Law Minister Kapil Sibal cleared the air on the Congress party's decision to ban opinion polls saying that his party had concern regarding the way opinion polls are conceived. Speaking to CNN-IBN's Karan Thapar on Devil's Advocate, Sibal said that the Congress party was not confident of the transparency, integrity and methodology used by opinion polls.
Here's an excerpt of the interview:
Karan Thapar: Hello and welcome to Devil's Advocate. Is the Congress party's distrust of opinion polls justified or is it a terrible mistake? That's the key issue I will discuss today with the Law Minister Kapil Sibal. Mr Sibal let me start with a direct question. The Congress party in a letter to the Election Commission has suggested that once the model code of conduct becomes applicable, the publication of opinion poll should be prohibited. As Law Minister and more importantly as the former science and technology minister, do you endorse the Congress party's suggestion or do you have a reservation?
Kapil Sibal: Look, first let me go back to 2004. In 2004, the same issue came up and the Election Commission held consultations with all political parties and unanimously the political parties said that once the notification is issued there should be no opinion polls. Despite that unanimous decision by political parties, several opinion polls were held in 2004 and the government has not banned it. It requires an amendment of the Representation of People's Act and we have not moved for an amendment. When this issue came up again, the Election Commission again asked us and in fact I saw the opinion of the Attorney General and the Attorney General said the basis on which the exit polls are banned, the same basis can be applied to the opinion polls if we so chose. So I said hold consultation with all political parties and the Congress party has reiterated its view.
Karan Thapar: I understand. I fully understand the background and therefore let me repeat my question - The Congress party in its response to the Election Commission has said that once the model code of conduct becomes applicable, the publication of opinion poll should be prohibited. Do you as Law Minister and as former science and technology minister endorse your party's position or do you have individual reservation?
Kapil Sibal: First of all this issue will be discussed in Parliament in the event the government wishes to move ahead the matter. So when the Congress party give its position, the Election Commission makes a recommendation and if we decide to move ahead despite the fact that all political parties have now again reiterated the position other than the BJP, then the matter will be discussed in Parliament.
Karan Thapar: But I repeat my question - Do you as Law Minister and former science and technology minister, do you endorse Congress party's position or do you have individual reservation?
Kapil Sibal: As I said when we decide to go to the Parliament, I will give my opinion at that stage, not in public to you.
Karan Thapar: You are a Congressmen if you are reluctant to say that you agree with the Congress party then there are implications you disagree.
Kapil Sibal: Again, Karan this is a wrong question to ask. As a Law Minister I have to speak on behalf of the government. The government has not taken a position on it yet. So when the government takes a position then I will speak to you.
Karan Thapar: Two things follow from what you are saying. First of all, as a Congressmen , which is your first loyalty, do you endorse your party's opinion. What your position as the Law Minister, you can tell separately.
Kapil Sibal: See, the Congress party has taken a position. If the Congress party takes a position then Kapil Sibal is not an outsider.
Karan Thapar: So Kapil Sibal agrees with the Congress' position.
Kapil Sibal: It's not the question of agreement. If the Congress party takes a position on foreign policy whether I agree or not, my discipline requires me that I follow what the Congress party says. So don't consider it as a disagreement and don't consider it as an agreement. It's a matter of discipline as far as I am concerned.
Karan Thapar: The second implication that arises from what you have been saying is that the government has not made up its mind whether it will act on a suggestion from the Congress party.
Kapil Sibal: Absolutely.
Karan Thapar: Absolutely?
Kapil Sibal: Absolutely.
Karan Thapar: The second thing that rose from that is quite possible that the government may refuse to act on the Congress party suggestion.
Kapil Sibal: Absolutely.
Karan Thapar: The third thing that follows is that there may be a sharp difference of opinion on opinion polls between the Congress party's stand and the government stand.
Kapil Sibal: That's not necessarily true. The government may well agree with what the Congress party, may not also.
Karan Thapar: You mean it is possible that the government may could agree but still not act?
Kapil Sibal: Could. There are so many possibilities.
Karan Thapar: But the one important possibility that I am drawing out and underling is that it is possible the government may not act on the Congress party's suggestion to ban polls.
