WITH the exponential increase in television viewership in the last decade, election coverage in the country is now on a qualitatively different scale as compared to the early 1990s, when only a few periodicals would publish findings from election surveys. Today, most news channels telecast multiple rounds of polls, even for assembly elections.

Many political scientists, activists and even journalists have voiced their concern about these polls. All political parties too have opposed polls and even demanded a ban, except of course, when they are shown as winning! The media, on the other hand, invariably opposes the idea of a ban as seat forecasts and pre-poll surveys continue to attract prime time viewer-ship. The Election Commission of India (ECI) invariably finds itself in the middle of the debate between these two contrasting positions.

Opinion polls by themselves, like all research, is an extremely useful exercise, especially when conducted by social scientists and policy makers to gather insights into what people think about policies and programmes and their expectations from the state. Research is an essential marketing tool to learn about consumer needs, preferences and their knowledge, attitudes and practices. Marketing companies spend millions to understand consumers’ minds so that they can position their products and brands for wider acceptance. Election related polls on the other hand have only one objective – providing information about who is likely to win in an election. In most cases, there is no other concern, academic or otherwise.

The ECI opposes the conduct and telecast of opinion polls because, in part, it strongly suspects their integrity. Having dealt first hand with the ugly reality of ‘paid news’,¹ it is aware that a dubious poll can spread massive misinformation among voters. This, in the ECI’s view, potentially ends up affecting the choice of many voters, especially those who carry bandwagon tendencies or are likely to vote strategically. The prime responsibility of the ECI is to conduct free and fair elections and for that it should be able to restrict any activity that could potentially hinder the fairness of the election process.

Before taking the discussion forward, let us look at how public opinion came to be recognized as a force. The importance of public opinion has been commented upon by a variety of writers and thinkers in the last five centuries. William Shakespeare called public opinion the ‘mistress of success’ and Blaise Pascal, a French mathematician and thinker of the 17th century, thought it was ‘the queen of the world’. John Locke in his treatise, An Essay Concerning Human Understanding, identified that man was subject to three laws: divine law, civil law and, most importantly, the law of opinion or reputation. Public opinion acquired tremendous political importance in the 19th century with improving literacy and increasing circulation of the mass media. Governments also recognized the importance of managing and directing public opinion.

 

As public opinion plays an important role in the political sphere, particularly voting behaviour, special interest groups often sought to impact election outcomes. German social theorist Jürgen Habermas observed that opinion, in western democracy, is highly susceptible to elite manipulation. And media is an important player in this. The formation of public opinion starts with ‘agenda setting’ and ‘framing’. The agenda setting dictates what is newsworthy and how and when a news item will be reported. Framing is when a story or piece of news is portrayed in a particular way and is meant to sway the consumers’ attitude one-way or the other. In recent years, mass media utilizes a wide variety of advertising techniques to get their message out and influence public opinion.

There are good reasons to believe that attempts at similar manipulation of public information also occur in India. For example in case of election forecasting, a channel may conduct a study merely to build a positive or negative perception about a political party. It may hide important findings or alter them to suit political interests. To prevent this, it may be better to introduce a ban on exit polls and pre-poll surveys close to elections.

In most democracies, opinion and exit polls are common at the time of elections. However, restrictions are also imposed in many of them extending from 2 to 21 days prior to the poll – Canada, France, Italy, Poland, Turkey, Argentina, Brazil, Colombia, to name a few. The opposition to the ban in India is mainly on the ground that freedom of speech and expression is granted by the Constitution of India (Article 19). What is conveniently forgotten is that this freedom is not absolute and allows for ‘reasonable restrictions’ in the subsequent section of the same article. The Indian Penal Code and even the Representation of the People Act, 1951 do not allow for absolute freedom and keep certain restrictions on citizens.² Exit polls were banned in 2008 by an amendment to the RP Act and this has not been challenged in court.

 

While the Constitution allows for reasonable restrictions on the freedom of expression, the mandate of ECI for free and fair election is absolute. There can be no compromise or dilution of this mandate. The Supreme Court, in a series of judgments, has emphasized this requirement: ‘Democracy cannot survive without free and fair elections’ (Union of India vs ADR 2003). ‘Free and fair elections is the basic structure of the Constitution’ (PUCL vs Union of India, 2003; NOTA judgment). ‘The heart of the parliamentary system is free and fair elections’ (Mohinder Singh Gill vs CEC of India, 1977). No one can argue that free and fair elections must be subjected to some restrictions. It is a non-negotiable requirement. Every election has to be completely free and fair.

Why does the ECI feel that opinion and exit polls will interfere with free and fair elections? Having seen ‘paid news’ in action, it realizes that some opinion polls may be sponsored, motivated and biased. Also, almost all polls are non-transparent, providing limited information on the methodology. With such infirmities, many ‘polls’ amount to disinformation designed to cause ‘undue influence’ which is an ‘electoral offence’ under the Indian Penal Code and a ‘corrupt practice’ under section 123 of the RP Act. Thus, the ECI is responsible for ensuring that no survey agency is allowed to release such important information without due checks.

