Open Access Research Article
ANTICIPATORY BAIL AND THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967: A CONSTITUTIONAL AND INTERNATIONAL HUMAN RIGHTS APPRAISAL OF SECTION 43D(4)
Abstract
Abstract
Section 43D(4) of the Unlawful
Activities (Prevention) Act, 1967 (UAPA) withdraws, in absolute terms, the
pre-arrest protection that Section 438 of the Code of Criminal Procedure, 1973
now Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 makes available
to every other accused person in India. No other feature of India’s
counter-terrorism architecture removes an entire category of judicial
discretion so completely, or at so early a stage of the criminal process. This
article asks whether that removal can be reconciled with Articles 14, 19, 21
and 22 of the Constitution of India and with India’s obligations under the
International Covenant on Civil and Political Rights (ICCPR). It traces the
doctrinal path by which anticipatory bail moved from a statutory convenience
into a safeguard understood to flow from Article 21, examines the legislative
history that transformed the UAPA from a 1967 statute about unlawful
associations into India’s principal anti-terrorism code, and reads Section
43D(4) against the jurisprudence generated by Gurbaksh Singh Sibbia, Kartar
Singh, NIA v. Zahoor Ahmad Shah
Watali, and Union of India v.
K.A. Najeeb. The article’s central claim is that Section 43D(4) is
defensible only on a reading that excludes the ordinary statutory remedy while
leaving the constitutional writ jurisdiction of the High Courts and the Supreme
Court intact for cases of demonstrable mala fides or an absence of the
statutory ingredients of the offence charged. A purely literal reading one that
treats the provision as closing every avenue of pre-arrest scrutiny regardless
of circumstance — is difficult to square with the standards of legality,
necessity and proportionality that both Indian constitutional doctrine and
international human rights law apply to any deprivation of liberty. The article
closes by proposing a six-part interpretive and legislative framework intended
to preserve the investigative purpose of Section 43D(4) without allowing it to
operate as a standing suspension of judicial review.
Published Paper
Author Details
Authors: ZAHEER HUSSAIN A
Registration ID: 1013077 | Published Paper ID: IJLRA13077
Year: Aug-2026 | Volume: 3 | Issue: 5
Approved ISSN: 2582-6433 | Country: Delhi, India
Page No.: 1921-1948
Article Information
ANTICIPATORY BAIL AND THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967: A CONSTITUTIONAL AND INTERNATIONAL HUMAN RIGHTS APPRAISAL OF SECTION 43D(4)
Authors: ZAHEER HUSSAIN A
- Journal IJLRA
- ISSN 2582-6433
- Volume 3
- Issue 5
About Journal
International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
- AccessOpen Access
- LicenseCC 4.0
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