Bulldozers being used to remove illegal structures during a joint anti-encroachment drive in Delhi's Jahangirpuri area. (Photo credit: PTI)

The Supreme Court on Wednesday had to direct its secretary-general to immediately convey its order to stop the demolition drive in riots-hit Jahangirpuri to the NDMC Mayor and the Delhi Police Commissioner as the drive continued despite a Court order maintaining "status quo".

A bench headed by Chief Justice NV Ramana had ordered the stopping of the demolition drive launched by NDMC against the alleged encroachers in riot-hit Jahangirpuri, and also agreed to hear a petition filed by Jamiat Ulema Hind (JUH) challenging the actions of the Uttar Pradesh, Madhya Pradesh, and Gujarat governments, allegedly aimed against the accused of communal offences.

While directing the NDMC authorities to "maintain status quo" the CJI had listed the case for today (April 21).

Senior advocate Dushyant Dave sought immediate remedial action as the authorities said that the order has not been communicated to them.

"It will be too late otherwise," Dave informed the court. Taking note of his submission, the CJI said, "Ok. Communicate it through Secretary-General or Registrar General (of the apex court) immediately."

With the use of bulldozers becoming rule of law in controlling crime in some BJP-ruled states the Jamiat Ulema Hind (JUH) has sought the intervention of the Supreme Court against this method. JUH president Maulana Arshad Madni, welcoming the apex court order of maintaining status quo in the Jahangirpuri case, said minorities, especially Muslims were being targeted under the guise of crime prevention in BJP-ruled states.

“Not only minorities but also the Constitution and democracy in the country are in danger,” Madni said. The petition has been filed by senior advocate Kabir Dixit on behalf of the JUH. It is likely to come up for hearing today along with the Jahangirpuri demolition case.

Filing the petition under Article 32 of the Constitution, the JUH has sought the Supreme Court's direction that “residential accommodation and commercial properties cannot be demolished as a punitive measure”. The JUH has also appealed to the court to issue guidelines for the proper training of the police force in handling communal riots and situations of high tension where the population is seen as becoming restive over some issues.

Pointing out that the destruction of private and commercial properties belonging to religious and caste minorities had been going on in some states on a regular basis as a punitive measure by authorities ostensibly linked to criminal cases, the JUH has drawn the attention of the court that it had been done with the approval of chief ministers and ministers of the respective states. This was evident from the statements given by these ministers and legislators in connection with such incidents.

Referring to demolition cases in Madhya Pradesh, the JUH said, “It is pertinent to note that targeted destruction of residential and commercial properties has been carried out to a great extent against minority groups such as Muslims, Dalits and Tribals. The statement of MP home minister Narottam Mishra is important in the light of such incidents."

Mishra said, “We will destroy the houses from where stones were thrown and if Muslims carry out such attacks, then they should not expect justice."

The JUH further giving details of such cases in MP said, “The support given to such acts of vengeance by Chief Minister (Shivraj Singh Chouhan) is evident from the statements given by him on numerous occasions and the hoardings put out by his party in the city, which says, 'Beti ki suraksha mein jo banega roda, Mama ka bulldozer banega hathoda (Whoever places obstacles in the security/ protection of girls, Uncle’s bulldozer will work as a hammer for them)."

The petitioner has given examples of several such cases to support its contention that the MP government had been vindictive against Muslims.

Similarly, the JUH has drawn the attention of the Supreme Court to the use of bulldozers against alleged criminals in several places in UP like Rampur, Saharanpur, and in Khambat in Gujarat where authorities used bulldozers to hit back after communal disturbances during the Ram Navami procession.

The JUH thus reiterated that “resorting to such means of destroying the properties of alleged wrongdoers is clearly against our constitutional ethos and the criminal justice system, as also in violation of the rights of accused persons and the court should issue necessary directions”.

The petitioner further said such measures by the governments undermined the criminal justice system of the country, including the important role of the courts. The legal process, including the pre-trial and trial stage, is hindered by these acts of the state, therefore, immediate action is needed to prevent such incidents from being repeated.

Are law and order implementing authorities permitted to adopt practices that include bulldozing their houses while seeking an accused? The reply is a big No.

The law-enforcing agencies work within the framework of the Code of Criminal Procedure, 1973, and other allied laws. The demolition of the house of an absconding accused who is living jointly with family members, who are not accused in the case, is beyond the power of the police by any stretch of the imagination.

Sections 81, 82, 83 and 84 of the CRPC 1973, provide for the attachment and sale of the property of an accused person or witness whose presence is required by a Criminal Court as the last remedy for compelling his attendance. The procedure laid down must be strictly followed, otherwise, such attachment and subsequent sale will be liable to be set aside. The proper forms for the proclamation, attachment etc, to be used in such proceedings are given in Schedule V of the CRPC.