 

The demand for a ban on opinion polls is not new and has to be understood in perspective. There was unanimous agreement on this at two all-party meetings called by the Election Commission in 1997 and 2004. The difference of opinion was only whether the ban should apply from the announcement of the poll schedule or from the date of notification. In 1998, the ECI issued guidelines that were challenged in the Supreme Court. A five-judge constitution bench asked the ECI about how it would enforce these decisions in the absence of a law. Realizing this, the ECI withdrew the guidelines till a law was made. Unfortunately, this left the constitutionality issue undecided.

The matter finally went to Parliament in 2008, which banned exit polls but not opinion polls (126A, RP Act). Soon thereafter, the political parties came back to the ECI once again complaining about the opinion polls! It is not clear why the parties, who were unanimous in demanding the ban both on opinion and exit polls, did not pass it in Parliament in entirety, confining the ban only to the conduct and dissemination of exit polls.

Incidentally, despite a clear ban, the media has regularly flouted the law by conducting exit polls on poll days, though airing the result only after the closure of the poll on the last day. They conveniently forget that not just dissemination but even conducting a poll is illegal. This vitiates the fairness of the poll. Political parties, to swing opinion in their favour, systematically leak the findings from the exit polls in a phased election. It is surprising that the ECI has turned a blind eye to this violation. In fact, the ECI order imposing the ban allows the dissemination only half an hour after the end of polling on the last poll day. It makes no mention of the ban on the conduct of the poll that is expressly prohibited by the law itself. Nevertheless, the ECI has been able to control the problem of surveys being published in the middle of multi-phase elections and thus influencing voters.

 

In 2013, the debate on banning opinion polls resumed as the Law Ministry advised the ECI to once again seek the view of all political parties. 15 political parties responded and all but one, the Bharatiya Janata Party (BJP), supported a ban on opinion polls.³ Contending that a ban could be a potential violation of freedom of expression enshrined under Article 19 of the Constitution, parties like the Congress, AIADMK, and TMC expressed their disapproval about the lack of transparency and dubious methodology used by most pollsters.

It was interesting to watch the debate on the subject in the media. All the participants – media, pollsters and jurists – were heard supporting the opinion polls, yet admitting to the presence of serious flaws. They referred to the rogue pollsters as ‘unprofessional’, and ‘not serious types’; others remarked that psephology is ‘no exact science’, and that ‘after all, researchers are human.’ One even went on to say that the rogue polls were meant just to influence the morale of the party workers. No one gave an unqualified certificate to the opinion polls. The bottom line of the pollsters and media using them was ‘my poll was right, all others were dubious’. Obviously, the ECI was concerned about the dubious ones.

The arguments of the jurists in the television debates were also noteworthy. ‘By what law can the ECI take action?’ ‘Defy the order’, one of them exhorted. Well, the ECI was certainly not ordering anything against the law. It had only suggested to the government to make a law. ‘The citizens have freedom of expression’, reminded another pre-eminent jurist. Yes, the Constitution does grant the freedom of expression, but is there a freedom for disinformation or to cheat? The Supreme court in the M.S. Gill case has remarked, ‘One-sided information, disinformation, misinformation and non-information all create an uninformed citizenry, which make democracy a farce.’

 

An interesting part of the debate was the refrain, ‘The opinion polls do not make any significant difference to voters’ choice.’ Now, what is a ‘significant’ difference? Even a single voter, cheated into believing that ‘X’ is winning and thus falling in line (because of the bandwagon effect) is bad enough. I would like to remind the readers of the case of the Congress leader, C.P. Joshi, who lost the Rajasthan Assembly election in 2008 by a single vote! It was widely believed that he would be the chief minister, if he had not lost his own seat. Multiple single vote victory margins and two tied verdicts, eventually decided by draw of lots, should suffice for those who talk about significant difference! It is the prime objective of the Election Commission to ensure that each voter is able to exercise choice without any fear of a social backlash.

One might ask that if opinion polls make no ‘significant’ difference to public opinion, why do them? What purpose do they serve except provide some entertainment on the media? The dim view about the integrity of opinion polls is confined not just to political parties and the ECI. The Press Council of India, a statutory media regulatory body with a predominance of media owners, says, ‘This has become necessary to emphasize today, since the print media is sought to be exploited by interested individuals or groups to misguide and mislead the unwary voters 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 poll surveys.’

Also, though it may appear paradoxical in this context, the ECI is one of the biggest proponents of the freedom of expression. The entire election exercise is about free expression. A vote is the expression of opinion given by voters in a totally free and fair manner. Anything that interferes with the freedom of expression has to be put down with a heavy hand. Even the Supreme Court has emphasized the right to vote, or not to vote, as a part of freedom of expression (NOTA judgement). Similarly, the order that the candidates must submit affidavits listing their financial details and declaring all the criminal cases pending against them was meant to enable voters to exercise their freedom to elect their representatives with an informed choice.

