EXIT POLLS AND MEDIA LAW
CHANAKYA CHANAKYA NATIONA NATIONAL L LAW UNIVERSI UNIVERSITY TY
Press, media and telecommunication laws Project Reort on
E!it olls and media law Submitted to: Dr. Ajy Kumr &'u(ty )or !re** #d +edi L,*
"#ANA$%A NATIONAL LAW &NIERSIT%Pa'e (
Submitted by: Adity !rt" Si#$% Ro(( No. --/ I0 *eme*ter
EXIT POLLS AND MEDIA LAW
ACKNO AC KNOWL WLEDG EDGEM EMENT ENT Any project completed or done in isolation is unthinkable. This project, although prepared by me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor for Media aws, !r. Ajay "umar for his #aluable suggestions towards the making of this project.
Further to that, I would also like to e$press my gratitude towards our seniors who were a lot of help for the completion of this project. The contributions made by my classmates and friends are, definitel y, worth mentioning.
I would like to e$press my gratitude towards the library staff for their help also. I would also like to thank the persons inter#iewed by me without whose support this project would not ha#e been completed.
%A!IT&A %A!I T&A P'ATAP P'ATAP (I)*+ (I )*+
"#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )
EXIT POLLS AND MEDIA LAW
RESEARCH METHODOLOGY +et%od o) Re*er'%
The researcher has adopted a purely doctrinal method of research. The researcher has made e$tensi#e use of the a#ailable resources at library of the hanakya )ational aw -ni#ersity and also the internet sources.
S'o"e #d Limittio#*
Though the study of the this topic is an immense project and pages can be written o#er the topic but due to certain restrictions and limitations the researcher has not been able to deal with the topic in great detail.
Sour'e* o) Dt:
The following secondary sources of data ha#e been used in the project%
. ases /. 0ooks 1. 2ournals
+et%od o) Writi#$:
The method of writing followed in the course of this research paper is primarily analytical.
+ode o) Cittio#
The researcher has followed the bluebook method of citation throughout the course of this research paper.
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EXIT POLLS AND MEDIA LAW
TABLE OF CONTENTS ACKNOWLED1E+ENT................................................................................./
RESEARCH +ETHODOLO1Y ......................................................................1
Introduction...........................................................................................................3
Meaning of 4$it, 4ntrance and 5pinion Poll........................................................6
*uidelines and 'egulatory Framework for 4$it Polls........................................1
/78 ok (abha 4lections 9 The accuracy of poll predictions.........................../7
onclusion........................................................................................................../3
0ibliography......................................................................................................./6
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EXIT POLLS AND MEDIA LAW
INTRODUCTION
The freedom of speech and e$pression has been characterised as :the #ery life of ci#il liberty; in the onstituent Assembly !ebates. The freedom of the press, while not recognised as a separate freedom under Fundamental 'ights, is folded into the freedom of speech and e$pression./The (upreme ourt has described this freedom as the :ark of the co#enant of democracy;. 1 The freedom of the press ser#es the larger purpose of the right of the people to be informed of a broad spectrum of facts, #iews and opinions. It is the medium through which people gain access to new information and ideas, an essential component of a functioning democracy. Thus, :uire consideration. Technology has ( onstituent Assembly !ebates? 5fficial 'eport, @!elhi, 8B%37C, DII, p. E. ) BrijBhushan and Another vs. The State of Delhi, AI' 37 ( / Sakal Papers (P) Ltd vs. Union of India, AI' B/ ( 173.
* Bennett Colean ! Co. # Union "f India, AI' 61 ( 7B. +Amartya (en, :The glory and the blemishes of the Indian news media;, The +indu, April /3, /7/ "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e
EXIT POLLS AND MEDIA LAW e$panded our horiGons, but also brought with it, new concerns. 'ecent e#ents related to the news media, such as the proliferation and subse>uent curbing of social media, the paid news phenomenon, fake sting operations, trial by media, breach of pri#acy, etc. pose a set of an$ieties. As ord 2ustice e#eson wrote in his path%breaking report on Hulture, Practice and 4thics of the Press in *reat 0ritain, :#ith these ri$hts (of press freedos) %oe responsi&ilities to the pu&li% interest' to respe%t the truth to o&e the la* and to uphold the ri$hts and li&erties of individuals. ;3 To this end, the research paper raises some select concerns, and poses a set of >uestions that will help foster a larger public debate amongst stakeholders and the citiGenry to shape the approach which should be adopted in tackling these issues.
O23ECTIVES:4 . /. 1. 8. 3.
To study the prime issues surrounding the use and application of e$it polls To study whether the e$it polls predict the election results right To analyGe the methods followed by certain prime agencies in conducting e$it polls To e$amine whether the e$it polls lead to any surprises To study the le#el of criticism, contro#ersy and errors following the outcome of e$it poll
+ETHODOLO1Y:4 For the purpose of research as a whole, the researcher has adopted doctrinal method of research. ontent analysis method was adopted to analyGe the sur#ey findings of e$it poll sur#eys conducted by the research agencies and media organiGations in the /78 ok (abha elections in India. ontent analysis is a techni>ue that pro#ides opportunity to study the content published or broadcast in media in terms of news reports and news analysis. The content analysis method helps in the analysis of the methodology adopted by the researchers of e$it polls and the techni>ue used to analyGe the data. The study e$plores the different methods adopted by the researchers of e$it polls to understand the degree of accuracy in their predictions. 4$it polls are all about making predictions in the elections based on the opinion collected from #oters post #oting. The content analysis helps in understanding the method of study, sample design and techni>ues of analysis in e$it polls published in the mainstream media. ord 2ustice e#eson, HAn In>uiry into the ulture, Practices and 4thics of the Press @e#eson In>uiry 'eport, ondon? )o#ember /7/C.
