Questionable restrictions

The Election Commission's "Guidelines" to the media seem to run foul of the fundamental right to freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution.

IN an unprecedented decision, the Election Commission issued on January 21 guidelines purporting to ban the dissemination in the media of information on the results of pre-election opinion and exit polls. The ban will be effective for 14 days from February 14. For exit polls, the ban will apply for 12 days from February 16, the day polling begins. The Commission has made a sweeping assertion, as explained in its press note, that such dissemination, "particularly on the eve of polls or when the polling process is still in progress, has the potential to influence the electors when they are in the mental process of making up their minds to vote or not to vote for a certain political party or a candidate."

The Commission took the decision after all major political parties, with the exception of the Samata Party, favoured certain restrictions on the conduct of such polls and more particularly on the dissemination of their results. The Congress(I) urged the Commission to impose a ban right from the date of the notification of elections. The BJP, on the other hand, favoured the imposition of a ban during the 72 hours preceding the conclusion of the poll. The Janata Dal and the Left parties too endorsed the proposal. Almost all parties pleaded that the results of exit polls, even if permitted, should in no way come out before polling was completed in all the constituencies.

The Commission mainly relied on the provisions of Sections 126 of the Representation of the People Act, 1951, as amended by the Representation of the People (Amendment) Act, 1996, to support its view that the voter needs a period of at least 48 hours before the completion of the poll, during which he or she should not be "disturbed in the process of weighing the merits and demerits of political parties and contesting candidates in the electoral fray, in a tranquil and balanced frame of mind."

In particular, the Commission seems to have assumed that the rights of the electorate (that is, the right not to be disturbed while deciding which party to vote for) are incompatible with the "freedom of speech and expression" guaranteed in Article 19 (1)(a) of the Constitution, from which the freedom of the press is derived. Implicit in the Commission's reasoning is the suspicion that the media might render the exercise of free and fair franchise difficult if allowed to disseminate the results of these polls as and when they found them newsworthy.

The "Guidelines" require agencies conducting pre-election opinion and exit polls to indicate the sample size of the electorate covered and the geographic spread of the survey. "They must invariably give the details of methodology followed, likely percentage of errors, the professional background and experience of the organisation or organisations and the key professionals involved in the conduct and analysis of the poll," the Commission noted.

During the 1996 elections, the media were free to publish and disseminate the results of opinion polls even within the 48 hours preceding the conclusion of polls. However, the Commission permitted exit poll results to be disseminated only after the conclusion of polls in all the phases. The Commission spokesperson claimed that the Commission's recent directive would only impose an effective ban on the dissemination of opinion poll results during the 34 hours prior to the first phase of polling, as the 48 hours requirement should be calculated from the conclusion of polling in the first phase. Thus the ban will be effective from the evening of February 14, when the candidates have to stop their public campaign.

The Commission appears to have overlooked the fact that Section 126 (1)(b) of the Representation of the People Act, 1951, which has been invoked to justify its decision, does not apply to the print media by any stretch of the imagination. Among other things, that section prohibits within a polling area or constituency apart from holding, convening or addressing any public meeting, "display to the public (of) any election matter by means of cinematograph, television or other similar apparatus", during the period of 48 hours ending with the hour fixed for the conclusion of the poll. For a contravention, the section imposes a punishment of imprisonment up to two years or with fine or with both.

The thrust of the amended Section 126 of the Representation of the People Act, 1951 is to prevent any public meeting or public campaigning in the constituency for a period of 48 hours ending with the conclusion of the poll. 126 (1)(a) prohibits convening, holding, attending, joining or addressing any public meeting or procession in connection with an election during this sensitive period. 126 (1)(c) prohibits the propagation of any election matter to the public by holding, or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the 48 hours before the conclusion of the poll."

"Election matter" has been defined in Section 126 as "any matter intended or calculated to influence or affect the result of an election." It is unclear how the telecast or publication of pre-election opinion or exit poll results during those 48 hours could violate the provisions of the Act. The Commission's imperative, coming in the guise of "Guidelines" to the media, seems to run directly foul of the fundamental right of freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution. Article 19(2) permits the state to impose by law "reasonable restrictions" on freedom of speech and expression on eight and only eight specified grounds. They are the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence. Holding "free and fair elections" as interpreted by the Commission is self-evidently not a ground for imposing, by law or otherwise, any kind of "reasonable restriction" on the fundamental right guaranteed in Article 19(1)(a).

The Commission thus has not considered the view that information on how other persons and other sections of society think and feel about candidates, political parties and issues could be a valuable input into the voter's decision. In other words, the dissemination of such information at any point of time could only be an instrument of education of the electorate. There is no evidence at all to show that the publication of pre-election opinion or exit polls at any time close to an election in India influences voters unfairly or even significantly. The Commission cites in a vague way, the examples of Canada, France, Italy, Poland, Turkey, Argentina, Brazil, Colombia and so on, where some sort of restrictions are placed on the conduct of pre-election opinion polls and exit polls. The citation is blatantly selective: it leaves out the major cases of the United States and the United Kingdom where no legal restrictions have even been contemplated.

Although the Commission has cited the Press Council of India's moral endorsement of such restrictions, there has been no interaction between them and the media on this issue. Both the Election Commission and the Press Council Chairman, in their public pronouncements, have done less than justice to the fairly creditable track record of pre-election public opinion surveys and exit polls. For indicative, predictive and explanatory value, they have been consistently at a higher level than the hack or speculative journalistic analysis, which has long made play with demonstrably sound assumptions or presumptions about vote banks, caste and community-based voting and so on. There is scope for improving and refining these polls. There is a need to be more honest about presenting to the reader or viewer the methodology and limitations - to follow the code of conduct laid down for polling organisations publishing the results of public opinion surveys and exit polls.

The Commission has advanced the date of counting of votes from March 8 to March 2, thus fulfilling the demand of most parties, which were unhappy with the Commission's original schedule deferring the counting of votes till the elections to the three Lok Sabha seats in Kashmir are over on March 8. The Commission has also authorised 1,800 Election Observers to stop counting if they found that the elections were vitiated.