Context

Opinion Polls are the highlight of modern day elections of every thriving democracy, often extrapolated and extended they have the potential to influence voting behaviour and here lies the problem. Hence, raising a pertinent point about ethics of free and fair elections.

During the election times, opinion polls are stimulating considerable debate among the voters, politicians and the media.

Since this exercise has become more of a ritual, it is required to connect such polling directly to morality and democratic processes. 

Opinion Poll During election season, media outlets, in partnership with pollsters, carry out ‘opinion poll’ and ‘exit poll’ to gauge which party is most likely to win. Opinion poll is conducted in the run-up to the election as indication of the voters' mood. Exit poll is done after a voter has actually voted Opinion Poll An opinion poll is a survey of public opinion from a particular sample. Opinion polls are usually designed to represent the opinions of a population by conducting a series of questions and then extrapolating generalities in ratio or within confidence intervals. The first opinion poll seems to have been published in 1824, when the Harrisburg Pennsylvanian newspaper correctly predicted the result of the US presidential election.

Background

How Opinion Polls are regulated in India?

The earliest attempt to regulate opinion polls was made in 1998 when the ECI took an overall view of the situation and issued an order laying down “Guidelines for Publication and Dissemination of Results of Opinion Polls/Exit Polls”, including government-controlled electronic media, in connection with the conduct of opinion polls and exit polls by them.

• Currently, opinion polls are barred from being published in electronic media for 48 hours prior to an election in that polling area under Section 126(1)(b) of the Representation of the People Act, 1951.
  • The contravention of Section 126(1)(b) is punishable under Section 126(2) with imprisonment for a term which may extend to two years or with fine, or with both.
• Earlier, the EC had withdrawn this rule following an adverse remark from the apex court.
• The apex court had made critical observations against the poll panel's power to ban publication of exit polls saying it involved citizens' right to speech and expression guaranteed by the Constitution.
• However, the rule was later ratified by Parliament.

Global Practice In most democracies, opinion and exit polls are common during elections. However, restrictions are also imposed in many countries, extending from two to 21 days prior to the poll — Canada, France, Italy, Poland, Turkey, Argentina, Brazil, Colombia, to name a few examples.

How opinion polls interfere with ‘free and fair elections’?

The following points have been argued:

• Paid agenda: Today, “paid news” are very common action, therefore, it is highly possible that some opinion polls may be sponsored, motivated and biased.
• Undue influence: Opinion polls directly affect the sanctity and integrity of the electoral process. They are able to influence electoral behaviour and distort electoral outcomes.
• Disinformation: Almost all polls are non-transparent, providing little information on the methodology. With such infirmities, many “polls” amount to disinformation that can result in “undue influence”, which is an “electoral offence” under IPC Section 171 (C).
  • It is a “corrupt practice” under Section 123 (2) of the RP Act.
• Suspicious affair: A survey getting some elections right is not proof of its credibility or robustness.
• Bandwagon effect: The bandwagon effect claims that voters “jump on the bandwagon,” which means that if a party is gaining in the polls, the party will gain additional support from the voters, and vice versa if the party is losing in the polls.

Case Study Cambridge Analytica scandal The Cambridge Analytica scandal has raised question after question. Cambridge Analytica, the political consulting firm worked for the Trump campaign and harvested raw data from up to 87 million Facebook profiles Once at the centre of a global storm for allegedly manipulating elections in the US and other countries, Cambridge Analytica is a non-entity today. However, it does hold the rather dubious distinction of being synonymous with misuse of personal data and harvesting data from online firms.  Austria's Sebastian Kurz : Corruption Scandal Austria's conservative Chancellor Sebastian Kurz was forced to resign amidst a unique scandal. He was charged with orchestrating fake surveys and bribing the news media to show them as genuine opinion polls.

Point for opposition to the ban

• Freedom of speech and expression: The opposition to the ban in India is mainly on the ground that freedom of speech and expression is granted by the Constitution (Article 19).

Restrictions What is conveniently forgotten is that this freedom is not absolute and allows for “reasonable restrictions” in the same article. The Indian Penal Code and Representation of the People Act, 1951 do contain certain restrictions.

• A ‘must’ in modern democracy: It is needed to be recognised that systematic collection of public opinion is a must in modern democracies. Since elections are not a private act, citizens wish to, and need to, know how others are making up their mind.
• Affecting morale:More than the voters, opinion poll-based forecasts do affect the morale of party workers and supporters. This makes a big difference during the campaign. 

What is the real problem with Indian opinion polls?

The real problem with Indian opinion polls, barring some honourable exceptions, lies with their non-transparency and non-professionalism.

• Lack of common sense: Unfortunately, there is very little understanding among the common people or even media persons of what the polls can and cannot deliver.
• Vague and excessive claims: Pollsters make matters worse by making excessive claims, nothing short of black magic.
• Less focus on methods: A general unwillingness on the part of polling agencies and the media to share even basic methodological details about their polls compounds the problem.

What would be the most appropriate and efficacious intervention?

The real question is: what would be the most appropriate and efficacious intervention? Unfortunately, most of the reformers have little patience and understanding to address this question.

• A call for a complete ban on pre-election polls, or a ban beginning the day of notification that amounts to the same thing, reflects the knee-jerk response that has come to dominate much of our policymaking.
• Unfortunately, many well-meaning democratic reform activists and the Election Commission itself have lent their weight to this ill-considered proposition.
• Banning pre-election opinion polls is a remedy worse than the disease it seeks to cure.
  • There already exists a ban on publishing the findings of polls beginning 48 hours before polling and till the last voter has cast her vote. This is a reasonable restriction, enough to safeguard against manipulations.
• A full ban for the entire duration of campaign may not stand judicial scrutiny. It is hard to see how such a ban could be presented as a “reasonable restriction” of freedom of expression guaranteed under the Constitution.
• Besides, it would be very hard to implement. It could either exist only on paper, like the ban on smoking in public places.
• Or, worse, it could drive all the credible and law-abiding agencies out and leave the field open for rogue polls of fly-by-night operators. In all likelihood, it would open a black market of information where confidential polls and rumours will replace transparent and accountable polling.

Besides, a ban is only a measure of last resort, when all other methods have been tried and found wanting.

What measures are ‘actually’ required?

• Effective alternative method: There is required efforts to explore alternatives to a ban, alternatives that have been successfully used all over the world.
• Regulatory framework: What we need is a regulatory framework for election-related opinion poll — comprising a code of conduct, mandatory disclosures and independent inquiry — to be enforced by an independent agency. Every election-related poll, or any opinion poll for that matter, must be required to make the following disclosures:
  • the ownership and track record of the organisation carrying out the survey, details of the sponsor
  • sampling frame, sample size and the exact technique used to draw the sample; the social profile of the achieved sample
  • where, when and how were the interviews conducted
  • the exact wording of the question and sequence of questions asked
  • raw vote shares reported in the survey and how they were converted into vote estimates and seats forecast

Conclusion

Opinion polls do not just reflect the opinions of people but influence them to create an aura of winnability. Analyzing vulnerability of voters to such influence, there is a crying need to regulate this danger and protect the sanctity of India’s democracy.

Once in place, such a mechanism would help the public tell the difference between a genuine and rogue poll and incentivise transparent practices. That would be a significant step forward in democratic public culture. After all, public opinion polling is too valuable and consequential to be left to politicians, or pollsters.