The recent episode over the Judges (Declaration of Assets & Liabilities) Bill is a reminder of just how difficult genuine judicial reform is going to be. In some ways, the issue of declaring assets is the simplest item on judicial reform. Judges’ legitimate concerns that their disclosures not be used as a tool of harassment can be easily handled without having to exempt them from public disclosure. But the judiciary’s response to the issue has two fundamental mistakes. The first rule of any sound jurisprudence is that no one should be a judge in their own cause. The judiciary insists that only it can superintend itself. The second related mistake is to convert the claim of judicial independence into exemption from accountability. If Veerappa Moily is serious about judicial reform, accountability in so many different forms will be a central concern. The attitude of some sections of the judiciary to the asset bill is a warning about how independence will be used as a shield against accountability. And the delicious irony in the fact that politicians were teaching constitutional lessons to the judiciary in the parliamentary debate is a sign of how resistant they are perceived to be to serious reform.

In any reform story, entrenched actors within a sector are the hardest to move towards reform. Unfortunately, the judiciary is proving to be no exception. There are a number of indicators of this. We are all grateful to the courts for some splendid defences of our liberty and for holding government accountable. But if you scratch under the surface, it becomes apparent that there is a selection bias driving our perception of the judiciary. To just take one example, institutions like the Delhi high court have been at the forefront of rights and governance issues, sometimes excessively so. But if you look at the country as a whole, barring a couple of jurisdictions, the so-called rights revolution in our courts has not taken place. There is enormous variability in how courts are responding. In short, even the court’s achievements are much more contingent and fragile than we suppose and seem to be driven largely by wonderful individual judges rather than systemic factors.

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