Is Trial in Absentia in India Really A Practical Solution?

1. Introduction

India’s criminal justice system is undergoing a monumental shift with the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS). This new law replaces the Indian Code of Criminal Procedure (CrPC). The BNSS is part of a broader legislative effort, including the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Sakshya Adhiniyam (BSA). Together, they aim to modernize India’s outdated criminal justice framework, with trial in absentia in India being one of the most significant changes introduced.

Trial in Absentia: A Contentious Change

One of the most contentious changes in the BNSS is the provision for trial in absentia. This allows courts to proceed with trials and deliver judgments without the accused being present. This blog examines the implications of trial in absentia. It explores how it balances judicial efficiency with the fundamental rights of the accused. The blog will delve into the historical context of trial in absentia. It will contrast this with traditional procedures under the CrPC. It will also dissect the new provisions introduced by the BNSS. Specific criteria and procedural safeguards for trial in absentia will be outlined. The changes aim to address delays caused by absconding accused. The blog will assess their alignment with international human rights standards. The analysis will consider India’s obligations under the International Covenant on Civil and Political Rights (ICCPR). It will also analyze the potential risks and challenges of trial in absentia. Concerns include fairness, misuse, and the preservation of fundamental legal protections. The blog aims to provide a comprehensive overview of the BNSS’s approach. It will evaluate whether these reforms balance expediting proceedings with safeguarding accused rights. The goal is to ensure justice remains swift and equitable.

2.     Understanding  Trial in Absentia

Trial in absentia allows courts to proceed with trials and deliver verdicts without the accused being present. Traditionally, Indian criminal law under the CrPC required the accused’s presence to face charges and defend themselves. The CrPC permitted some adaptations, like recording witness depositions in the accused’s absence. However, full trials without the accused were not allowed. The BNSS introduces a significant shift by formalizing trial in absentia for "proclaimed offenders." These are individuals who deliberately evade trial and have no immediate prospect of arrest. Under the BNSS, trials can proceed in absentia after meeting specific requirements. These include issuing arrest warrants, publishing notices, and waiting for a designated period. This change aims to expedite legal proceedings in cases where the accused’s absence could otherwise cause significant delays.[i] The BNSS introduces provisions to tackle procedural delays. However, it raises concerns about balancing efficiency with the accused’s right to a fair trial. International human rights standards stress the importance of the accused’s presence at trial. Courts and legal systems view personal attendance as crucial for ensuring justice. Therefore, stakeholders must scrutinize the BNSS’s approach to ensure it aligns with global standards of fairness and due process.[ii]

3.     Historical Context: The CrPC’s Approach

The Criminal Procedure Code of 1973 (CrPC) has governed criminal procedures in India for decades. It provided for specific scenarios in which the accused’s presence could be waived but did not permit full trials in absentia. Instead, the CrPC allowed for:

• Absconding Accused: When an accused person absconded with no immediate prospect of arrest, the CrPC allowed courts to examine witnesses. Authorities could record their depositions in the accused’s absence. Courts could later use these depositions as evidence if they apprehended the accused.. This provision aimed to prevent delays in the judicial process. [iii]
• Dispensing with Presence: If the accused’s personal attendance was not necessary for justice or if their presence was disrupting the proceedings, the court could dispense with their presence. If represented by a pleader, their absence was permissible; otherwise, the trial could be adjourned or split, separating the case of the absentee from that of the present accused.[iv]

The CrPC aimed to balance the efficiency of legal proceedings with the accused’s right to a fair trial, ensuring that even in their absence, the accused had an opportunity to contest the evidence and present their case.

4.     The BNSS: A Paradigm Shift

The BNSS introduces a new paradigm by allowing trial in absentia under specific conditions. This represents a departure from the CrPC’s approach, allowing trials to proceed without the accused being physically present in court. Key Provisions of the BNSS:

A.    Proclaimed Offender Status:

Section 84 of the BNSS defines a proclaimed offender as someone who has absconded to evade trial and against whom there is no immediate prospect of arrest. Only individuals classified as proclaimed offenders are subject to trial in absentia.[v]

B.     Procedural Safeguards:

To ensure fairness and protect the rights of the accused, the BNSS includes several safeguards:

• Minimum Time Frame: A minimum period of 90 days must elapse from the date of framing charges before a trial in absentia can commence. This period allows time for the accused to be located and arrested.[vi]
• Issuance of Warrants: Authorities must issue two consecutive arrest warrants within 30 days to demonstrate earnest efforts to secure the accused’s presence. This requirement ensures that the court has made significant efforts to locate and arrest the accused before proceeding with the trial.
• Notification and Service: The court must take steps to notify the accused’s relatives, publish a notice in local newspapers, and affix the notice at the accused’s residence and local police station. This ensures that the accused is adequately informed about the trial proceedings.[vii]
• Evidence and Appeal: Evidence collected in the accused’s absence can be used against them. If the accused appears later, they have the right to review the evidence presented during their absence. The accused cannot file an appeal against a conviction in such trials unless they present themselves before the court of appeal, and they must file appeals within three years from the judgment.[viii]

