Ignorance of Law Is No Excuse
Chapter Thirty-Five
Syllabus topic 3, "Doctrine of Mens Rea and Exceptions"
Pages 124 to 127 of 711
In one line
A person cannot escape liability by saying he did not know that what he was doing was forbidden.
In the wording a student can write in an exam: the maxim ignorantia juris non excusat, ignorance of the law is no excuse, means that a person who does an act forbidden by law is liable for it whether or not he knew of the prohibition, the law being administered on the principle that every person is conclusively taken to know it without proof that he does; the reasons are that a contrary rule would make liability depend on the accused's own assertion about his knowledge, would reward ignorance, and would be impossible to disprove; and the maxim is not softened by the difficulty of knowing the law, though it is qualified in narrow ways.
The maxim
The Latin forms are ignorantia juris non excusat and ignorantia juris neminem excusat, ignorance of the law excuses nobody. Its counterpart is ignorantia facti excusat, ignorance of fact excuses, which is the subject of the next chapter.
The Indian statute carries the maxim not by asserting it but by excluding its opposite. Sections 14 and 17 protect a person who acts under a mistake of fact and expressly add the words "and not by reason of a mistake of law". The exclusion appears in both sections, and it is the only place the general statute deals with the point.
M'Naghten's Case states the underlying principle from the other direction: the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it.
Why the law takes this position
Four reasons, and an answer should give at least three.
Proof. Knowledge of the law is a state of mind that only the accused can speak to and that the prosecution can almost never disprove. A defence of ignorance of law would in practice be a defence available to anyone willing to assert it.
Incentive. A rule that excused the ignorant would reward not finding out. The person who takes advice would be worse off than the person who does not.
Certainty. If liability depended on each person's knowledge, the same conduct would be criminal for one person and lawful for his neighbour, and the law would have no fixed content.
The nature of publication. The law is published, and publication is the notice the system gives. Whether that notice is realistic is the criticism, and it is dealt with below.
The hardest Indian illustration
State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, decided on 24 August 1964.
Facts. The respondent, a German, left Zurich by air on 27 November 1962 carrying thirty-four kilograms of gold concealed on his person, for delivery in Manila. The aircraft landed at Bombay on 28 November and he did not leave it. He was searched and the gold recovered. He was charged under the Foreign Exchange Regulation Act read with a Reserve Bank notification dated 8 November 1962, published in the Gazette of India on 24 November, three days before he left Zurich. It was not disputed that he did not know of the notification.
Ignorance of Law Is No Excuse
Held. By the majority the conviction was restored. In the absence of a statutory requirement, subordinate legislation need only be published in the usual form, and publication in the Official Gazette is the ordinary method of bringing a notification to the notice of persons concerned. The object of the Act and its effectiveness against smuggling would be entirely frustrated if the accused had to be proved to have known that he was contravening the law. Subba Rao J dissented, holding that mens rea was an essential ingredient and had not been proved.
Why it matters here. It is the maxim at its hardest: a foreigner in transit, who never entered India, held liable under a notification published in an Indian Gazette three days earlier that he could not realistically have seen. An answer that gives the maxim without this case has not shown what it costs. An answer that gives the case without the dissent has not shown that the Court itself was divided.
The qualifications
The maxim is not quite absolute, and the qualifications are where the marks are.
Ignorance of a fact that happens to be created by law. A person's belief about who owns a thing, or whether a marriage subsists, is a belief about a fact even though the answer is supplied by law. Such a belief is treated as a mistake of fact where the offence requires a mental element that the belief negatives. This is the narrow but real doorway, and the classic instance is a person who takes property honestly believing it to be his own: he lacks the dishonesty theft requires, and it is no answer that his belief rested on a mistaken view of the law of property.
Where the statute makes knowledge of the law an element. Some provisions punish a person who acts "knowing that he is not authorised" or "in contravention of an order of which he has notice". There the legislature has made notice part of the offence, and the maxim is displaced by the statute itself.
