Comparative Constitution Of different countries

7/25/2019 Comparative Constitution Of different countries

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Seminar Paper

TitledStructure and Functions of Judiciary: A Comparative

Study

In the Subject of

Comparative Constitution

Under the Guidance of

Dr. Tarkesh Molia

Associate Professor

Institute of Law, Nirma University

Submitted by:

Ms. Januja Shukla15ML301

Semester-I

L.L.M

INSTITUTE OF LAW,

NIRMA UNIVERSITY, AHMEDABAD, 2015


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Structure and Functions of Judiciary: A Comparative Study

Introduction

There are mainly three organs i.e. the legislature, the executive and the judiciary for proper

functioning of any country. There is outmost need of judiciary in all countries which is based

on the nature, structure and functions performed by judicial system. The judiciary is a

separate organ from legislature and executive, which is independent to function separately

from the other two organs. The judiciary is needed to have check and balances between the

laws passed by the legislature and the execution of these laws done by the executive. The

judiciary plays role in deciding validity or nullity of any law protecting the interests of the

society.

India

Supreme Court

The constitution provided for establishment of Supreme Court of India and will consist

of Chief Justice of India and other judges not more than seven in number unless larger

number prescribed by parliament.1The seat of Supreme Court shall be at Delhi or at any

1Article-124, The Constitution of India

Supreme

Court

HighCourt

Civil

Courts

Family

Court

District

Courts

Criminal

Court


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such place or places as prescribed by Chief Justice of India, with the approval of

president.2The jurisdiction of the Supreme Court is as follows,

1. Original

a)

Any dispute between the Government of India and one or more States

b)

Between the Government of India and any State or States on one side and one or

more States on the other

c) Between two or more States, if and insofar as the dispute involves any question

(whether of law or of fact) on which the existence or extent of a legal right

depends.3

d) Under Art. 32 extensive original jurisdiction to the Supreme Court in regard to

enforcement of Fundamental Rights.4

It is empowered to issue directions, orders

or writs, including writs in the nature of habeas corpus, mandamus, prohibition,

quo warranto and certiorari to enforce them.5

e)

Power to direct transfer of any civil6or criminal7case from one State High Court

to another State High Court or from a Court subordinate to another State High

Court.

f) Power to withdraw a case or cases pending before the High Court or High Courts

and dispose of all such cases itself.

8

2. Appellate

The appellate jurisdiction can be invoked by a certificate granted by the High Court

concerned in respect of any judgement, decree or final order of a High Court in both civil

and criminal cases, involving substantial questions of law as to the interpretation of the

Constitution.9

The appeal lies to the Supreme Court in civil matters if the High Court concerned

certifies,

a) The case involves a substantial question of law of general importance10, and







8

Article-139A, The Constitution of India9Article-134, The Constitution of India

10Article-133(1), The Constitution of India


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b) The opinion of the High Court, the said question needs to be decided by the

Supreme Court and in criminal cases, an appeal lies to the Supreme Court if the

High Court.11

c) On appeal reversed an order of acquittal of an accused person and sentenced him

to death or to imprisonment for life or for a period of not less than 10 years, or12

d)

has withdrawn for trial before itself any case from any Court subordinate to its

authority and has in such trial convicted the accused and sentenced him to death or

to imprisonment for life or for a period of not less than 10 years, or13

e) The case is a fit one for appeal to the Supreme Court. 14

f) The parliament is authorised to confer on the Supreme Court any further powers

to entertain and hear appeals from any judgement, final order or sentence in a

criminal proceeding of a High Court.15

The Supreme Court also has a very wide appellate jurisdiction over all Courts and

Tribunals in India in as much as it may, in its discretion, grant special leave to appeal

from any judgment, decree, determination, sentence or order in any cause or matter

passed or made by any Court or Tribunal in the territory of India.16

3. Advisory

The Supreme Court has special advisory jurisdiction in matters which may

specifically be referred to it by the President of India.17

4. Contempt Pr oceedings

The Supreme Court has been vested with power to punish for contempt of Court

including the power to punish for contempt of itself.18

H igh Courts

There will be High Court for each state19and each High Court comprises of a Chief Justice

and such other Judges as the President may, from time to time, appoint.20

11Ibid


13Ibid

14Supra 12


16

Article-136, The Constitution of India17Article-143, The Constitution of India

18Article-129 and 143, The Constitution of India


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The jurisdiction of the Supreme Court is as follows,

1. Original

a)

Powers to punish for its own contempt.

