk and entering plaintiff’s [Sabou] house in night time”.

Gowee was drunk when he committed the crime. The same night a motley of Indian working groups, European fugitives, ex-slaves and many more colourful characters who lived under the shadow of law and were often labelled ‘unlawful’, were also likely to get together in any arrack or taari shop.

Arrack presented a classic conundrum to the colonial state: it was a source of revenue on the one hand and a cause of concern on the other. European sailors and military men getting drunk deflated the British claims of bringing moral enlightenment to India. The drunkenness of Europeans in barracks and cantonments provided business and employment opportunities of organising delivery and supplies to some but a strong headache to the state. The drunkenness of Indians confirmed to state authorities their moral depravity and necessity of regulation.

The combination of alcohol and night brought diverse types of people together. Servants, lascars, mistries, coolies, petty shop owners and many more regularly met up in these places. They exchanged stolen commodities such as watches, silver cutleries, jewelleries and other objects of value. They brought these valuables to various smiths to get them molten. They sold them in pawn shops and to moneylenders.

The night in which masters and mistresses went out, servants waited, and arrack shops, taverns and punch houses remained active was still not over. There were others who conspired to break into the house of a banian or a merchant or any other well-to-do person in Calcutta.

For the police of the city, mostly domestic servants were involved in this act. For Indian elites, this was the work of chowkidars. With irony, they mentioned that those who were entrusted with ensuring the safety of their lives and property were the ones who were robbing them of their peaceful sleep.

Some of these robberies did involve long planning. From October 4 to 12 in 1791, on each of the stormy nights in this duration, a hole was craftily dug in the ground through the wall of a house to commit one of the most daring robberies in the house of a north Indian merchant who was on a visit to Calcutta.

II. Securing the night

It is no surprise that one of the first correspondences on the setting up of the police force in Calcutta in 1772 mentioned the unprecedented level of “infestations and robberies in the night time”. Safety at night became the yardstick for the success of law.

One of the proposed measures was to “send orders to all the Captains of the Europe Ships to use their Endeavors to prevent their Seamen from walking the Streets after 10.0 clock at night.” The “stragglers” found on the streets after 10 pm were “to be taken up & confined”.

An elaborate plan of night patrolling using the hierarchy of the police force was designed. The paiks (akin to constables) patrolling the streets at night were instructed to “seize all robbers, thieves, drunken persons and the disturbers of the peace” and to detain them in custody till the morning.

The timings of the court were adapted for this purpose. In Calcutta, the Justices of the Peace worked in two shifts: from 10 am to 2 pm, and then from 7 pm until 9 pm. The second shift was purposely designed to allow complaints to be brought in for the alleged crime committed after the darkness had set in.

The first police ordinance of Calcutta which was implemented in 1778 allowed the superintendent to apprehend all “Night Walkers”. It also empowered the police to force shopkeepers, especially silver and goldsmiths, to maintain a book of all sales and purchases with names of persons recorded. The sources that made the night unsafe – seamen, valuable stuffs, arrack – were also objects of control.

The night was the time when objects moved with people. Night had its own network. Its regulation, perceived through crime, became the question of law. The combination of night, arrack and valuable objects hardened the idea of crime on the one hand and reinforced the need for stricter regulation on the other.

In spite of the prohibitions, arrack was brought into Calcutta from the neighbouring river towns of Chinsura, Chandernagore and Serampore, and from as far away as Batavia.

At night, it was brought in along the Chitpore road in Calcutta, which was the main road connecting the northern ‘native’ and southern European quarters. With the help of lower Company office subordinates, such as Portuguese writers and Indian sircars, the number of arrack retail shops increased, before the government attempted to reduce it from 96 to 44 in 1773.

In 1783, the commissioners of police decided to let only 30 licensed shops sell spirituous liquor. The shops had to close at 8 pm. Ten years later, the situation remained unchanged. The magistrates lamented the “unrestrained sale of spirituous liquor”. Throughout the late 18th century, its consumption was blamed for making the night and the city unsafe.

It was not only the British who complained of the increasing crime in the city. The Indian elites, through multiple petitions, also protested against their nights becoming “long without sleeping and days becoming severe and troublesome” due to frequent felony, robbery and murder. Even after putting measures in place, the night remained a dilemma for the grasp of the law.

III. Predicaments of law

Night was a socially and economically differentiated entity in which some had fun while others performed tasks. It was a duration in which some slept because others kept a watch. And not least, it transformed into a space of darkness because law and crime played hide and seek. It instigated the need for the rule of law and at the same time destabilised the principles of the rule of law.

One of the most important formal definitions of the rule of law is that within it, the conduct of power is non-arbitrary and non-discriminatory. 

The rule of law has both political and legal dimensions. It is political because it intervenes between the ruler and the ruled. The mode of intervention will be based upon procedures which both the ruler and the ruled would subscribe to. This is the legal dimension of the rule of law, which is of procedural nature.

A breach of law is punishable, but the breach ought to be established and proved in a court of law. The procedures to do so should be based upon certainty, stability and predictability on how the punitive power of the law will be used.

In the 18th century, law became king. This signalled a conceptual change in the notion of sovereignty and the relationship between the state and citizens.

There are English and European variants to this philosophy of the rule of law. As philosophers of law maintain, the fundamental difference between rule of law (the English course) and rule by law (the European view) is that in the latter, while maintaining a commitment to political liberty, the state uses the law as an instrument of rule. In the former, individual liberty is key; therefore both individuals and the state are subject to law.