Under Section 82 of the CRPC, a court can publish a proclamation requiring the accused to appear if the warrant issued against him cannot be executed. According to Section 83 of the CRPC, after issuing such a proclamation, the court may order the attachment of the proclaimed offender's properties. Unless authorised by a court of law, a proclamation authorised under the Code does not have the force of law. The application of investigating officer under Section 82 of the CRPC must be accompanied by an affidavit stating the reasons for the action.

The Lucknow Bench of the Allahabad High Court had recently held that the investigating officer has to seek the help of a court for issuance of proceeding under Section 82 of the CRPC, and only under the orders of a court that any proclamation under Section 82 of the CRPC can be issued.

An absconder is a person who is hiding himself to evade the process of law, even if the hiding place is his own home.

If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment remains “at the disposal of the Government”. It can be sold at once at the discretion of a court when it is liable to speedy decay and if the court considers that the sale would be for the benefit of the owner. But, otherwise, it cannot be sold until the expiration of six months from the attachment and until the disposal of claims of objectors (if any) by a Magistrate.

In conducting sales, the interest/share of the absconding person in the attached property which is to be sold should be clearly specified so as to avoid complications in the future. It has been held by a full bench of the Chief Court of Punjab that only the life interest of an absconder governed by the agricultural custom in ancestral immovable property can be sold under provisions of the Criminal Procedure Code.

If the absconder appears or is apprehended and brought before the Court and satisfies the Court (i) that he did not abscond or conceal himself for the purpose of evading execution of the warrant, and (ii) that he had no such notice of the proclamation as could enable him to attend within the specified time, he can get the property back or its net proceeds if it has been sold.

Section 299 of CRPC 1973 provides that whenever it is proved that an accused person has absconded and there is no immediate prospect of arresting him, any court competent to try or commit such person for trial for the offence complained or may, in his absence, examine the witnesses produced for the prosecution and record their depositions, and such depositions may, on the arrest of the accused person, be used in evidence against him.

Section 47 of the Code makes it lawful for the police to break and enter into the residence of any person in his search being an offender if it had reasonable belief that the person is hiding on the premises. Similarly, Section 80 of the Information Technology Act 2000 also provides such an analogous provision. A similar type of provision had been adopted under the Securities and Exchange Board of India (Procedure for Search and Seizure) Regulations, 2014.

After taking a bird’s eye view of relevant provisions of the CRPC, it is clear that to force an absconder to present himself before courts, the law provides for forcing an absconder to surrender before it only under the mechanism of the CRPC 1973. In the process, his house/properties can be seized and even sold by order of competent courts. Even if the property is sold, due to fear of decay or after the expiry of the period then too once the absconder presents himself before the court the proceeds of the sale are liable to be handed over to him/her.

There is no provision under the CRPC to demolish the house of an accused by the police of its own free will as is being done by the Uttar Pradesh Police. The legislature consciously had not provided any such unilateral powers to the police and kept it within the jurisdiction of courts under the CRPC. The legislature provided such balance as they were aware that any day the power can be misused by the police.

A senior police officer in Lucknow has denied that the Uttar Pradesh Police used bulldozers to demolish a portion of the accused person's house and promised to take action if it turns out to be true.

This policy of antiphrasis as euphemism or litotes by senior officers is actually a silent approval of what is happening at the ground level. Who will identify the junior officer who acted irresponsibly or under the clandestine sanction of his seniors?

No sanction on paper could be found. As seen often, the lower rank officer will remain hidden from the public and media gaze and later on will be placed in a better place or wherever.

The litotes suit most political establishments which want to remain immune from any scrutiny. They are using bureaucracy to maintain their image amongst their constituency.

It is clearly indicated that the police is not acting brazenly but under direction from the political establishment of the State. This fact can be deciphered from the election speeches and otherwise propaganda of Buldozer during and after the election. In a recent interaction with the media, UP chief minister Yogi Adityanath had said, “I have sent the bulldozers for repair. Once they start working again after March 10, all those who are hot-headed now will be silenced on their own."

Democracy has to work and flourish under the constitutional mechanism and the authority of the majority is limited by legal and institutional means so that the rights of individuals and minorities are respected. This is the form of democracy practised in Germany, Israel, Japan, the US, and other countries.

This framework is intended to assist interested persons in various nations in establishing or improving curricular programmes which foster an understanding of and support constitutional democracy. The outline must be adapted to fit the circumstances and the needs of individual political communities.

But if some extra-constitutional mechanism is allowed by the political establishment to override the law and to implement its desires to go beyond the law, then certainly something very serious is happening and the same must be taken serious note of. The thin line between democracy and despotism must be held in reserve with strong actions to control the bulldozer otherwise it will bulldoze democracy itself.

The author is a senior advocate in Allahabad High Court

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