21

b)

The High Court of each state also has powers to issue to any person within its

jurisdiction directions, orders, or writs including writs which are in the nature of

habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of

Fundamental Rights and for any other purpose.22

c) This power of the High Court does not derogate the similar power conferred on the

Supreme Court in Article 32 of the Constitution.

2.

Appellate

a) The appellate jurisdiction of High Court extends to both civil and criminal cases.

b) In civil cases, its jurisdiction extends to cases tried by Courts of Munsifs and

District judges.

c) In the criminal cases it extends to cases decided by Sessions and Additional

Sessions Judges. Thus, the jurisdiction of the High Court extends to all cases

under the State or federal laws.

3. Powers

a) Power of superintendence over all Courts within its jurisdiction.23

b) Power to call for returns from such Courts,

c) make and issues general rules and prescribe forms to regulate their practice and

proceedings

d)

Determine the manner and form in which book entries and accounts shall be kept. 24

e) The High Court if satisfied that a case pending in a Court subordinate to it involves a

substantial question of law as to the interpretation of the Constitution the




22




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determination of which is necessary for the disposal of the case, it shall withdraw the

case.25

f)

Powers to call for the records of any case from any subordinate Court to satisfy itself

about the correctness and legality of the orders passed by the subordinate Courts.

g) Power of revision.

h)

Power to take suo moto action to call for records and pass necessary order.

Distri ct Cour ts

The District Courts are presided over by a judge. They administer justice in India at a district

level and are appointed by the governor of the state in consultation with High Court

exercising jurisdiction in the relation to such state.26These courts are under administrative

and judicial control of the High Court of the State to which the district concerned belongs. 27

U.S.A

25



Federal

Courts

Supreme

Court

Court of

Appeals

District Court

Bankruptcy

Court

State Courts

State

Supreme

Court

State Court of

Appeal


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Supreme Court

The Supreme Court is the highest court and is authorized by Congress to pass laws

establishing a system of lower courts.28The Supreme Court consists of the Chief Justice of

the United States and such number of Associate Justices as may be fixed by Congress. The

jurisdiction of the court is as follows,

1. Original29

a) Law and Equity, arising under this Constitution, the Laws of the United States,

and Treaties made, or which shall be made, under their Authority

b) To all Cases affecting Ambassadors, other public Ministers and Consuls;-to all

Cases of admiralty and maritime Jurisdiction

c)

Controversies to which the United States shall be a Party

d) Controversies between two or more States

e) Between a state and citizens of another state between citizens of different

states

f) Between citizens of the same state claiming lands under grants of different

States, and between a State, or the citizens thereof, and foreign States, citizens

or subjects.

g) In all cases affecting ambassadors, other public ministers and Consuls, and

those in which a state shall be party.

2. Appellate

The court has appellate jurisdiction on the matters of both as to Law and Fact, with such

Exceptions, and under such Regulations as the Congress shall make.30

3. Rule making power

Congress has from time to time conferred upon the Supreme Court power to prescribe

rules of procedure to be followed by the lower courts of the United States.31

28Article-III, The Constitution of the United States

29

Ibid30Supra 28

31Ibid


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Cour ts of Appeals

The appellate court determines whether or not the law was applied correctly in the trial court.

Appeals courts consist of three judges and do not use a jury. A court of appeals hears

challenges to district court decisions from courts located within its circuit, as well as appeals

from decisions of federal administrative agencies. In addition, the Court of Appeals for the

Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those

involving patent laws, and cases decided by the U.S. Court of International Trade and the

U.S. Court of Federal Claims.32

Distri ct Cour ts

The District courts resolve disputes by determining the facts and applying legal principles.

Trial courts include the district judge who tries the case and a jury that decides the case.

Magistrate judges assist district judges in preparing cases for trial. They may also conduct

trials in misdemeanor cases. There is at least one district court in each state, and the District

of Columbia. Each district includes a U.S. bankruptcy court as a unit of the district court.

There are also two special trial courts. The Court of International Trade addresses cases

involving international trade and customs laws. TheU.S. Court of Federal Claims deals with

most claims for money damages against the U.S. government.33

Bankr uptcy Courts

Federal courts have exclusive jurisdiction over bankruptcy cases involving personal,

business, or farm bankruptcy.

