Even as the Election Commission of India (EC) pushes the central government to bring in a law to ban opinion polls during elections,the Union Ministry of Law and Justice is facing a peculiar problem.
Attorney General Goolam E Vahanvati has assured the government that any ban on opinion polls as sought by the EC would be constitutionally permissible. But the law ministrys problem is that there is an earlier opinion,given on April 8,2004 by then Attorney General Soli Sorabjee,which says that any prohibition on opinion polls would be unconstitutional.
The two opinions say the exact opposite of each other. We will have to tread cautiously as there is a possibility that somebody might go to court to challenge the decision. In 1998,the EC tried to ban opinion polls,but had to later withdraw the guidelines issued by it after the matter reached the Supreme Court. We are examining all aspects in the mater, said a senior officer.
As first reported by The Indian Express,the EC has sought amendment to the law to allow banning of opinion polls once the election process begins. The EC communication also points out that exit polls are already banned till completion of polling,since parliament passed the Representation of the People (Second Amendment) Bill in 2009.
The ban on opinion polls has been sought on the ground that they confuse the voters,thereby affecting the sanctity of the poll process. Incidentally,almost all political parties have unanimously supported a ban on opinion polls.
In his opinion in 2004,Sorabjee had termed a proposed ordinance by the then Atal Bihari Vajpayee government to ban exit and opinion polls as being violative of the right to freedom of speech and expression granted under Article 19(1)(a) of the constitution. He had opined that just because political parties had a problem with exit and opinion polls,the right to freedom of speech and expression of citizens couldnt be curtailed.
A citizen may or may not vote for a particular party or its candidate,or may not vote at all,depending upon his assessment of the weight to be attached to the opinion and exit polls. It needs to be emphasised that there is more than one opinion and exit poll,and the citizen can decide which of them is credible and reliable for making his informed electoral choice,just as he or she will assess the weight to be attached to the editorials and articles projecting different views in several newspapers, Sorabjee had said.
However,Vahanvati has referred to a legal opinion given by his predecessor,Milon Banerjee,on the basis of which the publication/ telecast of exit polls was stopped. The AG has supported partial ban on opinion polls on the lines of the prohibition of exit polls.
I find that there is really no distinction between the non-publication of opinion polls during the period of election and the non-publication of exit polls in a similar manner during actual voting in different phases. Apart from this,the fact is that the amendments incorporating restrictions in relation to exit polls have been in force for over three years and there doesnt appear to be a challenge to this, Vahanvati has noted.
I am of the opinion that there is no real basis for distinguishing between the opinion polls and exit polls since the exit polls have already been restricted, he has said.