The proposed ban on opinion polls is constitutionally suspect.
Soli J. Sorabjee
Freedom of speech and expression are fundamental rights guaranteed by our Constitution. The free speech guarantee has a capacious content. It includes the citizens 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 peoples 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 citizens 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.
The writer is a former attorney general of India