Report No. 255
(iii) Challenge to the guidelines of the ECI
8.3.1. However, the guidelines issued by the ECI witnessed a vehement protest from the electronic and print media. Media houses primarily contended that these guidelines infringed their fundamental right of speech and expression and also, their right of information under Article 19(1)(a).325 Constitutionally, this right could only be curtailed by a law which was within the purview of Article 19(2). The guidelines of the EC were not law made by Parliament but only an executive instruction which could not curtail anyone's right under Article 19(1)(a).
In R Rajagopal v. Union of India, WP No 80 of 1998 the guidelines of the EC were formally challenged before the Supreme Court. The guidelines were also challenged before the High Courts of Delhi, Frontline v. Election Commission, WP No 449 of 1998 and Rajasthan, S.N. Tiwari v. Election Commission, WP No 355 of 1998. As common questions of law were involved in all these three petitions, the ECI sought transfer of the writ petitions to the Supreme Court for disposal under Article 139A.
Upon hearing this batch of petitions in Election Commission of India v. Union of India, WP No 407 of 1999 the Supreme Court did not stay the operation of the impugned guidelines which is why they were duly observed by all electronic and print media at the time of the general elections in February-March 1998.
325. Mendiratta, supra note 161, at 717
8.3.2. However, the issue regarding the validity of the ECI guidelines arose again during the elections to the House of the People and to the Legislative Assemblies of Andhra Pradesh, Arunachal Pradesh, Karnataka, Maharashtra and Sikkim held in September-October 1999. The Times of India Group of Newspapers, as well as certain other newspapers refused to observe the guidelines issued by the ECI.330 Consequently, the ECI approached the Supreme Court for a direction against the Times of India Group to abide by the Commission's guidelines.
Owing to the important constitutional issues involved in this matter, the Supreme Court referred this matter to a Constitution bench. The said bench expressed serious doubts about the constitutional validity of the impugned guidelines infringing the fundamental rights of the media houses. The Supreme Court also expressed surprise at how such guidelines could be enforced by the EC in the absence of any statutory sanction.331
Consequently, the approach of the Supreme Court prompted the EC to withdraw its guidelines on 14th September 1999.332 Such withdrawal meant that there were no restrictions on the conduct of opinion polls and exit polls or on the dissemination of results of these polls during the general elections to the House of the People and certain legislative assemblies held in September-October 1999.
330. Sukumar Muralidharan and V. Venkatesan, 'Polls and Opinions', 16(20) FRONTLINE, (Sept. 25-Oct. 8, 1999),
331. Mendiratta, supra note 161, at 718
332. Election Commission of India, 'Guidelines for Publication and Dissemination of Results of Opinion Polls/Exit Poll.- Withdrawal thereof', Order No. ECI/MCS/OP-EP/99, 14th September 1999