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EXIT POLLS AND MEDIA LAW
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EXIT POLLS AND MEDIA LAW
MEANING OF EXIT, ENTRANCE AND OPINION POLL There are #arious ways of feeling the pulse of #oters or study the reasons as to why they prefer or reject a particular candidate or a party. All the four types of sur#eys ha#e different purposes and approach. An e$it poll of an election is gathering of #otes polled after #oter comes out of the actual polling station or meeting the #oters in their residence after the polling is o#er. The information collected at the polling station from the indi#idual #oters is analysed presuming that the #oters ha#e gi#en accurate information about their #ote to the field in#estigators of the research agencies. 4$it poll is diagonally opposite of opinion poll. If the #oters are asked to whom they intend to #ote, then it is called the opinion poll. If the poll is conducted before the #oters cast their #ote, it is called an entrance poll.B Jhen it comes to post poll sur#ey, according to the entre for the (tudy of !e#eloping (ocieties @(!(C of )ew !elhi, it is a state of art method of sur#ey which it has de#eloped. In this method, #oters are inter#iewed after the polling is completed at their residences and not at the polling booths or on the street. It is done in a rela$ed en#ironment. It is an e$ercise to read the pulse of #oters and also to go beyond that 9 as to why a particular candidateKparty became the preference. In the recent years, newspapers and tele#ision houses are opting for e$it polls. May be because the opinion polls ha#e gone horribly wrong in the past and at the same time, the e$it polls ha#e been nearer to the reality conducted by certain agencies. The sur#eys are conducted mainly to kill the curiosity of readersK #iewers. In case of TD stations, the telecast of e$it polls or general sur#ey results increase the Tele#ision 'ating Point @T'PC tremendously and thus also brings in re#enue through ad#ertisements. !uration of the telecast of the results turns into prime time. The early indication of the results before the actual results are announced also lead to betting with punters becoming hyper acti#e. (hare markets too respond to the poll predictions. There were instances when the media organisations which were controlled financially by politicians or political parties, tweaking the sur#ey results to woo undecided #oters or to create euphoria for the partyKcandidate of their choice. 0ut this tendency was checked to a - / S Rama De0i, How India Votes- Election Laws, Practice and Procedure, *rd Edtion, )1(+ "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e 2
EXIT POLLS AND MEDIA LAW considerable e$tent during the ( /78 season because the outcome of the sur#eys was announced only after the final phase of #oting. This is being done as per the directions issued by the 4lection ommission of India. Another purpose of e$it poll @or the sur#eyC is to find or to get a rough indication to the degree of election fraud. The DeneGuelan recall referendum in /778 and the -krainian presidential election /778 are the recent e$amples of the poll fraud. Marcel #an !am, a !utch sociologist and former politician, is credited with ha#ing designed the e$it poll. It was first conducted during the !utch legislati#e elections in B6. It is not that e$it polls are fool% proof. There will be margin of error. The e$ample for showing the error is the / -nited "ingdom general elections. Two e$it polls were conducted and both had predicted a hung parliament. 0ut the actual results made way for the onser#ati#e Party to become the ruling party. +owe#er, the party did not ha#e good majority. In#estigations re#ealed that the methodology was unscientific. !ifferential response rates, inade>uate demographic data and poor choice of sampling points were among the reasons for the e$it polls to off the mark. In the -(, the )ational 4lection Pool comprising A0, AP, 0(, )), Fo$ )ews and )0 conduct a joint e$it poll. In the -(, e$it polls ha#e faced with criticism and the prime reason was that the results were in public domain before the #oting. (uch announcements could influence both positi#ely and negati#ely on the #oting pattern and finally the results. In India too announcement of e$it poll results much before the final phase of #oting had come under criticism. The resistance had come mainly from political parties itself. The allegations were that sur#eys were not scientific. They were branded as partisan in nature and collection of fictitious data to fa#our a party or an indi#idual. +owe#er, o#er a period, conducting the sur#ey has become more scientific and thus credibility has impro#ed to certain e$tent. Media houses and research organisations ha#e become cautious enough not to lose their reputation by doing a hotchpotch job or churning out data to suit someones re>uirement.6 INDIA AND ELECTION SURVEYS:4
In India till sometimes back and we can say that before the emergence of /8 hours news channel in India poll sur#eys were just of academic importance, and not much credence or #alued time was de#oted to analyGe them. 0ut with changing times and mediaLs reach, especially with the emergence of news channels, they became more and more acceptable and . P3 Rat4na Swam5, Handbook on Election Law, Le!is Ne!is "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e 6
EXIT POLLS AND MEDIA LAW recogniGable. They ha#e now become a part of e#ery election. Psephology, the formal study of elections, is only a little older than independent India. In India some #aluable research completed on #oting, nationally and locally. It ranges from the pioneer work of J.+. Morris 2ones, 2.5.Field and Myron Jiener to more specialiG ed studies such as those by A.+.(omjee, D. (iriskar, 0. Ahmed and (.4lders#eld, as well as by 4.P.J. de osta and others who ha#e #entures into opinion polling. E In the 37s, there were #irtually no market research organiGations in India. The dominance of the congress diminished any incenti#e to de#elop political polls. The first national poll was carried out by the Indian institute of public opinion @IIP5C before the 36 general election. !r. 4ric da osta % the founder of the Indian institute of public opinion @IIP5C in the early 37s, which was modelled on the American institute of public opinion 9 is credited with pioneering elections studies and is considered the f ather of opinion polling in India. The IIP5 has co#ered almost all subse>uent elections till E7s. IIP5s procedure has been to measure the percentage of #otes likely to be cast for each party and to con#ert #otes into seats using a multiplier @defined as the percent of seats for a party di#ided by its percent of #otesC. The problem with the multiplier is that it #aries and cannot be assessed before an election. The ‟
news magaGine India Today has played a major role in promoting professional opinion polling in India. In E7 it commissioned IM'0 with Ashok ahiri and Prannoy 'oy to conduct the first%e#er large All%India sur#ey.7 5ne tool of research that has only recently been e$ploited in India is the opinion poll. The di#ersity of the country and the difficulty of framing >uestions that are e>ually meaningful to different linguistic and communal groups, as well as the sheer cost, has held back its de#elopment. It is a techni>ue that has pro#ed #aluable elsewhere and that can re#eal not only how far men and women, old and young, rich and poor, #ote different, but also how #otes correlate with opinions about issues. 5pinion polls get most publicity when used by the media for forecasting elections results. 0ut academic sample sur#eys, asking an elaborate battery of >uestions about the electors background and attitudes, can offer much more 2 Da0id 7utler, As4o8 La4iri, Pranno5 Ro5, India Decides,Elections (6)9(66,3 ( 6 I:id3, 3+( (1 Sanja5 $umar and Pra0een Rai, Measurin' /otin' 7e4a0iour in India, 3(9("#ANA$%A NATIONAL LAW &NIERSIT%Pa'e (1
