[This Article has been authored by Avantika Jain, a student at University School of Law and Legal Studies, GGSIPU & Arnav Sinha, a student at Maharashtra National Law University Mumbai.]

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Introduction

On 18^th October 2024, the Mannargudi Bar Association (‘Association’) filed a civil writ before the Hon’ble Supreme Court of India (‘SC’), challenging the constitutional validity of four provisions of the Bhartiya Nagarik Suraksha Sanhita (‘BNSS’), namely Sections 43(3), 107, 223 and 356. This article primarily analyses the petition, focusing in particular on the constitutional validity of Section 356, which provides for trial-in-absentia under the Indian criminal law. 

History & Evolution

Trial-in-absentia refers to conducting a criminal trial without the accused’s presence before the court. Such a trial is in direct conflict of the principle of audi alteram partem, i.e., no one should be judged without a fair hearing, and Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’), which declares that the accused has a right to be tried in his presence. Hence, under the CrPC, the Indian criminal law previously did not permit such trials, convictions, or sentencing of individuals in absentia, even in cases involving heinous offences. However, the need for trials in absentia arose in response to numerous instances where the accused, by absconding, effectively obstructed justice and also subjected the victims to further harm, often referred to as secondary victimisation. The BNSS, therefore, allows inquiry, trial or judgment in absentia of a proclaimed offender upon fulfilment of certain specific conditions.

The Arguments

The Association, in order to challenge the constitutionality of Section 356, has put forth a three-pronged argument. Firstly, it focuses on the provision’s impact on the right to a fair trial, as guaranteed by Article 21 of the Indian Constitution. The Association argues that this provision effectively waives the accused’s right to be heard under certain circumstances, which they contend is incompatible with the fundamental right to a fair trial. Secondly, the Association contends that provisions under      Section 356 risks the exclusion of an accused from legal proceedings, either due to the actions of a co-accused or even if the accused is deceased, leading to an unjust scenario. Lastly, the Association argues that an accused can be unfairly implicated based on the confession by an absconding co-accused, thus condemning them without the chance of a proper trial.

Analysis of the Arguments

The arguments put forth by the Association warrant a prong-by-prong analysis to thoroughly understand the constitutional and procedural implications of Section 356. 

First Argument: A Case for Reasonable Restriction: Not Waiver

The first argument addresses the violation of Article 21, asserting that Section 356 unjustly permits a waiver of the accused’s fundamental right to a fair trial. To analyse this, we must first address the words used in the provision. Section 356 refers to the accused’s absence as a “waiver” of their right to be present at trial. However, upon scrutiny, this could be more appropriately characterized as a “reasonable restriction” on right rather than a waiver per se.

To delve deeper, we must consider the SC’s explanation of “reasonable restrictions”, laid down in Chintaman Rao v. State of M.P., where the Court clarified that reasonable restrictions on a right must entail limitations that are neither arbitrary nor excessive, extending only as far as necessary in the interest of the public. This definition underscores that such restrictions should balance individual rights with societal needs, avoiding undue encroachment on personal liberties.

Furthermore, viewed through the framework of rights and duties under article 21, both the accused and the victim have protected interests: the accused holds a right to a fair trial, including the right to be present and tried in person, while the victim holds      the right to a speedy trial. These rights impose mutual duties: the accused is obliged to appear before the court, and the victim is to respect fair trial standards. These duties resemble reasonable restrictions, the breach of which leads to a forfeiture of rights—unlike waiver, which requires a voluntary and informed choice by the accused, forfeiture occurs automatically by law, regardless of intent.

Section 356, therefore, should be interpreted as enabling the court to proceed under such circumstances, i.e., not as a waiver of the accused’s rights, but as a forfeiture resulting from the accused’s wilful failure to fulfill their duty to appear. This aligns the provision more closely with the concept of a reasonable restriction, empowering judicial authorities to act in the interests of justice and procedural balance. 

Arguendo: Selective Waiver

Assuming arguendo, that the argument stated above does not suffice. The idea behind section 356, i.e., creating a scope for trial-in-absentia under Indian criminal law, should still be upheld as constitutional. The conclusion stems from the rationale that the reasoning given against waiver of rights is not applicable to the case at hand.

The primary reason for the non-waivable nature of fundamental rights, as given by the SC in Olga Tellis, is the argument that “the Constitution has conferred Fundamental Rights not only to benefit individuals but to secure the larger interests of the community.” If applied to the present case, this reasoning does more harm than good. Here, the non-permissibility of waiving the right to trial in person actually impedes the victim’s fundamental right to a speedy trial, thereby undermining the very purpose of these rights.

By permitting selective waivers in certain contexts, the judiciary can strike a necessary balance between the rights of the accused and the rights of victims, ensuring that justice is administered efficiently and effectively while still maintaining the foundational principles of the Constitution.

Second & Third Arguments

The second and  third arguments put forth by the Association, highlight that there is a lack of safeguards to prevent wrongful use of section 356. To assess these arguments, it is essential to first examine the existing safeguards provided in Section 356.

Existing Framework under Section 356

Firstly, the accused must have been declared a “proclaimed offender,” and two consecutive warrants must have been issued within 30 days. Secondly, the trial may proceed only after 90 days from the framing of changes, with the court notifying the accused’s relative or friend. Thirdly, public notice must be published in a widely circulated newspaper, and a copy affixed to the accused’s residence and local police station. Fourthly, statements from prosecution witnesses may be used if the accused is absent, however, should the accused subsequently appear, they may be permitted to examine such evidence, and their prior absence shall not impede the continuation or finality of the trial or judgment. Lastly, witness depositions can be recorded using audiovisual means, ensuring the preservation of evidence and maintaining a balance between justice and fair trial rights.  

Analysis

The situations identified by the Association are, prima facie, not adequately covered by section 356. Section 356 fails to consider scenarios where an accused party is genuinely unable to attend court proceedings or possesses a legitimate justification for their absence. In other words, the section fails to distinguish between intentional absence and unintentional absence, even when such different situations warrant separate procedures to ensure proper dispensation of justice. Furthermore, Section 356 omits to account for instances of inadequate service of summons, which may leave the accused unaware of the proceedings. This omission implies that individuals may not only be declared proclaimed offenders but also tried and sentenced without their knowledge. Thus, it is evident that there is a lack of necessary safeguards to protect the fundamental rights of the accused and prevent abuse of this section.

Conclusion

While Section 356 seeks to harmonize the fundamental rights of the accused with those of the victim, it currently falls short of providing the necessary safeguards to prevent the misuse of its provisions. To address its existing loopholes and omissions and ensure that Section 356 fulfils its intended purpose without undermining constitutional guarantees, a substantial overhaul is essential. Clear procedural guidelines should be introduced to differentiate between intentional absence and legitimate absence. Moreover, enhanced safeguards should be implemented to ensure adequate service of summons and provide the accused with opportunities for the accused to participate in their defence. 

By addressing these gaps, loopholes, and omissions, Section 356 can be transformed into a balanced framework that effectively advances the fundamental right of the victim to a speedy trial while upholding the fundamental right of the accused to a fair trial.