Polls, the media and elections

THE Supreme Court's dismissal of the Election Commission's petition seeking a 'declaration' to enforce a 'ban' on the publication by the Indian news media of the findings of pre-election public opinion polls and exit polls for a full month (September 3 t o October 3, 1999) covering the general election process is an important practical triumph for the freedom of speech and expression. At another level, it is a setback to the authority of the Election Commission (E.C.), a constitutionally high body that h as made a tireless effort in recent years to expand its realm of jurisdiction in the system and bring new players and subjects under its effective regulation if not control. Given the adverse turn in the case, when it could not show any legal basis for h aving its banning 'guidelines' of January 21, 1998 and August 20, 1999 enforced against the media and the pollsters, the Election Commission was obliged to withdraw the controversial guidelines whose language was constructed in the style of an order and make the best of the situation by asserting, in a press note, that the "substantive" and "complex" issue of opinion and exit polls "in a poor and half-literate society, having multi-party democracy" needed to be debated by the country and the new Parliam ent "in a calm, post-election atmosphere".

Interestingly, the apex court chose not to go into the principal basis of the legal challenge to the E.C.'s banning guidelines - that they violated the "fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution" ( to quote from the original petition filed in the Delhi High Court in January 1998 by Frontline and its Editor against the Election Commission). Going into this issue in depth and coming up with a new benchmark on Article 19(1)(a) weighed against o ther considerations would have required intensive and prolonged hearings, but there can be little doubt that had the apex court elected to take the strenuous course and determine this issue definitively, the banning guidelines would have stood zero chanc e against the force of Article 19. After all, the Supreme Court of India has, over decades and with remarkable consistency, upheld freedom of the press as an integral part of freedom of speech and expression - putting it virtually on a par with the unass ailable First Amendment guarantee of freedom of the press in the Constitution of the United States. Article 19(2) of the Indian Constitution permits the imposition of "reasonable restrictions" on the fundamental right of free speech and expression on eig ht specified grounds and for no other reason. The eight grounds are: the sovereignty and integrity of India; the security of the State; friendly relations with foreign States; public order; decency or morality; contempt of Court; defamation; and inciteme nt to an offence. No justification for the banning guidelines cited in the E.C.'s case could have remotely approached the definition and test of a "reasonable restriction" on free speech and expression under these specified heads. It can be added that in the highly unlikely event of Parliament legislating the substance of the E.C.'s guidelines into a statute, that also will stand no chance against Article 19.

Unsurprisingly, the E.C.'s case in the Supreme Court faded away when it failed to rebut the objection that the guidelines were legally unsustainable "because there is no power or authority with the Election Commission to gag the media in this manner" (to quote again from the Frontline petition). To make up for the weakness of its case, the E.C. attempted to take the high ground, arguing essentially that its empowerment by Article 324 of the Constitution for the "superintendence, direction and con trol of elections" gave it wide powers that were more than adequate to issue these banning guidelines. The Constitution Bench that heard the matter made light of the contentions in favour of enforceability of the guidelines, calling attention to the abse nce of "any teeth" or legal basis for enforcement against "third parties" such as the media and the public (as distinct from political parties, candidates and state authorities involved in the conduct of elections). More interestingly, the Bench orally o bserved for the benefit of the E.C.: "At the end of the day, you may go with a perception that you have far less powers than the public perception."

ALL this should not detract from the excellence of the work done by the three-member Election Commission, which after all is conducting one of the wonders of the world, an Indian general election involving some 605 million eligible voters across wonderfu lly vast, diverse, varied and volatile circumstances. After the excesses of the Seshan era, the multi-member E.C. has not merely come to stay. Under the leadership of Dr. M.S. Gill, the Chief Election Commissioner, it has played an objective, fair, secul ar and eminently sensible role in the superintendence, direction and control of elections. It has intervened deftly and in time where warranted; guarded its independence and jurisdiction without making a song and dance about this; resisted improper attem pted encroachments (by those like the acting Governor of Bihar, who has seemed in need of lessons in elementary constitutional functioning vis-a-vis both the E.C. and the elected State government) without inviting public confrontations; shown cour age (as in deciding Bal Thackeray's disenfranchisement for a period on transparently just grounds) but avoided grandstanding; functioned as a team presiding over an election-conducting army of civilians that is without parallel anywhere else in the world ; and served as a force for public education in the values and modalities of elective democracy.

