At the very inception, let me begin by saying that there has been a fierce controversy over the huge debate triggered on the moot question Should opinion polls be banned ? with both proponents and opponents championing their own stand respectively by citing various arguments in their favour. Personally speaking, I very strongly feel that there should be no ban of any kind on opinion polls. Let us not forget that opinion polls only makes certain assertions as to which party will win or lose. At any point of time, viewers are not compelled to accept what is declared by the opinion polls and it is the voters discretion what to accept and what to reject.

For my readers benefit, let me disclose here what the eminent lawyer of Supreme Court and the then Opposition leader in the Rajya Sabha Arun Jaitley feels very strongly. He minces no words in stating that, When the trend of opinion polls are adverse to the political parties, they rubbish them. They start demanding a ban. The loser demands a ban and the potential winner wants them to continue. A ban on such opinion polls cannot be considered based on who is demanding the ban. Clearly, opinion polls are also a part of free speech. Restricting them is constitutionally neither permissible nor desirable.

If opinion polls can be legitimately banned in this country, the next step would be to ban political commentators from giving assessments favourable to some and adverse to some others. A potential loser in an election cannot seek to alter the rules of free speech. The Election Commission will be best advised to keep away from this controversy and allow the market place of democracy to accept or reject the findings of the opinion poll.

Narendra Modi who is BJP's Prime Ministerial candidate and 3 time Chief Minister of Gujarat lambasted the call for ban on opinion polls by saying that:
If they ( Congress ) lose an election they may seek a ban on Election Commission, and if the courts do not support them then they may say why not ban the courts !

But former Chief Election Commissioner N Gopalaswami said that, The Election Commission's consultation and its views on opinion polls had to be viewed in the context of political parties paying for favourable coverage. In the context of paid news, which has become popular in the past five years, there is a possibility that these polls are manipulated and could prove to influence voters wrongly.

Let me also point out here that the eminent legal luminary, a very senior Supreme Court lawyer and twice former Attorney General of India - Soli J Sorabjee who recently breathed his last and is held in highest esteem not just in India but internationally in his thought provoking article titled 'The proposed ban on opinion polls is constitutionally suspect' in 'The Indian Express' dated 25 September, 2013 very elegantly penned down his views in the following words:
Freedom of speech and expression are fundamental rights guaranteed by our Constitution. The free speech guarantee has a capacious content. It includes the citizen's right to receive information and the right to disseminate information. Our Supreme Court has ruled in the celebrated case of Indian Express vs Union of India that all members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know.

The legal position was further clarified by the Supreme Court in 1995, in the case of Secretary, Ministry of I&B vs Cricket Association of Bengal, where it ruled that the right to freedom of speech and expression also includes the right to educate, to inform and also the right to be educated and informed. No doubt, the freedom of expression, like any other fundamental right, is not absolute and can be reasonably restricted provided that the restriction imposed falls under any of the heads specified in Article 19(2), which are sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Freedom of expression, like the freedom to carry on trade or business, cannot be restricted in the interest of the general public or on the ground of conferring benefits upon the public in general or upon a section of the public. Our Supreme Court has placed freedom of speech and expression on a higher pedestal than the other freedoms in the matter of restrictions. The reason is because, according to the Supreme Court, freedom of speech and expression is the most precious of all the freedoms guaranteed by our Constitution.

The professed justification for imposing a ban on opinion and exit polls is that they would adversely affect electoral prospects of some political parties or candidates, or that they may have the effect of unduly influencing the minds of the electors. Assuming that the object is desirable, even so, any restriction on that ground would be outside the permissible heads, and hence unconstitutional. This precise issue was considered by the Supreme Court. It was argued by the Union of India in the case of Sakal Papers that the object of the impugned legislation was to prevent monopolies, and that monopolies are obnoxious. The Supreme Court assumed that monopolies are always against public interest and deserve to be suppressed. Even so, it held that the professed object was not covered by any of the specified heads of restriction in Article 19(2).

The court laid down an important principle:
The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution... it is no answer when the constitutionality of the measure is challenged that apart from the infringement of the fundamental right of freedom of expression the provision is otherwise legal.

Thereafter, the court categorically ruled that the only restrictions which may be imposed under Article 19(1)(a) are those which clause (2) of Article 19 permits and no other, and the impugned legislation was struck down. This landmark judgment of the Supreme Court has been followed in many other cases.

