SC refuses ban on opinion, exit polls

NEW DELHI, Sept 14 (UNI) — The Election Commission (EC) today withdrew its controversial guidelines on opinion and exit polls after the Supreme Court ruled the commission was not constitutionally empowered to issue such orders.

However, even as it withdrew the guidelines, the EC said the "substantive issue of opinion and exit polls in a poor and half-literate society needed to be debated by the country and the new Parliament."

The EC decision came after a five-judge Constitution Bench of the apex court refused to issue directions to the government and its instrumentalities to enforce the EC ban on publication or telecast of opinion and exit polls till the last of the vote for the 13th Lok Sabha was cast.

The court said the EC had no powers under Article 324 of the Constitution to issue such guidelines.

"The Election Commission wants us to act in its aid and issue the directions so that if anyone violates it he can be proceeded against for contempt of the court. It is simply ridiculous. The commission should have realised that it has no powers to issue such guidelines on the plea of the Press Council of India", the court observed.

"Even if we direct the Centre to enforce these guidelines, how will the Centre impose them?", the Bench comprising Mr Justice S.P. Bharucha, Mr Justice B.N. Kirpal, Mr Justice V.N. Khare, Mr Justice S.S.M. Qadri and Mr Justice D.P. Mohapatra said.

The EC guidelines of January 20, 1998, and August 20, 1999, prohibited "any dissemination of exit polls and opinion polls on and from 5 p.m. on September 3, 1999, and till the closing of the poll in all states at 5 p.m. on October 3, 1999."

In their brief order, the judges said: "We have heard EC counsel Harish Salve. In our view, the writ petition filed by the EC under Article 32 of the Constitution has no merit. However, we have not gone into the question whether the poll-related guidelines issued by the EC are violative of the fundamental right to freedom of speech and expression."

The EC issued a formal order in the evening withdrawing with immediate effect its August 20 guidelines banning the publication and telecast of opinion and exit poll results for a month from September 3.

Later in the day, after the EC’s decision to withdraw the guidelines was communicated to the Bench, the court disposed of all related petitions, including the one by the EC and by Frontline and Nakkeeran pending before the court since January, 1998.

The matter was referred to the Constitution Bench by a three-judge Bench headed by Mr Justice S.B. Majumdar on Thursday last as it involved interpretation of the EC’s powers under Article 324 of the Constitution.

The EC’s guidelines had said that the print and electronic media were free to conduct exit polls during the elections, but the results should not be published or telecast, since it could influence the voting behaviour in later phases of the staggered poll

Earlier EC’s counsel Harish Salve submitted that the commission had issued the impunged guidelines under Article 324 of the Constitution which empowered it to oversee, direct and control matters relating to holding of a free and fair poll.

The Press Council of India, counsel said, had advised the commission to issue such guidelines since opinion polls and exit polls were bound to influence the voters and thereby vitiate the election process.

"You do not have any powers to issue such guidelines. If you think you have, enforce them. How are you asking us to enforce your own order?’’ Mr Justice Bharucha asked counsel.

Mr Salve said that the commission had approached the court in peculiar situations where certain persons were obeying these guidelines and some were not. The court had powers to issue a mandamus to ensure the enforcement of these guidelines.

Counsel said the commission had powers only to cancel the elections, if it found that the process had been vitiated.

"Do what you can. You are asking us to act in aid of the commission whereas all constitutional authorities are expected to act in aid of the court," Mr Justice Bharucha said, adding if "you are seeking the enforcement of your powers in this way, it will create an impression that you have no powers to issue such guidelines."

He made it clear that commission’s guidelines were not binding.

Mr Salve pointed out "when the problem was that people were flouting the guidelines with impunity, where do we go.’’

"The problem is of your own creation. You should have realised that you do not have such powers’’, Mr Justice Bharucha reiterated.

Mr Justice Mohapatra intervened to ask: "If you have powers to issue the guidelines, why have you come to us to seek their enforcement.’’

