Attorney General Soli J Sorabjee has shot down the Election Commission's proposal for an ordinance to ban publication of opinion and exit polls during the period of election.
Sorabjee said it would violate the fundamental right to free speech.
In his four-page opinion on the query referred to him, Sorabjee strongly came in favour of upholding the fundamental right to free speech guaranteed under Article 19(1)(a) of the Constitution and said the proposed ordinance would hit at the root of the fundamental right.
Taking note of the unanimous opinion of the political parties in favour of such a ban on opinion and exit polls, the AG 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."
While opposing a complete ban, Sorabjee suggested that certain restrictions could be imposed on the publication of these opinion or exit polls.
He said the Council of Europe's recommendation could serve as a model law by which all those who publish such kind of polls would be asked to name the political party or the other organisations or persons, which commissioned the poll and paid for it.
He said the opinion poll or the exit poll should reveal the identity of the organisation conducting the poll, the methodology employed therein, the size of the sample, the margin of error and the date and period in which the poll was conducted.
The Commission, after holding an all party meeting, had recommended to the Government on April 6 for promulgation of an ordinance to ban opinion and exit polls as 'publishing of the results of such polls during the period of election has the effect of influencing the minds of electors'.
Rejecting the idea, Sorabjee in his opinion said that whatever could be the basis of the idea for the proposed ban, the government could not resort to an ordinance as such poll surveys were being conducted for last many years.
Therefore, it was difficult to conclude that circumstances impel the necessity for urgent and immediate action for the issuance of an ordinance, he said.
Terming as 'highly debatable' the constitutionality of such an ordinance, the AG said, "A serious and formidable objection to the proposed ordinance is that it would be violative of Article 19(1)(a) of the Constitution."
He said it was a well settled principle that right to free speech guaranteed under the Constitution included the right of the people to know, the right to receive information and the right of the citizen to disseminate information.
He said information from divergent and antagonistic sources would help voters to make an informed choice, which was similar to the choice made by the people after reading various articles and editorials in different newspapers.
"Consequently, the restriction on freedom of speech and expression as contemplated by the proposed ordinance do not satisfy and are not covered by any one or more of the permissible heads of restrictions set out under Article 19(2)," he concluded.
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