Trial In Absentia And The Right To Fair Trial: An Analysis Of Section 355 & 356 Of BNSS, 2023

Abstract

The right to a fair trial is a cardinal principle of criminal justice and an essential element of constitutional governance under Article 21 of the Constitution of India. The presence of the accused is important during criminal proceedings, which facilitates effective participation, legal representation, and the opportunity to contest the prosecution’s case. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), however, introduces an explicit statutory framework for trial in absentia under Sections 355 and 356, permitting courts to proceed against proclaimed offenders who deliberately evade the judicial process. This legislative shift represents a significant transformation in Indian criminal procedure and raises critical questions concerning its compatibility with the right to a fair trial. This article undertakes a doctrinal and analytical examination of Sections 355 and 356 of the BNSS to assess whether the procedure of trial in absentia conforms to constitutional mandates and principles of natural justice. The study further contextualises the Indian framework within international human rights standards, such as Article 14 of the International Covenant on Civil and Political Rights, which permits trial in absentia only under strictly limited conditions. The article argues that while trial in absentia may serve legitimate objectives such as expeditious justice and deterrence against abscondence, it poses inherent risks to procedural fairness, including unequal adversarial balance and diluted defence rights. It concludes that the constitutional sustainability of Sections 355 and 356 depends upon their exceptional application, rigorous judicial scrutiny, and the recognition of effective remedial mechanisms to prevent miscarriage of justice.