Mr Salve said that there was no machinery at the disposal of the commission to enforce the guidelines. "We could only cancel elections which would create problems as the new Lok Sabha has to be constituted by the second week of October. That was why we have approached the court to declare the guidelines enforceable", he said.

"Why are you seeking a declaration at our hands’’, Mr Justice Bharucha asked, adding "exercise your plenary powers which you claim to have under Article 324 of the Constitution and issue whatever direction you feel necessary to enforce them.’’

SC reminds EC of its role
From Shubhabrata Bhattacharya
Tribune News Service

NEW DELHI, Sept 14 — The Supreme Court’s action questioning the locus standi of the Election Commission vis a vis the guidelines issued by the Commission banning the publication of opinion polls and exit polls, though not a judgement, is an important watershed in India’s constitutional history.

Since the days of Mr T.N. Seshan as Chief Election Commissioner there has been a tendency in the Election Commission to assume powers not assigned to it under the Constitution. The Supreme Court today has clearly defined the parameters under which institutions like the Election Commission should function.

Article 324 of the Constitution, from which Election Commission derives its powers, entrusts the superintendence, direction and control of elections to the EC. Preparation of the electoral roll and the conduct of elections is thus the EC’s primary task.

Both Mr Seshan and his successor, Dr M.S. Gill, while endeavouring to improve the quality of elections and ensure fairplay, have also from time to time made observations and statements and the EC under them has issued guidelines on matters which transcend their constitutional brief. The Supreme Court has unequivocally blown the whistle today to point out that even for the EC there is a yellow line which has to be respected.

The exercise regarding voter identity cards, carried out with much fanfare during Mr Seshan’s tenure as the Chief Election Commissioner, when Dr Gill was a member of the EC is still to be completed.

Meanwhile, the sanctity of a Ration Card has been accorded to voter ID card. Maybe the EC can devote its attention to this aspect, which is essential for fair conduct of elections.

The incidents in New Delhi and Gandhinagar constituencies respectively, on the first day of voting this year, involving VVIPs showed how fragile the system of maintaining electoral rolls is. Preparation of electoral rolls is a basic task of the EC. Unfortunately, many voters who turned up in the polling booths in the penultimate year of this millennium found that the computer age is yet to make India’s election process a smooth affair.

The Supreme Court has very rightly pointed out that before issuing guidelines the EC should debate whether it is enforceable. In the given case, as the honourable Court pointed out, the ban on publication of exit polls and opinion polls could not extend to foreign broadcast media which has its footprint over India. Thus, the fetters of the EC, if enforced, would have gagged the domestic media alone.

What is unfortunate is that while it took an action of the EC itself (prompted by the appeal filed by a private TV channel in the south which had made the Madras High Court at Chennai give a judgement against the guideline) to elicit today’s direction from the Supreme Court, none of the professional bodies of mediapersons or major media groups had reacted against the ban on publication of opinion polls and exit polls, which, inter alia, may be an infringement on the right to freedom of expression and even the freedom to practice any profession, as granted by Article 19 of the Constitution.

As the matter had not been specifically mentioned, the Supreme Court has restrained itself from adjudicating on this score. May be, if a specific mention is made before the apex court at a future date, a clarification on this may also emerge.

Cong, BJP welcome verdict

NEW DELHI, Sept 14 (UNI) — The Bharatiya Janata Party has welcomed the Supreme Court judgement dismissing the Election Commission’s plea barring publication or telecasting of opinion and exit polls today.

Party Vice-President and spokesman J.P. Mathur said here today that the apex court’s judgement would be "appreciated’’ by all.

He said the judgement has upheld freedom of the press that could only be restricted "under very extraordinary circumstances.’’

"It may be recalled here that even during the Emergency the press had fought against censorship. And the Election Commission’s order was in a way indirect censor of the media," he added.

The Congress too welcomed the Supreme Court judgement permitting publication and telecast of poll surveys.

Talking to newspersons, Congress spokesperson Kapil Sibal said the party would obey the law and unlike the BJP did not believe in manipulating the press.