By Saniya Dogra

Abstract: The introduction of the provision for ‘Trial in Absentia’, under section 356 of the Bhartiya Nagarik Suraksha Sanhita [“BNSS’] marks an essential juncture in the Indian Criminal Justice system, aimed at providing speedy trials and preventing undue delays caused by absconding accused individuals. While the inclusion of this provision is a landmark step towards enhancing the efficiency of the trial process, it raises concerns over violation of the Fundamental Rights of the accused individuals. This article aims to explore the provision’s alignment with Article 21, evaluate its effectiveness in speeding up trials, and highlight its shortcomings, particularly in relation to inconsistencies with human rights principles, as drawn from both Indian and international legal frameworks.

Introduction

The concept of “trial in absentia,” essentially means conducting a trial without the presence of the accused in court. Derived from the Latin word ‘absentia’ meaning ‘absence.’ The underlying rationale of such a provision is to prevent the accused from causing undesired delay in the dispensing of justice if they decide to be absent from appearing in court. It is considered to be an exception to the principles of natural justice, the right to free trial and the right to defend oneself, which are immutable human rights and contained in various human rights charters. This has been a contentious issue in the realm of criminal justice in India and abroad. In India this notion has recently gained prominence with the introduction of the new criminal bills, specifically Section 356 of the Bhartiya Nagarik Suraksha Sanhita [“BNSS”], which incorporates the provision of trial in absentia, absent from its precursor, the Code of Criminal Procedure [“CrPC”]. This article entails to analyse the Constitutional Validity, potential effectiveness, and limitations of this provision, drawing from both Indian and international perspectives. 

The Rationale Behind Trials in Absentia

The introduction of trial in absentia marks a significant shift in the Indian Criminal Law. In the precursor of this law, the Code of Criminal Procedure, only mandated for the taking of evidence in the absence of the accused under certain circumstances. The new provision permits the conducting of trial when an accused has wilfully absconded trial and has been declared as a ‘proclaimed offender’, it would operate as to ‘waiver of the right’ to be present and participate in one’s trial in person, justified by the “interest of justice.” For the application of section 356, the following essentials must be met- the accused must be declared a proclaimed offender under the law, they must have absconded to evade the trial and there must be no immediate prospect of arrest.  

The underlying principle for including trial in absentia in the BNSS is to prevent the accused individuals from evading trial. In the interest of justice, when an accused person willfully absconds and is declared as a proclaimed offender, the trial of such a case proceeds as if the accused were present. This provision’s main aim is to prevent manipulation of the judicial process by ensuring that justice is not indefinitely delayed, this also aligns with the ‘Justice within Three Years’ agenda, as articulated by Union Home Minister Amit Shah, thereby expediting the delivery of justice and potentially curbing the crime rate in India. Additionally, the provision will also serve as a mechanism to deter individuals who might otherwise deliberately abscond trial proceedings; it removes such an incentive, knowing that justice will continue to be pursued regardless of their presence.

The Principle of ‘Fair Trial’

The Indian Constitution, under Article 21 guarantees everyone the right to life and personal liberty, giving this article an expansive and liberal interpretation, the Courts have interpreted Article 21 to include a set of rights including the right to have a free trial, a presumption of innocence, right to adequate defence and a speedy trial, these rights extend to all individuals accused of criminal charges, ensuring that justice is delivered in a free and fair manner. In the case of Dwarka Prasad Agarwal v. B.D Agarwal and Ors.,  the court asserted that the right to a fair trial is a basic fundamental right not only under the Indian Constitution but also to India’s commitment to international treaties and conventions regarding the same. Similarly, in the case of Zhira Habibullah Sheikh and Ors. v. The State of Gujarat and Ors. The Supreme Court emphasised that a fair trial is essential not only for the protection of the accused but also for society at large and for the maintenance of public confidence in the judicial system. To be in conformity with Article 21, it is necessary that proper procedure by law is followed, and that the procedure is not arbitrary in nature. 

Is it a threat to the right to free trial? 