State Cour ts

The Constitution and laws of each state establish the state courts. The court of last resort,

often known as a Supreme Court, is usually the highest court. Some states also have an

intermediate Court of Appeals. Below these appeals courts are the state trial courts. Some are

referred to as Circuit or District Courts. The States usually have courts that handle specific

legal matters, e.g., probate court (wills and estates); juvenile court; family court; etc. The

parties dissatisfied with the decision of the trial court may take their case to the intermediate

32

Court Role and Structure available athttp://www.uscourts.gov/about-federal-courts/court-role-andstructure33

Ibid
http://www.cit.uscourts.gov/http://www.uscfc.uscourts.gov/http://www.cit.uscourts.gov/http://www.uscfc.uscourts.gov/http://www.uscourts.gov/about-federal-courts/court-role-andhttp://www.uscourts.gov/about-federal-courts/court-role-andhttp://www.uscfc.uscourts.gov/http://www.cit.uscourts.gov/http://www.uscfc.uscourts.gov/http://www.cit.uscourts.gov/


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Court of Appeals and the parties also have the option to ask the highest state court to hear the

case. Only certain cases are eligible for review by the U.S. Supreme Court. State courts are

the final arbiters of state laws and constitutions. Their interpretation of federal law or the U.S.

Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may choose to

hear or not to hear such cases.34

Australia

High Court

The High Court of Australia is empowered by the parliament to create other federal courts

and to vest federal judicial power in state and territory courts. It is the highest court and

the final court of appeal in Australia hears matters involving a dispute about the meaning

of the Constitution, as well as final appeals in civil and criminal matters from all courts in

Australia.35

34

Role and Structure of Court available at http://www.uscourts.gov/about-federal-courts/court-role-and-structure/comparing-federal-state-courts35

Chapter III, Common Wealth of Australia Constitution Act

FederalCourts

High Court

Federal Court

Family Court

State and

Territory

Courts

Supreme

Court

Intermediate

and Lower

Courts

SpecialistCourts and

Tribunals


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Federal Court

It hears matters on a range of different subject matter including bankruptcy, corporations,

industrial relations, native title, taxation and trade practices laws, and hears appeals from

decisions (except family law decisions) of the Federal Magistrates Court.36

Family Court

It is Australias specialist court dealing with family disputes, and hears appeals from

decisions in family law matters of the Federal Magistrates Court and has seat in each state

and territory except Western Australia, where family law matters are heard by a state

court, the Family Court of Western Australia.37

State Cour ts

Each state and territory has their own laws and court system. State and territory courts fall

within the responsibilities of the relevant state or territory Attorney-General or Minister

for Justice.

State and Terr itory Courts38

In Australian legal system hierarchy, every state and territory has its own court. The

authority of every court varies from state to state and from territory to territory. The state

and territory courts at times exercise federal authority on issues related to federal

legislation. It comprises as follows:

Supreme Court The higher court in every State or Territory is called the Supreme

Court. It has authority over some original and appellate cases. It deals with both the

criminal and civil matters.

I ntermediate and Lower Courts - There are generally two types of courts under the

Supreme Court in every State or Territory. These are County or District Courts and Local

or Magistrates Courts. A judge generally supervises a District Court whereas a magistrate

or a justice supervises a Local Court.

36Australian Legal System available at http://www.hierarchystructure.com/australian-legal-system-

hierarchy/37Ibid

38Supra 36


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Special ist Courts and Tribunals -The States and Territories have also some specialist

courts. These specialist courts comprise the Childrens Court, the Drug Court, the

Coroners Court and the Industrial Relations Commission. The State also has a variety of

tribunals such as Dust Diseases Tribunal, Administrative Decisions Tribunal,

Government and the Related Employees Appeal Tribunal, Mental Health Review

Tribunal, Guardianship Tribunal, Residential Tribunal and many others.

