The question of exit polls has divided the media and the Election Commission (EC) for at least two decades now. Now, the issue has reached an unfortunate pass. While the EC had so far restricted itself to action under the Representation of People Act, it has now invoked Section 188 of the Indian Penal Code in addition. Its district officials have been asked to file 15 FIRs against a company which conducted an exit poll on the first day of the state elections, and Dainik Jagran which published the results on its website; the online editor of the Hindi daily was arrested on Tuesday. Earlier, the EC had invoked Sections 126A and B of the Representation of People Act, which prohibit actions that sway voting while election are in progress. Section 188 of the IPC, on the other hand, criminalises disobedience of the order of public officials and institutions. It deals with a cognisable offence, empowering the police to summarily arrest and investigate without the need for a court directive or warrant.
Loss of liberty at the pleasure of the local police is an excessive state response, especially since what constitutes an exit poll is not unambiguously defined in terms of methodology or sample size. The possibility of misuse of the law to curb the freedom to report on elections is real and alarming. If trained on data within a news report, the very law that guarantees a level playing field can be used to tilt it, with a little help from Section 188.
Certainly, it can be argued that exit polls can influence voting. Therefore the global convention, which the Indian media has agreed to follow, is to publish findings after the last vote has been cast. What about those who break ranks? The reader is nobody’s fool, and the transgressor is automatically perceived to be motivated and loses credibility. Besides, the media is capable of regulating its own and is unforgiving of errants in its ranks, since reputation is its stock in trade. For the Election Commission to register FIRs is unnecessary, and to go to the extent of finding cognisable offences in exit polls is an enormity. This issue has been a bone of contention between the EC and the press from the first phase of electoral reform, shortly after T.N. Seshan stood down as CEC. Over the years, the media have suitably curbed the tradition of publishing exit and opinion polls. The EC, on the other hand, no longer stands as tall as it used to, going by the frequency and impunity with which allegations are levelled against it by politicians, most recently by Arvind Kejriwal. Its overzealousness in the name of protecting a level playing field only further hurts its hard-won stature and credibility.