ELECTION COMMISSION

Polls and opinions

A Constitution Bench of the Supreme Court forces the Election Commission to withdraw its ban on the publication in the media of the results of opinion polls and exit polls during a specified time-frame during the election process.

SUKUMAR MURALIDHARAN
V. VENKATESAN
in New Delhi

SHORTLY after withdrawing the "guidelines" that it had issued banning the publication of opinion polls and exit polls in the media while the country went through its month-long electoral exercise, the Election Commission issued a statement indicating tha t the questions it had raised still awaited a final resolution. "The substantive issue of opinion and exit polls in a poor and half-literate society, having multi-party democracy," said the Commission, "still remains to be debated by the country and by t he new Parliament, in a calm, post-election atmosphere."

The statement, issued on September 14, was a virtual admission that the power of "superintendence, direction and control" that Article 324 of the Constitution confers on the Election Commission provides it only a limited jurisdiction. Its precise scope r emains to be defined and codified through legislation. But in a situation of ambiguity, the Commission is not at liberty to take pre-emptive action that may enlarge the scope of its powers.

The Commission's statement seems to suggest an intention to bring these matters to the attention of the newly constituted Parliament for appropriate legislation. That would, if it happens, mark a long-overdue initiative. The "guidelines" issued by the Co mmission on August 20, just two weeks prior to the opening of the polls in an unprecedentedly long election schedule, were a reiteration of a set of principles that it spelt out in January 1998. They had elicited a legal challenge then, principally from the Editor of Frontline, N. Ram, which remained unsettled. In moving a writ petition before the Supreme Court on September 10, 1999, the Commission sought judicial sustenance for its view that the guidelines it had successively issued were tenable under the law. In a context of undefined executive powers, the intention was to hold non-compliance with the Commission's directives equivalent to contempt of court.

Since 1998, the Election Commission has tended to view the exercise of opinion polls and exit polls with considerable scepticism and misgiving. "The dissemination of such results of opinion polls receives wide publicity and coverage in the print and elec tronic media and such dissemination, particularly on the eve of polls, has the potential to influence the electors when they are in the mental process of making up of their minds to vote or not to vote for a certain political party or a candidate," the C ommission had reasoned in its guidelines.

On exit polls, the Commission claimed that "publication of (the) result of any exit poll, in the intervening period when the poll in any of the States or Union Territories or constituencies is yet to be taken, is likely to affect the unbiased exercise of franchise by the elector, one way or the other." The Commission referred to restrictions on the dissemination of such poll results, particularly in Canada, France and Italy, where such controls have legal backing. In citing these analogies, the Commissi on did not seem quite willing to grapple with the manifest absence of a legal basis under Indian law for its guidelines.

What made the guidelines especially irksome from the point of view of the media was the prolonged period of their application. The publication of opinion and exit poll results in the print or electronic media was to be banned from 48 hours prior to the closing of polls in the first round of voting (September 5) till half an hour after the closing of polls in the last round (October 3).

Expectedly, certain media organisations proved less than mindful of the Commission's directives. This prompted the writ petition of September 10, which the Supreme Court bench consisting of Chief Justice A.S. Anand, Justice K.T. Thomas and Justice M. Sri nivasan chose to refer to a Constitution Bench. In making this reference, Chief Justice Anand also ordered that papers pertaining to all the related petitions be circulated before the Constitution Bench. This brought to the foreground of judicial attenti on a set of petitions that had been filed in 1998. These included petitions filed by Frontline and its Editor, N. Ram, and the Tamil weekly Nakkeeran and its Editor, R. Rajagopal, apart from a petition filed by S.N. Tiwari, an individual fr om Rajasthan.

The Commission's petition specifically mentioned the Union Government, The Times of India and Jain TV as respondents. But the Commission suffered an early setback when the Union Government made clear its inability to implement the guidelines.

A Constitution Bench comprising Justices S.P. Bharucha, B.N. Kripal, V.N. Khare, S.M.H. Quadri and D.P. Mohapatra took up the matter on September 14. In the course of a four-hour hearing, the bench repeatedly asked the Commission's counsel, Harish Salve , to explain the grounds on which he expected the Supreme Court to help enforce its guidelines. The bench also sought to know how the government could possibly enforce the guidelines in question. Among other things, the bench wanted to know whether the C ommission had the power to issue such guidelines and enforce them. Asking other agencies to implement them is no remedy, the bench said, especially since the judiciary could not play an executive role. Power to enforce a guideline is inherent in the powe r to issue it, the bench suggested.

A second point posed by the bench related to the judicial power to issue a writ of mandamus against individuals and organisations in the media. This power, it observed, was only invoked in cases involving the violation of fundamental rights. Individuals and organisations could seek such a writ against the state. But for the Commission to seek such a direction in its aid amounted to an inversion of constitutional principles.

The Commission, through its counsel, expressed the opinion that the defiance of its guidelines by some newspapers and television channels implied a challenge to the rule of law. As an authority empowered by the Constitution to take all measures to ensure free and fair elections, it enjoyed the requisite power to issue guidelines, Salve claimed.

