Ignorantia Juris Non-Excusat - A Critical Study

Introduction
 The principle which lies in the maxim “ignorantia juris non-excusat” is deeply rooted in the Criminal Justice System of India. It is rested on the principle of another Roman Maxim “ignorantia corum quae scire tenetur non excusat” (Ignorance of those things which everyone is bound to know excuses not). This principle has strict application which entertains no exception, not even in the case of a foreigner who cannot reasonably be supposed to know the law of the other country. Sections 76 and 79 of the Indian Penal Code, 1860 exclude mistake of law as a defence from the scope of the exception.1  The principle of ignorantia juris is for the administrative convenience, even though at the cost of justice.2 If a person commits an offence on account of ignorance of law, that is no excuse in the eye of law. The person is liable to be punished even though, he had no guilty mind. It is an indisputable presumption under the criminal law that a person at the age of discretion and compos mentis has the knowledge of law under which he is living. In modern times where statutes are so multifarious and byzantine that the draconian application of this maxim causes great hardship to the ordinary people of India. After all, law is for the welfare of people. It is an accepted truth that on many points, no one can know the law and no one, even the judges and law-makers, can know the law on all points. If we closely scrutinize it, we come to the conclusion that he sale application of this maxim has a very little moral justification, at any rate in our country where the percentage of literacy is very law.3 The functions of planned and welfare State, the multi-application of criminal laws and increasing complexity of law are some of the reasons, for which the common man experiences harshness by the rigorous application to this principle of criminal law in India.  Justification of the Principle
 Ignorantia juris non-excusat is a universally approved principle of criminal law. Ignorance of law and mistake of law, although sounds same, are two different concepts. Ignorance of law means lack of knowledge of the existence of law but in the case of mistake of law, there is error in understanding the meaning of the exiting law. The principle of “Ignorantia juris” applies to the both situations with the same force There are many justifications to justify the retention of the principle in modern time. They are as follows :—  If ignorance of law were admitted as a ground of exemption, the Court would be involved in questions which were scarcely possible to solve, and which would render the administration of justice next to impracticable.4 If ignorance of law were admitted as a ground of exception ignorance of law would always be alleged by the party, and the Court, in every case, would be bound to decide the point, whether the party was really ignorant of the law, and was so ignorant of law that he had no surmise of its provisions which could scarcely be determined by any evidence accessible to others.5 Law is certain and capable of being made certain.6 The disinclination of Courts to allow new defences.7 The risk that such a defence would make it advantageous for people to refrain deliberately from acquiring knowledge of their legal duties.— O.W. Holmes8 To permit an individual to plead successfully that he had a different opinion/interpretation of law, would go against the very meaning of law.9 Compelling influence the people to learn the standard of conduct required of them.10
 Analysis of the Principle under Indian Scenario
 Austin in his book Lecture on Jurisprudence11 gives reason for the strict application of the maxim, ignorantia juris non-excusat, that law is certain and capable of being made certain. As against the above reasoning, the question as to how can the law be made certain? Is publication of the passed bills in Official Gazette by the Government concerned all to make the law certain or should anything more than the publication require to be done by the Government? In modern times, certainly more than the publication of law is required to be done by the Government. Therefore, when can we say that a law passed by parliament or legislature achieves certainty? In this regard. Bennion in his book Statutory Interpretation12 says that one guarantee of certainty is that law should be known and predictable so that those affected by it can foresee how the Court will apply it, and arrange their affairs accordingly. For the law not known is ultimate injustice.  In the modern context, neither law is certain. The concept of judicial activism has contributed a lot towards unpredictability of law. Now a days judiciary has taken the responsibility to provide social justice to the common masses. For this purpose judiciary often gives directions to Governments who have failed in performing their functions. In this regard, recently, Justice Markandey Katju has observed13 “the words result of judicial activism is unpredictability. Unless Judges exercise self restraint, each Judge can become a law unto himself and issue directions according to his own personal fancies, which will create chaos.”  In India, law is neither certain nor predictable. Mere publication in Official Gazette does not necessarily mean that all persons, specially those illiterates living in the remote corners of the country, have become aware of it.14 The notorious fact is that for an Indian law to operate and be effective and operative in the territory of India, it is not necessary that it should either be published or be made known outside the country.15  India is a welfare country and with a view to achieving its welfare goals, it modifies its civil as well as criminal laws from time to time. Take an instance of a more recent amendment of Section 375 to the Indian Penal Code,16 originally the age of consent that was fixed for Clause 5 of Section 375 was 10 years. In 1890 Huree Mohan Mythee17 caused the death of his child-wife, aged eleven years and three months, by having a forcible connection with her. Wilson J. criticised this ten years of consent to be too premature for consumption as in the unanimous opinion of the medical authorities it was productive of grievous suffering and permanent injury to child-wives. As a result of this decision the age of consent was raised to twelve years by the Amending Act of 1891. In more modern times the fact that puberty is seldom attained before the age of fourteen years prompted the late Hari Singh Gour to bring an amendment bill which resulted in raising the age of consent to thirteen inside and fourteen outside the marital relation. In 1926, another unsuccessful attempt was made to raise these ages to fourteen and fifteen. In 1949, however, these ages have been raised to fifteen years inside and to sixteen years outside marital relation. Now as we have seen above, the age of consent has fluctuated from time to time and it is undeniably true that it will take years for this information regarding this change of law to filter through to the masses inhabiting the remote village of our country.  There are certain situations in which the strict application of this maxim is not reasonable. Take an instance, a person who is serving in navy and he remains at sea most of his time of the year, or a person who is in jail serving punishment passed by a Court of law, or a person who is admitted in a hospital in serious condition and remains there for a long time, in such situations how do these persons come to know about the latest development of law? Suppose, after release from the force or jail or hospital, he does an act which was not previously an offence but is made an offence during his stay at sea in navy or jail or hospital. Is it reasonable, fair, and just to apply the principle which lies in the maxim ‘ignorantia juris non-excusat’ strictly in the above-said situations ?  