Why opinion polls need to be regulated

Every election season, television channels are flooded with opinion polls. Critics have often questioned their authenticity. All political parties have also opposed these polls, demanding a ban – except when presented as winners. The media, on the other hand, invariably opposes the idea of ​​a ban because seating forecasts attract viewers during prime time.

In most democracies, opinion and exit polls are common during elections. However, restrictions are also imposed in many countries, ranging from two to 21 days before the poll – Canada, France, Italy, Poland, Turkey, Argentina, Brazil, Colombia, to name a few examples. The opposition to the ban in India is mainly based on the fact that freedom of speech and expression is guaranteed by the Constitution (article 19). What is conveniently overlooked is that this freedom is not absolute and allows for “reasonable restrictions” in the same article. The Indian Penal Code and the Representation of the People Act 1951 contain certain restrictions.

While the Constitution permits reasonable restrictions on free speech, his mandate in ICE for free and fair elections is absolute. The Supreme Court (SC), in a series of judgments, has emphasized this requirement: “Democracy cannot survive without free and fair elections” (Union of India v ADR, 2003); “Free and fair elections are the basic structure of the Constitution” (PUCL vs Union of India, 2003; NOTA judgment, 2013); “The core of the parliamentary system is free and fair elections” (Mohinder Singh Gill v India’s CEC, 1977).

Why does the ECI believe polls interfere with free and fair elections? Having seen “paid news” in action, he fears that some opinion polls may be sponsored, motivated and biased. Moreover, almost all the polls are not transparent, providing little information on the methodology. With such infirmities, many “polls” constitute misinformation that could result in “undue influence,” which is an “election offense” under IPC Section 171(C). This is a “corrupt practice” within the meaning of Article 123 (2) of the RP Law.

The call for a ban on opinion polls is not new. At two multi-party meetings convened by the Electoral Commission in 1997 and 2004, there was a unanimous demand for a ban. The difference of opinion related only to the question of whether the ban should apply from the announcement of the polling timetable or from the date of notification. In 1998 the ECI published guidelines which were challenged by the SC. A five-judge Constitutional Court asked the ECI how it would enforce these rulings in the absence of the law. Realizing its weakness, the ECI withdrew the guidelines until a law was enacted. Unfortunately, this left the constitutionality of the issue undecided.

The case resurfaced in 2008 when many political parties came to the ECI to demand a ban on opinion polls and exit polls. The ECI informed them that they had to raise it in Parliament, as it required a legislative amendment. The EC even approved a draft of the proposed amendment. Surprisingly, Parliament banned exit polls, but not opinion polls (126A, PR Law). It is unclear why the parties, which were unanimous in demanding a ban on opinion and exit polls, did not vote for it in Parliament in its entirety.

In 2013, the debate over banning opinion polls was reignited when the Ministry of Justice advised the ECI to seek input from all political parties again. Fifteen political parties responded and all but one (the BJP) supported a ban. It was interesting to follow the debate on the subject in the media. All participants – media, pollsters and lawyers – were heard in favor of opinion polls, while admitting the presence of serious flaws.

The ECI and the political parties are not the only ones to doubt the integrity of opinion polls. The Press Council of India states: “It has become necessary to stress this today, since the print media is sought to be exploited by interested individuals or groups to mislead and mislead unwary voters through a subtle and less subtle propaganda about castes, religions and ethnicities. as well as through the use of sophisticated means such as the alleged polls” (emphasis added).

In early 2014, an undercover operation by a television news channel caused a stir. No less than 11 polling companies have been caught in the act of fraudulently manipulating polls. These polling firms were willing to manipulate margin of error, candidate margin of victory, seat projections for a party, or hide negative findings. Unfortunately, this presentation did not receive the attention it deserved.

What is the way forward? Ideally, an independent regulator, such as the British Polling Council, would be a viable option. All polling firms must disclose for review the sponsor, in addition to sample size, methodology, timing, quality of training of research staff, etc. India could create its own professional body on the same model. After the 2015 elections in Bihar, six leading agencies had raised the possibility of establishing a self-regulatory body – the Indian Polling Council. More than six years later, there is no progress.

A related issue is that of exit polls, which were banned by an amendment to the PR Act in 2008, making both the conduct of polls and their dissemination illegal. However, the media routinely flouted the law by “running” exit polls on polling days, although they did not release the result until after polls closed on the final day.

Surprisingly, the ECI continues to ignore this violation. Indeed, the ECI decree authorizes the dissemination of the results of exit polls half an hour after the end of the poll on the last day of the poll. It makes no mention of the ban on the holding of the ballot itself, which is expressly prohibited by law. Thus, the guidelines of the ECI oppose the provisions of the law. This creates confusion. Many young researchers have been arrested by the police for breaking the law. This must stop.

This column first appeared in the print edition of February 9, 2022 under the title “Jump the polls”. The writer is the former Chief Electoral Commissioner of India and the author of An Undocumented Wonder: The Making of the Great Indian Election

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