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The proposed ban on opinion polls is constitutionally suspect.
Freedom of speech and expression are fundamental rights guaranteed by our Constitution. The free speech guarantee has a capacious content. It includes the citizens right to receive information and the right to disseminate information. Our Supreme Court has ruled in the celebrated case of Indian Express vs Union of India that all members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the peoples right to know. The legal position was further clarified by the Supreme Court in 1995, in the case of Secretary, Ministry of I&B vs Cricket Association of Bengal, where it ruled that the right to freedom of speech and expression also includes the right to educate, to inform and also the right to be educated and informed.
No doubt, the freedom of expression, like any other fundamental right, is not absolute and can be reasonably restricted provided that the restriction imposed falls under any of the heads specified in Article 19(2), which are sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Freedom of expression, like the freedom to carry on trade or business, cannot be restricted in the interest of the general public or on the ground of conferring benefits upon the public in general or upon a section of the public. Our Supreme Court has placed freedom of speech and expression on a higher pedestal than the other freedoms in the matter of restrictions. The reason is because, according to the Supreme Court, freedom of speech and expression is the most precious of all the freedoms guaranteed by our Constitution.
The professed justification for imposing a ban on opinion and exit polls is that they would adversely affect electoral prospects of some political parties or candidates, or that they may have the effect of unduly influencing the minds of the electors. Assuming that the object is desirable, even so, any restriction on that ground would be outside the permissible heads, and hence unconstitutional.
This precise issue was considered by the Supreme Court. It was argued by the Union of India in the case of Sakal Papers that the object of the impugned legislation was to prevent monopolies, and that monopolies