Trial In Absentia: Fairness Vs. Expediency Under The Bharatiya Nagarik Suraksha Sanhita, 2023
- IJLLR Journal
- 7 days ago
- 1 min read
Kanak Shukla, BA LLB, School of Law, IILM Gurugram
ABSTRACT
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a procedural landmark document restructuring the criminal justice administration in India by the induction of Section 356 leading to “trial in absentia” - conducting trials without the accused being physically present. This article traces the provisions' struggle to balance fairness with expediency. It goes through the reform's journey from the BNSS, the rationale behind it, the concept's evolution for the law from the Criminal Procedure Code, 1973, and the comparison of the idea with the practice in the UK, USA, and international tribunals. Moreover, the article discusses the impact on the constitutional safeguards under Article 21, the principles of natural justice, and human rights issues stating that even if there are procedural changes, the right to be heard should not be discontinued.
The investigation also considers the policy rationale for such cases - judicial delays shortening, handling of absconding alleged, and victim-centric justice accomplishing. Employing a critical stance, it warns of the risk of the right to be misused if the right to a retrial is not available and points out the need for judicial and legislative safeguards to resolve this issue. The study paper ends with the proposals for the changes such as the insertion of retrial provisions, the assurance of technological facilitation for fair representation, and the establishment of oversight mechanisms for the prevention of abuse. In the end, it states that the effectiveness of “trial in absentia” under BNSS is contingent on striking the right balance between courts' efficiency and the old-standing principles of fairness and due process.
