ABSTRACT

A concept of ‘statutory’ or ’default’ bail under the second provision of Section 167(2)(now reenacted as Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023) of the Criminal Procedure Code is traditionally characterized as an ’indefeasible right’, which arises in the face of investigatory delay. Barring a discussion of the underlying determinants of such jurisdiction, the fundamental characteristic of default bail as a constitutionally rooted preventive mechanism on the investigatory power largely remains an under-explored issue. The current discussion aims to demonstrate how, in light of the case law on Uday Mohanlal Acharya, M. Ravindran, and the difficulties encountered in the context of special laws such as UAPA, NDPS, default bail not only strengthens the procedural foundation of Article 21’s temporal protection of liberty, but can indeed be understood as a structural preventive mechanism on the investigatory power as such. The discussion below aims to outline a range of reforms aimed at reclaiming the essence of default bail from the domain of procedure to that of constitution.

The Indian legal discourse on bail is largely expressed as a struggle between judicial discretion, on one hand, and prosecuting opposition, on the other. The debate is largely centered around Sections 437 and 439 CrPC, where the scales weigh the interests of liberty, gravity of offense, likelihood of flight, and social interest. In this context, standard or “default” bail provided under Section 167(2) CrPC (now Section 187 BNSS) has been viewed only as a procedural provision that only assumes importance when the State fails to complete the investigation within 60 or 90 days.

Default bail is not just a statutory reward for prosecutorial delay. It is a constitutional checkpoint within the procedure. It is premised on a core constitutional notion:that a state cannot hold a defendant for any length of time awaiting evidence, and that when the investigatory period is over, detention is unconstitutional.

This article argues that default bail must be understood as a structural constitutional guarantee that works the protection of personal liberty enunciated under Article 21 by turning time into a constraint.

The Structural Context of Pre-Trial Detention

The stakes of default bail become even clearer if they are viewed in the context of the structural realities of the Indian criminal justice process. A significant proportion of India’s prison population is made up of undertrial prisoners, people detained not after the determination of guilt, but while the investigation of guilt is still pending.As per the Prison Statistics India 2023 report released by the National Crime Records Bureau, the percentage of undertrial prisoners among the total prison population as of December 31, 2023, was 73.5%. Detention justified as urgent and of immediate necessity can easily become procrastination.

This changes the landscape entirely. This is not merely about administrative delay; it is about legitimacy. In an apparatus of justice premised on the presumption of innocence, pre-trial detention must be restrained. When detention continues only insofar as further investigation is required, then the length of freedom is made dependent on the speed of prosecution. Default bail intersects with this fault line. Time becomes constitutive in its very ability to prevent justice being normalised as a form of preventive custody.

The Temporal Dimension of Article 21

Article 21 protects life and personal liberty according to “procedure established by law.” Post-Maneka Gandhi, such procedures must be just, fair, and reasonable. However, fairness is not merely about substantive safeguards it also concerns duration.

Pre-trial detention is coercive state action imposed prior to conviction. Its constitutional justification depends not only on legality but on temporality. Liberty curtailed without temporal discipline risks degenerating into preventive incarceration.

Section 167(2) CrPC acknowledges this constitutional anxiety and the same provision is continued in Section 187 BNSS. It mandates that if investigation is not completed within the prescribed period, the accused “shall be released on bail” upon furnishing sureties. The language is mandatory,the consequence is automatic.

By fixing investigative deadlines, the provision constitutionalises time. It prevents the State from using prolonged investigation as a substitute for proof. In doing so, it transforms detention from an open-ended executive power into a time-bound constitutional exception.

Doctrinal Evolution: Constitutionalising the Indefeasible Right

The jurisprudence of the Supreme Court indicates an evolution from procedural interpretation to constitutional foundation.

In the case of Uday Mohanlal Acharya vs. The State of Maharashtra (2001), the Court defined default bail as an ‘indefeasible right’ that accrues upon the expiry of the prescribed period, upon the making of an application for default bail before the filing of the charge sheet. Emphasis was given that it is non-discretionary in nature.

In the case of Rakesh Kumar Paul v. State of Assam (2017), where there was an ambiguity on whether it was 60 days or 90 days, it was clarified in favour of liberty.The BNSS maintains the same structure of 60/90 days. The plurality established a direct connection to Section 167(2) and Article 21, underscoring the consideration for personal liberty.

