Law has reached its finest moments when it has freed men from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded, at times his privacy, at times, his liberty of movement, at times, his freedom of thought, at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of mans other inventions.
United States vs Wunderlick 342 U.S. 98 (1951).
JUSTICE William Douglas inspiring words come to mind as one reflects on the colossal abuse of power by a constitutional authority, the Election Commission of India, and a statutory body, the Press Council of India (PCI), to muzzle the press, violate the citizens right to know and make a mockery of the rule of law.
It is, perhaps, unfair to blame the Press Council itself; for, the record reveals that its Chairman of the day and a former Judge of the Supreme Court, Justice P.B. Sawant, used the Council to promote his prejudices. The Election Commission admitted that its ban on pre-election surveys and exit polls was imposed at his instance. His record on the Bench was, to put it mildly, undistinguished. His record on the PCI was disastrous. Sample this remark by Justice Sawant on February 15, 1998: Nine out of ten reports of atrocities by the Army are motivated and insinuated [sic]. Some of them are by NGOs [non-governmental organisations] as they want to satisfy their foreign masters by denigrating the Army.
Justice Sawant had held no inquiry into human rights violations; yet, he pronounced on reports concerning them readily and with remarkable precision of statistics nine out of 10 reports. It was a reckless falsehood delivered with wilful disregard for the truth. The law of libel brackets such statements with deliberate lies. His aspersion on the integrity of NGOs fully qualifies to be branded as such. He had made no inquiry concerning the NGOs, either.
All of it reflects a world view, a mindset, which should render the person unfit to be on the Bench and, certainly, as Chairman of the PCI. It is necessary to dilate on this distasteful aspect for three good reasons. It led to a monumental wrong to the citizen and to the press, which the United States Supreme Court called surrogates for the public (Richmond Newspapers Inc. vs Virginia 448 US 555 (1980)).
Secondly, it reveals the frailty of checks on abuse of power; thirdly, the quality of the medias oversight on an abuse of power that lasted for over a decade in the Lok Sabha elections of 1998, 1999, 2004 and 2009.
Justice Sawant had nailed his colours to the mast as early as on December 15, 1997, in a speech that was as reckless as his comments on atrocities and NGOs. It was fully reported by the Press Trust of India (The Hindu, December 16, 1997). He and the E.C. could have been stopped in their tracks then if only the media had united in protest. Here are some gems from his speech: In a bid to prevent newspapers from playing a partisan, communalist and casteist role in the Lok Sabha elections, the Press Council of India [PCI] will appoint observers all over the country to strictly monitor publication of poll-related reports and surveys. It is not for the PCI but for the reader to be judge of these lapses. Then: The PCI Chairman, Mr. Justice P.B. Sawant, said today that at least one observer would be appointed for each State very soon to ensure that newspapers do not allow their fora to be used for distortion and manipulation of the elections, particularly through pre-poll surveys. No newspaper should publish exit-poll surveys, however genuine they may be, till the last of the polls is over, Mr. Sawant said, adding the PCI would urge the Election Commission to enforce the councils guidelines. Asked about news reports in the pre-poll period, Mr. Sawant said newspapers should refrain from publishing advertisements in the form of reports, promoting or denigrating any candidate or political party and propagating any ideology. Mr. Sawant said big and medium newspapers played more or less a fair role adhering to the set guidelines.
He said the problem is mainly with small and local level newspapers most of which virtually lease themselves to various political parties and candidates. They even publish advertisements in the form of reports to circumvent the law on election expenditure.
He said the Election Commission should issue a sort of warning to the voters asking them not to blindly believe the findings of pre-poll surveys, while action must be taken against the newspapers publishing exit-poll surveys contrary to the PCIs guidelines.
Replying to a question, Mr. Sawant said similar guidelines should also be laid down by the Election Commission for the election coverage by the electronic media. Asked whether the PCI needs added teeth to become more effective, he said the Council has already sought the power to penalise the newspapers which fail to comply with its directives. (Emphasis added, throughout.) The sweeping attack on small and local level newspapers would disgrace anyone. From the PCI Chairman, it was scandalous.
