In a landmark judgment in Amarnath Chawla's case (1975), the Supreme Court set aside a candidate's election for his exceeding the prescribed expenditure. The court held that, if a political party incurred expenditure for the election of its candidate, he authorised it and could not escape the rigours of the law prescribing a ceiling on the expenditure by saying that not he but his party had violated it. The apex court warned the political parties: ``If the political party does not want the candidate to incur the disqualification,it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of its candidates. The same proposition holds in the case of expenditure incurred by friends and supporters directly in connection with the election of the candidate.''

Excluded, thus, was only expenditure on general propaganda by parties. The same is the position in the UK, but with the addition of a deterrent provision: the filing of a false declaration by a candidate is a criminal offence there.

Unfortunately, within 20 days, this correct interpretation of law was nullified by an ordinance. An Explanation-I was introduced in Section 77, by which any ``expenditure incurred in connection with the election of a candidate by political parties, associations or by any individual shall not be treated as expenditure by the candidate''. A loophole was, thus, created to circumvent the ceiling on expenditure. This `explanation' not only permitted but encouraged and legitimised the influence of bigmoney in elections. This, coupled with the fact that the political parties were not obliged to maintain accounts of the receipts and expenditure, resulted in an alarming increase in the corrupting influence of money power.

Significantly, a draft amendment Bill was prepared in 1990 on the basis of the consensus of all the political parties on deleting this `explanation' and on other changes like disallowing a candidate to stand from more than two constituencies. But this Bill lapsed because of the premature dissolution of the Lok Sabha.

In C.K. Jaffar Sharief's case (1994), where his election was challenged for exceeding the prescribed expenditure, the Supreme Court observed: ``As the law stands in India today, anybody including a smuggler, criminal or any other anti-social element may spend any amount over the election of any candidate in whom such a person is interested for which no account is maintained....At the same time, it cannot be accepted that such amounts should come from hidden sources whichare not available for public scrutiny...If the call for `purity in elections' is not to be reduced to lip-service or a slogan, then persons investing funds in furtherance of the prospect of the election of a candidate must be identified and located. The candidate should not be allowed to plead ignorance about the persons who made contributions and investment for the success of the candidate concerned at the election. But this has to be taken care of by Parliament.''

Again, in Gadak's case (1994), after narrating the adverse effect of money power in impairing the purity of elections, the Supreme Court candidly stated: ``This growing influence of money power has also the effect of criminalisation of politics.'' The court noted that the `explanation' made the ceiling on expenditure a ``mere eyewash', leaving no check on election expenses as envisaged in the provision enacted to further the objective of a meaningful democracy.

The apex court strongly urged Parliament to plug this lacuna in the law, ``lest theimpression is reinforced that its retention is deliberate for the convenience of everyone. If this be not feasible, it may be advisable to omit the provision to prevent the resort to indirect methods for its circumvention and subversion of the law, accepting without any qualm the role of money power in the elections. This provision has ceased to be even a fig-leaf to hide the reality''.

The need to maintain accounts showing the sources of income and expenditure for political parties was emphasised by the Supreme Court in 1995 in Gunjan Bapat's case as a measure to protect the purity of elections from money power. The court directed Parliament to intervene in the matter. In 1996, several of the provisions of the 1990 Bill were enacted. However, the advice of the Supreme Court to delete the `explanation' and compel political parties to maintain accounts, in order to remove the root-causes of abuse of money power and consequent criminalisation of politics, went unheeded.

The Law Commission, in its recentreport on electoral reforms, has also recommended these amendments. Besides, it has suggested that, when a person is disqualified for corrupt practice, the Election Commission should not have the power to reduce the six-year period of disqualification. If effective enforcement of the ceiling on expenditure is necessary to maintain the purity of elections, it is not enough to disqualify for six years on the ground of a corrupt electoral practice only a winning candidate. Provision should be made to disqualify any candidate, whether he wins or loses, on such grounds. Otherwise, a loser would be able to stand for election held after five years while the winner, who is disqualified, would be barred.

The corrupt practice of exceeding the ceiling on expenditure is qualitatively different from other corrupt practices mentioned in Section 123 of the RP Act such as bribery and appeal on the ground of religion or caste. In the latter case, a one-time act is enough to attract disqualification while, in the formercase, spending money is allowed and becomes a corrupt practice only when the ceiling is exceeded. Therefore, in deciding corrupt practices, a uniform rule of evidence that applies the standard of criminal law for all cases of such practices is not correct. In cases of expenditure exceeding the prescribed limit, it is the standard of proof in civil law that should be applied.

The Law Commission has also pointed out that, in seminars held by it, all major parties and participating lawyers and opinion-makers voiced grave concern about the alarming influence of money power in elections and agreed on the pressing need to curb it. Amendments to the election law, thus, brook no delay. It is hoped that the Vajpayee government and the Opposition will enact them an save democracy from becoming a handmaid of moneybags.

The writer is member, Law Commission