The Absentia Dilemma: The Introduction of Trial In-Absentia in Indian Legislation

by | Jan 16, 2024

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About Akshath Indusekhar

Akshath Indusekhar is a third year Law student at Jindal Global Law School, India. His areas of interests include Public International Law and International Trade Law, and he is passionate about Criminal Justice System reformation.

The Bharatiya Nagarik Suraksha Sanhita (BNSS), the successor to the Indian Code of Criminal Procedure (CrPC), is one of three new Indian Criminal Law bills, recently passed by the Parliament and branded as an effort to overhaul the existing colonial-era criminal justice system. While the bill has been subject to persistent debate, the unprecedented inclusion of trial in-absentia of proclaimed offenders has gained particular prominence. This article seeks to deconstruct the narrative surrounding trial in-absentia of grave offences. In determining whether the system effectively balances the rights of the accused with the overarching public interest and whether such an inclusion in the Indian legal system is favourable, it situates these developments amidst international obligations.

Trial in-absentia refers to the trial in a Court of law in the absence of the accused. This approach is predicated on the notion that the wilful evasion of the accused constitutes a waiver of the right of their presence to constitute a fair trial. Due to the alarming infringement upon personal liberty and fundamental principles of natural justice, it is unsurprising that trial in-absentia has often been reserved for the gravest of offences across jurisdictions worldwide.

In that sense, Clause 356 of the BNSS is no exception, incorporating various procedural safeguards to this effect. These measures include that a minimum period of 90 days must have elapsed from the date of framing of the charge, the issuance of two consecutive arrest warrants within at least 30 days, a notification in a local newspaper, and various other means of service of notice. Furthermore, such trials are exclusive to “proclaimed offenders” in “grave” offences (punishable by 10 years of imprisonment, imprisonment for life, or by death), as prescribed under Clause 84. While the precursor to the bill allowed for the collection of evidence in the absence of the accused, it did not allow for trial and pronouncements of the judgement. The new Bill incorporates a radical change in this regard, by unprecedentedly permitting trial-in absentia for proclaimed offenders; as discernible from criticism of the process worldwide, a retrogressive inclusion at the expense of the rights of the accused.

The immense importance of securing the presence of the accused during a trial, irrespective of the nature of the offence, is reflected in treaties to which India is a party, such as the International Covenant on Civil and Political Rights (ICCPR). Article 14(3)(d) of the ICCPR, inter alia, mandates a person facing a criminal charge to be tried in their presence, with such rights serving as a minimum guarantee of fairness, applicable to all stages of proceedings.  In fact, it was with due cognisance of such rights that the UN Secretary General’s Report on the establishment of the ICTY reiterated the accused’s right to present. That being said, in a very select set of circumstances, the HRC has permitted trials in-absentia sparingly and with detailed procedural safeguards, the failure of which may vitiate the trial. However, for widespread appropriation, the departure from the obligations under Article 14 ought to be in consonance with the general due process envisioned under the Article and domestic legal compliance with international standards of such safeguards. It is indeed true that trial in-absentia has been permitted across jurisdictions worldwide, seen as necessary in circumstances as grave as during the Nuremburg Trials; however, especially in the context of widespread domestic usage, this does not take away from the conspicuous scope for misuse and the infringement upon the right to fair trial, albeit in select circumstances.

For instance, in the elements of trial where the presence of the accused is indispensable, such as cross-examination and sentencing, no additional protection has been provided by the BNSS. In curtailing the accused’s rights to challenge evidence, the credibility of evidence presented and the fairness of the trial remains very much in question. Perhaps most alarmingly, the precedent set allows for the eventual extension of the scope of trials in absentia; for instance, in case of offences against the State and dissent, arbitrary state action may be used in securing the conviction of the accused without an effective means to challenge the trial. The various organs of State machinery, including the police and prosecutors, could be complicit in the process, with no significant efforts being taken to secure the presence of the accused for the trial, ultimately maximising the ease of conviction.

Thus, even if reserved for the most grave of circumstances, the inclusion of trial in-absentia remains far too dangerous a tool of state machinery if broadly construed in its application. In expediting legal proceedings and securing the overarching public interest for the titular “ends of justice”, the State ought not to render such a fundamental attribute of fair trial as unnecessary.

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