Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023 allows a court to conduct trial in absentia when an accused person deliberately evades appearance, treating non-appearance as a deemed waiver of the right to be heard. Legal scholars argue this provision conflicts with Article 21's guarantee of fair procedure and the audi alteram partem principle — the constitutional right to be heard before any adverse order, which courts have long held cannot be waived by mere absence.

Section 356 BNSS (replacing the limited provisions under CrPC) introduces a formal framework for trial in absentia: once a court is satisfied that an accused is deliberately absconding, it may proceed with trial, record evidence, and even convict without the accused being present. The accused's absence is legally constructed as a 'deemed waiver' of the right of hearing.

The constitutional tension is sharp. Article 21 guarantees that no person shall be deprived of life or personal liberty except by procedure established by law — and the Supreme Court, from Maneka Gandhi v. Union of India (1978) onwards, has read this to require that the procedure must be fair, just, and reasonable. The audi alteram partem principle — one of the twin pillars of natural justice alongside nemo judex in causa sua — flows directly from this standard.

The core critique is that 'deemed waiver' is a legal fiction, not a genuine exercise of will. Waiver of a fundamental right, the Supreme Court held in Olga Tellis v. Bombay Municipal Corporation (1985), must be voluntary, informed, and intentional. Constructing absence as consent to conviction inverts this requirement. Additionally, Article 20(3) protects against self-incrimination, and procedural fairness demands that an accused must have a real, not notional, opportunity to defend.

For CLAT PG, the key analytical move is: the examiner will test whether aspirants can distinguish a valid procedural shortcut from an unconstitutional legal fiction — and apply Article 21 jurisprudence to a new statutory provision under the BNSS.