The purpose of this directive, particularly the call to dissemination, is to empower voters with information about candidates as the "people have a right to know and such right is included in the right to franchise." The Election Commission (EC) now has the solemn duty to judiciously and effectively implement both the letter and intent of the judgment in order to help citizens make an informed choice. This offers an acid test for the EC.

The Indian experience
The Indian Election Commission faced a similar test in 2002, and we can learn important lessons from their experiences. On May 2, 2002, the Supreme Court of India, in Union of India vs Association of Democratic Reforms and Another (Civil Appeal No. 7178 of 2001), directed the EC to get from each candidate seeking election to Parliament or state legislature, as a necessary part of his/her nomination paper, the following information: (a) any convictions/acquit-tals/discharges for any past criminal offences, and details of any punishment with imprisonment or fine; (b) details of any pending case against the candidate for any offence, occurring prior to six months of filing the nomination, of which charge is framed or cognisance is taken by the court of law, and which is punishable with imprisonment for two years or more; (c) the assets (immovable, movable, bank balances etc.) of the candidate, of his/her spouse, and that of dependents; (d) liabilities, if any, particularly any existing past dues of any public financial institutions or government dues; and (e) the educational qualifications of the candidate.

In order to expeditiously implement the directives, the EC asked the Indian Ministry of Law, Justice and Company Affairs on May 14, 2002 to amend the nomination forms (Forms 2A to 2E), which are part of the Conduct of Election Rules 1961. On June 19, 2002, the Ministry wrote back to inform the EC that it had convened an all-party meeting on July 8, and asked the Commission to seek from the Supreme Court a two-month extension of the time limit on the implementation of the Court order. The EC replied on June 21, 2002, stating that the government should seek the extension, if it considered one necessary.

In the absence of any extension from the Court, the EC issued on June 28, 2002 a 5-page order, the directive portion of which reads as: "(1) Every candidate at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to all the five matters, specified by the Hon'ble Supreme Court ... in affidavit, the format whereof is annexed hereto ... (2) The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned. (3) Non-furnishing of the affidavit by any candidate shall be considered to be a violation of the order of the Hon'ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nomination for such non-furnishing of the affidavit.

(4) Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him: Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summary inquiry conducted by him at the time of scrutiny of nominations under section 36(2) of the Representation of the People Act 1951, and only the information so verified shall be taken into account by him for further consideration of the question whether the same is a defect of substantial character.

(5) The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media. (6) If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above." This order was later modified following the final Supreme Court judgment given in March 2003.

The EC posted the affidavits submitted by candidates on its website. More importantly, it has strictly enforced its own order. For example, during the last Rajya Sabha election in Uttar Pradesh, the nomination papers of two upper-house Congress candidates were rejected for non-submission of affidavits, and the opposition BJP candidates were declared elected unopposed.

The challenge for our Election Commission
Though the Indian Supreme Court judgment did not clearly outline any punishment for non-compliance, the Indian Election Commission specified on its own the punishment in the form of rejection of the nomination paper for non-submission of the affidavit. Similar punishment was also specified for furnishing wrong or incomplete information, or for the suppression of any material information by any candidate in the affidavit, which the returning officer could easily verify. In addition, it created the provision for submitting counter-affidavits by opponents. The EC quoted the 2002 Supreme Court judgment as rationale behind this bold and assertive stand: "The limitation of the plenary character of power is when the Parliament or state legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, art. 324 (of the Indian Constitution) is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge for time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions Commission can fill the vacuum till there is legislation on the subject."

We have a similar constitutional provision relating to the power and functions of the Election Commission. Article 119 of our Constitution is similar to that of Article 324 of the Indian Constitution, and it gives the Commission the plenary power of superintendence, direction and control for holding free, fair and transparent elections. Our Supreme Court, in Altaf Hussain vs Abul Kashem (45DLR(AD)(1993)), contended that "the Election Commission's inherent power under the provision of 'superintendence, control and direction' should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair elections." The recent judgment of our High Court is also similar to the judgment pronounced on May 2002 by the Indian Supreme Court, and the judgment has the force of law under Article 111 of our Constitution. Will our Election Commission now show similar courage and will?

To date our Election Commission has not demonstrated much assertiveness in the implementation of the High Court judgment. Rather, its action so far in this respect has been feeble at best. On June 18, 2005, it issued a very brief special circular to the DC, Sunamganj, who is the returning officer for the by-election in Sunamganj-3 constituency. The circular states: In view of the Writ Petition No. 2561/2005 submitted before it, the Honourable High Court Division of the Supreme Court, on May 24, 2005, issued certain directives requiring disclosures of various information by candidates in national assembly elections. The copy of the judgment of the Honourable Court is enclosed as Annexure-A. The affidavit containing various information to be submitted by candidates is enclosed as Annexure-B. Candidates will submit various information in affidavits to the returning officer, along with their nomination papers. Arrangements must be made for the dissemination of the above information through the media for informing the voters. You are requested to take action to implement the directives of the Honourable Court. (English rendering).

Unlike the order of the Indian Elections, the above circular is meek in tone and weak in content. I hope our EC will do better in the future and show its assertiveness and will to properly and effectively implement the High Court judgment. For, the judgment opens a window of opportunity to de-criminalise our politics and to create a real possibility for honest, competent and dedicated individuals -- individuals dedicated to public service -- to come to state power. Only such a change may pave the way for establishing a true democratic system, people's rule, in our country, and hence usher in a better future for us all.

Dr. Badiul Alam Majumdar is Global Vice President and Country Director, The Hunger Project Bangladesh