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Report No. 255

D. Opinion Poll.- A Case for Regulation, and Not Outright Ban

8.18. While regulation of the publication of the results of opinion polls is an urgent necessity, a complete ban on the same would be constitutionally impermissible. Any restrictions, to whatever degree, on the conduct of public opinion polls would necessarily implicate the fundamental right to freedom of speech and expression. At a general level, the idea of deliberative democracy would require that decisions of public importance, including voting, be undertaken after frank public discussion of the alternatives. Opinion polls attempt to contribute to this deliberation.

8.19. Outright bans on either the conduct or the publication and dissemination of exit polls would be entirely inconsistent with existing constitutional standards, as Mr. Soli Sorabjee concluded in his opinion in 2004.367 Wholesale bans on opinion polls would not fall within any of the grounds listed under Article 19(2), or qualify as a reasonable restriction. As a result, while measures to improve the quality of information supplied to voters could be seen as furthering the right under Article 19(1)(a), they must do so while balancing this interest with the right to free expression of those conducting and/or disseminating opinion polls.

367. New Delhi Bureau, Ban on opinion, exit polls unconstitutional, says Soli Sorabjee, The Hindu, 10 April, 2004; Soli Sorabjee, Attorney General of India, Opinion, 8th April, 2004.

8.20. Former Attorney General of India, Mr. Ashok Desai furnished an opinion on 13th June 2014 on the proposed amendment of Section 126(1)(b) of the RP Act, 1951. Notably, Mr. Desai acknowledged that that in a staggered, multi-phased election, it would not be possible to blank out the electioneering news in a State going to poll when another State is not, nor would it be desirable to do so.368 Television broadcasts have a national reach and are not contained within the boundaries of a particular constituency.

Mr. Desai pointedly mentioned in his opinion that while a direct electoral appeal cannot be made during the proscribed period in the constituency going to poll, there is nothing to prevent the media broadcast elsewhere being received in that very constituency and about the very parties who are contesting in that area.369. Hence, an outright ban on dissemination of election matter would not be practicable, keeping in view the reach of electronic as well as print media in contemporary times.

368. Election Commission of India, 'Amendment of Section 126 of the Representation of the People Act, 1951', 29th April 2014

369. Id.

8.21. The issue of whether opinion polls require regulation engages the right to freedom of speech and expression in two important ways. First, those conducting opinion polls do so in exercise of their rights to free speech under Article 19(1)(a). Any regulation would need to acknowledge this right. Second, the Supreme Court has acknowledged that a general right to know is an element of the right to freedom of speech. Indian Express v. Union of India, (1981) Supp SCC 87 at 825).

Also the Supreme Court has recognized, in Union of India v. Association for Democratic Reforms, 1992 Suppl. (2) SCC 651, that voters have a right to information concerning matters that would be relevant to their choices at the ballot. Regulation would have to be targeted at ensuring that a real and effective voters' right to information is secured.

8.22. Regulation of opinion polls also concerns the freedom of the press, which may not be recognised as a separate freedom, but is folded into the freedom of speech and expression. Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305. The freedom of the press serves the larger purpose of the right of the people to be informed of a broad spectrum of facts, views and opinions.373 Opinion polls assist the media in indicating contemporary concerns and attitudes among the public while also giving feedback to the media on the state of public opinion at a given point in time.374

Some guidelines, such as those issued by the PCI and NBSA, already exist for the regulation of opinion polls. The time is now ripe for statutory regulation of the conduct of opinion polls by means of an amendment to the RP Act, 1951. Significantly, there is no empirical evidence as to how much opinion polls impact the actual voting pattern.375 Hence, an outright ban on the conduct of opinion polls does not stand justified. Appropriate amendments need to be inserted within the RP Act, 1951, in a manner specified hereinafter.

373. Consultation Paper on Media Law, supra note 318, at 2

374. Howard Kushner, Election Polls, Freedom of Speech and the Constitution, 15 Ottawa L. Rev. 515, 517 (1983)

375. Faizan Mustafa, 'Opinion Polls and Free Speech', The Statesman, 14 November 2013

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