Seminar Paper

Titled
Structure 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 Shukla
15ML301
Semester-I
L.L.M

INSTITUTE OF LAW,
NIRMA UNIVERSITY, AHMEDABAD, 2015
1|Page

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
High
Court
Civil
Courts

Family
Court

Criminal
Court

District
Courts
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.1 The seat of Supreme Court shall be at Delhi or at any

Article-124, The Constitution of India

2|Page

such place or places as prescribed by Chief Justice of India, with the approval of
president.2 The 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 civil6 or criminal7 case 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
2

Article-130, The Constitution of India

Article-131, The Constitution of India
4
Article-32, The Constitution of India
5
Article-139, The Constitution of India
6
Article-133, The Constitution of India
7
Article-134, The Constitution of India
8
Article-139A, The Constitution of India
9
Article-134, The Constitution of India
10
Article-133(1), The Constitution of India
3

3|Page

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 Proceedings
The Supreme Court has been vested with power to punish for contempt of Court
including the power to punish for contempt of itself.18
High Courts
There will be High Court for each state19 and each High Court comprises of a Chief Justice
and such other Judges as the President may, from time to time, appoint.20
11

Ibid
Article-134(1), The Constitution of India
13
Ibid
14
Supra 12
15
Article-134(2), The Constitution of India
16
Article-136, The Constitution of India
17
Article-143, The Constitution of India
18
Article-129 and 143, The Constitution of India
12

4|Page

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

19

Article-214, The Constitution of India

Article-216, The Constitution of India
21
Article-215, The Constitution of India
22
Article-226, The Constitution of India
23
Article-227, The Constitution of India
24
Article-227, The Constitution of India
20

5|Page

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.
District Courts
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.26 These courts are under administrative
and judicial control of the High Court of the State to which the district concerned belongs.27

U.S.A

Federal
Courts

Supreme
Court

State Courts

Court of
Appeals

District Court

Bankruptcy
Court

25

Article-228, The Constitution of India

Article-233, The Constitution of India
27
Article-235, The Constitution of India
26

6|Page

State
Supreme
Court

State Court of
Appeal

Supreme Court
The Supreme Court is the highest court and is authorized by Congress to pass laws
establishing a system of lower courts.28 The 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

28

Article-III, The Constitution of the United States

Ibid
30
Supra 28
31
Ibid
29

7|Page

Courts 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
District Courts
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. The U.S. Court of Federal Claims deals with
most claims for money damages against the U.S. government.33
Bankruptcy Courts
Federal courts have exclusive jurisdiction over bankruptcy cases involving personal,
business, or farm bankruptcy.
State Courts
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 at http://www.uscourts.gov/about-federal-courts/court-role-and

structure
33
Ibid

8|Page

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

Federal
Courts

State and
Territory
Courts

High Court

Supreme
Court

Federal Court

Intermediate
and Lower
Courts

Family Court

Specialist
Courts and
Tribunals

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-andstructure/comparing-federal-state-courts

35
Chapter III, Common Wealth of Australia Constitution Act

9|Page

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 Courts
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 Territory 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.
Intermediate 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.
36

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

37
Ibid
38
Supra 36

10 | P a g e

Specialist 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
Court

Superior
Courts

Inferior
Courts

Military
Courts

Provincial
Courts

Federal
Courts

Court of
Appeal

Federal
Court

Tax Court

Supreme Court 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

39

Chapter-VII, The Constitution Act, 1867

11 | P a g e

Superior 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.
Military 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 Courts Every 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 Court 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 Court The 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 Court of Canada The Tax Court of Canada hears disputes especially over
federal taxes under the federal income tax act.

Inferior 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

40
41

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

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

12 | P a g e

Comparative Analysis
Sr.
Particulars
India
No
.
1.
Type of Judicial Single
Structure
2.
Hierarchy
of Lineal,
only
Court
one hierarchy
followed

4.

Nature
Hierarchy

5.

6.

Court
Highest
Authority
Jurisdiction

7..

8.

8.

10.

U.S.A

Dual

Australia

Dual

Canada

Multiple

Double,
two Double,
two Multiple,
hierarchy
at hierarchy
at hierarchy
federal and state federal and state based on the
level
level
jurisdiction of
the court
of Powers given Territory
Territory
Jurisdiction of
to the Court
the
court
(Constitutional
(Subject
power)
matter)
Federal Courts
of Supreme Court Supreme Court
High Court
Supreme Court

Original
Appellate
Advisory
Contempt
Proceedings

Original
Appellate
Appellate
Rule
making
power

Appellate

Appellate Court

Supreme Court
is the highest
court to hear
appeals from
High Court

Supreme Court
is
common
court of appeal
that
hear
appeals of all
courts
of
Canada

Court
of
Highest
Authority
Jurisdiction of
Court at State
level

High Court

Court of Appeal
is a separate
court that hear
appeals
from
Federal District
and
Circuit
Courts
State Courts
Supreme Court

Appellate Court

High
Court Court of Appeal Supreme
Court
hear appeals hears appeal in a hears appeals in
from Districts
particular state
particular state

13 | P a g e

High Court is the

uppermost court
to hear appeals
from
Superior
Courts

Supreme Court
______

Original
Original
Appellate
Power
of
Superintenden
ce

Original
Appellate

_____

_____

Bibliography:
Statutes
1. The Constitution of India
2. 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 at http://www.hierarchystructure.com/canadianlegal-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-federalcourts/court-role-and-structure/comparing-federal-state-courts

14 | P a g e