The exercise of franchise is a vital democratic right, and for its effective exercise, information from divergent and antagonistic sources should be available to citizens so that they can make an informed choice. A citizen may or may not vote for a particular party or its candidate, or may not vote at all, depending upon his or her assessment of the weight to be attached to the opinion and exit polls.

There is more than one opinion and exit poll, and the average citizen can surely be trusted to decide which of them is credible and reliable for making his informed electoral choice, just as he or she can assess the weight to be attached to the editorials and articles projecting different views in several newspapers. However, it is permissible to regulate, not ban, the publication of opinion and exit polls. The media, when disseminating results of opinion and exit polls, can legitimately be directed to provide the public with sufficient information to enable it to make a judgement about the value of the polls.

Such information could, in particular, relate to naming the political party or other organisation that commissioned and paid for the poll; second, identifying the organisation conducting the poll; third, disclosing the methodology employed; fourth, indicating the sample and margin of error of the poll; fifth, mentioning the date and/ or period when the poll was conducted. Such information will ensure that opinion and exit polls are not manipulated and also provide the voter with relevant information in order to enable him or her to judge the credibility or reliability of the opinion and exit polls, and thereby to make an informed choice.

The proposed ban on opinion and exit polls is an overkill and is constitutionally suspect. Besides, at the bottom of it all, it betrays the lack of confidence in the average citizen's capacity to judge the reliability of the different opinion and exit polls and the effective exercise of her franchise. Do not underrate the average citizen.

It is pertinent to now examine what the Election Commission of India feels in this regard. Let me recall here that the Election Commission of India has suggested to the Centre that there should be a law to ban opinion polls during elections. The Election Commission has sought the ban on the grounds that the polls confuse the voter, thereby affecting adversely the very sanctity of this election process. These are presently banned only 48 hours prior to voting. Let me also disclose here that exit polls are already banned till the completion of polling since Parliament passed the Representation of the People ( Second Amendment ) Bill in 2009. I, however, very strongly feel that opinion polls should be made more transparent and just banning it is not at all advised.

It has been rightly pointed out in an enlightening editorial titled Whiners and Losers in The Times Of India newspaper dated 6 November 2013 that, Congress is exposing itself as a poor sport for its criticism of opinion polls, even calling for a ban on them, as the country heads for elections to five state assemblies followed by general elections next year. Congress, more than any other party in India's turbulent political history, has weathered many elections in the past, winning some and losing some. It hasn't called for banning opinion polls before. Asking for this important electoral barometer to be proscribed now is giving the game away even before it has begun in right earnest. Congress's anxieties over opinion polls may stem from recent surveys that predict defeat for the party in elections to the five assemblies.

Opponents of opinion polls will claim that pre-election surveys of voters skew results in favour of one party. But nothing has been empirically established about such claims – in fact, the two kinds of claimed effects, the bandwagon effect and the underdog effect, cancel each other out. The bandwagon effect happens when you see the party you support winning in opinion polls, which might mobilise you to go out and vote ; while the underdog effect happens when you see the party you support losing in opinion polls, which could also energise you into going out and voting. In effect, both sides gain. Another argument against opinion polls is that they are based on a restricted sample and therefore cannot be truly accurate. But it's paternalistic to assume that ordinary people don't understand this, also that they will vote merely in the direction they see other people voting. All democracies which permit free speech do not ban opinion polls months before elections. India should not be the sole exception in this regard.
In yet another leading newspaper daily Business Standard dated 5 November 2013, it is rightly mentioned in the editorial titled An undesirable move – A ban on opinion polls would be an error of judgment that, It is clear that, inspite of denials from the government, there is a momentum in the political class to ban opinion polls. A few months ago, Parliament was informed that the Election Commission had proposed that the results of opinion polls not be published or broadcast in the entire period between the notification of elections and the completion of the last phase of voting. Attorney General G E Vahanvati is also reported to have backed the Election Commission's opinion, saying that the organisation's mandate was to hold free and fair elections and that opinion polls came in the way of that by prejudicing voters. While the government has since denied that any such move is likely at the moment, it hasn't ruled out the possibility of an all-party consensus about opinion polls.