However, the sweeping attempt to give opinion and exit polls a bad name and to suggest that such exercises detract from the freedom of choice by citizens and the democratic process itself, especially given the mix of mass poverty, huge illiteracy and mul ti-party democracy, cannot be upheld. Opinion and exit polls and psephology, the fairly young discipline that attempts to study electoral behaviour scientifically, have over the past 15 years made a qualitatively impressive contribution to an understandi ng of the Indian political process. In general, they have raised the level of public awareness of the opinions and views of various sections of society on political parties, candidates and issues. At their best, when they are conducted honestly, transpar ently and on the basis of the principles of statistical science and a rigorous scientific methodology, polls can serve as an antidote to partisan propaganda and baseless claims made on various sides. The carefully qualified, nuanced and understated prese ntation and analysis of the results of a series of State-wise opinion polls by Dr. Prannoy Roy, a pioneer of Indian psephology, over several days on Star News prior to this thirteenth general election is an example of the insight-providing and educative role of scientific polling.

Dr. Gill and the E.C. are doing an important service to democracy when they criticise and object to the recent trend of abuse of opinion and exit polls for partisan political ends. A notable example of manipulative use of polling over the manipulated med ia is Doordarshan's suspiciously timed telecast of the results of a shoddily done exit poll; the telecast was a crude attempt to influence the electorate in favour of the BJP-led combine. Would government-controlled Doordarshan have telecast, in mid-gene ral election, the findings of an exit poll predicting victory for the Opposition? On the other hand, there is no need to exaggerate the direct impact of opinion and exit polls on mass voting behaviour. If there is a 'bandwagon' effect, there can also be a 'swimming-against-the-current' effect that energises those swimming against the political current to bring out their supporters in larger numbers and put up a more determined fight. In any case, under Indian conditions, the publication of opinion and e xit polls cannot make anything more than a small, if not marginal, difference to how the masses vote.

NEVERTHELESS, the time has come to challenge the authenticity, transparency and competence of several polls commissioned and presented by the non-official and official media in India. Most of these polls fail to provide the reader with the minimum disclo sure of technical and methodological information required by the code of conduct supposed to apply both to polling agencies and the news publications using their services. (Going by the record available in print and on television, a number of poll analys ts and learned commentators do not care, or seem unable, to distinguish between per cent and percentage points while discussing shares of the popular vote, swings, and comparative electoral performance.) Then there is a distinctive problem posed by a first-past-the-post system under conditions of tremendous electoral diversity, unevenness and complexity - the problem of converting shares of the popular vote into seats while making predictions. Most seat predictions made by pollsters for In dian elections have nothing to do with statistical science and represent only plausible guesswork at best; with tall claims made and the methodology and formulae of share-of-the-vote to seat conversion unacceptably sought to be passed off as trade secret , such exercises often degenerate into pseudo-academic sharp practice.

What is required is a balanced and progressive attitude to polling and psephology, which is able to see the advantages they offer in providing relevant public information and raising public awareness in a democracy and also their limitations and the pote ntial for abuse. The E.C. has erred in forming a one-sided, almost dogmatic opinion on the role of opinion and exit polls, seeing mainly the potential for, and the recent trends of, misuse; it has also tended to go beyond its jurisdiction and attempt dra stic 'corrective' action that, on the one hand, conflicts with the constitutionally protected freedom of the media and, on the other, virtually abolishes close-to-the-election polling in India. If the E.C. changes its approach and converts its wholesale hostility to opinion and exit polling into a concretised moral campaign among the public against the manipulative and dishonest use of polling and against professional and media malpractice, it is likely to get a lot of intellectual and popular support.