The nation has to thank a group of professors at the Indian Institutes of Management for this. Disgusted with our politics, they formed the Association of Democratic Reforms, led by Prof Jagdeep S Chhokar. In December 1999, the Association for Democratic Reforms (ADR) filed a public interest litigation in the Delhi High Court requesting the Court to direct the Election Commission to:

1. Amend the nomination form which a candidate has to fill for contesting an election, so that it asks the candidate whether there are any criminal cases pending against him/her at the time of filing the nomination; and if there are, to provide details of such cases. It was believed that this could be done under the Conduct of Election Rules without the need to amend any laws and therefore Parliament need not come into the picture.
2. Collate the above information provided by the candidates and make it available to the public on request, and to the print and electronic media for wide dissemination.
   

The petition was guided by the following:

1. A voter interested in finding out whether there are any criminal cases pending against any of the candidates in her/his constituency, should be able to get this information without much difficulty.
2. There was, and still is, a firm belief in a voter's right to choose whichever candidate s/he wants to vote for. After finding out the above information, in case one wants to find it out, if a voter still wants to vote for a particular candidate who may have several criminal cases pending against him/her, that choice of the voter must be respected.
   

On November 2, 2000, the Delhi High Court gave its judgment (in CWP No. 7257 of 1999 - Association for Democratic Reforms Vs Union of India and another) upholding the petition. The High Court also said that the Election Commission (EC) must gather information on candidates, assess their suitability for holding public office and widely publicize it. It directed the EC to use the police, IB and other agencies of the Government to gather this information.

In January 2001, the Government of India formally appealed against the judgment in the Supreme Court. Several political parties became interveners to the case. On May 2, 2002, the Supreme Court passed a landmark and historic judgment (in Civil Appeal No. 7178 of 2001 - Union of India Vs Association for Democratic Reforms). It said "The Election Commission is directed to call for information on affidavit by issuing necessary orders in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or State Legislature as a necessary part of his nomination paper, furnishing therein, information on the (five) aspects in relation to his/her candidature…"

The Supreme Court directed the Election Commission to call for the following information from candidates:

1. " Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past, if any, whether he is punished with imprisonment or fine?
2. Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.
3. The assets (immovable, movable, bank balances etc) of a candidate and of his/her spouse and that of dependants.
4. Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.
5. The educational qualifications of the candidate."

It is important to note that the judgment asked for disclosure of information and not for disqualification of candidates. The Court gave two months to the ECI to issue "appropriate directions" to implement the judgment.

The EC wrote to the Government to amend the Conduct of Election Rules to implement the judgment. The Government responded by asking the EC to seek more time from the Court. When it became clear that the Government would not amend the rules, the EC issued directives on June 28, 2002 fully implementing the judgment.

This seemed to create a flutter in the entire political establishment. In the all party meeting on July 8, 2002, twenty-one political parties representing the entire political spectrum, in a rare show of complete unanimity, decided that the Supreme Court judgment and the Election Commission's order could not be allowed to be implemented. The all party meeting unanimously decided to introduce a Bill in the monsoon session of parliament to appropriately amend the Representation of People Act, to prevent implementation of the Supreme Court judgment and Election Commission's order.

With remarkable and almost unprecedented alacrity, the Law Ministry drafted a Bill for amending the Representation of People Act and circulated it amongst political parties on July 15, 2002 asking for their comments with the specific intention of introducing and getting the Bill passed in the monsoon session of parliament.

Several provisions of the Bill created doubts about whether the Bill was really intended to reform the electoral system or to prevent any improvement of the system.

The Bill proposed that "a person against whom charges has been framed in two separate criminal proceedings concerning heinous offences. at least six months prior" to the filing of the nomination paper, will be disqualified. Heinous offences specified in the draft Bill included murder, rape, kidnapping or abducting in order to murder or for ransom, dacoity and dacoity with murder, waging war against government of India. One failed to understand "Why is it that a person with one heinous crime is suitable to become a law maker, and committing a murder or rape three or five months before filing the nomination is not serious enough?"
Another issue worth consideration was : "Shouldn't the voters know if candidates seeking their votes have been involved in white-collar, financial crimes such as embezzlement of crores of public funds?"

Arguably the most significant provision in the draft Bill was one which maintained that "no candidate shall be liable to disclose or furnish any information which is not required to be disclosed [under the proposed bill]. Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission." It was clear from it that while talking about disqualification, the draft bill appeared to be against disclosure. The reason for this apparent aversion to disclosure was not hard to seek. It was mentioned that the amendments to the Representation of the People Act proposed in the draft Bill "shall be deemed to have come into force on the 2nd day of May, 2002". It was not a mere coincidence that the "2nd day of May, 2002" also happened to be the day when the Supreme Court judgment was delivered.

While the alacrity shown by political parties and the government to deal with what has been projected as judicial interference in legislative matters was commendable, what seemed to have been lost sight of was that Supreme Court had no intention whatsoever to interfere in legislative matters. It was clear from a reading of the Supreme Court judgment in which the Court had explicitly accepted that only the legislature could make laws. The Court however had also said that "if the field meant for legislature and executive is left unoccupied detrimental to public interest, this Court [has] ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest." The Supreme Court also said that what it was doing was "to fill the void, in the absence of suitable legislation" pending action by the legislature. The court had held that it was a "constitutional obligation" of the Supreme Court as well as the Election Commission "to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field". The Supreme Court had also acted in accordance with the voters' right to information, observing that "the voters are required to be well informed and educated about contesting candidates so that they can elect proper candidates by their own assessment".

It needs to be reiterated that the judgment wais not about disqualifying people from contesting elections, it was about disclosure of the criminal back-ground of the candidates, if any. The Supreme Court judgment and the order of the Election Commission required that the candidates wanting to contest elections for Parliament and State Assemblies declare, by way of an affidavit to be filed along with the nomination paper, details of criminal cases pending against them, if any; their assets and liabilities including those of their dependents; and their educational qualifications. This information was to be made available to voters to enable them to make an informed choice while casting their votes. Neither the Supreme Court judgment nor the Election Commission's order said that any candidate will be disqualified just on the basis of the information provided on the affidavit so long as the information provided was correct. Voters would have the freedom to vote for a candidate with a criminal record if they decide to do so.

The Bill was not introduced in the monsoon session of 2002, perhaps due to the petrol pump scam and the subsequent stalling of Parliament. An Ordinance was drafted for the President to sign.

Various citizens' groups met the President to inform him that the Ordinance seemed unconstitutional and he should consider returning it. On August 22, 2002, the President returned the Ordinance to the Cabinet. On August 23 the Cabinet met and decided to send the Ordinance as it was to the President. On August 24 the President signed the new Ordinance

Three PILs were filed in the Supreme Court challenging the Ordinance. In its March 13, 2003 judgment, the Supreme Court declared that "… the Amended Act is held to be illegal, null and void." It restored the earlier judgment of May 2, 2002 judgment, and also declared that the judgment "has attained finality".

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