Kapil Sibal: Not Congress. The Election Commission will give its view point and thenif the government wishes to take this forward and remember this is the last session left in the Parliament in December. I don't know how much this session will be and whether or not we can pass an amendment like this or not.
Karan Thapar: We don't know about that only time will tell. I want to go back to the Congress party's reasons for believing that opinion polls after the model code of conduct is coming into application should be prohibited. The first reason that they have given it in public is that opinion polls are unscientific. Now I put it to you that as a man who has served as science and technology minister for five full years, you know that there is a science of sampling. You know more importantly that a small sample can be chosen to accurately reflect the mood or feeling of an entire population within a minimal agreed margin of error of just 3 per cent. To say therefore that opinion polls are unscientific is untrue.
Kapil Sibal: Look Karan first of all, I mean, if all parties unanimously said so in 2004 then all parties were wrong according to your logic.
Karan Thapar: Yes, I agree they were all wrong.
Kapil Sibal: And if 9o per cent of the party say so today then 90 per cent of them are wrong.
Karan Thapar: I agree they were all wrong.
Kapil Sibal: But, quite frankly I am not an expert. I am not in a position to say a particular poll is scientific or not scientific. It all depends on the nature of the sample. It all depends on who is paying for it, it all depends on the integrity of those who are conducting polls.
Karan Thapar: It all depends on who is paying for it.
Kapil Sibal: Yes it does on the integrity.
Karan Thapar: Integrity is another matter.
Kapil Sibal: That depends on who is paying for it. Yes it does. I do not know those facts at all and therefore I am not sure whether an opinion poll is scientific or not scientific.
Karan Thapar: I am not talking about A poll or B poll or C poll. I am asking you a broader generic question as a man who has been a science and technology minister for five full years and actually prides himself on his scientific frame of mind. Will you accept that there is a science of some ?
Kapil Sibal: Of course there is.
Karan Thapar: You accept that.
Kapil Sibal: Of course.
Karan Thapar: Number 2, will you accept that when properly conducted a small sample can be so designed as to reflect what an entire population think?
Kapil Sibal: Of course
Karan Thapar: You agree with it?
Kapil Sibal: Of course I do
Karan Thapar: Completely?
Kapil Sibal: Of course.
Karan Thapar: Number 2. Will you accept that critical government organisations like the NSSO and the CSO do practically all their work on the basis of sample surveys and that important facts like GDP, growth and inflation, by which we judge the performance of our economy are entirely based on sample surveys.
Kapil Sibal: I agree.
Karan Thapar: Finally, if sample surveys can give you correct GDP, growth information and correct inflation information then surely sample surveys can give you exact poll information.
Kapil Sibal: I am not saying no. Depends on what kind of sample, what kind of discipline and what kind of integrity.
Karan Thapar: So then in fact the only thing differing over is the integrity of the poll sample that is chosen for an opinion poll survey.
Kapil Sibal: No no there is another reason. I will reflect upon that. So when a person goes to the poll, you ask him 30 days in advance he will have an opinion. If you ask him 5 days in advance, he may have a different opinion.
Karan Thapar: True
Kapil Sibal: So it is not necessary true that your opinions reflect what is actually going to happen or not.
Karan Thapar: But Mr Sibal can I interrupt
Kapil Sibal: One second. And we have seen in the last several years that several polls have gone wrong.
Karan Thapar: But can I point out something to you? An opinion poll is only claim to be accurate.
Kapil Sibal: I know.
Karan Thapar: Absolutely.
Karan Thapar: So the point you are making that opinions change does not wishy the ball.
Kapil Sibal: I will make another point that opinion polls have gone wrong.
Karan Thapar: And many have been right.
Kapil Sibal: So therefore it may be scientific or it may not be scientific
Karan Thapar: Let me point out something to you. In 2009, CNN-IBN did a poll which predicted that the Congress will over 200 seats and it was spot on. Digvijaya Singh in public praised the poll. As far back 1980, 33 years ago, India Today and Prannoy Roy did a poll which predicted to the last seat how many Indira Gandhi would win. She too publicly praised the poll. What I am saying to you is that given that there is a well established track record of polls correctly predicting Congress' performance from 1980 onwards, I find it strange that your party is suspicious of polls whether it is a new suspicion or an old suspicion
Kapil Sibal: My party is not suspicious of polls. Again you are not putting the point rightly. My party is perhaps suspicious of the methodologies that are used. My party is perhaps not confident of the integrity of these polls and not only that you gave two examples I will give you several more starting with 2004. The prediction was that the BJP will get more that 300 seats, they did not get it. So you are going back to 1980, I can tell you as far back 2004 and several state polls.