In the 18th century, when the rule of law was becoming the most distinctive idea of its time, the history of this period suggests that security of property and security of the life of the person were the two main tasks expected of it.

Nonetheless, one can add that both property and the life of the person, due to historical reasons, were most vulnerable during the night time. Thus, securing the night was one of the biggest tasks and challenges of the ideology of the rule of law.

In 18th-century India, colonial rule set a contrast between its ideological claim and that of its predecessor. Mughal rule allegedly became a rule of tyranny based upon the whims of kings rather than that of the process of law. The claim to establish the rule of law was inherent to the nature of colonial sovereignty. This was meant to be a new beginning with a new orientation towards law.

In the last three decades of the 18th century, various laws and rules were made as part of the procedure to establish the rule of law. Police ordinances curbing certain types of nocturnal meetings and movements were part of this.

However, as being inherently a political project, the rule of law was nested in the politics of racial favouritism and impunity on the one hand and of structures of class and caste hegemony on the other.

It was made up of the ideal of ‘law is king’ (Thomas Paine’s words), but was hedged by the power of the executive that strived to have a free hand above the law. It was the most prominent tool to establish difference from the previous regime, but was masked by claims of inability to do so by blaming Indian subordinates for corrupting the course of law. It believed in adhering to all norms of accountability, but was defined by the widespread practice of delivering summary justice.

One of the prominent lower courts of Calcutta in which an Englishman presided over all civil and criminal matters related to Indians practised summary justice. Similarly, the institution of the police which came up in Calcutta in 1772 remained an illegal entity until 1793 because it exercised unsanctioned summary power that questioned the premises of the rule of law.

Nights kept the law awake. As the territories of control expanded, the colonial state devised plans to patrol various forms of spaces, mobilities and modes of communication through the night. The rule of law needed to control the alleged lawlessness of the night. Without securing the night, the ideal of the rule of law could not be materialised.

The control of night was possible by controlling four things: 1. Recalcitrant spaces such as taverns and arrack shops; 2. Mobilities that were perceived dangerous; 3. Individuals and groups that were regarded as most susceptible to commit crime in the night; 4. Valuable objects and their networks of exchange.

Also read: India’s Troubled Relationship with Law, Authority, and Justice

However, the traffic between the law and the night was not of one-sided nature. If the law tried to control the night for establishing itself as the most hegemonic power governing social relationships, then the night also fought back to tarnish the functioning of the rule of law.

One of the most troubling aspects of this history of the relationship between law and night was the widespread use of summary power by the police and the lower courts that turned the rule of law upside down. Or another way of describing it would be that it was the night that propelled a widespread use of summary justice that although popularised the functioning of the authority weakened the principles of the rule of law.

One of the most scandalous cases from the viewpoint of the nocturnal violation of the rule of law happened in the 1780s, when two superintendents of the police were heavily fined by the judges of the Supreme Court for illegally imprisoning a person at night and also flogging him.

This was not a one-off instance. The superintendents pleaded guilty, but expressed inability to desist from the use of summary power. The executive sided with them. The jurists on the whole remained sympathetic even if they reprimanded and fined the superintendents.

Through the logic of the law, the night had become an extraordinary time that needed an extraordinary measure of control. But darkness also unmasked the dark power of the law. The use of excessive power through confinement and detention at night made the rule of law less of a legal and more of a political apparatus.

IV. Safe nights

Much of what is said above through history gives the impression that the foremost strategies of the state to make nights safe were surveillance and curtailment while maximising the power of the law and its institutions. 

In the last 60 or 70 years or so, due to various political and civic movements, safety has acquired a different connotation. Movements to ‘reclaim the night’ or ‘take back the night’ have been one of the leading modes of feminist protests since the 1970s. Against charges of victim shaming, to be out in the night is indeed a matter of right.

It was done as recently as in Kolkata this year. Often after a gruesome incident of crime perpetrated at night (the 2012 Delhi rape and murder case can be thought of as another instance), the politics of reclaiming the space and the time of the night gains prominence.

But so does the politics of state control; it was not surprising to read that a few organisers of the march were booked by the police on the grounds of not procuring adequate permission.

Political and civic movements on the one hand and the state’s response on the other are seldom on the same page, but the fundamental quest for safety at night – even if its characterisation has moved from the domain of surveillance by the state to that of freedom exercised by individuals – creates a curious contradiction.

The greater demand for safety may only be met by a greater presence of the law through the night, but the greater presence of the law to curtail the dangers of the night may very well, as was historically the case, lead to the use of excessive power, particularly over those marginal groups of society for whom night is not just a canvas to script liberal values of freedom but a stigmatised terrain of work, humiliation and economic compulsions.

The night may empower the law-enforcing authorities by making them more vigilant, but it can also ‘weaken’ the principles of the rule of law by making such authorities exercise repressive and summary power.

It is not a fait accompli argument that night is doomed to ‘corrupt’ the law or that the law can only make nights safe through the use of unlawful power. Both law and night are products of social engagements. They acquire meanings and purposes due to changing social values.

Perhaps a different kind of legal sensitisation based also upon social engagement around practices of safety is required that will keep both the night and the law safe from each other.

Nitin Sinha is a senior research fellow at Leibniz-Zentrum Moderner Orient, Berlin.