This provision, however, has sparked concerns about the erosion of the rights of the accused and potentially being arbitrary in nature. Well known principle of criminal Justice, given by the jurist William Blackstone the ‘Blackstone Ratio ’ —“Better that ten guilty persons escape, than that one innocent suffer” — highlights the importance of safeguarding individual rights. While the provision includes several procedural safeguards, including the issuance of two consecutive warnings of arrest, with at least a thirty-day interval, publishing of notices in national or local newspapers informing friends and family, and affixing information about the commencement of the trial on conspicuous parts of the accused’s last known residence and displaying of notices at the police station, however, the effectiveness of these measures in practice remains to be seen. There are risks that these procedural safeguards may not always ensure the right to having a free trial in cases where the accused is genuinely unaware of any proceedings against him, cases against marginalised individuals or people with unstable addresses. Especially, when multinational and foreign companies get embroiled in criminal trials in India, particularly if the accused has no presence in India, further complicating the application of such safeguards. 

Additionally, Article 14(3)(d)  of the International Covenant on Civil and Political Rights [“ICCPR”], which India has ratified, guarantees to everyone charged with a criminal offence the right to be tried in their presence. Article 10 of the Universal Declaration of Human Rights [“UDHR”] provides that everyone is entitled to the fair and public hearing by an independent and impartial tribunal, in determination of his rights and obligations and of any criminal charge against him, while the conception of trial in absentia diverges from these international conventions, the European Court of Human Rights [“ECHR”] has taken a modern approach to this and said that trial in absentia may be compatible with concerns regarding international human rights standards if there are sufficient safeguards provided within the provision – namely, proper notice of the charges and the rights to effective representation and retrial. For instance, Canada’s criminal code allows for trials in absentia with all safeguards, along with the re-opening of the trial if the court is satisfied that there are sufficient reasons to do so and that it is in the interest of justice. Similarly, New Zealand’s Criminal Code also includes provisions for conducting trial in the absence of the accused, with proper safeguards and the right to have a retrial or reconsideration if the defendant is found guilty or sentenced in his or her absence. This illustrates that trials in absentia can be compatible with human rights and in consonance with the requirements of Article 21, provided they come with robust procedural safeguards, which would ensure the rights of the accused. 

Potential Effectiveness and Limitations

In India under BNSS no appeal can lie against the judgement in trials conducted in the absence of the offender unless they present themselves before the court. Additionally, the right to appeal against the conviction shall expire three years from the date of the judgement. Therefore, it becomes crucial that the courts rigorously ensure that the procedural safeguards are followed for the protection of the rights of the accused. Courts must ensure that this provision is only applied in genuine cases and is not used as a tool to expedite trials at the cost of justice. 

Secondly, in the Indian Jurisprudence, the accused is placed in an advantageous position as they are presumed to be innocent until proven guilty. This principle must remain central to the judicial process, therefore the provision has to be applied fairly and consistently with no room for biases.

Lastly, it must be kept in mind that this concept is new to India, therefore the effectiveness of it depends on the public confidence in the judicial process. If at any time the public perceives that the rights of the accused are compromised or that the provision is being misused, it could undermine the public’s trust in the system overall. 

Conclusion

India’s legal system has long been plagued with undesirable delays, and it’s an undoubted fact that justice delayed is justice denied. The introduction of section 356 in India’s new criminal code BNSS represents a pivotal step towards speedy trials, which has always been a big concern in India, this will ensure that justice is not thwarted by an absconding accused. The constitutional validity of this provision remains a topic for the esteemed judicial minds to deliberate. It must be ensured that trials in absentia are conducted in a manner that upholds the principles of natural justice. In the pursuit of justice, it is necessary that our legal system evolves with the times, to combat such contemporary challenges. At the same time, it is essential that trial in absentia, with all its procedural safeguards, shall only remain a tool of last resort and must never become a goal itself, but should remain as an alternative of having no trial at all to prevent the miscarriage of justice. 

About the Author: Saniya Dogra is a third year student at the O.P Jindal Global University pursuing a B.B.A LL.B degree. Saniya has a profound interest in Constitutional Law and Criminal Law and is keen on contributing to meaningful discussions and creating informative content in these legal fields.

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