When SC forced EC to retreat

For our Election Commission, once bitten is not twice shy.

Even twice bitten does not result in any shyness. The Constitutional body has shown that setbacks don’t dissuade it. Or else, how can one explain the EC’s insistence in seeking ban on opinion polls, something that the Supreme Court threw out in the late 1990s?
Twice over the last 15 years, the poll panel tasted a sort of defeat for its attempts to muzzle election-related opinion survey exercises.

With the 2014 Lok Sabha elections just a few months away, the EC is back to take on its  favourite whipping boy. In its obstinate move, the EC has sought views of the political parties on prohibiting opinion polls and is likely to convene a meeting of these parties shortly to decide on the issue. This, despite fact that the matter was more or settled by the apex court way back in 1999!

The EC first took up the issue on January 20, 1998 as it issued lengthy “guidelines” which placed ban on opinion polls two days prior to the actual polling and for the exit poll till half an hour after polling on the final polling day of any multi-phase elections. Newsmagazine Frontline moved the apex court against it. On August 20, 1999, the EC reiterated the same guidelines.

Jain TV, then the only 24-hour news channel, carried the results of the opinion poll conducted by C-Voter and it was all over the newspapers the next day. The EC moved the SC contending it was in violation of the guidelines issued under Article 324 of the Constitution.

Satisfied that the Commission did not enjoy executive powers to enforce the guidelines, the court wanted the EC to withdraw them. EC had to beat a hasty retreat. Such was the mood of the Constitution bench that it did not even deem it fit to take up the issue of freedom of expression, guaranteed under Article 19 of the Constitution, especially when there was no point in challenging a set of guidelines that had no teeth. The issue of Article 19 was one of the grounds made out by Frontline while seeking quashing of the EC action.

The Constitution Bench was told that Article 324 could not be stretched so far as to restrain the freedom of expression. The judges did not agree with EC counsel Harish Salve that the guidelines were the result of a near-consensus among the political parties and dismissed the Commission's writ petition at the admission stage itself saying that it had no merits. On September 14, 1999, after the debacle at the Supreme Court, the EC issued a statement admitting that the power of “superintendence, direction and control” that Article 324 of the Constitution confers on EC provides it only a limited jurisdiction. It, however, asserted that the “questions SC had raised still awaited a final resolution.”

The next move of the EC came on April 6, 2004 when again it held a meeting of the political parties. There was not just unanimity about ban on opinion and exit polls, the parties went a step further and called for ban on opinion polls from the date of notification of elections! Armed with this unanimous view, the EC asked the government to change laws but suffered a loss of face as law ministry opposed the idea. The decision was based on the opinion given by the then Attorney General Soli Sorabjee who cautioned the government. He opined that the move could be rendered unconstitutional since it would violate the right to freedom of speech and expression granted under Article 19(1)(a) of the Indian constitution.

Says noted psephologist Yashwant Deshmukh of C-Voter: “In past 20 years since the publication of opinion polls became regular, almost 125 Lok Sabha and Assembly elections have take place in the country.

 If we see the accuracy rate of opinion polls in these elections, it is almost 95 per cent. Compared to the opinion polls conducted in the 1980s and 1990s, these days we are able know people's mood about elections more accurately. The technology has helped in better data transmission from the field with the growth of telecommunication industry in the country.”

After this, the EC succeeded in getting an amendment made to the Representation of the People Act, 1951 prohibiting carrying out results of exit polls till half an hour after conclusion of polling.

The latest move came from the EC letter of October 4, 2013 to the political parties. The EC said in the letter: “…The Commission has been suggesting to the government that there should be a similar prohibition or restriction on opinion polls also as there could be several manipulated opinion polls which could impact the voting pattern. The Ministry of Law and Justice, vide their letter dated 25th September, 2013, has proposed that the Commission may hold a fresh consultation with the recognised political parties on the issue of banning opinion polls.” The EC proposal came after Attorney general G E Vahanvati favoured a ban and advised the law ministry accordingly.

Said Vahanvati: “As rightly pointed out by the ECI, what is paramount is the necessity to have free and fair elections. One cannot disagree with the view of the ECI that such opinion polls often tend to cause a prejudicial effect on the minds of the electors…
...One must also take into consideration the views of the political parties at the meeting held on April 6, 2004 and the unanimous view expressed therein”.

The government's top law officer is also understood to have advised that there is no “real basis” to distinguish between opinion polls and exit polls since the exit polls have already been restricted.

The EC has acted as Lok Sabha elections are round the corner, as it did in 1999 and 2004. Which way the latest round will go, remains to be seen.

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