 

Criticism of public broadcast of election forecasts should not be misconstrued as a criticism of survey research. The ECI itself conducts mass surveys for improving its SVEEP (Systematic Voters’ Education and Electoral Participation) programme and evaluating the performance of its voter awareness initiatives. All state assembly and national elections since 2010 have been preceded by KABP (Knowledge, Attitude, Behaviour and Practice) surveys to understand what dissuades electors from voting, why many do not seek to register themselves on the electoral rolls etc. The insights gained have helped the ECI to develop strategies for voter education and facilitation. Unlike opinion polls for election forecasting, our surveys are essentially driven by a positive agenda of gaining insights for our voter education campaigns.

 

In early 2014, a sting operation by a television news channel, News Express, recently caused quite a stir. As many as eleven polling companies were caught red-handed fraudulently manipulating the findings of their surveys. It was pathetic to see their owners and executives trying to impress potential (decoy) clients with their ingenious modus operandi. It is good that two news channels, Times Now and Headlines Today, suspended their contract with their agency to establish that they were not party to the malpractice but its victim. These polling agencies were willing to manipulate the margin of error, victory margin for candidates, seat projections for a party or hide negative findings. A few agencies even offered to field dummy candidates to improve the prospects of victory for their clients.

This shocking, but not surprising, expose was a watershed moment, spurring political parties to demand a ban on opinion polls before elections. Most media outlets, both TV and print, immediately protested this demand, calling it a violation of freedom of expression by quoting Article 19 ad nauseum. The perspective was totally lost.

Interestingly, these worthies forgot all about the sting operation itself. Not a word was uttered about the fraud that had been going on in the name of opinion polls. There was no comment on the modus operandi that the fraud perpetrators revealed or on its magnitude and consequences, forget strategies to prevent it in the future.

 

What then is the way forward? Opinion polls would be fine if only their integrity was beyond doubt. What can be done to ensure that? Ideally, an independent regulator would be a viable option. The regulator would establish standards of professional integrity for and accreditation. All polling agencies wanting to conduct surveys must make operational details like sample size, methodology, time frame, quality of training of research staff, and so on available for scrutiny. Earlier, one of the country’s foremost psephologists had both criticized the polling industry in India for not following the highest standards of professional and rigorous polling, and the lack of transparency in terms of methodological details.⁴

A model for professional and ethical rules that market researchers should follow already exists with the European Society for Opinion and Market Research (ESOMAR), a membership organization representing the interests of the market research profession at an international level. More than 4,900 members and 60 national market research associations worldwide have adopted its rules. In collaboration with the International Chamber of Commerce, ESOMAR established the ICC/ESOMAR International Code on Market and Social Research. All individual members agree to abide by these standards while conducting market research. The Code has also been adopted or endorsed by more than 65 national associations.

Another international professional association of researchers in the fields of communication and survey research is the World Association for Public Opinion Research (WAPOR). Established in 1947 as the World Congress on Public Opinion Research, it became the sole non-government consultant organization to UNESCO in the field of polling. Over time, WAPOR’s membership has grown and become more international. By 2012, the association had over 600 members from research institutes and universities in over 60 countries on six continents.

The ESOMAR and WAPOR Guidelines on Opinion Polls and Published Surveys set out the responsibilities of researchers to conduct opinion polls in a professional and ethical way. These guidelines highlight the information that researchers and those publishing survey data must make available to enable the public and other stakeholders to evaluate the results. It provides guidance on different types of opinion polling, including exit polls and online polls.

 

India could easily join these organizations or set up its own professional body on the same lines. This is one reform that needs to be considered without further delay. After the Bihar 2015 election, when some of the pollsters faced flak for wrongly predicting an NDA victory, six leading agencies had spoken about the possibility of starting a self-regulatory body – Indian Polling Council.⁵ More than six months and one election cycle has passed since, but there seems to be no progress on this front. One wonders whether this could be attributed to the absence of any seriousness about increasing transparency and improving the quality of election related polling.⁶

 

* S.Y. Quraishi is the author of An Undocumented Wonder: The Making of the Great Indian Election. Rupa Publications, 2014.

Footnotes:

1. The Election Commission of India defines ‘paid news’ as any news or analysis appearing in any media (print and electronic) for a price in cash or kind as consideration.

2. For instance, there can be no campaign during the 48 hours preceding the end of the poll. Personal attacks and appeals in the name of caste and religion are disallowed. Similarly, the use of loudspeakers from 10 pm to 6 am is banned at all times by a Supreme Court order.

3. TNN, ‘Ban On Opinion Polls, Congress Says Yes, BJP No’, Times of India, 5 November 2013; Accessed at http://timesofindia. indiatimes.com/india/Ban-on-opinion-polls-Congress-says-yes-BJP-no/articleshow/25234759.cms

4. Yogendra Yadav, ‘Opinion Polls: The Way Forward’, The Hindu, 12 November 2013; Accessed at http://www.thehindu.com/opinion/lead/opinion-polls-the-way-forward/article5339890.ece

5. S. Rukmini ‘Pollsters Come Together to Form Regulatory Body’, The Hindu, 10 November 2015; Accessed at http://www. thehindu.com/news/national/pollsters-come-together-to-form-regulatory-body/article 7862745.ece

6. Praveen Rai, ‘Fallibility of Opinion Polls in India’, Economic and Political Weekly 49(18), 3 May 2014.