Electoral Reforms - Opinion Polls

The 20th Law Commission under the Chairmanship of Justice Ajit Prakash Singh and its Report No.255 was submitted on 12th March 2015 to the then Union Minister of Law & Justice Mr. Sadananda Gowda. The issue of Opinion Polls before elections based on trends was elaborately evaluated under Chapter VIII of the said report. The Commission perused the impact of Opinion polls in terms of Effects on the purity of the electoral process, potential of opinion polls to influence voters, Independence of polling agencies, Issue of robustness in its findings. The scope of further scope and expansion of this concept under the present context is studied in this paper.

BACKGROUND

Over the last few decades after the advent of Information & Communication Technology, Opinion Polls before elections and Ext Polls after elections have impacted the sentiments of the electorate. During January 1998 the Election Commission of India laid down "Guidelines for Publication and Dissemination of Results of Opinion Polls/Exit Polls", including government-controlled electronic media, in connection with the conduct of opinion polls and exit polls preceding to General Elections and to the Legislative Assemblies of Gujarat, Himachal Pradesh, Meghalaya, Nagaland and Tripura. It stipulated that "No result of any opinion poll conducted at any time shall be published, publicised or disseminated, in any manner whatsoever, in or by any print or electronic media, after 1700 hours on February 14, 1998 (February 16, 1998 being the first day of poll for the aforesaid general elections) and till after the closing of poll in all States and Union territories, i.e., 1700 hours on March 7, 1998". As a result the Press Council of India (PCI) mandated that "No newspaper shall publish exit-poll surveys, however genuine they may be, till the last of the poll is over. These guidelines were challenged before the Supreme Court as they infringed fundamental right of speech and expression and right of information under Article 19. Supreme Court prompted the EC to withdraw its guidelines on 14th September 1999 which opened the floodgates as there were no restrictions on the conduct of opinion polls and exit polls or on the dissemination of results of these polls during the general elections to the House of the People and certain legislative assemblies held in September-October 1999.

During the year 2004 the ECI recommended to the Ministry of Law and Justice for a specific provision in the Representation of the People Act, 1951 (‘RP Act, 1951’), prohibiting publication and dissemination of the results of exit polls and opinion polls which was referred to the Attorney General who did not contemplate an outright ban on the publication and dissemination of opinion polls, but opined to furnish Name of the political Party or organisation which commissioned the survey, Identity of the organisation conducting the survey and the methodology employed and the Sample chosen and the margin of error. Accordingly regulation by means of guidelines issued by the ECI in this regard.

Regulations on Opinion Polls in Other Countries

Name of the Country	Status on Opinion Polls
Canada, France, Italy, Poland, Turkey, Argentina, Brazil and Colombia	Restrictions imposed
United States and Australia.	No Restrictions imposed
United Kingdom	No Restriction on Pre-election surveys
Canada, France, Singapore	Restrictions with some Regulations

REVIEW OF THE STATUTORY NORMS FOR EXIT POLLS

The Law Commission proposed expansion of Section 126 of the Representation of Peoples’ Act, 1951 imposing certain conditions for Disclosures related to Opinion polls. However the amendments proposed under Section 126C and 126D does find place in the present enactment and the concept of Opinion Polls and Exit Polls have not been legally demarcated under Before and After Elections. Based on the recommendations of the Law Commission Report during the year 2009 a new clause was inserted under Section 126 of the Representation of Peoples’ Act, 1951 as under:

SEC 126A - RESTRICTION ON PUBLICATION AND DISSEMINATION OF RESULT OF EXIT POLLS,ETC INCLUDING OPINION POLLS
PRESENT POSITION (RP ACT)	NEW PROPOSAL (AMENDMENT)
(1) No person shall conduct any exit poll and publish or publicise by means of the print or electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission in this regard.	(1) This law should include Opinion Poll or Surveys conducted to study the election trend or forecast to influence voters. Election commission should undertake this task on its own through an independent committee appointed comprising of qualified psephologists duly constituted under constitutional authority.
(2) For the purposes of sub-section (1), the Election Commission shall, by a general order, notify the date and time having due regard to the following, namely:— (a) in case of a general election, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the poll in all the States and Union territories; (b) in case of a bye-election or a number of bye-elections held together, the period may commence from the beginning of the hours fixed for poll on and from the first day of poll and continue till half an hour after closing of the poll: Provided that in case of a number of bye-elections held together on different days, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the last poll.	(2) For the purposes of sub-section (1), the Election Commission shall, by a general order, notify the date and time having due regard to the following, namely:— (a) in case of a general election, the period may commence from the beginning only for a period of two days after the poll and must conclude within the mandated two days and should never encroach the poll dates in all the states and union territories; (b) in case of a bye-election or a number of bye-elections held together, the period may be confined to one day after the polling is concluded.: Provided that in case of a number of bye-elections held together on different days, the period may commence without hindering or hampering or clashing with the poll dates..
(3) Any person who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to two years or with fine or with both. (a) "exit poll" means an opinion survey respecting how electors have voted at an election or respecting how all the electors have performed with regard to the identification of a political party or candidate in an election; (b) "electronic media" includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both; (c) "print" media‖ includes any newspaper, magazine or periodical, poster, placard, handbill or any other document; (d) "dissemination" includes publication in any print media‖ or broadcast or display on any electronic media.	(3) Any person who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to five years or with fine or with both besides suspense of licence. (a) "exit poll" means an opinion survey respecting how electors have voted at an election or respecting how all the electors have performed with regard to the identification of a political party or candidate in an election having a sample survey of at least 50% of voting population; (b) "electronic media" includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media including all sources of social media channels either owned by the Government or private person or by both; (c) "print" media‖ includes any newspaper, magazine or periodical, poster, placard, handbill or any other document including posts in Social Media; (d) "dissemination" includes publication in any print media or broadcast or display on any electronic media including Social Media.

SECTION 126B - OFFENCES BY COMPANIES

PRESENT POSITION (RP ACT)

NEW PROPOSAL (AMENDMENT)

(1) Where an offence under sub-section (2) of section 126A has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(1) Where an offence under sub-section (2) of section 126A has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, or any individual being a promoter of a Company directly or indirectly shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purpose of this section,—

(a) "company" means anybody corporate, and includes a firm or other association of individuals; and

(b) "director" in relation to a firm, means a partner in the firm.

Explanation.—For the purpose of this section,—

(a) "company" means anybody corporate, and includes a firm or other association of individuals and social media channels; and

(b) "director" in relation to a firm, means a partner or a promoter in the firm.

CONCLUSION:

Both Opinion and Exit Polls would have a meaningful relevance only when the entire election exercise in our country is carried out in a single day. This situation is never possible as even State Elections are conducted in phases due to difficulties in the maintenance of Law and Order besides manpower constraints. Hence there is a desperate need to regulate this concept through suitable amendments in the Representation of Peoples’ Act, 1951 as proposed above and curb the influence of social media and IT Cells operated by major political parties and establish a level playing field in the election process in our democracy.

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