EXIT POLLS AND MEDIA LAW profound insights into the whys and the wherefores of #oting. In Ireland, a generation ago it used to be said that opinion polls would ne#er work. The Irish were such charming people that, instead of gi#ing their real #iews, they would always be trying to please the inter#iewer. (imilar doubts about polls are still e$pressed in India, and to them are added the real difficulties of conducting inter#iews in many languages, often with illiterate, uninformed, or merely fearful respondents. +owe#er, polls are now an established part of the Irish electoral scene and in India they are approaching that status. In E, they were spectacularly successful in forecasting the result. Although polls are fallible, especially in Indian conditions, it is possible to deri#e from sample sur#eys a far more accurate picture of the #oting intentions and political attitudes of the Indian electorate than from any other source. / In the Indian democracy elections are not merely a process to select and choose the go#ernments. In India elections are considered as a festi#al of democracy. 5ur country enjoy elections and stand out as not only the largest but a triumphant e$ample of democracy. !espite of many failing of our political parties and politicians no one can doubt the success of the democratic process. In more than B3 years of Indian democracy country has witnessed B oksabha elections and more than 137 state assembly elections. In many countries go#ernments change by coups or re#olutions but in our country since the independence of our country in 86 both at the state le#el and at the centre, the go#ernments are changed or confirmed by the people as a whole. For e$ample, In *eneral elections of oksabha 66 the Indian electorate threw out one go#ernment but in E7 they decided that it should come back. In E8, at a time of crisis, they ga#e an emphatic mandate to a new leader. In E they opted for change. In they re#erted narrowly to the traditional dominance of the congress. In B they didnt #ote to return the congress howe#er the successi#e two go#ernments were in e$istence with the support of the ongress. E Indian #oters ga#e largest number of seats to 02P and in it was almost repeated again. In /778 the mood of the #oters changed and country witnessed congress as the largest party again and the #erdict was repeated in /77 oksabha elections with electorate ga#e close to magic number of /6/ seats to congress led -PA again. After 3 years the mood of the electorate changed in way that the party which won /7B seats in last election performed worst in the history of independent (( Da0id 7utler, As4o8 La4iri, Pranno5 Ro5, India Decides,Elections (6)9 (66,3 +( () I:id3 "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e ((
EXIT POLLS AND MEDIA LAW India. The congress party won its lowest tally of 88. 5n the other hand the electors of Indian imposed the faith in 0haratiya 2anata Party which won on its own o#er /E7 seats, a mandate not seen in last 17 years of oksabha elections, and the 02P led )!A won more than 117 seats. Politicians and journalists ha#e always tried to de#elop a sense of how public opinion is mo#ing. 0ut it is #ery difficult to translate a broad perception of mood into precise >uantitati#e terms, measuring a small change in partys #ote. Forecasting the number of seats likely to be won is an e#en more haGardous occupation than forecasting #otes. A small swing of #ote can cause a disproportionately large change in seats. For pollsters, therefore, e#en normal sampling errors can ha#e a significant impact in terms of seats won or lost.E International e$perience has shown that the most accurate way of measuring party support is to conduct a mass opinion sur#ey of a cross%section of the public, using a sample selected on scientific principles. In 1B, since !r. *allup launched this techni>ue, it has been adopted all o#er the world to forecast the outcome of elections. In most cases, the percentage #ote of each party has been predicted with a reasonably high degree of accuracy. +owe#er, there ha#e been some spectacular failures.1 It is ironic, for instance, that, when !r. *allup made his reputation in 1B by correctly predicting president 'oose#elt s re%election, his forecast ‟
had a large error than the prediction he made later which so se#erely damaged his reputation. In 1B *allup o#er%stated 'oose#elts #ote by 6 percent @'oose#elt won with 33 percent of the #ote compared to the gall up forecast of B/ percentC in 8E, though gallup s error was ‟
only 8.3 percent, he predicted the wrong winner @dewey lost by 8 percent while gall up had forecast a #ictory margin of 3 percent. 8 Polls can go wrong because they are incompetently conducted, or because poor sampling procedure is used, or because a significant number of electors stay away from the booth. Apologists claim that they err fre>uently because of a late%swing %#oters changing their ‟
minds during the last few days, between the final opinion poll inter#iews and the actual casting of ballots. The problem with all analysis and sur#eys of elections is that it ultimately rests on the #otes of indi#iduals. Doters are, almost necessarily, treated as e>ual e$pressions of support, e#en though a #ote means #ery different things to different people. To some it is a
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EXIT POLLS AND MEDIA LAW resounding statement of faith in a party or an indi#idual to others it is a marginal, almost random choice, a hesitant decision about the lesser e#il. Doting statistics do not ha#e intensity measurements attached to them. &et, just as a relationship can range from a passionate lo#e% affair to a casual ac>uaintance, so a #ote can signify powerful con#ictions or near apath. Jhen on builds great edifices of e$planation on the statistics of an election result, on should remember how #aried in >uality the bricks that on is using are. 3 4lections are an ine#itable part of democratic societies. !emocracies pro#ide uni#ersal suffrage, the right to #ote to its citiGens. Jhether the constant hammering of media messages has any perceptible impact on the beha#iour of the people is a matter of much empirical research. Political parties, candidates, media organiGation and researchers, howe#er, are interested to know how people percei#e the political campaigns, which by and large are mediated through mass media. That people with different demographic profile think and beha#e differently is also a matter of interests to the campaigners as this helps them preparing messages to suit the psyche of electorate with #arying backgrounds and tastes to get the :desired response;. For a long time scholars, who ha#e studied the media beha#iour of the public ha#e found a close relationship between their interest le#el in politics and attention to political stimulus through mass media co#erage. The phenomenon has se#eral conse>uences in political communication. The most interested in politics can also partisans or brand loyalists to certain political parties. This ‟
leads one to seeking more political information about political parties or candidates of their choice. The impact of media, the research suggests, is likely to be greatest when the recipients of the message ha#e little information and e$isting attitudes. B The role of opinion polling especially during the last few decades has been a subject of much fascination to those who are engaged in it but of concern to political scientists, sociologists and concerned citiGenry.
