Judges' Assets Public Disclosure Debate Intensifies in Nepal Amidst International Trends

Some time ago, a large number of burnt notes were found in the house of Justice Yashwant Verma of the High Court of India's New Delhi during an arson incident. After this incident became public, Verma, who was transferred to the Allahabad High Court, resigned after some time. Following this incident, the debate on the public disclosure of judges' assets has restarted. Meanwhile, on April 1, 2025, a full bench of the Supreme Court of India decided to make the assets of all the judges of that court public through its website. To date, the assets of 30 judges of the Supreme Court of India can be seen publicly on the website.

This decision is not the first regarding the submission of judges' asset details in India. Earlier, in 1997, a similar 'full court' meeting chaired by then Chief Justice J.S. Verma had decided that judges must compulsorily submit their asset details to the Chief Justice. Subsequently, another full court meeting in 2009 decided to make these asset details voluntarily public. In 2019, the Supreme Court of India itself, in the case of Subhashchandra Agarwal, ruled that judges' assets are not a matter falling under the right to privacy and therefore cannot be kept secret. According to the decision of the full court led by Justice Sanjiv Khanna (who later became Chief Justice), who wrote the majority opinion in that decision, assets were to be compulsorily disclosed through the website. That decision has been considered a significant start to transparency in the judicial world.

In Nepal, although Section 29 of the Judicial Council Act, 2073, has made a mandatory provision for judges to submit their asset details to the Judicial Council, it has also made arrangements to keep these assets secret. Although the then Minister of Law, Sher Bahadur Tamang, initiated the process of amending this provision of the Judicial Council Act to make laws for the public disclosure of judges' assets, that work could not be completed. The Nepal Bar Association has been continuously raising the issue of public disclosure of judges' assets. Recently, the issue of asset disclosure was also raised in the 39-point attention submitted to the Chief Justice. Similarly, some MPs from the ruling party RPP have also been demanding that judges' assets should be made public.

Judges are also part of this society and state. The judiciary is the third and extremely important organ of the state.

However, most judges and former judges are not in favor of making their assets public. The Judges' Society Nepal, after declaring that they would not submit their assets to the government-formed asset investigation commission, made its decision controversial and criticized. The decision was made by questioning the validity and constitutional jurisdiction of the commission itself. If one believes that a commission formed according to the law is illegal, then it should be legally challenged. However, by declaring that they do not have to submit asset details themselves, the question 'Are judges ready to make their assets public?' has surfaced.

The issue of public disclosure of assets is also linked to the dignity and security challenges of judges. If the media does not conduct sensitive analysis or reporting when assets are disclosed, there is a possibility that clarity on the source of those assets will not be achieved. It is also analyzed that this can create confusion among the public and further damage the security and reputation of judges.

Judges are also part of this society and state. The judiciary is the third and extremely important organ of the state. Therefore, judges are also public officials. The Prevention of Corruption Act includes judges within the definition of civil servants and public officials. Therefore, judges do not automatically receive any special privileges compared to other public officials. The 'Lamsal Commission' formed in Nepal in 2058 BS, by investigating the assets of judges and recommending action, has established a precedent that judges' assets can be investigated and action can be taken if discrepancies are found. However, that report has not been implemented to date.

Article 8, Subsection 5 of the United Nations Convention Against Corruption provides that each State Party shall establish mechanisms and measures to declare conflicts of interest, employment, investments, income, assets, benefits, and gifts to the relevant bodies.

Looking at international practices, it is found that judges and other public officials have the practice of disclosing their assets and expenditure details. In India, candidates are required to disclose their asset details even before contesting elections. In the case of 'Peoples' Union for Civil Liberties' versus 'Union of India' in 2023, the Supreme Court of India ruled that 'the public has the right to know the background and asset details of candidates contesting elections'. In the United States, under the 'Ethics in Government Act of 1978', all public officials, including judges, must disclose their asset details. The 'Public Services Ethics Act-1993' in South Korea also has similar provisions. Similarly, in countries like the Philippines, Russia, Argentina, South Africa, Bolivia, and Kenya, there are mandatory laws requiring the disclosure of judges' assets. A study by the World Bank found that in 80 percent of 90 countries, there are provisions for public officials to disclose their asset details, and in most of these countries, judges also disclose their assets.