Where the law was not published at all. Mayer Hans George assumed publication in the Gazette. The case would be different if the instrument had never been published in any form, and the Court in that very case suggested that an enactment on the lines of the United Kingdom Statutory Instruments Act 1946, or a suitable amendment of the General Clauses Act, would be desirable to clarify when subordinate legislation comes into effect.
Ignorance of Law Is No Excuse
At sentence. Ignorance of the prohibition, where the prohibition is genuinely obscure, is a mitigating circumstance, and courts use it.
The criticism
The criticism is worth a paragraph in a long answer.
The maxim was framed when the criminal law consisted of a small number of offences that everybody knew. It now operates over tens of thousands of provisions, most of them in subordinate legislation, many of them amended without notice to anybody outside a trade. In that setting the fiction that everyone knows the law is not a description of anything, and it functions as a rule of convenience.
The answer to the criticism is not that the fiction is true but that no workable alternative has been found. Every proposal to allow a defence of reasonable ignorance founders on proof: the court would have to decide what each accused could reasonably have been expected to know, which is a question without an answer.
Worked example
Meera, who runs a small shop, sells a food product whose sale was prohibited by a State notification issued last week and published in the State Gazette. She has never seen a Gazette in her life.
Is her ignorance a defence? On the maxim, no. Publication in the Gazette is the ordinary method of notice, and Mayer Hans George holds that it suffices.
Does the offence require knowledge? That is the real question, and it is answered by construing the section. If it requires knowledge of the prohibition, the prosecution must prove it. If it is a strict liability provision, it does not.
Is there a mistake of fact anywhere? If she believed the product was a different product, that is a mistake of fact. If she knew exactly what she was selling and did not know it was banned, that is a mistake of law and it does not help her.
What survives for her? The sentence. A court told that the notification was a week old, unpublicised in her language and unknown in her trade will not impose the maximum, and may impose the minimum the section allows.
What it does NOT mean
It does not mean everybody actually knows the law. It means the law is administered as if they did.
It does not mean a mistake about a legal fact is worthless. A belief about ownership or status can negative a required mental element.
It does not mean a statute cannot require notice. Many do, and where they do the maxim is displaced.
Ignorance of Law Is No Excuse
And it does not mean ignorance is irrelevant. It is irrelevant to guilt and often decisive at sentence.
Quick revision
- Ignorantia juris non excusat, and its counterpart ignorantia facti excusat.
- The Sanhita carries it by exclusion: sections 14 and 17 protect a mistake "of fact and not by reason of a mistake of law".
- M'Naghten's Case: the law is administered on the principle that everyone must be taken conclusively to know it, without proof that he does.
- Four reasons: proof, incentive, certainty and publication.
- Mayer Hans George (1964): publication in the Official Gazette is the ordinary method of notice; a foreigner in transit was convicted under a notification published three days before he left Zurich; Subba Rao J dissented.
- Qualifications: a mistake about a fact supplied by law; a statute that makes notice an element; a law never published; and mitigation at sentence.
Test yourself
1. Where does the Indian general criminal statute state the maxim? Nowhere directly. It states its opposite's limit, in the words of sections 14 and 17 that protect a mistake "of fact and not by reason of a mistake of law".
2. Why is Mayer Hans George the hardest illustration of the maxim? Because the accused was a foreigner in transit who never entered India, and the notification he was convicted under had been published in an Indian Gazette three days before he left Zurich. The majority held that publication in the Gazette is the ordinary method of notice.
3. Give the qualification that most often decides a real case. That a mistake about a fact whose answer happens to be supplied by law, such as who owns a thing, is treated as a mistake of fact where it negatives a required mental element. A person who takes property honestly believing it his own lacks dishonesty.
4. What is the answer to the criticism that nobody can know tens of thousands of provisions? Not that the fiction is true, but that no workable alternative exists: a defence of reasonable ignorance would require a court to decide what each accused could be expected to know, which is a question that cannot be answered consistently.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.