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EXIT POLLS AND MEDIA LAW
GUIDELINES AND REGULATORY FRAMEWORK FOR EXIT POLLS The press council of India ha#ing considered the >uestion of desirability or of publication of findings of pre%poll sur#eys and the purpose ser#ed by them, is of the #iew that the newspapers should not allow their forum to be used for distortions and manipulations of the elections and should not allow themsel#es to be e$ploited by the interested parties. The Press ouncil, therefore, ad#ises that in #iew of the crucial position the electoral process in a representati#e democracy like ours, newspapers sholuld be on guard against their precious forum being used for distortions and manipulations of the elections. This has become necessary to emphasise today since the print media is sought to be increasingly e$ploited by the interested indi#iduals and groups to misguide and mislead the unwary #oters by subtle and not so subtle propaganda on casteist, religious and ethnic basis as well as by the use of sophisticated means like the alleged pre%poll sur#eys. Jhile the communal and seditious propaganda is not difficult to detect in many cases, the interested use of the pre%poll sur#ey, sometimes deliberately planted, is not so easy to unco#er. The Press ouncil, therefore, suggests that whene#er the newspapers publish pre%poll sur#eys, they should take care to preface them conspicuously by indicating the institutions which ha#e carried such sur#eys, the indi#iduals and organisations which ha#e commissioned the sur#eys, the siGe and nature of sample selected, the method of selection of the sample for the findings and the possible margin of error in the findings. Further in the e#ent of staggered poll dates, the media is seen to carry e$it%poll sur#eys of the polls already held. This is likely to influence the #oters where the polling is yet to commence. Jith a #iew to ensure that the electoral process is kept pure and the #otersL minds are not influenced by any e$ternal factors, it is necessary that the media does not publish the e$it%poll sur#eys till the last poll is held. The Press ouncil, therefore, re>uest the press to abide by the following guidelines in respect of the e$it%polls? 1uide(i#e
)o newspaper shall publish e$it%poll sur#eys, howe#er, genuine they may be, till the last of the poll is o#er. "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e (+
EXIT POLLS AND MEDIA LAW The then hairman of the Press ouncil of India, who was also the President of the Jorld Association of Press ouncils, brought these guidelines to the notice of the 4lection ommission. Taking an o#erall #iew of the whole situation and also of the guidelines of the Press ouncil of India, the 4lection ommission issued on order, on 2anuary E, laying down the following L*uidelinesL for the obser#ance by print and electronic media, including go#ernment%controlled electronic media in connection with the conduct of opinion polls and e$it polls by them, during the then ensuring the election to the +ouse of People and egislati#e Assemblies of *ujarat, +imachal Pradesh, Meghalaya, )agaland and Tripura? 1uide(i#e*
@iC
The organisations or agencies conducting opinion polls shall conduct such polls, and publish results thereof, in or by any print or electronic media, at any time, e$cept the
@iiC
period mentioned in clause @iiC )o result of any opinion poll conducted at any time shall be published, publicised or disseminated, in any manner whatsoe#er, in or by any print or electronic media, after 677 hours on February 8 E @February B E being the first day of poll for the aforesaid general electionsC and till after the closing of poll in all (tates and -nion
@iiiC
territories, ie, 677 hours on the March 6 E. The abo#e organisations and agencies shall also be free to conduct e$it polls. 0ut the result of any such e$it poll conducted at any time shall also not be published, publicised or disseminated, in any manner whatsoe#er, in or by any print or electronic media, at any time from 7677 hours on February B E @being the first day of poll for the aforesaid general electionsC and till after the closing of poll in all
@i#C
(tates and -nion territories, ie 677 hours on the March 6 E. Any organisations or agencies conducting any opinion poll or e$it poll, while publishing, publicising or disseminating the result of any such poll, must indicate the sample siGe of the electorate co#ered by such polls and geographic spread of sur#ey so conducted. They must in#ariably gi#e the details of methodology followed, likely percentage of errors, the professional background and e$perience of the organisation or organisations and the key professionals in#ol#ed in the conduct and analysis of the poll.