5.     International Human Rights Considerations

The introduction of trial in absentia raises significant questions regarding India’s compliance with international human rights standards. The International Covenant on Civil and Political Rights (ICCPR), which India has ratified, mandates that courts try individuals facing criminal charges in their presence. Article 14(3)(d) of the ICCPR guarantees the right to a fair trial, including the right to be present during all stages of the proceedings.[ix] The Human Rights Committee (HRC) permits trials in absentia in exceptional circumstances, provided that rigorous procedural safeguards ensure fairness. Stakeholders must evaluate the BNSS’s approach against these international standards to ensure it aligns with both domestic and international requirements for a fair trial. The ICCPR and other international human rights instruments emphasize the necessity of the accused’s presence for a fair trial, particularly during critical stages such as cross-examination and sentencing.[x]

6.     Safeguards and Potential Risks with Trial in Absentia

While the BNSS introduces several safeguards to protect the accused’s rights, concerns remain about the potential for misuse and the adequacy of these protections:

• Absence of Protections for Cross-Examination: The BNSS does not explicitly address the need for additional protections during cross-examination or sentencing. This raises concerns about the fairness of evidence presentation and the accused’s ability to challenge the evidence.[xi]
• Potential for Misuse: The broad application of trial in absentia could lead to its use in less serious cases or in politically sensitive situations. There is a risk that state machinery could exploit this provision to secure convictions without adequate safeguards for the accused.
• Extension to Sensitive Cases: Authorities could potentially extend the scope of trial in absentia to cases involving dissent or politically charged issues. This extension could secure convictions without providing the accused with effective means to challenge the trial, potentially leading to abuses of the legal process.[xii]

7.     Conclusion

The BNSS represents a significant evolution in India’s criminal justice system, particularly with its introduction of trial in absentia. This procedural shift aims to address longstanding issues of delay and inefficiency by allowing courts to proceed with trials even when the accused is not present. While lawmakers designed this development to expedite justice and prevent absconding individuals from derailing legal processes, it also raises complex questions about balancing expediency with the fundamental rights of the accused.

Procedural Safeguards and Challenges

The procedural safeguards embedded in the BNSS, such as mandatory notice requirements and extended periods before commencing a trial in absentia, are crucial for maintaining fairness. However, the potential for misuse or the erosion of due process cannot be overlooked. The challenge lies in ensuring that these new provisions do not undermine the principles of natural justice, as enshrined in both domestic and international legal frameworks. As India navigates this transformation, it must remain vigilant to uphold the integrity of its legal system, ensuring that it protects the rights of individuals while advancing the efficiency of justice.[xiii] In essence, while the BNSS’s trial in absentia provisions may offer a practical solution to procedural delays, authorities must continually assess their implementation to ensure they serve justice without compromising fundamental rights. Balancing the scales of justice will be key in realizing the promise of these legal reforms while safeguarding the core tenets of a fair and equitable legal system. [i] Proclaimed Offenders and Trials in Absentia The P39A Criminal Law Blog (Nov. 06, 2023) https://p39ablog.com/2023/11/criminal-law-bills-2023-decoded-11-proclaimed-offenders-and-trials-in-absentia/. [ii] Yash Mittal, ‘Trial In Absentia’ Under Bharatiya Nagarik Suraksha Sanhita, Live Law (Jan. 20, 2024) https://www.livelaw.in/top-stories/trial-in-absentia-under-bharatiya-nagarik-suraksha-sanhita-247278 [iii] Mittal, supra note at 2. [iv] Bharatiya Nagarik Suraksha Sanhita, 2023. [v] Bharatiya Nagarik Suraksha Sanhita, 2023, § 84. [vi] Mittal, supra note at 2. [vii] Ranjeeta Sable, Trial In-absentia In Light Of New Criminal Laws, A.K Legal & Associates (July 27, 2024) https://aklegal.in/trial-in-absentia-in-light-of-new-criminal-laws/. [viii] Srishti Ojha, Trial in absentia of proclaimed offenders: Here’s what new law proposes, India Today (Aug. 15, 2023) https://www.indiatoday.in/law-today/story/lok-sabha-bill-crpc-replace-bharatiya-nagarik-surakhsa-sanhita-absentia-trial-proclaimed-offender-2023-2421159-2023-08-15. [ix] Priyank Ladoia and Tanmay Sharma, Trial in Absentia: Chasing Ghosts, Chambers and Partners (June 17, 2024) https://chambers.com/legal-trends/india-trials-in-absentia-new-criminal-code. [x] Id. [xi] Akshath Indusekhar, The Absentia Dilemma: The Introduction of Trial In-Absentia in Indian Legislation, Oxford Human Rights Hub (Jan. 16, 2024) https://ohrh.law.ox.ac.uk/the-absentia-dilemma-the-introduction-of-trial-in-absentia-in-indian-legislation/. [xii] Priyank Ladoia et al., Trial-In-Absentia: Implications Under New Law, AZB & Partners, https://www.azbpartners.com/wp-content/uploads/2024/07/Part-V-Trial-In-Absentia-Implications-Under-New-Law.pdf. [xiii] Dishha Bagchi, What is India’s new trial in absentia law & how it compares to similar provisions in other countries, The Wire (Dec. 30, 2023) https://theprint.in/theprint-essential/what-is-indias-new-trial-in-absentia-law-how-it-compares-to-similar-provisions-in-other-countries/1905350/.