Report No. 255

(vii) Current law and late Mr. Goolam E. Vahanvati's view on opinion polls

8.7.1. Currently, opinion polls are barred from being published in electronic media for 48 hours prior to an election in that polling area under Section 126(1)(b) of the RP Act, 1951.

"Section 126(1)(b.- No person shall display to the public any election matter by means of cinematograph, television or other similar apparatus in any polling area during the period of fortyeight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area".338

338. 'Election matter', for the purpose of this section, has been defined under Section 126(3) as 'any matter intended or calculated to influence or affect the result of an election.

8.7.2. The contravention of Section 126(1)(b) is punishable under Section 126(2) with imprisonment for a term which may extend to two years or with fine, or with both.

8.7.3. The ECI has strongly argued for further restriction on publication of opinion polls. Such restrictions are necessary because Section 126(1)(b) applies only to electronic media. This essentially means that an anomalous situation is created where the publication of the findings of opinion polls in print media remains unregulated.

8.7.4. The constitutionality of a modified version of this provision was endorsed by an opinion of Late Mr. Goolam E. Vahanvati, former Attorney-General of India on 13th June 2013. In his opinion, Mr. Vahanvati opined that since there is no real basis for distinguishing between opinion and exit polls, opinion polls could also be prohibited from being published for the entire election phase, analogous to the restriction on exit polls under Section 126A of the RP Act.339 This opinion was in contradiction with that rendered by Mr. Sorabjee in 2004 and consequently, the Ministry of Law and Justice referred the matter to be decided upon by the EC.

339. Consultation Paper on Media Law, supra note 318.

8.7.5. In September 2013, the ECI held fresh consultations with recognised political parties on the issue of banning opinion polls, in furtherance of which the views of these parties were sought.340 The dominant view that came across from the views put forth by various political parties was that opinion polls should not be published or disseminated during the period starting from the date of notification till the completion of elections.341 While the EC's attempt in this direction is laudable, it does not address concerns as to how such regulation of opinion polls should be carried out.

340. Election Commission of India, 'Proposal to restrict the publication and dissemination of opinion polls conducted during elections to Lok Sabha and Legislative Assemblies, No. 3/1/2012/SDR-Vol IV, 12th November 2013.

341. Id.