(oon after these guidelines were issued, there was a strong protest from electronic and print media. They contended that these guidelines infringes fundamental right of speech and e$pression and also the right of information under art @C@aC and that such right could be "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e (
EXIT POLLS AND MEDIA LAW curtailed, if at all, by law under art @/C and not by means of an e$ecuti#e fiat in the form of a guideline. (ome of them e#en challenged these guidelines before the (upreme ourt 6 and the +igh ourts of !elhi E and 'ajasthan. As common >uestions of law were in#ol#ed in all these three petitions, the 4lection ommission mo#ed the (upreme ourt for transfer of the writ petitions from the +igh ourts of !elhi and 'ajasthan to the (upreme ourt for disposal under art 1A. Though the matter was heard urgently by the (upreme ourt on and 1 February E in #iew of the fact that the first phase of poll for the general elections was scheduled to take place on B February E, the ape$ court did not stay the impugned guidelines, despite a persistent prayer to that effect from the petitioners and posted the matter for regular hearing after the general elections. As a result, the abo#e guidelines were duly obser#ed by all electronic and print media at the time of the aforesaid general elections in February%March E. Again, the 4lection ommission issued similar guidelines in the conte$t of general elections to the egislati#e Assemblies of Madhya Pradesh, 'ajasthan, MiGoram and !elhi held in )o#ember E. These too were duly obser#ed by all concerned. 0ut when the 4lection ommission again attempted to enforce similar guidelines in the conte$t of general elections to the +ouse of the People and the egislati#e Assemblies of Andhra Pradesh, Arunachal Pradesh, "arnataka, Maharashtra and (ikkim held in (eptember% 5ctober , the Times of India *roup of )ewspapers refused to obser#e them and openly apprised the 4lection ommission of their intention to defy those guidelines. Feeling agitated o#er this de#elopment, the 4lection ommission approached the (upreme ourt for a direction to the 0ennet oleman N o, the owners of the aforesaid newspapers group, to abide by the ommissionLs guidelines. As that ompany was not a party to the proceedings pending before the (upreme ourt, the 4lection ommission chose to file an independent writ petition/7 before the ape$ court impleading that company also as one of the respondents thereto. The matter was heard by the (upreme ourt on E (eptember , but remained (. R Raja'oal 0 &nion o; India and Ors Writ Petition No 21 o; (662 :e;ore t4e Sureme "ourt (2
EXIT POLLS AND MEDIA LAW inconclusi#e. As it was learnt that the 2ain Tele#ision o had also announced that it would telecast on that #ery night the results of the opinion poll conducted by it, that company was specially summoned by the (upreme ourt to appear before it on that day and in #iew of the inconclusi#e hearing on that day, the company was directed to defer the proposed telecast until further orders. The matter was further heard by the (upreme ourt on (eptember , but was referred to the onstitution 0ench in #iew of the important constitutional issues in#ol#ed. The onstitution 0ench of the ape$ court heard the matter further on 8 (eptember . The onstitution 0ench e$pressed serious doubts about the constitutional #alidity of the impugned guidelines making inroads into fundamental rights of the opposite parties and wondered how could the same be enforced by the 4lection ommission in the absence of any statutory sanction or the #iolators of those guidelines attracting any penal pro#isions. 'ealising its predicament in #iew of what transpired in the court, the 4lection ommission decided to recall the impugned guidelines and the (upreme ourt thereupon disposed of all the pending matters obser#ing that the same did not sur#i#e any longer for consideration./ Thereafter, the 4lection ommission withdrew its aforesaid guidelines on 8 (eptember itself. onse>uently, there were no restrictions on the conduct of opinion polls and e$it polls or on the dissemination of results of those polls during the general elections to the +ouse of the People and certain legislati#e assemblies held in (eptember%5ctober . At the time of subse>uent general elections to the egislati#e Assemblies of 0ihar, +aryana, Manipur and 5rissa held in 2anuary%February /777, the 4lection ommission refrained from imposing any restrictions on the conduct of opinion and e$it polls. 0ut the Press ouncil of India, howe#er, did reiterate their earlier guidelines in February /777, impressing upon the print media not to disseminate the results of any opinion polls and e$it polls after the start of the polling process on / February and till its completion in all states on // February. 0ut these guidelines of the Press ouncil were hardly obser#ed. In the conte$t of the general election to the +ouse of the People in /778, the ommission had con#ened a meeting of political parties on the B April /778, to discuss the issue of )1 Election "ommission o; India 03 &nion o; India and Ors Writ Petition No +1. o; (666 :e;ore t4e Sureme court )( Raja'oal 0 &nion o; India and Ors, etc Writ Petition No 21 o; (662 "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e (.
EXIT POLLS AND MEDIA LAW opinion polls and e$it polls. The unanimous #iew of all the si$ national parties and all the eighteen out of the forty fi#e state parties which participated in that meeting was that conducting the opinion polls and publishing results thereof, should not be allowed from the day of issue of statutory notification calling the election and till the completion of the poll. It was suggested that in a multi%phased election where poll is taken on different dates, such prohibition in conducting and publishing the results of opinion polls should be for the entire period starting from the date of notification of the first phase of election and until the completion of the poll in the last phase. 5n the subject of e$it polls also, all the political parties were of the #iew that in a multi%phased election, results of e$it polls should not be allowed to be published until the completion of the poll in the last phase. The 4lection ommission, thereupon, recommended to the aw Ministry that there should be a specific pro#ision in the 3 Act, prohibiting publication and dissemination of the results of e$it polls and opinion polls during the period mentioned abo#e. The aw Ministry obtained the opinion of the Attorney *eneral of India, who was of the #iew that prohibiting the publication of opinion polls and e$it polls would be a breach of art @C of the onstitution. +e suggested that certain guidelines could be laid down to pro#ide that while disseminating results of the agency concerned should pro#ide the public with sufficient information regarding the name of political party or organisation which commissioned the sur#ey, the identity of the organisation conducting the sur#ey and the methodology employed, the sample chosen and the margin of error, etc, and that it was open to the 4lection ommission, in e$ercise of its plenary powers under art 1/8, to issue directions re>uiring the media to comply with the guidelines. The 4lection ommission, howe#er, pointed out that such guidelines issued by it in E had to be withdrawn as the (upreme ourt obser#ed that the ommission could not enforce them in law against the media. The ommission, therefore, reiterated its #iew that there should be some restriction under the law on publishing the results of opinion polls and e$it polls. The ommission felt that such restriction would be in the wider interests of free and fair elections. 'egarding the argument about the right to freedom of information sought to be linked to the dissemination of results of opinion and e$it polls, the ommission pointed out that the past e$perience showed that, in many cases, the results of elections had been #astly different from the results predicted on the basis of the e$it polls. Thus, the information claimed to be disseminated turned out to be disinformation in many cases. The ommission, therefore, again recommended to the go#ernment that there should be a restriction under the "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e (2
