New Delhi, April 9
The Election Commission’s suggestion that the BJP-led NDA government promulgate an Ordinance banning opinion and exit polls fell by the wayside with Attorney-General Soli Sorabjee shooting it down on the ground that it violates the fundamental right of free speech and expression.

The ball is thus back in the court of the autonomous Election Commission, a creation of the Constitution, even though political parties had evolved a consensus that opinion and exit polls should be blacked out till the final phase of polling is concluded.

Apprehending that the proposed Ordinance might not stand the test of the court, the Atal Bihari Vajpayee government sought the opinion of the country’s highest legal officer on the issue of banning opinion and exit polls till the phased democratic process is completed.

In the detailed opinion tendered to the government, Mr Sorabjee maintained that upholding the fundamental rights as enshrined in Article 19 of the Constitution was paramount. Promulgating an Ordinance would, therefore, be against Article 19 (1) (a) of the Constitution guaranteeing free speech.

Union Law and Justice Minister Arun Jaitley is believed to have had similar reservations against promulgating an Ordinance and referred the commission’s letter to the Attorney-General for his opinion.

Mr Sorabjee noted he was seized of the opinion of political parties seeking a ban on opinion and exit polls. He said: “Regard must be paid to the unanimous view of political parties but their view is not decisive on the question of constitutionality of a statute.”

Mr Sorabjee, nevertheless, threw up the proposition of imposing certain restrictions on the publication/telecast of opinion and exit polls. He insisted that the government could not resort to an Ordinance banning opinion and exit polls as such exercises had been undertaken in the past.

“It is difficult to conclude that circumstances impel the necessity for urgent and immediate action for the issuance of an Ordinance,” the Attorney-General contended.

Mr Sorabjee said the constitutionality of such an Ordinance was highly debatable. It was a well-settled principle that the right to free speech included the right of the people to know and receive and disseminate information.

In this context he drew pointed attention to the Council of Europe’s recommendation as a model law whereby those who publish such polls are to be asked to name the political party or other organisations or persons specifically commissioning the poll and paying for it.

The opinion or exit poll should reveal the identity of the organisation conducting the poll, the methodology applied, the size of the sample, the margin of error and the dates or period when the poll was conducted.

After convening a meeting of all political parties to assess their views on opinion and exit polls on Tuesday the commission wrote to the government that promulgating an Ordinance banning opinion and exit polls might be the best way out. Having burnt its fingers the last time in 1999, the commission felt it might be advisable for the government to intervene in the matter.

Clearly, the commission wanted to avoid a repeat of 1999 when it withdrew its controversial guidelines on opinion and exit polls after the Supreme Court ruled that the autonomous body vested with powers for the superintendence of elections was not constitutionally empowered to issue such orders.