Shanti Bhushan, counsel for Frontline, as also for Jain TV, argued that Article 324 confers only administrative powers on the Commission. In other words, the Commission can direct and control all officials engaged in election duty and apply certai n norms to candidates and political parties. These powers did not, however, extend to the media, which stand outside the election process, he argued. The Commission enjoys extraordinary powers only with regard to cancellation or postponement of elections , if the situation warrants. It can warn political parties and candidates about the likely consequences of violation of election law, Bhushan pointed out. The publication of opinion and exit poll results did not amount to any such violation. On the contr ary, argued Bhushan, they could be useful inputs for voters to decide which party to endorse, which could contribute to political stability.

At one stage, the bench wondered whether there was any point at all in challenging a set of guidelines that had no teeth. The court did not take up the issue of freedom of expression, guaranteed under Article 19 of the Constitution. Although this was one of the grounds listed in Frontline's petition seeking the quashing of the Commission's guidelines, the bench did not take up the question since it was tilting towards the view that the guidelines themselves had no legal basis.

The bench was not convinced by Salve's claim that the guidelines were the result of a near-consensus among the political parties, and that even the Press Council of India had recommended restrictions to be placed on the dissemination of the results of op inion and exit polls.

The Constitution Bench dismissed the Commission's writ petition at the admission stage itself saying that the petition had no merits. It rejected the Commission's plea that the bench should issue appropriate directions, or at least make a declaration tha t the guidelines are enforceable and legal. After dismissing the writ petition, the bench went on to examine the scope of Article 324 by hearing arguments on whether the Commission had the requisite powers to issue such guidelines.

RAJEEV BHATT
Chief Election Commissioner Dr. M.S. Gill with Election Commissioner G.V.G. Krishnamurthy.

When the E.C.'s counsel justified the Commission's powers under Article 324, Justice Bharucha told Salve that the bench had had enough of arguments, and asked whether the Commission expected the bench to write a judgment basing itself on Article 324, whi ch would show that the Commission had far less powers than it claimed it had. The bench asked him whether the guidelines could be enforced on CNN or the BBC, international satellite television channels, or even on the Internet, if at all the Commission e njoyed the requisite power under Article 324. At this stage, Salve agreed with the bench, and requested a brief adjournment in order to get in touch with the Commission to find out whether it was willing to recall its guidelines.

After consultations he informed the court that the guidelines would be withdrawn. The course of prudence seemed appropriate in the light of a gentle admonition from the court, that at the "end of the day" the Commission may be left wielding a greatly dim inished power for the supervision of elections.

Although the Commission has since indicated that it intends to keep the issue alive, there is little question that it has in overstretching itself, undermined even the residual sense of respect that sections of the media had shown towards its directives . The Supreme Court did not turn its attention to an examination of the desirability or otherwise of the restrictions proposed by the Commission. It merely examined the limited question of the Election Commission's powers and the existing legal underpinn ing for these. The hearing before the Constitution Bench clearly indicated that Article 324 could not be stretched so far as to restrain the freedom of expression. A fuller exposition of this point was not given since the Election Commission sought to pr e-empt a larger challenge to its authority by discreetly withdrawing its guidelines. The debate on the role of opinion and exit polls, and its impact on the voters will presumably continue.

An early contribution to the discourse on the subject came from N. Bhaskar Rao, chairman of the Delhi-based Centre for Media Studies. The public debate, he said, had served a salutary purpose, in making larger numbers of people aware of the potentialitie s and limitations of opinion polls. The veteran election analyst concedes that there is a growing tendency to abuse opinion polls to induce a certain pattern of voting behaviour. "But you cannot prohibit," he affirms. "The best course is to sensitise the voting public about the intricacies of these polls."

Bhaskar Rao's own research points towards a certain measurable influence of opinion polls on voting behaviour. "The impact varies according to the actual situation," he says. As a broad generalisation, he has found that the impact tends to be greater whe re a constituency is witnessing an exceptionally keen contest, or where a large number of voters remain undecided till late in the campaign. While the Commission may have a case, a total ban, says Bhaskar Rao, may not be the best way to pursue it.

The political reactions traversed a wide spectrum. Bharatiya Janata Party spokesman Arun Jaitley sought to interpret the Commission's capitulation as a triumph for the freedom of the media. Congress(I) spokesman Kapil Sibal reaffirmed his party's commitm ent to the law as interpreted by the highest court, though he did criticise the BJP for trying to portray its vested interests in Jain TV as a matter of high principle. Other parties, such as the Janata Dal (United) and the Samata Party, endorsed the not ion of restraint by the media, but saw little merit in draconian administrative action to enforce it.

IN a related development, a Division Bench of the Andhra Pradesh High Court had on September 7 quashed an order of the Election Commission prohibiting the broadcast of advertisements by political parties and candidates on private television channels duri ng the elections. The judgment came on a writ petition filed by Gemini TV, a Telugu language channel, challenging an August 20 order of the Commission.