The outlook is bared for all to see. The PCI will act as nanny to protect the gullible voter. He would enlist the E.C. as an accomplice in this venture to ask the voters not to blindly believe the findings of poll surveys. He knew that the Press Council of India Act, 1966, gave the PCI no power to impose penalties, yet he threatened action against anyone who broke its guidelines. All in all, it reflected a fear of democracy.
One is not sure whether those guidelines were adopted by the Press Council itself after a full debate. An application under the Right to Information Act alone can reveal the truth. Let us turn to the guidelines that he talked about. They were entitled Guidelines on Pre-Poll and Exit-Polls Survey.
It is painful to find that 50 years after Independence, and after two centuries, the press needed this insulting admonition from a body whose job was to protect the freedom of the press: The newspapers should not allow their forum to be used for distortions and manipulations of the elections and should not allow themselves to be exploited by the interested parties.
The Press Council, therefore, advises that in view of the crucial position occupied by the electoral process in a representative democracy like ours, the newspapers should be on guard against their precious forum being used for distortions and manipulations of the elections. This has become necessary to emphasise today since the print media is sought to be increasingly exploited by the interested individuals and groups to misguide and mislead the unwary voters by subtle and not so subtle propaganda on casteist, religious and ethnic basis as well as by the use of sophisticated means like the alleged pre-poll surveys. The surveys are bracketed with religious propaganda.
This is not judicial language. It is a political tirade. The press is run by editors and their colleagues at the desk and in the field, who needed no lessons in independence from a man who had failed dismally to live up to their expectations. So had the PCI. The PCI caved in during the Emergency. In 1990, its Chairman opposed a law on right to information. The reader is able to detect plants in the press. He needs no lessons from the PCI. Will the concern for plants prompt surveys of planted stories in the press by the PCI? There follows advice which does merit consideration. The Press Council, therefore, suggests that whenever the newspapers publish pre-poll surveys, they should take care to preface them conspicuously by indicating the institutions which have carried such surveys, the individuals and organisations which have commissioned the surveys, the size and nature of sample selected, the method of selection of the sample for the findings and the possible margin of error in the findings.
It spoke next of exit-poll surveys. This is likely to influence the voters where the polling is yet to commence. With a view to ensuring that the electoral process is kept pure and the voters minds are not influenced by any external factors, it is necessary that the media does not publish the exit-poll surveys till the last poll is held.
Justice Sawant was, of course, entitled to pursue his demons. But, his fears, the alarm and panic, cannot be inflicted on others. Likely to influence? How can anyone exclude any influence in an open society? Surely, not by executive fiat or even by legislation. The citizen has a sturdy mind. It is the self-appointed nanny who is of weak mind. It is neither possible nor desirable to protect the voter from external factors. He lives in a milieu in which he interacts with others all day long. He cannot have his mind sealed from external factors. Or is it extraneous factors that Justice Sawant had in mind with himself as the judge of the relevant and the extraneous?
The only redeeming feature was the guidelines advisory character. The Press Council, therefore, requests the Press to abide by the following guideline in respect of the exit polls. No newspaper shall publish exit-poll surveys, however genuine they may be, till the last of the polls is over.
In the hands of the E.C., headed by Chief Election Commissioner Mohinder Singh Gill, the guideline underwent a significant change. On January 20, 1998, the E.C. formulated Guidelines for Publication and Dissemination of Results of Opinion Polls/Exit Polls in a formal order. A Press Note was issued on January 21 to announce them to the media. Paragraph 13 of the guidelines acknowledges that the E.C.s attention was invited to the PCIs guidelines by none other than Honble Mr. Justice P.B. Sawant, Chairman of the Press Council of India and President of World Association of Press Councils. The PCIs guidelines are set out.
The E.C.s order repeated the PCIs mistakes and added some of its own with great zeal. The mentality of the bureaucrats on the E.C. was no different from that of the illiberal Judge on the PCI. It is surely time the PCIs membership is recast. The faith in a Judge as its Chairman is misplaced, as experience has demonstrated that judges know and understand little of politics or the democratic process. Nor do babus. They can conduct and have conducted elections with administrative competence but have begun latterly to get bigger than their boots. Neither judges nor babus really understand the journalistic world. The reasoning of both will acquire added relevance when we consider the law on the subject. Election surveys have the potential to influence the electors, a formulation weaker than likely to or calculated to. Exit polls are likely to affect the unbiased exercise of franchise by the elector, one way or the other. The E.C. is the nanny who protects the infant from bias. They should be stopped so that no political party or candidate suffers adversely or gains an unfair advantage.