In M. Ravindran v. Directorate of Revenue Intelligence (2021), the Court made it clear that when the accused enjoys the right through an application filed before the filing of the charge sheet, the right cannot be taken away through the filing of another application. “It is not, in our opinion, the case where the State could do so.”This rationale applies to Section 187 BNSS as well.

The Supreme Court reiterated the same in 2025 in the Tonlong Konyak v. State of Assam case while allowing bail under the Unlawful Activities (Prevention) Act, 1967, when it stated that detention for over two years without a chargesheet is “illegal by every measure,” and thus cannot pass the test of constitutional scrutiny.

All of these decisions collectively raise the status of default bail from a statutory to a constitutional provision.The right is “indefeasible” not because Parliament used emphatic language but because indefinite detention without completed investigation has to be deemed offensive to the requirement of just and fair procedure in Article 21.

The Structural Function of Default Bail

Default bail plays a systemic role, which has often been missed in judicial decisions: it disciplines investigative power.

Without strict timelines, investigating agencies could delay investigations indefinitely and yet keep the accused in custody. Pre-trial detention would then be used as a coercive agency instead of a procedural necessity. Section 167(2) prevents this drift.

Viewed structurally, default bail:

• Creates investigative accountability by compelling timely evidence collection.
•  Prevents incarceration-as-investigation, where detention substitutes for proof.
• Preserves the presumption of innocence in one very important respect by limiting pre-conviction custody.

In that sense, default bail functions similar to constitutional doctrines that impose structural restraints proportionality or separation of powers.

Modern Hurdles: Exceptional Statutes and Dilution

While there is clarity as far as the doctrinal position is concerned, the right, in practice, gets eroded, especially under special statutes like the UAPA and NDPS.

The balance thus tilts in favor of longer detention with extended investigation periods, as long as 180 days under UAPA. Section 187 BNSS maintains the same time limit. The prosecutorial applications for extension are often granted as a matter of course, diluting the discipline imposed by Section 167(2).

Special statutes further create a paradox in making stringent bail conditions. Even after the availability of default bail, the broader statutory frameworks discourage release. The practical effect is that the default bail becomes a procedural theatre rather than a substantive protection.

Occasionally, courts have tried to balance these tensions, but a deeper structural problem remains: exceptional legislation normalises extended pre-trial detention. As timelines for investigation lengthen, the constitutional logic of default bail contracts.

Reclaiming Default Bail: Doctrinal and Structural Reforms

If default bail is constitutionally significant, then reforms need to reinforce the structural role of default bail.

First, extensions of investigative time under special statutes must be subject to more stringent judicial review: the judiciary must demand positive investigative progress, not merely routine assertions of progress.

Secondly, the right has to be regarded as being self-executory upon the expiry of the time period. The procedural complexities like defect of filing or administrative delay should not hinder the right after it has accrued.

Thirdly, legislative action is called for to clarify that such extensions would be governed by the proportionality test under Article 21.Timelines must not become tools for detention without bounds.

Finally, empirical data on undertrial detention must inform judicial interpretation. Where our prisons substantially comprise undertrial prisoners, the rule of default bail is no longer just a technical rule; it is constitutional necessity.

Reform recognises the reality that legitimacy in criminal justice depends on how it treats the unconvicted.

Conclusion: Time as a Constitutional Constraint

Default bail is often explained in narrow terms of process, but its meaning runs considerably deeper. It makes time a constitutional barrier. It guards against any possibility that investigative neglect may result in lengthy jailing. It shields the presumption of innocence from being worn away by unfair delay.

The tendency for pre-trial detention to be punitive in effect is the risk in a time where security concerns increasingly mould criminal law. The presumption of bail resists this transformation. It reminds the State that liberty cannot be subordinated to indefinite investigation.

Reclaiming default bail as a structural constitutional guarantee involves reaffirming one important founding commitment: the power to detain before conviction must be inherently temporary, exceptional, and constitutionally controlled.

The future of bail jurisprudence will not turn on judicial discretion. It will depend on whether the courts continue to regard time as a constitutional constraint or permit it to become an instrument of silent incarceration.