Exit polls and why they are restricted by the poll panel

An editor has been arrested for violating a 2010 election law on publishing exit poll results while elections are still on. RITIKA CHOPRA explains the background and reasons for the curbs.

To begin with, what is an exit poll? And how is it different from an opinion poll?

An opinion poll is a pre-election survey to gather voters’ views on a range of electionrelated issues. An exit poll, on the other hand, is conducted immediately after people have voted, and assesses the support for political parties and their candidates.

But why is the Election Commission (EC) opposed to media coverage of opinion polls and exit polls during a multi-phase election?

Both kinds of polls can be controversial if the agency conducting them is perceived to be biased. Critics say the projections of these surveys can be influenced by the choice, wording and timing of the questions, and by the nature of the sample drawn. Political parties often allege that many opinion and exit polls are motivated and sponsored by their rivals, and could have a distorting effect on the choices voters make in a protracted election, rather than simply reflecting public sentiment or views.

When did the EC first attempt to place curbs on such surveys?

The EC held its first consultation with political parties on exit and opinion polls on December 22, 1997 — when Dr M S Gill was Chief Election Commissioner — followed by another on December 23. In the meetings, representatives of most national and state parties said these polls were unscientific, and suffered from biases in the size and nature of samples.

Soon afterward, on January 11, 1998, with Lok Sabha polls and Assembly elections in Gujarat, Himachal Pradesh, Meghalaya, Nagaland and Tripura around the corner, the Election Commission issued guidelines under Article 324 of the Constitution, prohibiting newspapers and news channels from publishing results of pre-election surveys and exit polls between 5 pm on February 14 and 5 pm on March 7. The first votes in the elections were scheduled to be cast on February 16, 1998, and the last votes on March 7.

The EC also mandated that while carrying the results of exit and opinion polls, newspapers and channels should disclose the sample size of the electorate, the details of polling methodology, the margin of error and the background of the polling agency.

How did the media react to the Election Commission’s guidelines?

There were strong protests from both the print and electronic media, who contended that the guidelines violated their fundamental right of free speech and expression. The EC order was challenged in the Supreme Court and the High Courts of Delhi and Rajasthan. Petitions were filed by Frontline and its then editor, N Ram, the Tamil weekly Nakkeeran and its then editor, R Rajagopal, and S N Tiwari, an individual from Rajasthan.

The Supreme Court heard the matter urgently, but did not stay the Commission’s guidelines, making the 1998 Lok Sabha elections the only elections in the country in which both opinion and exit polls were banned for close to a month.

Okay, but why is the current EC ban limited to exit polls?

After the success of 1998, the EC tried to invoke these guidelines again ahead of the Lok Sabha polls of 1999. But sections of the media refused to follow it, forcing the EC to move court. The matter was referred to a Constitution Bench of the apex court, which expressed concern over the constitutional validity of the guidelines. After the Bench observed that the EC cannot enforce such guidelines in the absence of statutory sanction, the Commission withdrew its plans.

In 2004, the EC approached the Law Ministry along with the endorsement of six national parties and 18 state parties, seeking an amendment to the Representation of the People Act to provide for a ban on both exit and opinion polls during a period specified by the Commission. The recommendation was accepted in part, and in February 2010, restrictions were imposed only on exit polls through the introduction of Section 126(A) in the Act.

In November 2013, the EC held consultations with political parties to revive its demand to restrict pre-election opinion polls as well. All political parties with the exception of the BJP endorsed the suggestion to forbid publishing results of opinion polls from the date of notification of elections until the end of polling. The suggestion was sent to the Law Ministry, but no action has been taken on it so far.

Is the EC order against the editors of Dainik Jagran unprecedented? In February 2007, during Assembly elections in Punjab, the Commission had asked District Election Officers of 20 districts to file separate complaints against NDTV director Prannoy Roy on charges that the channel had broadcast exit poll-like projections during voting hours. The difference in the Jagran case is that the DEOS were directed to file criminal cases under Section 188 of the IPC (disobedience to order duly promulgated by public servant), which is a cognisable offence, and led to the arrest on Tuesday of Jagran online editor Shashank Shekhar Tripathi.

How do other countries deal with preelection and exit polls?

Sixteen European Union countries ban reporting of opinion polls, with ban timeframes ranging from a full month to just 24 hours before polling day. Only Italy, Slovakia and Luxembourg have a ban of more than 7 days. A 7-day blackout imposed by France in 1977 was overturned by a court order that deemed it to be violative of the freedom of expression. The French ban has been reduced to 24 hours ahead of voting day.

In the UK, there are no restrictions on publishing results of opinion polls — however, results of exit polls can’t be published until the voting is over.

In the United States, media coverage of opinion polls is regarded as an integral part of free speech in elections, and publication is allowed at any time. The only restriction that exists — not reporting likely outcomes from exit polls before voting is over on election day — is one that news organisations commissioning the polls voluntarily impose upon themselves.