EXIT POLLS AND MEDIA LAW law on publishing the results of such poll sur#eys for a specified period during the election process. It was also pointed out that in many of the western democracies, there e$ist such restrictions for #arious periods.// The abo#e recommendation of 4lection ommission has, howe#er, been partially accepted by the go#ernment and Parliament in /77. 0y the 'epresentation of the People @AmendmentC Act /77, a new s /BA has been inserted in 3 Act @with effect from February /77C placing certain restrictions on the conduct of 4$it Polls and dissemination of their results. +owe#er, the opinion polls ha#e been kept out of the pur#iew of the newly inserted s /BA. -nder s /BA, conduct of e$it poll and publishing or publisiGing by means of print or electronic media or dissemination in any other manner, whatsoe#er, the result of any e$it poll has been prohibited during such period as the 4lection ommission may, by a general order, notify in this regard. In the case of a general election, such period of prohibition may commence from the beginning of the hour fi$ed for poll on the first day and continue till half an hour after closing of the poll in all the states and union territories. In case of a bye%election or a number of bye%elections held together, period may commence from the beginning of the hour fi$ed for poll and on the first day of poll and continue till half an hour after closing of the poll. Jhere a number of by elections are held together on different dates, the period may commence from the beginning of the hour fi$ed for poll on the first day of poll and continue till half an hour after closing of the last poll. The L4$it PollL has been defined way of an 4$planation, to mean an opinion sur#ey respecting h #oted at an election or respecting how all the electors ha#e performed with regard to the identification of a political party or candidate in an election. Further, Oelectronic mediaL includes, internet, radio and tele#ision including Internet Protocol Tele#ision, satellite, terrestrial or cable channels, mobile and such other media either owned by the *o#ernment or pri#ate person or by both and Lprint mediaL includes any newspaper, magaGine or periodical, poster, placard, handbill or any other document. L!isseminationL has been defined to include publication in any Lprint mediaL or broadcast or display on any electronic media. Any contra#ention by any person of the abo#e pro#isions has been made punishable with imprisonment for a term which may e$tend to two years or with fine or with both. In addition to s /BA, another s /B0 has also been inserted for punishment to companies who commit any offence under s /BA. If the )) See t4e Election "ommission=s Proosal ;or Electoral Re;orms sent to t4e >o0ernment on -t4 ?ul5 )11+3 A Writ Petition is endin' :e;ore Sureme "ourt in name o; D3$3T4a8ur 03 &nion o; India see8in' ro4i:ition on E!it Polls "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e (6
EXIT POLLS AND MEDIA LAW abo#e offence has been committed by a company, e#ery person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. +owe#er, if such person pro#es that the offence was committed without his knowledge or that he e$ercised due diligence to pre#ent the commission of such offence, he shall not be liable to any punishment pro#ided in s /BA. 0ut, where an offence under s /BA has been committed by a company and it is pro#ed that the offence has been committed with the consent or conni#ance of, or is attributable to any neglect on such the part of any director, manager, secretary or other officer of the company, director, manager, secretary or other officer shall also be deemed to be guilty offence and shall be liable to be proceeded against and punished accordingly OompanyL
here means any body corporate, and includes a
firm or
other a of indi#iduals, and LdirectorL, in relation to a firm, means a partner in the firm. The abo#e restrictions on the conduct of e$it polls and dissemination of results thereof, howe#er, suffer from a serious lacuna and do not seem to ser#e the intended purpose fully. In the case of elections held in more than one phase, the law Poll restriction only on the conduct of e$it poll and dissemination of result of such polls and in respect of the first phase of poll but the conduct of opinion polls and dissemination of their results in respect of the subse>uent phases of poll are still permissible which may ha#e the deleterious effect on the coming phases of poll which the prohibition on the dissemination of the results of the earlier e$it polls seeks to a#oid. The 4lection ommission has pointed out this serious shortcoming in the law to the go#ernment, but the remedial action to remo#e the abo#e lacuna is yet to be taken by go#ernment and Parliament.
"#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )1
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2014 LOK SABHA ELECTIONS – THE ACCURACY OF POLL PREDICTIONS
It was during the /78 ( elections that India saw agencies conducting the sur#eys becoming more cautious. redibility topped the agenda of the agencies as #iewersKreaders had de#eloped cynicism o#er e$it polls because consistently the results were wrong. In /78, the 4lection ommission of India barred media houses from announcing e$it poll results till the poll results were announced. +owe#er, this decision of the 4 was not acceptable to the media organiGations as they found it illogical. ater the 4 withdraw its decision and allowed the announcement of the e$it poll results after B.17 pm on May /, /78 the last day for #oting for the ( elections. And, all TD channels religiously followed this instruction. It is at this juncture, the e$it pollsKpost poll sur#eys conducted by certain agencies for the media houses became interesting and crucial. The TD channels which had commissioned the sur#eys were Times )ow, ))%I0), +eadlines Today, A0P )ews, )ews/8 and India TD among others. 4ach 4nglish TD channel had tied up with a different agency and the results were different. In run up to the /78 polls, )ews 4$press, a TD channel, had released the footages of a sting operation named 5peration Prime Minister which alleged that a number of polling agencies were into malpractices. It said the numbers were being fudged to project Modi as the front% runner and this was done to influence undecided #oters. The allegations were against Ipsos, a global market research company and entre for Doting 5pinion N Trends in 4lection 'esearch @DoterC, a polling agency, which had contractual agreement with the India Today group, which is into publication business. Finally, the agreement had to be suspended. The irony was that the promoters of )ews 4$press, (ai Prasad *roup, itself came under criticism as it was alleged to ha#e in#ol#ed in money laundering cases and were facing in#estigations. It came to light that the channel was backed by a ruling party which was not doing well as per the opinion polls. ater the India Today group and #arious other media groups carried the findings of the Doter. Agencies adopt different types of sur#ey methodologies. Following e$plains the methodology followed by certain media housesKagencies /1 )* As4a $3, Exit Polls of 2014 Lok Saba Elections-!e "ccurac# of Poll Predictions in India, ?ournal o; Media and Social De0eloment, Decem:er )1(+, /ol3) Issue + "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )(
EXIT POLLS AND MEDIA LAW As per the details hosted by )!TD, a prominent commercial broadcasting tele#ision network, on its website, the methodology adopted by it is as follows. It had conducted both Polling 0ooth (ur#eys and Post Poll +ousehold (ur#eys in association with +ansa 'esearch, a global market research agency. 5.!o((i#$ 2oot% E6it !o((*: The sample siGe was B1,687 selected randomly in polling booths
across the country. A randomised selection of #oters was asked as to which party they #oted for once they were out of polling booths. 7.!o*t !o(( E6it !o((*: The sample siGe was ,6/ #oters.
