A notification of the Election Commission of India (ECI) in relation to the general elections to Legislative Assembly of Karnataka on the matter of opinion and exit polls has once again ignited the debate on the subject of electoral reforms casting light on the need for potential steps ahead of the forthcoming general elections in 2014.
The Election Commission of India had on April 11 notified that conducting any exit poll and publishing or publicising by means of print or electronic media or disseminating in any other manner whatsoever the result of any exit poll in connection with the current general elections to Legislative Assembly of Karnataka between 7am and 5.30pm on May 5 would be prohibited.
Further, the EC stated that under Section 126 (1)(b) of the Representation of People Act, 1951, displaying any election matter including results of any opinion poll or any other poll survey, in any electronic media would be prohibited during the period of 48 hours ending with the time fixed for conclusion of poll in connection with the elections in Karnataka.
The relationship between the media and democracy is controversial. The media always claim they merely “inform the public”, while critics claim they actually shape public opinion, thereby “controlling” democracy.
One possible way in which this happens is through opinion polls. Different countries take different attitudes to the role of opinion polls in a democracy. Many impose no limitations on the publication of polls in the media, but some, including France, ban the publication of opinion polls in the days running up to a national election. The issue of opinion polls is particularly controversial in India where the Election Commission used to ban the publication of opinion polls in the days before and during national elections. However, in 1999, the Supreme Court overturned this rule following a challenge by a newspaper.
An amendment to Section 126 of the RPA, 1951, in 2009 did squelch the objections to its inability to prohibit exit polls with the insertion of Section 126A, which restricted the publishing, publicising or any form of dissemination of exit polls and held the violation as a punishable offence with an “imprisonment for a term which may extend to two years with fine or with both”. Evidently, the amendment does not address the subject of opinion polls and it is left to the interpretation of Section 126 under the RPA, 1951.
Under Section 126 (1)(b) of the RPA, 1951, the “display to the public any election matter by means of cinematograph, television or any other similar apparatus” is prohibited during the period of 48 hours ending with the hour fixed for conclusion of polls. This section clearly does not restrict publication of opinion polls even on the day of election, thereby falling short of guaranteeing fair conduct of elections.
Although the Election Commission appended in its circulated notification an advisory note to newspapers saying they are “not expected to indulge in unhealthy election campaigns or exaggerate reports about any candidate or party or incident during the elections”, the dearth of legal sanctity to the power of the Election Commission to restrict the practice renders it ineffective in the face of a multifaceted mass media.
The legal battle on the subject has witnessed two striking rulings of the Supreme Court of India (SC). In 1999, a Constitutional Bench of the SC compelled the then ECI to withdraw its guidelines banning the publication of opinion and exit polls. The ECI issued the guidelines under Article 324 of the Constitution, which provided the commission the power of “superintendence, direction and control”, but the order was observed to be “devoid of merit”. Subsequently, in January 2009, the Election Commission approached the SC seeking clarification on the right of the former to regulate opinion and exit polls. The bench headed by then Chief Justice K G Balakrishnan acknowledged ECI’s freedom to frame guidelines to regulate publication of exit polls. In this regard, the guideline issued toward Lok Sabha elections of 2009 by the Election Commission restricted the publishing, publicising and dissemination of any opinion or exit poll conducted any time by print, electronic or any other media during the period of 48 hours ending with the hour fixed for conclusion of polls. Even as the ECI enjoys the power to frame the rules as and when deemed necessary, the want of legal prowess on the subject impedes plausible punitive action on any violation. Significant to this effect is the germane factor that such a guideline depends on the willingness of each Election Commission from time to time.
In an age of swelling utility of media technologies and its ensuing challenges, the need to garner legal solidity for the proposed reform is imperative insofar as the conducting elections in the world’s largest democracy is concerned.
The Election Commission, in its recommendation on reforms toward better management of elections, had stated the need for legal provision to restrict the publishing of results of opinion polls in print media. With escalating reports and consequent debates on publication of paid news there is an urgent need to draw the legal arc to contain any exploitation of print media that may adversely affect the electoral process.
In similar fashion, the potential of opinion polls to influence public dialogue and sway undecided electorate demands immediate attention to the reform proposal of the Election Commission on this subject. France, for example, in 2002 passed a new law prohibiting a 24-hour publication ban on opinion polls. French law requires the publishing media enterprise to provide details of the poll’s methodology if opinion poll results are published.
In the backdrop of the approaching general elections, there is a need to take a cue from the various notifications of the ECI on different Assembly elections to prepare the stage to adopt legislative amendments necessary for the free and fair conduct of elections.
N. Misra is ex-Chairman,TRAI and Director, Public Interest Foundation;
Email: director@publicinterestfoundation.com