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The Election Commission's proposal for an ordinance to ban exit and opinion polls today went flying out of the window, with the government endorsing the attorney general's view that such a step would be violative of the fundamental right to freedom of speech and expression enshrined in the Constitution.

Endorsing the opinion given by the AG, Soli J Sorabjee, the Centre lobbed the ball back into the Election Commission's court by asking it to put in place a regulatory mechanism under Article 324 so as to reflect the credibility of exit and opinion polls.

However, with the Supreme Court having clearly stated in September 1999 that "Article 324 does not empower the Election Commission to issue such guidelines (on exit and opinion polls)," the EC does not have the legal powers to act against those who flout the regulatory mechanism that may be evolved by it. In other words, even if the Commission were to lay down regulatory steps, to reflect the extent of credibility of an exit/opinion poll, it would have no legal powers to enforce the same.

In his observations submitted to the law ministry on the EC's recommendation for an ordinance to amend the Representation of Peoples' Act to ban exit and opinion polls, Mr Sorabjee came out in favour of upholding the fundamental right to free speech guaranteed under Article 19(1)(a) of the Constitution, and said that the proposed ordinance would hit at the root of that right.

However, taking cognisance of the consensus among all political parties favouring a ban on exit and opinion polls, Mr Sorabjee did recommend some regulatory steps to be exercised by the EC under Article 324.

These, he elaborated, included making it mandatory for those conducting these surveys to reveal their identity and experience as well as the sample size, methodology and geographical spread of the poll.

Incidentally, all these regulatory steps were part of the guidelines issued by the Election Commission in 1998 and 1999 on exit/opinion polls, which, however, had to be withdrawn when the Supreme Court ruled that Article 324 did not empower the EC to issue such guidelines. Interestingly, the government has now left it for the EC to initiate regulatory steps under the very same article.

In a covering letter to the AG's opinion, legislative secretary TK Vishwanathan informed chief election commissioner TS Krishnamurthy about the acceptance of the AG's opinion by the law ministry. It also informed the EC that it could take suitable measures for regulation of exit/opinion polls, as suggested by the AG, by exercising the powers conferred on it under Article 324 of the Constitution.

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