Opinion as crime, crime as opinion

Source : Daily World

Plato had described opinion as the “medium between knowledge and ignorance”. He must have been referring to duly considered opinion and Harlan Wilson must have been dreaming of an opinion utopia when he said, “You are not entitled to your opinion. You are entitled to your informed opinion. No one is entitled to be ignorant.” The two mutants of public opinion, that virtually cover the entire gamut of published opinion, can neither be labelled as informed opinion nor as considered opinion. These are ignorant opinion and biased opinion and most of the opinions spewed on the social media and in the mainstream committed media fall in these two categories. While it is undoubtedly true that in an open society considered opinion should be protected free speech, the situation is murky regarding opinions emanating from ignorance or bias as also regarding the methodology to distinguish considered opinion from the offensive category.

Increased emphasis on political correctness in the 21st century has made intolerance of contrary opinion more commonplace and morally acceptable in society. Criminal cases are being foisted with increasing frequency over expression of opinion that is divergent from the mainstream, with a miniscule group determining what that “mainstream” is. Though widely hated as a racist, the inimitable Winston Churchill had highlighted the control of what counts as opinion in public space – “There is no such thing as public opinion.

There is only published opinion”. Yet, those were the days when the group controlling the public space was more homogeneous with a small cabal controlling the publications. They indulged in shadow boxing with each other but maintained bonhomie beyond the public gaze. Social media has broken down that oligopoly and now every opinion, howsoever ill informed, becomes published opinion making the conflict in the public space inevitable.

Given the clout of the social media as the publisher of private opinion in the public space without editorial moderation and the undeniable existence of a wide slate of state-recognised morality and immorality, it is not surprising that the coercive arm of the state is frequently swooping down on matters of opinion. In the final analysis, every crime and conviction of somebody for a crime is a matter of opinion. A legal wrong has been committed in the opinion of the complainant, the investigating officer’s opinion supports this conclusion and the prosecution articulates an opinion that convinces the judge to form an opinion of guilt and the quantum of sentence. It is presumed that all these are considered opinions based on facts considered to be admissible evidence in law. Yet, individual bias and the weight of public opinion exercised through a media trial have been seen to be exercising considerable influence in recent times. The sequestering of jury members in the US is evidence of an apprehension of such influence on the outcome of the trial. Repeated observations of the higher courts in India in “high profile” cases to conduct the trial on a fast track is also indicative of the process being affected by the published opinion.

Given that the administration of criminal justice is opinion-based, criminalisation of opinion becomes a double jeopardy – the judicial verdict becomes, in effect, an opinion about an opinion. Fortunately, so far in democracies, criminal cases against expression of opinion in the public space are not usually initiated by the state except contempt proceedings by a court or a legislature. In opinion alleged as crime, there is invariably an individual complaint, usually claiming to represent the feelings of a group that is allegedly hurt by the offending opinion. Biases start operating from that point onwards, with the tilt of the police, the prosecution and the judge. Unfortunately, the process adopted is the same as in other cases of crimes like murder, where opinions are based on material facts on record while here the conclusions are based on opinions about the opinion expressed by the accused.

When opinion is prosecuted, democracies inch closer to totalitarian surveillance states with their thought police, authorised to filter permissible thought from culpable thought and to put a plug on the latter. In a totalitarian state, the thought police is used to nip in the bud the evolution of dissent and a demand for democracy, while ironically, democratic states claim that they use it to prevent subversion of democracy. Yet, a voice silenced is a voice amplified and the dead speak louder than the living. Dale Carnegie put it lyrically: “Those convinced against their will, are of the same opinion still.” Thus, the democratic state is caught on the horns of a dilemma. If it does nothing to prevent the bias becoming the norm, it will be complicit in suppression of the truth and encouragement of the purveyors of the bias. The bias and tilt of those controlling the published opinion is at least as much a subversion of democracy as is state action in classifying some opinions as culpable. Schopenhauer highlighted the threat of prejudice lucidly. “The discovery of truth is prevented more effectively, not by the false appearance things present and which mislead into error, not directly by weakness of the reasoning powers, but by preconceived opinion, by prejudice.” Propagation and protection of the truth and the preservation of democracy are inter-dependent and one cannot survive without the other.

Is there a golden mean where bias is not allowed to edge out the truth but free speech and diversity of opinions are not curbed? Clearly police and prosecutors are not best placed to filter opinion, their training and bulk of experience being related to crime where material evidence leads to an opinion whether a crime has been committed. When an opinion is alleged to be culpable, the starting point is just that opinion and it is expected to lead to an opinion whether it has the potential to instigate violent crime. This is clearly not the job of an investigating officer and requires specialists trained in the use of sophisticated tools of socio-psychology. Since the crime of opinion is a creature unlike any other crime, it requires a due process of its own if the state is to be neither negligent in responding to threats to peace and tranquillity nor complicit in suppressing free speech.

Perhaps we require a tribunal of professionals who should first look into complaints alleging culpable opinion expressed by someone. Only if the tribunal concludes that the said opinion poses a threat to the unity and integrity of the country or is a threat to peace as it will inflame passions in a section of society, that the opinion should be classified as a crime and referred to the court of competent jurisdiction. This shall foster a reasonable degree of tolerance for the opinions that we do not agree with without giving a licence to anyone to saturate opinion space with hatred borne of bias and prejudice. When criminalising opinion, may the state always remember the words of John Stuart Mill, “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.

The writer RN Prasher is a retired IAS officer of Haryana cadre | Personal Opinions

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