Why opinion polls need regulation

In most democracies, opinion and exit polls are common during elections. However, restrictions are also imposed in many countries, extending from two to 21 days prior to the poll — Canada, France, Italy, Poland, Turkey, Argentina, Brazil, Colombia, to name a few examples. The opposition to the ban in India is mainly on the ground that freedom of speech and expression is granted by the Constitution (Article 19). What is conveniently forgotten is that this freedom is not absolute and allows for “reasonable restrictions” in the same article. The Indian Penal Code and Representation of the People Act, 1951 do contain certain restrictions.

While the Constitution allows for reasonable restrictions on freedom of expression, its mandate to the ECI for free and fair elections is absolute. The Supreme Court (SC), in a series of judgments, has emphasised this requirement: “Democracy cannot survive without free and fair elections” (Union of India vs ADR, 2003); “Free and fair elections is the basic structure of the Constitution” (PUCL vs Union of India, 2003; NOTA judgment, 2013); “The heart of the parliamentary system is free and fair elections” (Mohinder Singh Gill vs CEC of India, 1977).

Why does the ECI feel that opinion polls interfere with free and fair elections? Having seen “paid news” in action, it apprehends that some opinion polls may be sponsored, motivated and biased. Also, almost all polls are non-transparent, providing little information on the methodology. With such infirmities, many “polls” amount to disinformation that can result in “undue influence”, which is an “electoral offence” under IPC Section 171 (C). It is a “corrupt practice” under section 123 (2) of the RP Act.

The demand for a ban on opinion polls is not new. At two all-party meetings called by the Election Commission in 1997 and 2004, there was unanimous demand for a ban. The difference of opinion was only on whether the ban should apply from the announcement of the poll schedule or the date of notification. In 1998, the ECI issued guidelines that were challenged in the SC. A five-judge Constitution Bench asked the ECI how it would enforce these decisions in the absence of a law. Realising its weakness, the ECI withdrew the guidelines till a law was made. Unfortunately, this left the constitutionality of the issue undecided.

The matter resurfaced in 2008 when many political parties came to the ECI demanding a ban on opinion and exit polls. The ECI advised them that they need to raise it in Parliament, as it required legislative amendment. The EC even vetted a draft of the proposed amendment. Surprisingly, Parliament banned exit polls but not opinion polls (126A, RP Act). It is not clear why the parties, who were unanimous in demanding the ban on both opinion and exit polls, did not pass it in Parliament in its entirety.

In 2013, the debate on banning opinion polls was revived when the law ministry advised the ECI to once again seek the view of all political parties. Fifteen political parties responded and all but one (BJP), supported a ban. It was interesting to watch the debate on the subject in the media. All the participants — media, pollsters and jurists — were heard supporting the opinion polls, yet admitting to the presence of serious flaws.

The ECI and political parties are not alone in doubting the integrity of opinion polls. The Press Council of India says, “This has become necessary to emphasise today, since the print media is sought to be exploited by interested individuals or 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 poll surveys,” (emphasis added).

In early 2014, a sting operation by a television news channel caused quite a stir. As many as 11 polling companies were caught red-handed fraudulently manipulating surveys. These polling agencies were willing to manipulate the margin of error, victory margin for candidates, seat projections for a party or hide negative findings. Unfortunately, this expose did not receive the attention it deserved.

What is the way forward? Ideally, an independent regulator, like the British Polling Council would be a viable option. All polling agencies must disclose for scrutiny the sponsor, besides sample size, methodology, time frame, quality of training of research staff, etc. India could set up its own professional body on the same lines. After the Bihar 2015 election, six leading agencies had spoken about the possibility of starting a self-regulatory body — the Indian Polling Council. Over six years later, there is no progress.

A related issue is exit polls, which were banned by amendment to the RP Act, in 2008, making both the conduct of the polls and their dissemination illegal. However, the media has regularly flouted the law by “conducting” exit polls on poll days, though airing the result only after the closure of the poll on the last day.

Surprisingly, the ECI continues to overlook this violation. In fact, the ECI order allows the dissemination of the exit poll results half an hour after the end of polling on the last poll day. It makes no mention of the ban on the conduct of the poll itself, which is expressly prohibited by the law. Thus, ECI’s guidelines stand opposed to the provision of the law. This is creating confusion. Many young researchers have been arrested by the police for violating the law. This must stop.

The writer is former Chief Election Commissioner of India and author of An Undocumented Wonder: The Making of the Great Indian Election