BRIJ MOHAN LAL v. UNION OF INDIA & Ors.

3.2 The appointees submitted that in terms of the Bar Council of India Rules, after they cease to be judges of the FTCs for any reason whatsoever, they shall be debarred from practicing in the district and subordinate courts. Their right to practice is abridged with respect to the courts in which they acted as judges and courts of the equivalent or lower grade. They can still practice in the higher courts, i.e., permissible Tribunals, High Courts and the Supreme Court of India. Thus, there is no complete and absolute restriction on their right to practice. It is only a partial restriction which is based upon securing the larger public interest and the interest D of ensuring transparency in the administration of justice. This by itself, therefore, cannot be a consideration for compelling appointments, if they are otherwise not entitled under law to continuation. There is no merit in the submission that the appointees/petitioners would suffer an irreparable loss by termination of their services as FTC judges and that the restriction contained in Rule 7 of the Bar Council of India Rules amounts to an absolute unreasonable restriction upon their right to practice in the event of such termination. [Paras 83, 84] [393-A-D; 394-B-C] the Government to continue E F N.K. Bajpai v. Union of India & Anr. CA No. 2850 of 2012 decided on 15th March 2012 - relied on. Power of judicial review: G H

4.1 The FTC Scheme was started in the year 2001 for an initial period of five years. However, it was subsequently extended and the Central Government agreed to finance the FTC Scheme uptil 30th March, 2011. Thereafter, the various State Governments have either decided to wind up the FTC Scheme or have extended BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 319 the FTC Scheme at their own expense. A few States are A even considering the continuation of the FTC Scheme as a permanent feature in their respective States. This, to a large extent, created an anomaly in the administration of justice in the States and the entire country. Thus, there is no unanimity between the Union Government and the 8 States either on continuation or the closure of the FTC Scheme. Some of the States would continue with the FTC Scheme while others have been forced to discontinue or close it because of non-availability of funds. [Paras 92, 93] [396-G-H; 397-A-C] c

4.2 Judicial functions and judicial powers are one of the essential attributes of a sovereign State and on considerations of policy, the State transfers its judicial functions and powers, mainly to the courts established by the Constitution, but that does not affect competence D of the State to, by appropriate measures, transfer a part of its judicial functions or powers to Tribunals or other such bodies. However, as far as functioning of the courts, i.e., dispensation of justice by Courts is concerned, the Government has no control whatsoever over the courts. E In relation to matters of appointments to the Judicial Services of the States and even to the Higher Judiciary in the country, the Government has some say, however, the finances of Judiciary are entirely under the control of the State. These controls should be minimized to maintain F the independence of the Judiciary. The courts should be able to function free of undesirable administrative and financial restrictions in order to achieve the constitutional goal of providing social, economic and political justice and equality before law to its citizens. [Para 99] [398-F- G H; 399-A-B] Associated Cements Co. Ltd. v. P.N. Sharma AIR 1965 SC 1595:1965 SCR 366 - referred to.

4.3 Article 21 of the Constitution of India takes in its H 320 SUPREME COURT REPORTS [2012] 5 S.C.R. A sweep the right to expeditious and fair trial which is an essential ingredient of such reasonable, fair and just procedure. Even Article 39A of the Constitution recognizes the right of citizens to equal justice and free legal aid. Thus, it is the constitutional duty of the B Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The State cannot be permitted to deny the constitutional right to speedy trial to the c accused on the ground that the State does not have adequate financial resources to incur the necessary expenditure needed, for improving the administrative and judicial apparatus to ensure speedy trial. [Para 100, 131] [399-C-D; 419-E-F] D Hussainara Khatoon and Ors. (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98: 1979 (3) SCR 532; Sheela Barse (II) and Ors. v. U.0.1. and Ors. (1986) 3 SCC 632; Salem Advocate Bar Association v. Union of India (2003) 1 SCC 49: 2002 (3) Suppl. SCR 353; Prakash Singh Badal E v. State of Punjab and Ors. (2006) 8 SCC 1: 2006 (6) Suppl. SCR 473; High Court of Judicature at Bombay, Through its Registrar v. Shirishkumar Rangrao Patil and Anr. (1997) 6 SCC 339: 1997 (3) SCR 1131 - referred to. F Jackson v. Bishop 404 F Supp. 2d 571 - referred to.

4.4 Judicial review is recognized as a basic feature of the Constitution and independence of judiciary is integral to the constitutional structure, as an essential attribute of the Rule of law. Judiciary must, therefore, be G free from pressure and influences from any quarter. It can be stated with certainty that any impediments to the continued and independent functioning of the judiciary would result in damaging the institution of justice as well as adversely affecting the faith of the public in the H functioning of the Courts/Tribunals. Only if continued BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 321 judicial independence is assured, the Courts/Tribunals A would be able to discharge their functions in an impartial manner. [Para 102] [403-0-G)