Afghanistan vs India: writ jurisdiction differences
Writ Jurisdiction: Afghanistan vs India
I. Introduction
Writ jurisdiction is a judicial tool allowing courts to issue orders (writs) to enforce fundamental rights, ensure legality of administrative action, and protect constitutional supremacy.
India: Has a well-established and codified writ jurisdiction under the Constitution of India (1950).
Afghanistan: The writ jurisdiction is emerging, influenced by constitutional provisions and Islamic jurisprudence, with limited case law and practice.
II. Constitutional Basis
| Feature | India | Afghanistan |
|---|---|---|
| Constitutional Provision | Article 32 (Supreme Court), Article 226 (High Courts) | Article 121 of 2004 Constitution (Judicial Review and Enforcement of Rights) |
| Scope | Enforce fundamental rights and supervise legality of acts | Enforcement of rights, judicial review of administrative action |
| Courts Competent | Supreme Court & High Courts | Supreme Court and Appellate Courts |
III. Types of Writs and Their Use
Both systems recognize classic writs like:
Habeas Corpus (protection against unlawful detention)
Mandamus (command to perform public duty)
Certiorari (quashing unlawful orders)
Prohibition (preventing inferior courts or tribunals from exceeding jurisdiction)
Quo Warranto (challenge authority of a person holding public office)
However, their application varies.
IV. Detailed Differences and Case Law
1. Scope and Accessibility of Writ Jurisdiction
India:
The Supreme Court under Article 32 and High Courts under Article 226 have expansive writ jurisdiction, allowing individuals to directly approach courts for violation of fundamental rights or illegality by public authorities.
Case: Keshavananda Bharati v. State of Kerala (1973) AIR 1461
Established the basic structure doctrine, affirming writ jurisdiction as essential to uphold constitutional supremacy and fundamental rights.
Afghanistan:
The writ jurisdiction is more limited and evolving. Article 121 provides the Supreme Court with power to review laws and administrative acts but does not clearly elaborate writ jurisdiction. Enforcement of rights often involves Islamic law principles and administrative review.
No extensive case law; judicial practice is developing.
Difference:
India has a well-developed, direct, and broad writ jurisdiction accessible to all citizens; Afghanistan's is more limited, procedural, and less accessible in practice.
2. Enforcement of Fundamental Rights
India:
Fundamental rights can be directly enforced by writs.
Case: Maneka Gandhi v. Union of India (1978) AIR 597
Expanded the right to personal liberty under Article 21, enforceable through writs like habeas corpus.
Afghanistan:
Fundamental rights protection is recognized constitutionally, but enforcement through writs is nascent. Islamic law and traditional dispute resolution often fill the gap.
3. Judicial Review of Administrative Action
India:
Courts routinely use writs like certiorari and prohibition to quash illegal actions.
Case: S.P. Gupta v. Union of India (1982) AIR 149
Affirmed writ jurisdiction as a check on administrative arbitrariness.
Afghanistan:
Judicial review exists but is often constrained by political realities, limited precedent, and administrative barriers.
4. Locus Standi (Right to Approach Court)
India:
Writ jurisdiction is liberal; even public interest litigation (PIL) is allowed, enabling any citizen or organization to seek writs on behalf of others.
Case: M.C. Mehta v. Union of India (1987) AIR 1086
Expanded locus standi for environmental protection via writs.
Afghanistan:
More restrictive. Typically, only directly affected parties can approach courts; PIL concepts are minimal or absent.
5. Speed and Effectiveness of Writ Remedies
India:
Writ petitions are often prioritized, enabling speedy justice.
Afghanistan:
Judicial delays, lack of infrastructure, and political interference limit effectiveness.
V. Summary Table
| Aspect | India | Afghanistan |
|---|---|---|
| Constitutional Basis | Article 32, 226 | Article 121 |
| Types of Writs | Habeas Corpus, Mandamus, Certiorari, Prohibition, Quo Warranto | Same writ types recognized but less judicially developed |
| Enforcement of Rights | Direct enforcement of fundamental rights | Rights enforcement via courts developing, often informal |
| Locus Standi | Liberal (PIL allowed) | Restrictive (only directly affected persons) |
| Judicial Review | Robust and expansive | Limited and developing |
| Case Law | Extensive body of jurisprudence | Limited; constitutional cases emerging |
VI. Illustrative Indian Cases (For Understanding the Scope)
Kesavananda Bharati v. State of Kerala (1973) — Basic structure doctrine; writs protect constitutional supremacy.
Maneka Gandhi v. Union of India (1978) — Writs protect personal liberty broadly.
S.P. Gupta v. Union of India (1982) — Administrative arbitrariness checked via writs.
M.C. Mehta v. Union of India (1987) — Expanded locus standi; writs for environmental causes.
A.K. Roy v. Union of India (1982) — Writ jurisdiction applies to violations by government authorities.
VII. Conclusion
India offers a comprehensive and accessible writ jurisdiction ensuring constitutional rights and administrative accountability.
Afghanistan’s writ jurisdiction is evolving, framed by constitutional provisions but constrained by political, infrastructural, and legal development challenges.
Over time, as Afghanistan’s judiciary strengthens, writ jurisdiction may become a more powerful tool for rights enforcement.
RELATED Blog
0 comments