Karan Thapar: Actually I talked about 2009 which comes after 2004.
Kapil Sibal: No, there are several state poll which have gone wrong since.
Karan Thapar: There are several that have gone right
Kapil Sibal: So therefore it means that some polls can be scientific and some polls may not be scientific.
Karan Thapar: Can I go back to something you raised in the last most recent exchange between us. You said that my party is partly suspicious because that concerned about the methodology. It therefore seems to me that what you should be saying as a party is look we need transparency, we need to give polls some sizes.
Kapil Sibal: Yes, that is what I mean
Karan Thapar: Let me finish. You need transparency, you need sample sizes, you need to explain the methodology and all other facts that are pertinent. That is very different to what your party is suggesting which is a ban.
Kapil Sibal: No no. The party was asked should we have opinion polls from the date of notification, the party said no. That is the conclusion. What is the basis of that conclusion, the party has not disclosed.
Karan Thapar: But didn't you say something even more interesting which hasn't been fully explained by your party and you're only hinting at it here. But that you are really saying is that when the party says that there should be a ban after notification what is really saying is that what we want is greater transparency, a full knowledge of methodology and if that greater transparency, full knowledge of methodology were there we wouldn't want a ban?
Kapil Sibal: No party could have a ban. No party should have a ban. Once everything is disclosed, but unfortunately the nature of the polls are such in the country that everything is not disclosed.
Karan Thapar: I am going to compliment you and it's not tongue and cheap that Kapil Sibal is clearly more intelligent in this interview than the Congress party spokesman have been and what they have said earlier because now you have reinterpreted them very well and very mercifully to actually not be suggesting a ban although those were the words they used but to in fact me suggesting more transparency and more openness about methodology.
Kapil Sibal: But that is true of a lot of things in India that are done at the level of the party. Look at the kind of campaigning that is going on in the social media about a particular person.
Karan Thapar: When you say that it is true that lot of things are done by the party you are saying that often party spokesman don't realise
Kapil Sibal: Don't misinterpret. I am not talking about the spokesperson. I'm saying the kind of media campaigning that are going on, a lot of them are not based on truth.
Karan Thapar: I am very glad to hear what you are saying because do you know the conclusion that many people were beginning to draw. They were saying that going by what the spokesman said, I admit you reinterpreted it rightly, but going by what the spokesman said India was putting itself in the position where the only major democracy in the world where possibly opinion polls could have been banned because the ruling party had lost confidence in the science of sampling and people said that it's just not bizarre and inexplicable, that's an embarrassing position.
Kapil Sibal: No. That's all well but people outside do not know how polls are conducted in this country and therefore people assume outside that polls are scientifically conducted, there is complete transparency, there is complete integrity. We are not aware of any of these things.
Karan Thapar: Well, the truth is that if you go to what the Hindustan Times article published just two days ago, you will notice they did a track of CSDS poll over the last 12 or 13 years and every single CSDS poll recorded in the track by the Hindustan Times were well within the announced marginal error of....
Kapil Sibal: But CSDS is not the only poll. There are many polls that are been conducted which have no scientific basis.
Karan Thapar: So we are back to the position.
Kapil Sibal: Should we then say that all poll should be allowed mainly because CSDS is good.
Karan Thapar: We are coming back to the position that you have taken earlier which is it's not the ban so much the Congress wants, it's greater transparency, openness and methodology.
Kapil Sibal: If opinion poll reflect the true opinion of the public at large at any given point in time and they are conducted scientifically, with transparency, with integrity then why would anybody want a ban.