The elections were held in a phased manner and the e$it polls were conducted on the day of elections. 4#ery fifth #oter was inter#iewed to indicate the candidateKparty for which heKshe had #oted. The e$it polls were conducted o#er select /B3 ( constituencies across major states. The proportion of constituencies co#ered was higher in states where major political changes had taken place. For e$ample, in undi#ided Andhra Pradesh, Tamil )adu, Jest 0engal, and )ew !elhi among others the selection of constituencies was more. Parliamentary constituencies chosen for the e$it polls were representati#e of the socio%political regions within the state. 5n an a#erage there are eight assembly constituencies in a parliament segment. Three assembly constituencies @AC were randomly selected and in all 63 assembly constituencies @AC were considered for collecting the output across the country. This included 1,37 randomly selected polling booths. For each booth two inter#iewers were assigned for one hour. ater they were mo#ed to another booth. The information they elicited from the respondents were stored in tablet computers. The #oter indicated their preference of candidate and the party symbol displayed on the screen. 0ut their choice was not e$posed to the inter#iewers. The agency also conducted Post Poll (ur#ey with #oters randomly selected from the electoral rolls after the conclusion of the elections. The inter#iews were conducted o#er to E days after the polling. The sampling was done o#er 117 ( constituencies across states. The states selected were those selected for the e$it polls. In each parliamentary constituency @PC three assembly constituencies were randomly selected. A total of 7 As were sampled and the polling booths in#ol#ed were 1,//8. The total inter#iewers were /,777. There were no differences between the method followed to collecting and storing the data between the e$it and post poll sur#eys. /8
)+ I:id3 "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e ))
EXIT POLLS AND MEDIA LAW The #oters list was the base for selecting the #oters randomly. The inter#iews outcome was recorded on tablet computers. The candidate along with the party symbol was selected by each #oter to show hisKher choice. All data was weighed to reflect the constituency profile on gender and religionKcaste. Findings In all, si$ sur#eys were conducted by prime agencies and the )!A was in the broad range of /36%187 seats. The a#erage was calculated on the basis of the range gi#en for each party and political front. 4#entually, the )!A scored 11B and thus topped the score card of the ok (abha elections and the -PA won 3 seats. (o, the actual results did not go beyond the sur#eys polls a#erage of 187 seats for the )!A. .Pre%election polls sample siGe in / phases 9 7,11 /.Pre%election update polls sample siGe 9 8,66/ 1.Pre%election telephone re% contact sample siGe 9 E,1/8 @This was done during the poll durationC 8.Post%election e$it polls sample siGe 9 B1,687 3.Post%election post poll% ,6/ B.Total inter#iews o#er the polling schedule 9 /,6E,E16 5ther highlights . Inter#iews were conducted in homes and not in public places /. The >uestions were well thought of and no random >uestions were asked by the inter#iewers 1. !ata collection process was through simulated ballot bo$ for recording the choice of the #oter . 8. The e$it poll results of )!TD%+ansa when announced on May 8, /78, it said that the sample siGe was .33 lakh with a two per cent margin of error. CNN I2N4LOKNITI4CSDS
)) I0) had tied up with okniti%(!( for the post%poll sur#ey of the elections. The !elhi%based political research centre, okniti, under the banner of 4lection Tracker, did the post poll sur#ey and not e$it poll as done by other channelsKorganisations. The +indu newspaper published the (!( sur#ey results. The e$it poll is conducted on the day of polling. It is collecting information from #oters as to whom they #oted. In case of post%poll, which is de#eloped by omparati#e !emocracy at the entre for the (tudy of !e#eloping (ocieties @(!(C according to !r (andeep (hastri, political analyst working with (!(, #oters are inter#iewed after the polling. It need not be conducted in a hurried manner soon "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )*
EXIT POLLS AND MEDIA LAW after the #oting is done. It is not only collecting information as to whom #oters #oted for but also to find out as to why they preferred a particular party or a candidate. It is also an academic e$ercise regarding elections and #oters are randomly selected from the electoral rolls, says !r (hastri. As per the okniti team, the methodology followed was collecting the opinion after the polling and before the results were announced. The sur#ey was conducted in /B states. 5f the 381 ( constituencies, 17B were included for the sur#ey. Jithin the ( constituencies, 186 assembly segments encompassing ,1EE polling stations were included. . The constituencies were sampled using the Probability Proportionate to (iGe Method @PP(C. /. Four polling stations within each of the assembly constituency were selected. 1. The method used was the (ystematic 'andom (ampling @('(C. 8. The #oters were selected from the electoral rolls prepared by the 4lection ommission. 3. From each polling station 9interaction was with /3 respondents in rural polling station and 17 respondents in urban polling booths. B. 5f the 16,777 respondents selected randomly, //,/3 #oters were successfully inter#iewed. 6. Field in#estigatorsKstaff inter#iewed the respondents to find out to whom they #oted for and the reasons for their choice. E. A standard >uestionnaire was circulated to the respondents. .At the same time, they were gi#en a dummy ballot paper on which they were asked to indicate their choice of preference. The ballot papers were collected in a dummy ballot bo$. 7. The #oters inter#iewed remained anonymous. The inter#iews were conducted at the #oters residence. . The interaction with the #oters helped in understanding the political opinions within the conte$t of broader social and economic factors. /. *rouping of the states were done using a statistical techni>ue known as weighing. 4ach state was proportionately represented in the analysis.
