Section 126 of the Representation of People Act, 1951 restricts exit poll during elections. Now, when the last round of voting is over, exit polls are screaming from TV screens and will be dominating the newspapers tomorrow. So why is it that the exit polls are banned during the elections? Was is it always the case? Let us examine this unique feature of democracy.

 

The 255th report of the Law Commission sheds light in this regard. It states, “The earliest attempt to regulate opinion polls was made in 1998 when the ECI took an overall view of the situation and issued an order on 11-1-1998 laying 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 by them. This was done in the wake of impending general elections to the House of the People and to the Legislative Assemblies of Gujarat, Himachal Pradesh, Meghalaya, Nagaland and Tripura.”

 

The matter was also examined by the Press Council of India around the same time and it ordered the following-

“No newspaper shall publish exit-poll surveys, however genuine they may be, till the last of the poll is over”.

 

However, the law on exit poll got statutory status only in 2009 through an amendment in the Representation of People Act, 1951.

A case on Exit Polls also reached the Supreme Court (DK Thakur v. Union of India (WP(C) 207/2004)) but was rather uneventful. Five years after it was filed, the Supreme Court delivered its Final Order in the following words

“The petitioner wanted that there should be some guidelines as regards the publication of the Exit Poll results and opinion polls during the election. We are told that the Election Commission of India has issued on 20th January, 1998 laying down certain guidelines regarding the publication and dissemination of results of opinion polls/exit polls. Petitioner is satisfied with the guidelines. Nothing more is required in this petition. The Writ Petition is disposed of accordingly.”

The above Order is a telling sign of the practice at Supreme Court. If Election Commission had done everything necessary it 1998 itself, why entertain a matter in 2004? Better still, why keep it pending for five years? 

 

Surprisingly, there is no reported case about any challenge to restriction on exit polls yet. Of course, the Supreme Court has dismissed petitions seeking a ban on exit and opinion polls at the threshold itself. The Allahabad High Court in from Syed Mohd. Fazal v. Union of India, 2014 SCC OnLine All 15221 did deal with the plea of expanding the scope of S. 126A. It answered in the following words- 

“Stection 126-A contains a prohibition on publishing or publicising by means of the print or electronic media or on dissemination in any other manner whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission. The expression ‘exit poll’ has a statutory definition in Explanation (a) and means (i) an opinion survey respecting how electors have voted at an election; or-(ii) an opinion survey respecting how all the electors have performed with regard to the identification of a political party or candidate in an election. In our view, having regard to the legal position under Section 126-A which imposes a prohibition in regard to the exit polls, as defined, the notification which has been issued by the Election Commission on 3 April 2014 is in the context of that prohibition. The statutory function, which is assigned to the Election Commission under sub-section (2) of Section 126 A, is to notify the date and time over which the prohibition shall remain in force having due regard to the periods which are set up in clause (a) which ap-plies in the case of a general election and in clause (b) which applies in the case of a bye-election or a number of bye-elections held to-gether. In our view, it would not be open to the Court to widen the ambit of the prohibition, beyond what has been legislated upon by Parliament in terms of Section 126-A. In determining the extent of the prohibition and the wisdom of imposing such a prohibition, Parliament has to constitutionally balance the right to information on one hand, and the need to conduct a free and fair election on the other. It is for Parliament, which is the legislative body, to consider where that line should be drawn. Since Parliament has made that determination by laying down norms in Section 126-A, it would be impermissible for the Court to expand the nature or extent of the prohibition. In fact, the notification, which has been issued by the Election Commission on 3 April, 2014, implements the provisions of Section 126-A during the ensuing elections to the Lok Sabha, to the State Legislative Assemblies and to the bye-elections of State Legislative Assemblies. Hence, we have no reason to entertain the petition.”

 

Exit polls are a costly affair and involve a lot of research and planning. They have been rightly restricted to preserve the sanctity of democracy. But, it is difficult to restrain exit polls in this digital age. The restrictions which worked on large scaled platforms are being challenged on social media, every day. The real challenge to the enforceability of 126A is the broader question. Only Election Commission can answer it. Will it?

 

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