Any poll survey pre-election or exit acquires credibility because of the credentials and reputation of those who conduct it. Partisanship will rob it of credibility. As it happens, the reputation of the organisations that conduct them is higher than that of the Indian politician. But at meetings held on December 22 and 23, 1997, understandably, almost all the political parties, with the exception of one or two [not named], emphatically opposed the opinion polls. Who are they to determine the rights of the media? The political parties also joined hands to ward off the Lokpal Bill and to override by law the Supreme Courts judgment on the Single Directive that cripples the Central Bureau of Investigation (CBI). What is the standard of literacy in such matters of the Indian politician or the civil servant, pray?
I have advisedly stopped short of reproducing the reasons for their opposition to opinion polls. One is that the way the same are conducted are unscientific. Do not laugh. Worse follows. They tend to influence the voters in an unbecoming manner. The Concise Oxford Dictionary defines unbecoming as not flattering and unseemly. The politicians alleged that many of the polls are motivated and are not impartial. That can be alleged of any press comment and of their pronouncements too. Is that a ground for closing down the newspapers? Nobody stops politicians from exposing any flaws in the methodology or presentation of the surveys or their conclusions. Ours is a free society.
The E.C.s order says, It has been observed that in many of these democracies, like Canada, France, Italy, Poland, Turkey, Argentina, Israel, Colombia, etc., restrictions, in one way or the other, are placed on the conduct of Opinion Polls and Exit Polls.
The Canadian Elections Act (vide Section 322.1) peremptorily prohibits the publication of any results of any Opinion Polls two days before the voting begins. The said Section provides as under: No person shall broadcast, publish or disseminate the results of an opinion survey, respecting how electors will vote at an election or respecting an election issue that would permit the identification of a political party or candidate from midnight the Friday before polling day (which is always a Monday) until the close of all polling stations. The Italian Decree of 18.11.1995, n. 488, titled Urgent Provisions for equal access to the Media during electoral and referendary campaign provides, vide Art. 8, as follows: Starting from the 20th day before the elections till the closing date of voting, it is forbidden to publish or circulate the results of exit polls, even if such surveys were carried out before the above mentioned period.
Having picked on just these two provisions, the order proceeds to press into service Section 126 of the Representation of the People Act, 1951, as amended in 1996. As it originally stood, it read thus: (1) No person shall convene, hold or attend any public meeting in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area. (2) Any person who contravenes the provisions of sub-section (1) shall be punishable with fine which may extend to two hundred and fifty rupees.
The Representation of the People (Amendment) Act, 1996, which came into force on August 1, 1996, amplified the ban in two newly added clauses (b) and (c) and also added a definition clause in sub-section (3). The original sub-section (1) becomes one of the clauses (a) to it.
With these additions, Section 126 now reads thus: (1) No person shall (a) convene, hold, attend, join or address any public meeting or procession in connection with an election, or (b) display to the public any election matter by means of cinematograph, television or other similar apparatus or (c) propagate any election matter to the public by holding or by arranging the holding of any musical 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 period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.
(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to two years or with fine or with both. (3) In this section, the expression election matter means any matter intended or calculated to influence or affect the result of an election. It is clearly an amplificatory amendment. The statement of objects and reasons appended to the Bill, dated July 24, 1996, made no comment on the changes at all. The press would have protested then. Neither the Law Minister nor the E.C. then talked of invoking the amendment to ban election surveys.
The marginal note describes the purport of Section 126: Prohibition of public meetings during forty-eight hours ending with hour fixed for conclusion of poll. It is election propaganda or propagation of ones views which is banned, not news. Clause (a) of sub-section (1) clearly does not apply. It covers public meetings. Nor does clause (c). It covers public performances. Clause (b) concerns public display of any election matter by films, television or other similar apparatus. This must be read ejusdem generis, a medium of the same kind as films or television.
Note that the print media is completely excluded. Even the media mentioned is free to operate, only it must not note the word display to the public any election matter as defined in sub-section (3).