Article 8, Subsection 5 of the United Nations Convention Against Corruption provides that each State Party shall establish mechanisms and measures to declare conflicts of interest, employment, investments, income, assets, benefits, and gifts to the relevant bodies. This convention defines 'public official' as 'a person appointed or elected to a legislative, executive, administrative or judicial office of a State Party, holding a position on a permanent or temporary basis, with or without remuneration'. This implies that Nepal, as a party to this convention, has the obligation to make legal arrangements for judges to comply with the said provision.

Our constitution and laws have entrusted the ultimate responsibility of keeping the country corruption-free and clean to the judiciary. The judiciary, which takes action against others for corruption, must itself be free from corruption or the accumulation of illicit wealth. The public disclosure of judges' assets is an important link to judicial transparency. Corruption is rampant in the country today. Furthermore, the judiciary itself is not free from this, as clarified by the judiciary's own report (Harikrishna Karki Report).

In Nepal, although there is a mandatory provision for judges to submit their asset details, since these details are not made public, the provision remains merely a formality. There are ample instances where judges have not submitted their asset details despite repeated reminders from the Judicial Council. To date, there is no example of the Judicial Council investigating submitted asset details or taking action against judges found with discrepancies. Since investigation and public disclosure are not done, there is a possibility that judges may not submit or may hide details of all their assets. In 2012, the Chief Justice of the Philippines was impeached by the parliament and removed from office on charges of hiding significant assets in his asset disclosure. Therefore, if assets are made public, the possibility of judges hiding or not disclosing asset details is minimal, as the media and the general public can conduct factual investigations or scrutiny regarding the source of assets.

When asset details are not disclosed, the question naturally arises for judges: 'If there is nothing wrong, why were they not disclosed?'

There is a principle in evidence law that if a person does not present or hesitates to present evidence in their possession, the court can infer that the evidence 'is of a nature that can be used as evidence against them'. Judges, who have interpreted this principle many times, are certainly aware of this. In other words, when asset details are not made public, it is a matter of easy inference that there is some discrepancy in the judges' assets. There is also a saying prevalent in Nepali society: 'Do not err! Do not fear!'

When asset details are not made public, the question naturally arises for judges: 'If there is nothing wrong, why were they not disclosed?' The answer could be 'there is no legal compulsion to disclose, or the law guarantees the right to privacy'. However, such a technical answer will not be accepted by society. Good conduct and ethics are above the law. To initiate good actions, legal compulsion is not necessary; it can be done spontaneously. Therefore, it would not be an exaggeration to say that the public disclosure of judges' assets is not an exaggeration or a restriction of judicial independence, but a pressing need of the hour.

The judiciary does not have legitimacy derived from elections, nor does it have legitimacy created by the use of power or force. The power and legitimacy of the judiciary are based on public trust. Currently, the dignity of the judiciary and public trust in it are declining. In this situation, the public disclosure of judges' assets can be an important link to improving the declining image of the judiciary. When assets are disclosed, it also conveys the message that judges, who determine right and wrong for others, are themselves in the right place. Hiding assets by showing the shield of legal provisions weakens public trust. Overall, the potential damage from keeping assets secret is much greater than the damage from disclosing them.

Therefore, keeping in mind the global trend of increasing judicial transparency, it is desirable to amend the legal provisions in Nepal and make the disclosure of judges' assets mandatory. While disclosing assets, special legal provisions can be made regarding the method of disclosure and the confidentiality to be maintained, considering the potential harm to judges. Similarly, separate provisions can be made regarding the methods and principles that the media must compulsorily follow when reporting on judges' assets.