Whether knowledge of law means knowledge of existence of law derived from the codes, statutes, treatises or given in newspapers? Still the law is not settled in this regard. So far as ignorantia juris is concerned, knowledge of law has a very different meaning. It means an interpretation of a law which coincides with the relevant interpretation by the authorised officials. Lawyers are sometimes at odds as to what law is. Even the lawmen are not certain about the correctness of law, Judges are themselves confused about the correct position of the law and about the certainty of law. Therefore, there is always disagreement between them over the questions of law. Nowadays, it has become a common practice of the Supreme Court and High Courts of India that while interpreting the law, Courts take various ranges of materials outside the statute. Generally these materials are out of the reach of the common people. That is why; the conclusion over legal matters differs from judicial to non-judicial and official to layman view. In such a complex situation, is it possible to ascertain law by a common man and regulate his conduct according to the reached conclusion? Even if a reasonable man takes the steps to learn the law, the risk remains the same that the Court or administrative officers will disagree with that person’s view. On the other hand, the citizens generally have no ready means of obtaining an authoritative ruling from any agency of Government on meaning of penal legislation which may affect him. He cannot apply to a Court for its opinion over a penal law.  Continental Trends
 Under the Scandinavian Criminal Law, ignorance of law is in varying degrees a defence. Thus, though a man will not be execused for the ignorance of the general rules of society or the special rules governing the activity in which the individual is engaged. But a fisherman need not study the legislation on industry. The Scandinavian law seeks to relate guilt to moral responsibility unlike the English and Indian legal system.18  Under Japanese Penal Code, the ignorance of law is not fully excused but the punishment may be reduced if the accused would prove the reasonable ground of the ignorance. The Draft Penal Code of 1972 states that a person who commits a crime without knowing that a conduct is not permitted by law shall not be punishable, if his understanding is based on reasonable ground.19  According to Chinese Criminal Code of 1935, criminal responsibility may not be avoided because of ignorance of the law, but punishment may be reduced according to the circumstances. If a person believed with a good reason, that his act was permitted by law, punishment may be remitted.20  The Soviet Penal Code of 1932, under Article 48, states that it shall be considered mitigating circumstances, if the crime was committed through ignorance, lack of understanding or an accidental combination of circumstances.  Under Danish Penal Code, 1930, if a person commits an offence in excusable ignorance or excutable misunderstanding of legal provisions; his punishment may be reduced as the circumstances shows.21  The American Model Penal Code says that knowledge that the conduct constitutes an offence, or the existence, meaning or application of the law determining the elements of an plainly so provides.22  Judicial approach
 Ignorance of law will not excuse is to be construed as meaning ignorance of law of one’s own country or State. Ignorance of law signifies the presence of guilty mind of the actor but the actor had no knowledge about the existence of the law at the time of the commission of the act. It means the accused worked under the impression that the law did not govern the particular case at the moment of performing the act while the law is present. Ignorance of law is ordinarily very much of an excuse as leads to a reduction of the sentence though it cannot lead to an acquittal.23  In Lim Chin Aik v. Queen24 the Privy Council held that the maxim does not apply where there is no provision for the publication of an order by which a man can find out what “the law is.”  In Harla v. State of Rajasthan25. The Court held that in absence of any special law or custom, it would be against the principle of natural justice to permit a subject of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even, with the exercise of reasonable diligence have acquired any knowledge. In this case, it was held that the non-culpable ignorance of law is allowed as defence to a charge of violation of Opium Act.  In State of Maharashtra v. M. H. George26, Subba Rao, J. in his dissenting opinion took the reference of Lim Chin Aik case of 1963 and expressed his view that the accused could not be convicted under FERA, 1947 since its non-promulgation precluded the application of the maxim ‘Ignorantia juris’.  In the King v. Tustipadu Manda27, the Court held that to succeed in the ignorance juris plea, there must be a mental state of absolute ignorance.  Conclusion
 It is a controversial question of law that in what circumstances the ignorance of law should be excused. The strict application of this maxim cause gross injustice to the common masses of the people, particularly to the poor and illiterates who are living in the remote side of the country. Above all, the conviction due to the ignorance of law may also affect the accused throughout his life. Under Section 54 of The Evidence Act, 1872 the conviction is a good evidence of the bad character of the accused.28  As regard to some minor offences, newly created ones, and those regulating businesses, there is frequently a gap between public opinion and the policy of the enactment, between mores and morality. These segments of existing criminal law raise serious questions concerning the reform of “ignorantia juris non-excusat.” It is submitted that offences which cannot be committed without doing of the act corruptly, willfully, knowingly, and maliciously, ignorance of law may negative the existence of mens rea on the part of the accused.  By way of reform, the author does not suggest the total excuse of the plea of the application of the legal principle which lies in the maxim. In this regard, help may be taken from American law where this maxim is applied in two different situations differently. Firstly, the accused is not allowed to take defence against the sole application of this maxim for those offences which are malum in se, i.e. wrong in themselves independent of law. In other words, ignorance of law is not allowed as a defence for those offences which are considered wrongful by consensus of opinion. Offences like murder, rape, theft, robbery etc. are offences malum in se. Secondly, where a new offence is created by legislation like white collar crime, it is called malum prohibitum, i.e. wrong because it is prohibited or specific intention is needed for the completion of the crime in question. In these circumstances, the accused should be allowed to plead ignorance of law as defence, only to show that he had no such intention to commit the crime.  If this change will be brought about in our penal statutes, the next problem that will come before the prosecution will be in relation to the burden of proof. Here it is submitted that the burden of proof should be on the person who will take the plea of ignorance of law as a defence. The accused is to prove that he was in such a situation that it was impossible for him to acquaint with the law. The Court must take all the pleaded circumstances into consideration and closely scrutinise those pleaded facts by the accused.  It is submitted that time has come to introduce new changes in the Indian Penal Code thereby providing a limited defence of ignorance of law to the alleged accused as a step to the reform in criminal justice system and to attain social justice in India. To sum up, the celebrated words of Jerome Hall29 merits mention, “the logic of legality should bend, when there is no serious challenge to the basic value of society............. Does not seem to have bestirred the conscience of our lawmakers.............at a time when many countries in the world have already made or are actively considering the introduction of necessary changes in the interests of individual and social justice.” _________________________________________________________________________________________________________________