"#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )+
EXIT POLLS AND MEDIA LAW The data collected were analysed by a research team of the (!( consisting political scientists. Todays hanakya is a !elhi%based political research organisation and a registered trademark of ')0 'esearch, a member of the American Marketing Association. It had carried out the e$it poll on the day of polling in the respecti#e states in each phase and post poll study in each phase. )ews/8 TD channel had tied up with Todays hanakya for using the e$it poll outcome. According to the organisation, the entire system of conducting the poll is based on a Hse#en layer spectrum model, designed especially for Indian elections. The sur#ey co#ered // states, including !elhi and -nion Territory of handigarh. )ews/8%Todays hanakya e$it poll had generated a lot of debate and raised many eyebrows with their predictions of election results in the past. Jith almost e$act predictions, )ews/8 e$it polls had emerged as the most pro#en and credible e$it poll. For the !elhi assembly polls, )ews/8 had predicted / seats for the 02P, 7 for the ongress and 1 for the AAP. The results were almost on the same lines 9 the 02P 1/ @1% (hiromani Akali !alC, the ongress E and the AAP /E. Todays hanakya predicted a Modi wa#e in the country with the 02P bagging / seats @K% 8 seatsC. The ongress may reach as low as 36 seats @K% seatsC. It had predicted that the 02P would be in a position to form the go#ernment on its strength. It had projected 187 @K% 8C seats for the )!A, 67 @K%C for the -PA and 11 @K% seatsC for others. The sur#ey results by and large tallied with the final results. /3
) i:id "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )
EXIT POLLS AND MEDIA LAW
CONCLUSION 4$it and 5pinion polls seen to be an una#oidable e#il in modern day elections. Millions of rupees are spent to gauge the opinions of the electorate on #arying issues before elections. Jhether people change their decision after knowing the findings of the pre%poll opinion i.e. whether they follow the bandwagon effect or underdog effect not much serious work ‟
‟
seems to ha#e been done in any of democracies under study. Though it is a matter of serious concern but will it suit the opinion poll agencies to conduct such studies. !o opinion polls play a decisi#e role in electionsQ Is their power in politics a reality, an e$aggeration or a mythQ Jhile no definition answers are in sight, politics o#er the years has become a booming business. Polls can go wrong and ha#e gone wrong a number of times. !r. *allup who pioneered opinion polling who made a reputation in 1B by correctly predicting president 'oose#elts re%election his forecast had a large error than the prediction he made later. !r. 0haskar 'ao, a leading pollster in India, a student of !r. *all up say emphatically :I am a critic of the polls opinion polls are supposed to help making an intelligent, a better choice a better decision. That s looking beyond temporal things. 0ut we ha#e reduced them to a ‟
commercial e$ercise.; The challenges in conducting election sur#eys in India arise from a #ariety of reasons like the geographical span of the country, the highest number of electorates in the world, the e$isting socio%cultural and demographic di#ersities, proliferation of political parties, the changing nature of party competition, and the rapidly changing domain knowledge and technology for polling around the world. -nlike countries in the western world, where the nature of the electorate is homogenous, #oters in India are highly heterogeneous with a wide range of di#ersity in terms of region, and non%homogenous character of the Indian electorate poses a big challenge for studying the opinion and attitudes of the #oters with reasonable confidence. The poll sur#eys in most democratic countries is not a #ery comple$ task as the electoral competition is limited to two dominant parties based on the bi%party system. 5n the other hand, independent India s e$periment with electoral politics ‟
was based on the multiparty system. +owe#er this is not the place to get into a detailed assessment of the accuracy or otherwise of opinion polls in India, but let me just note that contrary to popular impressions the o#erall record of Indian pollsters is not bad by international standards. 5f late we ha#e seen some "#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )-
EXIT POLLS AND MEDIA LAW really bad forecasts, but these ha#e been cases of poor professionalism and not of political manipulation. 0y and large, most of the agencies and media houses in#ol#ed in this e$ercise ha#e. The analysis of elections e$it polls results also show that the record of pollsters are not so bad but they need to impro#ise their techni>ues so that the chances of errors can be minimiGed. 5pinion polls ha#e come to stay in India and all things considered need not be banned people sit glued to their TD sets on the e#e of e#ery election curious to know who will be their chosen representati#es. It is imperati#e that Indian agencies conducting opinion polls constantly inno#ate and impro#ise their research methodology for bridging the gap between forecasts and actual results. Then alone opinion polls get better credibility and acceptance.
"#ANA$%A NATIONAL LAW &NIERSIT%Pa'e ).
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BIBLIOGRAPHY 055"( -(4!?% •
D ( 'ama !e#i and ( " Mendiratta, +o* India ,otes- le%tion La*s Pra%ti%e and Pro%edure 1rd 4dn., /78, e$is )e$is Publications.
•
P. 'athna (wamy, +and&ook on le%tion La* e$is )e$is Publications.
•
!urga !as 0asu, La* of the Press 3th 4dn., /77, e$is )e$is Publications.
A'TI4(?% •
Asha "., /it Polls of 0123 Lok Sa&ha le%tions-The A%%ura% of Poll Predi%tions in India 2ournal of Media and (ocial !e#elopment, !ecember /78, Dol./ Issue 8.
•
Madabhushi (ridhar, T+ 4I5D-6I77I57 B8 4DIA' LCT"6AL "995CS A5D C"66UPT P6ACTICS Media aw 'e#iew, /77, )A(A' -ni#ersity.
•
C"5SULATI"5 PAP6 "5 4DIA LA# May /78, aw ommission of India.
"#ANA$%A NATIONAL LAW &NIERSIT%Pa'e )2
