Half a century ago, Nehru showed the way how to deal with it politically. He is said to have led the first Parliament to expel H.G. Mudgal for his dealings with the Bombay Bullion Association, which included canvassing support for it in Parliament in return for some alleged financial and other business advantages. After Nehru, no such thing happened in India. As a result, political parties now have no compunction to send business magnates to Parliament. The latest fad, as seen from recent elections in India, indicates that there is a competition between major parties to nominate superstars of Bollywood. They have the money power if not the muscle power. Their muscle power is limited to the films that are exhibited.

Judicial scrutiny of electoral process
In India, the voters' right to information about a candidate seeking elections has gone through considerable judicial, if not legislative, scrutiny. At present, electoral law permits a candidate to contest elections even though he or she may be charge-sheeted for serious crimes. Sitting members of legislatures can remain in office until their appeal is finally disposed of.

In a good number of cases starting from 1978 to 1997, the higher judiciary in India has emphasised the need for disclosure of antecedents to stop persons with criminal antecedents being elected to legislatures, thereby maintain the integrity of the electoral process. Thus Justice Krishna Iyer in Gill's case (1978) spoke of fair elections being hijacked by "mob muscle methods and subtle perversions." All such verdicts basically tried to uphold the authority of the Election Commission (EC) in the matter of ensuring a free and fair election. The Symbols Order case (1985) and the Electronic Voting case (1985) are such examples. In the Common Cause case (1996), the Supreme Court judicially noticed that the political parties spend over Rs. 1,000 crores on elections and that "nobody discloses the source of money." The Court reminded the EC that it had the power to preserve the purity of elections. In the Vohra Committee case (1997), the Court noted the nexus between money, muscle, and power at all levels of governance. Still, the EC did not act until May 28, 2002, following a verdict by the Delhi High Court about the voters' right to know the criminal antecedents and assets of candidates seeking elections.

The voters' right to know
The Delhi High Court gave detailed instructions on the right of an Indian voter to know full details about the persons who stand for elections. The verdict so given is said to have been placed on a firmer foundation by the Supreme Court. In 1999 the Association for Democratic Reforms filed a Writ Petition to the Delhi High Court seeking a directive to the EC to disclose the criminal antecedents, and assets and liabilities of candidates contesting elections to the Parliament and State Legislatures. On November 2, 2000, the Delhi High Court, while allowing the above petition, held that disclosure of this information was also obligated by Article 19 (1) (a) of the Indian Constitution, which gave citizens the right to freedom of speech and expression and hence the right to information. The Union of India went in appeal against this judgement.

The Supreme Court in its landmark judgment on May 2002 held that the persons contesting Parliament and Assembly elections should file a sworn affidavit along with the nomination papers. containing information about their financial assets and liabilities and criminal antecedents, if any. The elections to the Assemblies of Delhi, Madhya Pradesh, Chattisgarh, Rajastan, and Mizoram were held under this new dispensation.

The Court verdict elicited a rare show of unity of 21 political parties at an all party meeting on July 8, 2002. They opposed the order given by the EC requiring the candidates to provide information in light of the Court verdict which included, among others, disclosure of criminal records. Although the EC was merely implementing the instructions contained in the Court verdict, the politicians felt that it was an intrusion into legislative area. They argued that the Parliament was supreme and had the exclusive right to alter the terms and conditions for contesting elections by amending the Representation of People's Act, 1951.

An assertive EC
It was not easy for the EC to start the implementation of the Court verdict. The Indian government is said to have played a hide and seek game much on the lines of a Tom and Jerry cartoon.

The EC wrote to the government on May 14, to amend relevant forms of nominations and also sent draft for revised forms. The government replied on June 19 saying that (a) the Law Ministry was considering the matter, (b) an all-party meeting was being convened on the issue on July 8, and (c) the EC should approach the Supreme Court for an extension of the two-months implementation period. Within two days i.e. on June 21, the EC replied back saying that it was for the government to approach the Supreme Court for the extension proposed. On May 28, the EC issued the final order on revised forms.

The order required each candidate to furnish information to the Returning Officer on (a) past criminal convictions, (b) pending criminal cases carrying convictions of more than two years, (c) assets, (d) liabilities (especially public dues), and (e) educational qualifications.

The Court verdict on disclosure, it is said, has not involved any legal change. All that the Court has ordered is to interpret, in an expansive manner, the authority of the EC to take actions in the interest of fair elections that allow the voters' right to information and choose candidates.

The above developments relating to electoral reform process has opened up and perhaps partly settled a number of issues. First, if the Parliament declines to enact electoral law to ensure a diminishing influence of money and muscle power in elections, will it not be the duty of the EC to make rules for the purpose. Second, in the absence of legislation in essential areas, and if it is necessary to preserve the integrity of the electoral process, the EC has a constitutional obligation to devise means to achieve the same. Third, whether Parliament can sit in judgment over the directions given by the Court. Fourth, whether it is in the interest of good governance for Parliament to transgress into the inherent powers of the EC.

Bangladesh case
Money and muscle power are at all levels of governance in Bangladesh. This is what many civil society organizations (CSOs), conscious citizens, and some political parties with leftist leanings have been articulating during the last one decade or so. Unlike in India, this has never formed the subject of Parliamentary discussions. Its deleterious effect on free and fair elections has also not been subjected to judicial scrutiny.

Our law relating to disclosure is similar to that of India. There is no need for disclosure of criminal records, assets and liabilities, etc. Unlike in India, there has not been any public interest litigation that enabled the higher judiciary to intervene. However, as discussions in some electronic media indicate, a number of CSOs have taken the initiative to ask candidates to face their electorate with such disclosure. At least this is what these CSOs have claimed to have done during the recently held municipal elections. This is a good initiative, but there is need to formalise the requirement, not by rewriting the law, which may be resisted by interested political parties. Perhaps this can be given formal shape through a Court verdict provided there is a writ in public interest.

In this context, it is relevant to mention that in Bangladesh case the public dues issue is limited to banks. It does not include public dues such as unpaid utility bills. The recent disclosure in the press about Tk. 80 million arrears of telephone bills of many of our lawmakers underscores the need for action in this regard. Unpaid bills in case of lawmakers do not lead to disconnections of telephone lines. In case of other citizens, it does. This is discriminatory and needs serious attention because it is violative of the non-discriminatory clause of our Constitution.

Dhaka by-poll
The uncertainties surrounding the Dhaka by-poll were set at rest by the timely and speedy intervention from the Supreme Court (both the divisions) in the symbol allocation case. However, pre-poll violence continues to be reported that exemplifies the application of muscle power over which the EC has little control. EC has, however, requested the government to ensure the safety and security of Major (Retd) Abdul Mannan, the contesting candidate from Bikalpa Dhara who was earlier denied the symbol of his party, that led to the writ petition in High Court. He and his supporters are said to be under constant threat from the activists of another party. It is highly damaging to the integrity of the electoral process. How and to what extent the existing electoral law needs to be amended remain a major area of concern. Whether it should be left to the domain of the executive is a question that remains unanswered.

AMM Shawkat Ali is a former Secretary, Ministry of Agriculture.