1. Indian Penal Code, Section 76:

 “Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it”.  Indian Penal Code, Section 79 :  “Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it”. Â

1. Austin, Jurisprudence, (4th Edn.), Vol. 1, at 498.
2. R. C. Nigam, Law of Crimes in India, Vol. 1, at 300.
3. Supra n. 1, at 498.
4. Ibid.
5. Ibid.
6. Rohinton Mehta, Crime and Criminology, 1st edition, at 52 (1999).
7. Ibid.
8. Ibid,at 53.
9. K. Gupteswar, Know Thy Law or Perish, (Criminal Law and Criminology, Edited by K.D. Gour, at 100, Deep and Deep Publication).
10. Vol.1, at 1869.
11. 2nd ed., at 552-553, (Butterworth) (1992).
12. Common Cause (A Regd. Society) v. Union of India, AIR 2008 SC 2116 (Para 47).
13. Supra, n. 2, at 301.
14. AIR 1965 SC 722 : 1965 (1) Cri LJ 641 (As quoted in Law of Crimes, Ratanlal and Dhirajlal, Vol.1, at 259).
15. Supra n. 2, p. 303.
16. (1890) 18 Cal. 49.
17. Supra n. 6, at 56.
18. Supra n. 10, at 101.
19. Ibid.
20. Ibid.
21. Ibid.
22. AIR 1928 Nag. 188. (As quoted in P. Ramanatha Iyer’s Law Lexicon Dictionary, Reprint 2004, at 866).
23. (1963) AC 16 at 17.
24. AIR 1951 SC 467 : 1952 Cri LJ 54.
25. AIR 1965 SC 722 : 1965Â (1) Cri LJ 641.
26. AIR 1951 Ori 284 : See also Dalbir Singh Case, AIR 1962 SC 1106.
27. The Indian Evidence Act, 1872, Section 54 :

 “In criminal proceedings the fact that the accused person has a bad character is irelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.  Explanation 1 — This section does not apply to cases in which the bad character of any person is itself a fact in issue.  Explanation 2 — A previous conviction is relevant as evidence of had character.”  Supra n. 17 at 100.

Author Name: Bhrigu Vishwakarma