Trial In Absentia: A Shift Towards Efficiency Or A Threat To Fair Trial Rights?

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces for the first time a statutory framework for trial in absentia through Section 356, permitting courts to proceed against proclaimed offenders who deliberately evade trial. This provision reflects the legislature’s attempt to address India’s chronic problem of judicial delays, mounting pendency, and the misuse of procedural safeguards by absconding accused. It also signifies a broader victim-centric shift in criminal justice by recognising the right of victims to timely resolution. However, the innovation raises fundamental concerns regarding the constitutional guarantee of a fair trial under Article 21, which includes the right of the accused to be present, confront witnesses, and participate in their defence. International human rights standards under the ICCPR and the European Convention on Human Rights likewise emphasise presence at trial as a core safeguard. While comparative jurisdictions such as France and Italy have permitted absentee trials with strong safeguards like retrial rights, the Indian model risks criticism for lacking explicit corrective mechanisms. This paper analyses the historical development of trial in absentia, its limited recognition under the CrPC, and its codification under BNSS 2023. It evaluates the objectives of efficiency and victim protection against constitutional scrutiny and international obligations. Drawing on global perspectives, the study argues that Section 356 can be justified only if implemented with safeguards such as compulsory legal representation, robust notice procedures, retrial rights, and judicial oversight. The paper concludes that trial in absentia must balance efficiency with fairness to strengthen justice delivery without undermining due process.