Canada

Supreme Cour t of Canada

The Supreme Court is the highest court. The Canadian Supreme Court was constituted in the

year 1875 by an act of the Parliament and now it is governed by the Supreme Court Act. This

court is a common court of appeal from all the other courts of Canada. Therefore, it has

jurisdiction over the disputes in all the areas of law, which includes criminal law,

administrative law, constitutional law and private law.39

39Chapter-VII, The Constitution Act, 1867

Supreme

Court

Superior

Courts

Military

Courts

Provincial

Courts

Federal

Courts

Court ofAppeal

FederalCourt

Tax Court

Inferior

Courts


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Super ior Courts40

The common meaning of a superior court is that it is a court of basic jurisdiction. The

decisions made by superior courts are not the matter of re-peruse, unless a law specially

provides for an appeal or review.

Mili tary Courts In Canadian legal system hierarchy, military courts are the courts for

the appeal of court martial. The court martial is conducted by the military personnel.

Provincial Cour tsEvery province in Canada has a lower trial court, generally known as

a Provincial Court. These courts are to hear some particular kinds of cases. The appeals

from these provincial courts are heard either by superior courts of the territory or by the

Court of Appeal.

Federal Courts Besides the Canadian Supreme Court, there are three types of civil

courts formed by the federal Parliament under its lawmaking authority which are together

called as Federal Courts.

1. Federal Cour t of Appeal The Federal Court of Appeal only hears appeals from

verdicts provided by the Federal Court, Tax Court of Canada and a particular group of

federal administrative courts.

2. Federal CourtThe Federal Court subsists mainly to review administrative verdicts

by the bodies of federal government and to hear litigations under the jurisdiction of

the federal government.

3. Tax Cour t of Canada The Tax Court of Canada hears disputes especially over

federal taxes under the federal income tax act.

I nferi or Courts- The lower level courts come under inferior courts. Many inferior courts

have exclusive functions which hear only youth matters, criminal law matters, family matters

and small claims matters.41

40Canadian Legal System available at http://www.hierarchystructure.com/canadian-legal-system-hierarchy/

41Canadian Legal System available at http://www.hierarchystructure.com/canadian-legal-system-hierarchy/


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Comparative Analysis

Sr.

No

.

Particulars India U.S.A Australia Canada

1. Type of Judicial

Structure

Single Dual Dual Multiple

2. Hierarchy of

Court

Lineal, only

one hierarchy

followed

Double, two

hierarchy at

federal and state

level

Double, two

hierarchy at

federal and state

level

Multiple,

hierarchy

based on the

jurisdiction of

the court

4. Nature of

Hierarchy

Powers given

to the Court

(Constitutional

power)

Territory Territory Jurisdiction of

the court

(Subject

matter)Federal Courts

5. Court of

Highest

Authority

Supreme Court Supreme Court High Court Supreme Court

6. Jurisdiction Original

Appellate

Advisory

Contempt

Proceedings

Original

Appellate

Rule making

power

Appellate Appellate

7.. Appellate Court Supreme Court

is the highest

court to hear

appeals from

High Court

Court of Appeal

is a separate

court that hear

appeals from

Federal District

and Circuit

Courts

High Court is the

uppermost court

to hear appeals

from Superior

Courts

Supreme Court

is common

court of appeal

that hear

appeals of all

courts of

Canada

State Courts

8. Court of

Highest

Authority

High Court Supreme Court Supreme Court

______

8. Jurisdiction of

Court at State

level

Original

Appellate

Power of

Superintenden

ce

Original Original

Appellate _____

10. Appellate Court High Court

hear appeals

from Districts

Court of Appeal

hears appeal in a

particular state

Supreme Court

hears appeals in

particular state

_____


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Bibliography:

Statutes

1.

The Constitution of India2. The Constitution Act of Canada, 1867

3. Common Wealth of Australia Constitution Act

4.

The Constitution of the United States

Websites

1. Canadian Legal System available athttp://www.hierarchystructure.com/canadian-

legal-system-hierarchy/

2.

Australian Legal System available at

http://www.hierarchystructure.com/australian-legal-system-hierarchy/

3. Role and Structure of Court available at http://www.uscourts.gov/about-federal-

courts/court-role-and-structure/comparing-federal-state-courts
http://www.hierarchystructure.com/canadian-legal-system-hierarchy/http://www.hierarchystructure.com/canadian-legal-system-hierarchy/http://www.hierarchystructure.com/australian-legal-system-hierarchy/http://www.hierarchystructure.com/australian-legal-system-hierarchy/http://www.hierarchystructure.com/canadian-legal-system-hierarchy/http://www.hierarchystructure.com/canadian-legal-system-hierarchy/

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Comparative Constitution Of different countries