Ban on exit polls goes, SC tears EC’s plea to shreds

A five-judge Constitution bench, headed by Justice S P Bharucha, dismissed the EC’s petition seeking a direction to the Union Government to enforce the same saying it was “devoid of merit” and said these guidelines were without any legal force and were not binding on anybody. “Your (EC’s) guideline will remain a guideline. It is not binding (on anybody),” the bench said.

“The EC wants us to act in its aid and issue the direction 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 bench observed. “Even if we direct the Centre to enforce these guidelines, how will the Centre impose them?”

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 of freedom of speech and expression.”

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

Salve informed the court about the Commission’s decision to withdraw the guidelines first issued on February 21, 1998 and reiterated on August 20, 1999. The bench observed that “as voters and citizens we might regret that we have to sign a judgement which will curtail your powers. But if we have to do it it is because of these guidelines.”

On the EC’s prayer for a direction to the government to enforce the guidelines, the bench asked: “Why are you seeking a declaration to that effect from us? This is not the way directions are issued to the government. You have no power (to issue such a guideline). It is as simple as that.”

When Salve argued that the publication of exit or opinion polls would impinge upon the free and fairness of the election process, the bench said: “At the end of the day you (EC) may go home with a perception that you have far less powers than the public perception of it.” As a result of this, the media is free to publish or telecast exit and opinion polls during the mid-term elections, it said.

Other judges were Justices B N Kirpal, V N Khare, S S M Qadri and D P Mohapatra.

The bench said: “The overall consensus among the political parties to ban the exit and opinion polls does not empower the EC to make guideline binding people at large.”

Right from the beginning of the hearing, the bench persistently asked the Commission as to how it had powers to issue such an order without thinking about its enforcement.

When Salve said that the publication of these polls would create a problem for the Commission, the bench said: “The problem is your own creation. You should have seen what your powers are before issuing such guidelines.”

“If you had assumed that you had powers to issue such guidelines, why are you doubting the very same powers by coming to the court and seeking their enforcement,” the bench asked.

The court asked the EC whether its notification banning the publication of exit and opinion polls would be binding on foreign media like the BBC and CNN. When Salve said no and added that even exit poll results were on the Internet, the bench said: “If it will not apply to the foreign media, then the guidelines were nothing but a mockery.”

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

The 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 behavior in later phases of the staggered polls.