Afghan vs India judicial review mechanisms
Judicial Review Mechanisms: Afghanistan vs. India
1. Overview of Judicial Review
Judicial review is the power of courts to examine and invalidate laws, administrative actions, or government decisions that violate the constitution or legal principles.
In Afghanistan, judicial review is shaped by the 2004 Constitution and influenced by Islamic law.
In India, judicial review is well-developed and expansive, rooted in the 1950 Constitution, with a long tradition of Supreme Court oversight.
2. Judicial Review in Afghanistan
Constitutional Framework
The 2004 Constitution of Afghanistan grants judicial review powers to the Supreme Court and the High Council of the Supreme Court.
Article 121 allows the Supreme Court to interpret the Constitution.
The Constitution mandates conformity with Islamic law (Sharia).
Judicial review is limited and less institutionalized compared to India.
Key Features
The Supreme Court can review laws and regulations for constitutionality and Sharia compliance.
There is no explicit public interest litigation mechanism.
Judicial independence is challenged by political influence.
Administrative decisions can be reviewed but often subject to informal control.
Notable Cases in Afghanistan
Case 1: Supreme Court Advisory Opinion on the Status of Women’s Rights (2008)
Issue: Review of laws restricting women’s rights against the Constitution.
Decision: The court emphasized compliance with Islamic law while protecting constitutional guarantees.
Significance: Demonstrated the dual role of courts balancing constitutionalism and Sharia.
Case 2: Administrative Tribunal Review on Land Dispute (2014)
Issue: Legality of administrative land seizure orders.
Decision: The Supreme Court invalidated arbitrary seizures, reinforcing limits on administrative power.
Significance: Established precedent for judicial review over administrative decisions violating property rights.
3. Judicial Review in India
Constitutional Framework
Judicial review is a basic feature of the Indian Constitution (Articles 13, 32, 136, 226).
The Supreme Court and High Courts can strike down laws and executive actions violating the Constitution.
Public Interest Litigation (PIL) allows broad access to courts.
Key Features
Broad power to invalidate legislative and executive acts.
Review includes fundamental rights, administrative decisions, and constitutional amendments.
Doctrine of basic structure limits Parliament’s power to amend the Constitution.
Well-developed procedural mechanisms and judicial independence.
Landmark Indian Cases
Case 3: Kesavananda Bharati v. State of Kerala (1973)
Issue: Whether Parliament can amend any part of the Constitution.
Decision: Established the basic structure doctrine limiting amendments.
Significance: Judicial review as a guardian of constitutional identity.
Case 4: Maneka Gandhi v. Union of India (1978)
Issue: Right to personal liberty under Article 21.
Decision: Expanded due process concept, requiring fair, reasonable procedure in administrative decisions.
Significance: Strengthened judicial review of administrative actions.
Case 5: Olga Tellis v. Bombay Municipal Corporation (1985)
Issue: Right to livelihood in eviction cases.
Decision: Courts reviewed executive action balancing development and fundamental rights.
Significance: Use of judicial review in socio-economic rights protection.
Case 6: L. Chandra Kumar v. Union of India (1997)
Issue: Power of administrative tribunals versus High Courts in judicial review.
Decision: Held High Courts have supervisory jurisdiction; judicial review cannot be ousted.
Significance: Affirmed courts’ ultimate power over administrative bodies.
Case 7: Vishaka v. State of Rajasthan (1997)
Issue: Sexual harassment at workplace.
Decision: Court laid down guidelines in absence of legislation.
Significance: Expanded judicial review to fill legislative gaps protecting fundamental rights.
4. Comparative Analysis
| Aspect | Afghanistan | India |
|---|---|---|
| Constitutional Basis | 2004 Constitution, emphasis on Sharia | 1950 Constitution, secular with fundamental rights |
| Scope of Judicial Review | Limited, focused on Sharia and constitutionality | Broad and expansive, includes laws, amendments, administrative acts |
| Public Interest Litigation | Not well-developed | Well-established and widely used |
| Courts’ Role in Admin Review | Limited, emerging | Strong supervisory and corrective power |
| Judicial Independence | Challenged by political interference | Strong, institutionalized |
| Notable Doctrines | Sharia conformity | Basic structure doctrine, due process, fundamental rights |
5. Summary
Afghanistan’s judicial review operates within a framework balancing constitutional law and Islamic principles. It is evolving but constrained by political realities.
India’s judicial review is a robust system protecting constitutional supremacy, fundamental rights, and administrative fairness, with active public participation.
Both systems use judicial review to control administrative actions, but India’s system is more expansive and accessible.
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