A Parliamentary Committee has recommended legislation to make it mandatory for Supreme Court and High Court judges to declare their assets annually and make this public. Many will favour the report because it apparently is in the interest of transparency and probity without realising that such a move may actually endanger the independence of the judiciary ~ a fundamental pillar of our Constitution.

That the recommendation stems from a tit-for-tat approach became apparent with the justification put forth by committee chairman and BJP Rajya Sabha MP, Mr Sushil Kumar Modi who said the Supreme Court had gone to the extent of holding that the public has a right to know the assets of those contesting elections to Parliament or state assemblies. What is being ignored is the May 1997 Supreme Court resolution making it mandatory for judges of the apex court to declare to the Chief Justice of India all assets in the form of real estate or investments held by them, their spouses and dependants. Most high courts adopted a similar resolution soon after. Thus, judges of the higher judiciary have been filing asset statements like subordinate court judges as well as all government employees at the Centre and states. None of these declarations are in the public domain as they are kept confidential.

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This confidentiality should remain for judges while assets declared by MPs and MLAs should be in the public domain. After all, voters need to scrutinise these while deciding whether to reject or re-elect them. There are other dimensions to making public assets of judges, including who should a judge be answering to on how he or she got the wealth. If voters can remove MPs and MLAs, Parliament can impeach judges of the higher judiciary. So, should Parliament scrutinise judges’ assets? There are other potential challenges that could arise from mandatory public declarations of judges’ assets. For instance, a judge’ own assets could be questioned during hearings in cases involving others’ assets. This could raise concerns about impartiality and fairness in the judicial process. Making judges’ assets public will clearly open a Pandora’s box. It will raise concerns about judges’ accountability. Who should police the judiciary? Certainly not the executive or the legislature as it would jeopardise judicial independence. But making judges’ assets public might end up doing just that.

This underscores the need for a balanced approach while addressing asset disclosures by judges. Of paramount importance is the need to ensure independence of the judiciary. At the same time, the judiciary should work on refining its internal procedures to ensure ethical conduct, and do with inputs from members of the Bar and public. If existing mechanisms are perceived as not being successful in preventing corruption in the judiciary, better procedures can be evolved. Like the collegium for appointment of judges, there could be one for probing corruption within the judiciary.