That is defined in precise legal parlance as any matter intended or calculated to influence or affect the result of an election. This is of a piece with meetings, processions, theatres and the rest designed by a party to propagate, not by the press to inform. This is a penal provision. It must be read strictly. No one shall be put in peril on an ambiguity, says a maxim of law. The intention or calculation must be to influence the voter in the same manner and the same sense that public meetings do. The amendment seeks to prohibit, not chat shows or election surveys, but use of video films and paid appeals on television by candidates 48 hours before the polls to propagate election matter.
The pollster seeks no particular result. He does not prescribe. He diagnoses the public mood. Exclusion of the print media fortifies this, for otherwise it is manifestly absurd to permit mass circulation journals to publish election surveys while forbidding the electronic media from doing so. This clinches the matter, so does another fact. This provision was borrowed from the Amendment Bill moved in 1990 by a liberal Law Minister, Dinesh Goswami. He could never have intended such a result. The Bill lapsed when the V.P. Singh government fell.
A voter has every right to know the election trends if he is to make an intelligent choice. One voter might wish to do his bit to arrest the winning trend, another, to accentuate it. The choice is his, not the E.C.s or the Press Councils. The guidelines issued by both are devoid of legality and can be and, indeed, should be, flouted with impunity.
The object of Section 126 is to lower the heat of the campaign ahead of polling day. But to the E.C., Section 126 has a different purpose. The voter should not be disturbed in the process of weighing the merits and demerits of political parties and contesting candidates in the electoral fray and he can absorb what he has heard or witnessed during the campaign period in a tranquil and balanced frame of mind. Viewed in the light of the above statutory restrictions, allowing results of Opinion Polls and Exit Polls to be published, on the eve of polls or during the polling process, would be a deleterious intrusion into the mind of the voter, which is prohibited by law during the aforesaid period of 48 hours. Why then is the print media left free to poison the voters mind? But the E.C. is the nanny all over. It would not be unreasonable and unfair to place certain reasonable restrictions on the dissemination of information, particularly unverified information, by the print and electronic media, on the eve of polls.
That is entirely the voters right, duty and responsibility. Neither the E.C. nor the PCI has any business to teach him. Article 324 of the Constitution confers a vast power on the E.C. but only in a field not regulated by statute, as the Supreme Court has ruled repeatedly. Section 126 is that law.
The E.C. can neither abuse Article 324 nor Section 126 to amass the power it has with impunity since 1998. Its order prohibited any opinion polls in the print as well as electronic media from the first day of the poll for the general elections until after the closing of the polls and exit polls until the polls close in all the States.
Any organisations or agencies conducting any Opinion Poll or Exit Poll, while publishing, publicising or disseminating the result of any such poll, must indicate the sample size of the electorate covered by such polls and geographic spread of survey so conducted. 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.
M.S. Gill told the media on January 21, 1998: Everything cant be enforced by dandas [sticks]. I dont think imposing penalties is part of the Commissions mandate. These are guidelines and not an absolute order. In a good democracy guidelines dont have to be enforced by dandas. He added: It is clear there is no penalty. He went back on this shortly thereafter.
The guidelines were challenged in the courts by N. Ram, Editor, Frontline, and S.N. Tiwari. R. Rajagopal, Editor, Nakkeeran, also challenged them. On February 13, 1998, the Supreme Court, while hearing petitions for the transfer of the first two cases to itself, adjourned the hearing until the last week of March. It declined to pass any order. Soon thereafter, Gill said that any violation of the curbs would invite punishment under Section 126 of the Representation of the People Act, 1951.
In a press release issued on February 13, 1998, the E.C. went further still. It asked the electronic media to stop coverage of even the views expressed by the political leaders 48 hours before polling and uttered the dire warning that violation of the curbs would entail imprisonment for a maximum period of two years or with fine or both. No coverage of individual candidates or political parties should be allowed or undertaken by the electronic media. News should be presented in a balanced manner.
This was a manifest perversion of Section 126. The time has surely come for the media, print and electronic, to challenge the E.C.s order unitedly, in court and on the public platform.
There is another alternative. The E.C.s order is made without jurisdiction. It can be flouted with impunity. It rests on two proofs. Article 324 confers on the E.C. the power to conduct elections. Its plenitude is restricted once Parliament makes a law. It, moreover, confers no power to impose a penalty. Section 126 restricts that plenitude, but it, by its very terms, does not apply to election surveys or exit polls. Challenge a prosecution under it safely.
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