Karan Thapar: Let me then come to the second reason why the Congress party spokespersons have publically stated that opinion polls should be banned after the notification of the date of election. They say because they will influence voters. Sometimes they say it will mislead voters. Do you have any proof that the influence or is it just a surmise
Kapil Sibal: All right lets take the example of USA. Polling takes place on the east coast on a day different from west coast, because there is an 8 hour difference (4 or 5 hour difference) polling from the west coast. When the exit polls are conducted on the east coast, people are not allowed to be informed about these polls on the west coast.
Karan Thapar: No you are wrong. Forgive me. You are wrong. I will tell you why.
Kapil Sibal: Right
Karan Thapar: Because actually often in America on the basis of opinion poll winners and losers have either accepted victory or conceded defeat before polling have even closed in California. Which prove that exit polls are announced in the east coast well before the west coast has finished voting. So you are wrong on that.
Kapil Sibal: No no I am not wrong. That was exactly what I as saying that after the west coast finishes voting, the exit polls are run.
Karan Thapar: No, the other way round. Often exit polls are announced in the east before the west has finished voting. In fact sometimes, you have even presidential candidates declaring defeat in other words conceding before California has finished.
Kapil Sibal: I am afraid Karan I join issue with you on that. I have lived in the United States of America and I know that is not correct.
Karan Thapar: Lets leave that. That is completely irrelevant
Kapil Sibal: What you are saying is completely wrong because I have myself witnessed that.
Karan Thapar: You say so, I'm saying the exact opposite but it is irrelevant to us.
Kapil Sibal: No, it's relevant. The same logic is perhaps sought to be applied that if exit polls can influence people on the west coast then surely opinion polls can also.
Karan Thapar: Lets accept for argument sake that opinion polls do influence people. So what. Newspaper articles influence voters, television discussions influence voters, possibly this interview will influence voters
Kapil Sibal: Newspaper articles do not result in somebody going to vote tomorrow. And how many people read newspaper articles.
Karan Thapar: But opinion polls do not result in poeple voting tomorrow.
Kapil Sibal: I think the analogy with newspaper is completely wrong.
Karan Thapar: But opinion polls do not result in people voting tomorrow! Opinion polls come out 6 weeks, 3 weeks before voting.
Kapil Sibal: No no, you can have an opinion poll one day before poll. You can have a opinion poll. If your logic is right you can have an opinion poll a day before poll.
Karan Thapar: Your party is not simply saying ban opinion poll one day before poll, you are saying ban them from the day of model code.
Kapil Sibal: If it includes that from the day of the notification to the day of poll, you can have a poll one day before.
Karan Thapar: Just one moment. Mr Sibal you are a very intelligent lawyer. There is a big difference between saying ban an opinion poll 48 hours before voting and saying ban it from the day the model code of conduct comes into affect.
Kapil Sibal: I am saying that if the logic is right that opinion polls don't influence or let them influence that applies both from the date of notification as 48 hours before poll.
Karan Thapar: Mr Sibal in England and in America, opinion polls are even announced on the day of voting. Often in England the newspapers come up with opinion polls on the day of voting.
Kapil Sibal: Don't apply European liberal principles to a situation in India. If you were to apply then you should have whatever European laws are there should be applicable in India mainly because they are European laws. Everything is contextual.
Karan Thapar: Are we more gullible. . ..
Kapil Sibal: Not a question of gullible. Everything is contextual. Laws are different from other countries because the context is different.
Karan Thapar: You know what is the context in here. I'm inferring this you don't have faith or respect for the intelligence of the Indian voters. You are treating him as a child
Kapil Sibal: Come on Karan. Don't try to score a debating point for nothing. I have said nothing of this sort. All I am saying is this could be one of the reasons why people say that look if opinion polls are allowed from the date of notification to the date of poll you can have an opinion poll two days before the poll and it might influence. You say let it influence, that's a matter of policy.
Karan Thapar: I am saying something else. That the reason you that believe that it will influence adversely because you don't believe the voters independence, you don't trust or respect their intelligence.
Kapil Sibal: Don't give this. I never said that.
Karan Thapar: I'm saying the reason I believe in.
Kapil Sibal: This is what your inference of my statement. I never said any of that. Supposing its a bogus poll. Supposing it is a poll which has no integrity. Then would you like people to be influenced.
