BJP Letter to ECI regarding the ban of exit polls
The Election Commission of India
Attn: 1. Shri V.S. Sampath, Chief Election Commissioner
2. H.S. Brahma, Election Commissioner
3. Dr. Nasim Zaidi, Election Commissioner
4. Shri S.K. Mendiratta, Legal Advisor
ECI vide their 3.1.2012/SDR of 4.10.2013 had sought the views of political parties on the proposal to prohibit conducting opinion polls and disseminating results thereof during the election period.
It may be recalled that RP (Amendment) Act No. 41 of 2009 had amended section 126 of the RP Act, inserting a new Sec 126(A) which authorises the ECI to ban the publishing of the results of Exit Polls during the period commencing from the first day of poll and concluding at half an hour after the close of polling in all states and Union Territories.
Prior to this, the SC had struck down the ECI’s 1998 order issuing guidelines on regulating opinion and exit polls. SC had observed that ECI did not have the power to enforce the guidelines; later the guidelines were withdrawn.
The all party meeting convened by ECI in 2004 recommended that publishing of results of both exit and opinion polls should be proscribed from the day of issue of notifications till the completion of polls. While examining this recommendation, the Law Ministry consulted the Attorney General who is reported to have opined that such a prohibition would be a breach of Art 19(1) of the constitution of India.
Art 19(1)(a) of the constitution is included in Part III—Fundamental rights—and protects the right to freedom of speech and expression.
Art 19(2) however permits certain reasonable restrictions which can be justified in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency of morality, or in relation to contempt of court, defamation or incitement to an offence.
None of these stipulated considerations seem to figure in the recommendation of the ECI to restrict opinion polls. The very use of the expression “opinion” makes it appear that the poll outcome is hardly related to the conduct of the opinion poll. Opinion both in the etymological definition and analysis in BLACK’s legal dictionary, relates to a belief or judgement that rests on grounds insufficient to produce complete certainty; a viewpoint based on that which is less than absolutely certain and is the result of emotion or interpretation of facts. Wikipedia even mentions that people may draw opposing opinions from the same set of facts. On balance, opinion polls appear to fall more in the realm of speech and expression than in the nexus of cause and effect which can determine the forecasting of election results.
Opinion polls are fundamentally different from exit polls. The sample which is used in the opinion poll consists of people who may or may not vote, whereas exit polls consist only of persons who had actually participated in the voting. It is this difference which motivated the law makers to permit the dissemination of exit poll results only after the polling in all the constituencies gets completed, such that the dissemination does not influence the voters in the exercise of their franchise. It is also pertinent to note, that, in a manner of speaking, the exit polls appear to breach the fundamental conditionality of secrecy that governs the exercise of franchise in general elections.
On the other hand any restriction on opinion polls, would fall in the realm of a restriction on the fundamental right to freedom of speech and expression guaranteed in Art 19(1)(a) of the constitution. The grounds on which the ECI is considering restriction do not get covered by the postulates prescribed in Art 19(2) of the constitution.
Based on the above considerations, I am directed to state that the Bharatiya Janata Party does not endorse the proposal to impose any restriction on the conduct of or dissemination of the results of opinion polls.