IN refusing to issue interim orders on a petition challenging the legality of the Election Commission's ban on the publication of opinion poll and exit poll results between February 14 and 28 (Frontline, February 20), the Supreme Court has, in the reading of most experts, struck a blow against the assumption of arbitrary powers by a constitutionally empowered authority. The hearing has been adjourned untill the last week of March and will not influence media coverage of the ongoing election process.
The Supreme Court was dealing with a writ petition filed by R. Rajagopal, Editor of the Tamil magazine Nakkheeran. The Bench, comprising Chief Justice M.M. Punchhi, Justice B.N. Kripal and Justice M. Srinivasan, also had before it two petitions from the E.C., seeking the transfer of similar pleas that had been lodged with the High Courts of Delhi and Rajasthan. The petitioners in the Delhi High Court were Frontline and its Editor, N. Ram.
Anil Divan, counsel for Frontline's Editor, took the plea before the Supreme Court that the E.C.'s order was violative of the fundamental right of free expression guaranteed by Article 19(1)(a) of the Constitution. Although this right is not absolute, the grounds under which "reasonable restrictions" can be invoked under Article 19(2) are very specific and precise and laid down under eight heads. The publication of opinion poll and exit poll results in the print media did not fall within the scope of any of these defined grounds.
Neither was the E.C.'s case retrieved by recourse to Section 126 of the Representation of the People Act, 1951, contended Divan. Section 126 specifies certain restraints on public campaign activity in the 48-hour period preceding the closure of polls and has no application at all to any news media, certainly not the print media. The activities proscribed under Section 126 during the 48-hour window are clearly defined - campaign speeches and the depiction of cinematographic material and posters in a public area in the vicinity of polling stations being two illustrative instances.
Anil Divan asked for an interim stay on the application of the E.C.'s directive. In response, the court observed that there was a view that the publication of opinion poll results did exercise an influence on voter behaviour. But the court also declined to issue interim orders upholding the E.C.'s directive until the final disposal of the matter. It felt that such an order in the immediate context would tilt the argument too strongly towards the E.C.'s case. Either way, an interim order would be read as the prelude to a final pronouncement, which would hinder a full and dispassionate consideration of the issues at the appropriate time. Frontline has read the court's refusal to issue interim orders as a vindication of the status quo, which allows for no restraints on the print media's right to publish opinion poll and exit poll findings.
In a statement issued from Coimbatore, N. Ram said: "The press and the media are absolutely free to publish or disseminate the findings of both pre-election public opinion and exit polls without let or hindrance by the Election Commission."
Ram said that this reading was bolstered by consultations with legal experts: "Legal advice given to us by eminent counsel consequent to the hearing of the matter in the Supreme Court - by making it clear that the status quo is in favour of the press and the media, and not in favour of the Election Commission - powerfully vindicates the freedom of the press." The media were, in accordance with this reading, at liberty to publish "the results of both opinion polls and exit polls," consistent with their own "professional judgment" and without any "interference by the Election Commission."