Karan Thapar: Can I put this to you that if the voter is intelligent enough to vote the government out and bring in the Opposition , he is intelligent enough to differentiate between bogus and good polls.
Kapil Sibal: I am not sure about that. I don't understand on what logic you said. Did you talk to the voters?
Karan Thapar: Yes, I have.
Kapil Sibal: No you have not..
Karan Thapar: I have spoken to many voters who look at opinion polls and say .........
Kapil Sibal: Have you ever talked to voters just before the polls.
Karan Thapar: Yes.
Kapil Sibal: Has there been a poll in which he says he was not influenced or influenced. What are you talking about. You're such a bright man. You shouldn't be saying this.
Karan Thapar: Mr Sibal, I want to turn to the critical question, is it constitutionally valid for a party to suggest that an opinion poll should be prohibited. Arun Jaitley, a former law minister like your self and leader of the Opposition in the Rajya Sabha, has said that polls are also a part of free speech. Restricting them is constitutionally neither permissible nor desirable.
Kapil Sibal: He was the law minister in 2004, why did not he say then. He was the law minister.
Karan Thapar: You are saying he is contradicting himself?
Kapil Sibal: He was the law minister in 2004 and he supported a ban on opinion poll. Mr Vijay Kumar Malhotra was there at the meeting on April 4, 2004. So Mr Jaitley who is not a law minister thinks one way and when he was a law minister thinks entirely differently.
Karan Thapar: I accept at face value your charge that Mr Jaitley is contradicting himself and possibly being hypocritical.
Kapil Sibal: No, I don't use such strong words.
Karan Thapar: However, there is a fundamental argument behind Mr Jaitley's position which I want to put to you. The Indian Constitution only permits certain specific restrictions on freedom of speech and those specific restrictions are extremely clear in Article 19 (2). I put it to you by no stretch of imagination and interpretation can those specific restrictions be expanded to a ban on polls.
Kapil Sibal: That should apply to exit polls as well.
Karan Thapar: It probably does if someone challenges it in court.
Kapil Sibal: No no. Please challenge it. Let the court decide. Supposing the Election Commission were today to say that look there should be a ban on opinion polls somebody will challenge it and somebody will decide it. You are a journalist ultimately, why do you give such a firm opinion on things that are constitutional?
Karan Thapar: The Supreme Court did in 2005, I think I am right in saying, take up this issue aout opinion polls when they were in fact sought to be banned by the Election Commission of the time and it struck it down. Thereafter you got into business. Thereafter you amended the RP Act to amend and ban exit polls, That exit polls hasn't been challenged.
Kapil Sibal: I am not aware whether it has been challenged. I am not aware.
Karan Thapar: It hasn't
Kapil Sibal: I don't know
Karan Thapar: What you are saying to me by inference is that because the exit poll ban has not been challenged, on the same basis if the government wants it can seek to ban opinion polls.
Kapil Sibal: Again you're saying. I haven't said any of that. You have talked about the constitutionality of the exit polls. I said by constitutionality is valid there, it could be valid here as well.
Karan Thapar: And then both could be challenged here in court?
Kapil Sibal: Both could be challenged.
Karan Thapar: And we will only know about the true position about constitutionality when it is challenged. So till then it is an open question.
Kapil Sibal: Of course.
Karan Thapar: You accept that?
Kapil Sibal: As it should be.
Karan Thapar: So the question marks about constitutionality cannot be dispelled until a court finally decides.
Kapil Sibal: Always the case. And the Election Commission will have a very important role to play there because the Election Commission, remember, Article 324 of the Constitution talks about free and fair election.s The Election Commission may have a view on opinion polls.
Karan Thapar: Absolutely.
Kapil Sibal: So there constitutionality would not be under (Article) 19 then. It will be under (Article) 324 .
Karan Thapar: Let me then end by saying this that finally the position that emerges if one were to seek and I underline the word if, if one were to seek to ban opinion polls it can be done on the same grounds as exit polls were banned in 2005-06 and just as the exit poll ban can be challenged so can the opinion poll.
Kapil Sibal: Sure. Absolutely. Without any doubt.
Karan Thapar: Mr Sibal. At last we agree a pleasure talking to you.
Kapil Sibal: Thank you.