And the fact is that many in politics would like to see a ban. The ruling Congress will no doubt be leading the charge, burnt by several polls that show a precipitous decline in the party's popularity among voters. Why is the political class worried about polls ? In India, even more than in other democracies, there is a bandwagon effect. A party or candidate that appears to be winning will attract more support. It is more intense in India than elsewhere because the capability of state functionaries to deliver patronage is so much more important here than in most other democracies. If one purpose of elections is to determine the pattern of patronage for the next five years, the pay-off to backing a losing candidate or party is even more severe. Thus, much effort is invested in many political campaigns on creating a favourable wind – which can turn out to be a self-fulfilling prophecy. This is politics as usual ; but opinion polls come in the way of that. Politicians grumble that many polls have unreliable results, and are conducted at the behest of rivals who want to claim a stronger position than they're actually in. So a consensus on banning their publication close to election time may not be too hard to achieve.`The problem is, of course, that this is a restriction on speech that is burdensome. And how, precisely, does a published poll prejudice a voter in the way that a campaign targeted at claiming a favourable wind does not ?

Votes are cast based on many things, and where prejudice ends and reasoned decisions begin is a difficult line to draw. In no democracy in any part of the world have opinion polls caused any problem for them to be banned. Why should they be banned in India ? Also, will opinion pieces and editorials in newspapers be next ? Election-time reporting ? Pictures of vast rallies ? In any case, if the Election Commission was truly worried about attempts to prejudice voters that skirt close to the borders of what is acceptable or ethical, there is one Rs 100-crore example sitting around for them to investigate. And that's the ruling United Progressive Alliance's Bharat Nirman advertising campaign. Supposedly an attempt to make their rights clear to people, nobody who has seen a Bharat Nirman advertisement can fail to understand the real purpose is to remind people that the Congress party has done well by them, and thus should be voted back in. These campaigns are not cheap – just the last round is believed to have cost Rs 30 crore. Fortunately, for the Congress, Bharat Nirman can come out of the taxpayer's pocket. There are long and well-established norms against using government machinery for campaign work. How, precisely, is Bharat Nirman not precisely that ? The Election Commission should focus less on opinion polls, and more on this vast breach of ethics.
Now I feel it imperative to mention here what is the legal ground position pertaining to opinion polls in other major countries of the world. In Canada, the public opinion surveys assumed importance in the 1980s.

It is now prohibited to publish the results of opinion surveys that identify specific political parties or candidates in the final three days before poll closes. For more than 40 years, opinion polls were banned outright during British Columbia election campaigns. Now, the reporting of opinion polls during federal elections is regulated by the Canada Elections Act, 2000.

In USA, the first known example of an opinion poll was in 1824 during the Presidential elections in which Andrew Jackson was pitted against John Quincy Adams. Right now, there are just no legal restrictions on either the publication of pre-election opinion polls or exit polls. Similarly in UK there are presently no restrictions on the publication of pre-election surveys, although the publication of exit polls taken before voting closes is prohibited by the Representation of the People's Act ( Amendment ), 2000. Now coming to Scandinavian countries, there are no formal legal restrictions against the publication of electoral survey results during an election campaign. In practice, however, no media organization publishes poll results later than a day before the election, and exit poll results are not published until all polling stations have closed.

In South Africa, there is no prohibition on the publication of electoral survey results prior to an election. Exit polls, however, are banned by the 1998 Electoral Act. In Bulgaria, the law prohibits the publication of new electoral survey results at any point during the last 14 days of the election campaign, and also on election day. In Italy, under Law No. 28/2000, a prohibition on the publication of opinion polls begins 15 days before election day and continues until the close of voting. In Russia, Article 47 of the Law on Elections for the Russian President, 2002, expressly prohibits the publication of any electoral survey results for five days prior to election day and on election day itself. Australia has no legal restrictions on the publication of either pre-election opinion polls or-with the exception of Victoria-exit polls. It must be also revealed here that reportedly, the media in Australia rarely use exit polls due to experiences with erroneous results and the increased speed at which results are delivered.

Speaking for myself, I very strongly feel that under no circumstances should opinion polls be banned. The people have a right to be kept informed from different sources of media as to which party is surging ahead and which is lagging behind. Even the Congress which is now vehemently opposing opinion polls had supported it in 2009 general elections and in 2013 Karnataka State Assembly elections. Our Press must be given enough freedom to express all forms of conflicting political expressions. If we start supporting ban on opinion polls today just because some parties want so then tomorrow they will demand ban on all newspapers and news channels during elections ! How ridiculous ! This can never be endorsed in a democratic country like India!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh