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Report No. 255

(ii) Add specific sections on disclosures related to opinion polls

8.28.1. While the suggested amendments to Section 126(1)(b) expand the current restrictions on opinion polls to include print media, it does not address the concerns expressed in Part 2 of this Chapter regarding the independence and robustness of the opinion polls themselves.

8.28.2. A number of countries have laws to address these issues, as we saw in Part 3. The Law Commission believes that India too is at a juncture where the regulation of opinion polls is necessary to ensure that first, the credentials of the organisations conducting the poll is made known to the public, second, the public has a chance to assess the validity of the methods used in conducting the opinion polls and third, that the public is made adequately aware that opinion polls are in the nature of forecasts or predictions, and as such are liable to error.

8.28.3. Accordingly, we recommend that Sections 126C and 126D addressing opinion polls be added as follows:

126C. Disclosures relating to opinion polls.- (1) No person shall publish or broadcast the results of an opinion poll without providing the following together with the results:

(a) the name of the sponsor of the survey;

(b) the name of the person or organization that conducted the survey;

(c) the date on which or the period during which the survey was conducted;

(d) the population from which the sample of respondents was drawn;

(e) the number of people who were contacted to participate in the survey; and

(f) if applicable, the margin of error in respect of the data obtained.

(g) A declaration that the results are in the nature of predictions, to be displayed prominently, in the manner prescribed by the Election Commission

(h) Any other information as may be notified by the Election Commission

(2) In addition to the information under sub-section (1), the publisher or broadcaster of an opinion poll shall, within a period of twenty-four hours after the publication or broadcast of the opinion poll, publish on its website a copy of a written report on the results of the survey referred to in sub-section (1).

(3) The report referred to in sub-section (2) shall include the following, as applicable:

(a) the name and address of the sponsor of the survey;

(b) the name and address of the person or organization that conducted the survey;

(c) the date on which or the period during which the survey was conducted;

(d) information about the method used to collect the data from which the survey results are derived, including

(i) the sampling method,

(ii) the population from which the sample was drawn,

(iii) the size of the initial sample,

(iv) the number of individuals who were asked to participate in the survey and the numbers and respective percentages of them who participated in the survey, refused to participate in the survey, and were ineligible to participate in the survey,

(v) the dates and time of day of the interviews,

(vi) the method used to recalculate data to take into account in the survey the results of participants who expressed no opinion, were undecided or failed to respond to any or all of the survey questions, and

(vii) any weighting factors or normalization procedures used in deriving the results of the survey; and

(e) the wording of the survey questions and, if applicable, the margins of error in respect of the data obtained.

(f) a copy of the poll as published along with the copy of the disclosure under sub-section (1).

(4) The Election Commission may issue further notifications regarding the manner in which the disclosures under sub-sections (1) and (2) are to be made.

(5) Any person who contravenes the provisions of this section shall be punished, on first conviction, with fine which may extend to five lakh rupees, and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

(6) No court shall take cognisance of any offence punishable under this section unless there is a complaint made by order of, or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned.

Explanation.- For the purposes of this section, "opinion poll" means a survey of how electors will vote at an election or of the preferences of electors respecting any candidate, group of candidates, or political party.

126D. Offences by companies.- (1) Where an offence under subsection (1) of Section 126C has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.- For the purpose of this section,-

(a) "company" means any body corporate, and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm".



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