A Right without Effective Remedy

The principle of audi alteram partem that no person should be condemned unheard is often invoked as a touchstone of procedural fairness. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), courts have increasingly begun recording that the accused was “heard” before cognizance was taken. At first glance, this appears to mark a rights oriented shift in criminal procedure.

Yet, a closer examination reveals a troubling paradox. The hearing now being afforded at the stage of cognizance is often conducted without disclosure of the very material on which the court is asked to proceed. The question, therefore, is not whether the accused is being heard, but whether such a hearing uninformed and truncated has any substantive value.

This article argues that unless the opportunity of hearing at the cognizance stage is accompanied by minimal disclosure, the invocation of audi alteram partem risks degenerating into a procedural formality rather than a meaningful safeguard.

Cognizance under BNSS: What Has Changed and What Has Not 

Under the Code of Criminal Procedure, 1973, the law was settled that cognizance is taken of the offence, not the offender. Section 190 CrPC did not envisage a right of hearing to the accused at this stage, and courts consistently held that defence participation ordinarily begins later.

The BNSS does not depart from this jurisprudential foundation. What it does, however, is expressly incorporate the idea that the accused should be afforded an opportunity of being heard before cognizance is taken. This legislative move appears to constitutionalise natural justice at a pre-trial stage.

Yet, crucially, the BNSS does not simultaneously provide for disclosure of police papers, statements, or investigative material at this stage. The structure of Criminal Procedure remains unchanged in this respect: Access to the case diary and documents is deferred to later stages, typically after cognizance and supply under statutory provisions.This dissonance lies at the heart of the present problem.

The Procedural Paradox: Hearing without Disclosure:

At the stage of cognizance, the accused is not furnished with the police report, witness statements, or seizure materials. He is therefore required to address a case whose contours are unknown to him. Any participation at this stage is necessarily speculative.

In practice, such hearings are reduced to generic submissions: denial of involvement, jurisdictional objections, or pleas of innocence stated in the abstract. The court, lacking adversarial assistance grounded in the record, proceeds to take cognizance based almost entirely on the prosecution's version.

Natural justice, however, has never meant a mere opportunity to speak. As early as State of Orissa v. Binapani Dei, the Supreme Court recognised that fairness presupposes knowledge of the material to be met. A hearing divorced from disclosure risks becoming an empty ritual i.e. compliant in form, deficient in substance.

From Safeguard to Shield: The Judicial Risk

The more serious consequence of this procedural design emerges later.

Once a court records that the accused was “heard” before cognizance, that fact itself may become a shield against future challenges. Revisional courts may be reluctant to interfere, reasoning that the requirement of audi alteram partem has already been satisfied. Arguments raised subsequently that the accused had no meaningful opportunity due to lack of disclosure risk being dismissed as afterthoughts.

In other words, a defective hearing at the threshold can foreclose a genuine challenge later.

This risk is not hypothetical. Indian criminal procedure has repeatedly shown how procedural compliance, once recorded, acquires an almost conclusive character. The BNSS hearing provision, if applied mechanically, may inadvertently strengthen cognizance orders rather than scrutinise them.

Audi Alteram Partem Under Article 21: Substance Over Symbolism:

Article 21 of the Constitution of India does not guarantee a formal hearing; it guarantees a fair procedure. Since Maneka Gandhi v. Union of India, procedural fairness has been understood as a substantive requirement, not a symbolic one. Earlier decisions such as State of Orissa v. Binapani

Dei also make it clear that a hearing without adequate opportunity to meet the case against oneself is no hearing at all.

Natural justice is context-specific. The content of audi alteram partem varies with the stage, the nature of power exercised, and the consequences that follow. At the cognizance stage, the consequence is grave: the accused is drawn into the criminal process, exposed to coercive measures, reputational harm, and prolonged litigation.A procedure that offers a hearing but withholds the very material on which the decision rests sits uneasily with this constitutional understanding.

Comparative Insight: What the BNSS Chose Not to Do:

It is instructive to note that the BNSS legislature did not introduce any calibrated disclosure mechanism at the pre-cognizance stage. Nor did it clarify the scope of submissions that an accused may make during such hearing. The silence is telling.

Courts are therefore left to navigate this terrain without statutory guidance. The risk is that uniformity will be replaced by inconsistency: some courts may permit limited reference to materials, while others may treat the hearing as a brief oral formality.

Such variability undermines legal certainty and invites constitutional challenge.

Towards a Balanced Judicial Approach

The solution does not lie in converting the cognizance stage into a mini-trial. That would be neither feasible nor desirable. Equally, courts need not insist on full disclosure of the case diary or witness statements.

What is required is a calibrated judicial approach that preserves the balance between investigative secrecy and procedural fairness.

Possible Safeguards Include

Permitting the accused to be informed of the broad factual allegations forming the basis of cognizance,

Allowing reference to documents already in the public domain or supplied with the complaint,

Recording brief reasons demonstrating independent judicial application of mind, and

Clarifying that the pre-cognizance hearing does not preclude later challenges where material prejudice is shown.

   Such measures would ensure that the hearing under the BNSS is not reduced to a procedural checkbox.

A Right that must be made effective

The BNSS has taken an important step by statutorily recognising the accused's right to be heard at the stage of cognizance. But a right without an effective remedy or without the means to exercise it meaningfully risks becoming illusory.

Courts now stand at a crucial juncture. They may either allow this provision to harden into a ritualistic safeguard, or they may interpret it in a manner that gives real content to audi alteram partem under Article 21.

The choice will determine whether the BNSS hearing becomes a constitutional advance or merely a procedural mirage.

The Author Is An Advocate Practicing At Jharkhand High Court 

Views Are Personal