Where the Judiciary Sits in Each Constitution

Two things follow. Only the Supreme Court is constitutionally required; every other federal court exists because Congress created it. And the tenure and salary guarantees are textual.

Section 2. The judicial power extends to cases and controversies of nine described kinds. The Supreme Court has original jurisdiction in cases affecting ambassadors and those in which a State is a party, and appellate jurisdiction as to law and fact, with such exceptions and under such regulations as the Congress shall make.

That exceptions clause is the most important limit on the American judiciary, and its scope has never been settled.

Section 3. Treason is defined narrowly and requires the testimony of two witnesses to the same overt act or confession in open court.

Switzerland: articles 188 to 191c

Article 188. The Federal Supreme Court is the highest judicial authority of the Confederation; the law determines its organisation and procedure; the Court administers itself.

Article 189. Its jurisdiction: violations of federal law, of international law, of intercantonal law, of cantonal constitutional rights, of the autonomy of the communes, and of federal provisions on political rights; disputes between the Confederation and the cantons or between cantons; and such other matters as the law provides. Article 189(4) provides that acts of the Federal Assembly and the Federal Council may not be challenged before the Federal Supreme Court, with exceptions provided by law.

Article 190. Federal acts and international law are binding on the Federal Supreme Court and the other authorities applying the law.

Article 191. The law guarantees the right of appeal to the Federal Supreme Court and may provide for a minimum value in dispute.

Articles 191a to 191c provide for other federal judicial authorities, cantonal judicial authorities, and the independence of the judiciary.

The United Kingdom

No constitutional document constitutes any court. The Supreme Court of the United Kingdom was created by section 23 of the Constitutional Reform Act 2005, an ordinary Act of Parliament, which could in law be repealed. Section 40 makes it a superior court of record with an appeal from the Court of Appeal in England and Wales in civil proceedings. Section 3 imposes a duty on the Lord Chancellor, other ministers and all with responsibility for the judiciary to uphold its continued independence.

Before 2009 the highest court was the Appellate Committee of the House of Lords, that is a committee of the upper chamber of the legislature, which is the single most striking illustration of an uncodified constitution.

A worked example

The legislature abolishes the highest court.

India. Impossible without a constitutional amendment altering articles 124 to 147, which is in the proviso to article 368(2) and requires ratification by half the States, and which would face a basic structure challenge on judicial review and the independence of the judiciary.

United States. Impossible without an amendment, because Article III section 1 requires one Supreme Court; but Congress could abolish every inferior federal court, since they exist only by its enactment.

Switzerland. Would require a constitutional amendment under articles 140 and 142.

United Kingdom. An ordinary Act of Parliament would do it. Section 23 of the Constitutional Reform Act 2005 is not entrenched.

The cases

Facts. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, concerned whether tribunals established under articles 323A and 323B could exclude the jurisdiction of the High Courts under article 226 and of the Supreme Court under article 32.

Held, by a Bench of seven. The power of judicial review vested in the High Courts under article 226 and in the Supreme Court under article 32 is an integral and essential feature of the Constitution and part of its basic structure; clauses excluding that jurisdiction are unconstitutional; tribunals may act as courts of first instance in the areas for which they were constituted, subject to the High Court's jurisdiction under articles 226 and 227.

Why it matters here. It fixes the constitutional position of the Indian judiciary: its review jurisdiction is not merely conferred but entrenched.

Facts. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), concerned section 13 of the Judiciary Act 1789, which purported to give the Supreme Court original jurisdiction to issue mandamus.

Held, by Marshall CJ. Section 13 was repugnant to Article III's allocation of original and appellate jurisdiction and was void; a legislative act contrary to the constitution is not law; and it is emphatically the province and duty of the judicial department to say what the law is.

Why it matters here. It establishes both that the American Supreme Court's original jurisdiction is fixed by Article III and cannot be enlarged by statute, and that the power of judicial review exists though the text does not confer it.

Distinctions

What beginners get wrong

"The American Constitution creates the federal court system." It creates one Supreme Court and authorises Congress to create the rest, which Congress did in the Judiciary Act 1789.

"Article 141 makes Supreme Court decisions binding on the Supreme Court." It makes the law declared binding on all courts within the territory of India; the Supreme Court may depart from its own decisions, treated in [Precedent, and Departing From It].

"The Swiss Federal Supreme Court is like the Indian Supreme Court." Article 190 prevents it from setting aside a federal act, and article 189(4) excludes acts of the Federal Assembly and Federal Council from challenge before it except as the law provides.

Limits and criticism

The American exceptions clause is a standing threat, because Congress may in terms make exceptions to the appellate jurisdiction, and how far it may go has never been decided.

Article 142's power to do complete justice is very wide, and its limits have been the subject of repeated debate.

The British Supreme Court is statutory, so its existence, composition and jurisdiction depend on ordinary legislation.

Quick revision

1. India: article 124 the Court, articles 129 to 140 jurisdiction, article 141 binding effect, article 142 complete justice, article 143 advisory, article 145(3) five judges for constitutional interpretation.
2. High Courts: articles 214 to 232, with article 226 writs and article 227 superintendence.
3. United States: Article III section 1 vests and guarantees tenure and salary; section 2 defines cases and controversies and the exceptions clause.
4. Switzerland: article 188 the Court, article 189 jurisdiction with 189(4), article 190 the bar, article 191c independence.
5. United Kingdom: section 23 of the Constitutional Reform Act 2005; before 2009 the Appellate Committee of the House of Lords.
6. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: articles 226 and 32 are part of the basic structure.
7. Marbury v. Madison, 5 U.S. 137 (1803): original jurisdiction fixed by Article III; judicial review inferred.

Test yourself

1. Compare how the four constitutions create their highest courts. India creates the Supreme Court by article 124 and the High Courts by article 214, with the numbers of judges left to Parliament. The United States vests the judicial power in one Supreme Court by Article III section 1 and leaves all inferior federal courts to Congress. Switzerland establishes the Federal Supreme Court by article 188 and leaves its organisation to the law. The United Kingdom created its Supreme Court by section 23 of the Constitutional Reform Act 2005, an ordinary statute; before 2009 the highest court was a committee of the House of Lords.

2. What is the exceptions clause and why does it matter? Article III section 2 provides that the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. It matters because it appears to give Congress power to remove classes of case from the Supreme Court's appellate jurisdiction, and the limits of that power have never been settled, which makes it the most significant textual threat to the American judiciary's position.

3. What does article 141 of the Indian Constitution provide? That the law declared by the Supreme Court shall be binding on all courts within the territory of India. It gives statutory force to the doctrine of precedent as regards subordinate courts and High Courts, and it does not by its terms bind the Supreme Court itself, which may depart from its own decisions in an appropriate case and ordinarily does so through a larger Bench.

4. What did L. Chandra Kumar add to the constitutional position of the Indian judiciary? That the power of judicial review vested in the High Courts under article 226 and in the Supreme Court under article 32 is an integral and essential feature of the Constitution and forms part of its basic structure, so that clauses excluding it, including those enacted under articles 323A and 323B, are unconstitutional; tribunals may function as courts of first instance in their fields, subject to the High Court's jurisdiction under articles 226 and 227.