IGNORANCE OF LAW IS AN EXCUSE
SIVADAS CHETTOOR. B.COM FCA LL.M
Law is all pervading. Almost all your actions are regulated by law except a few. We have all sorts of law like personal, family, civil, criminal, revenue, commercial, taxation, public and private international law and so on. Law can be statutory, customary, moral or ethical, ecclesiastical etc. But it is often said that ignorance of any of these laws cannot constitute an excuse. You are not permitted to plead ignorance as a defense to escape the rigors of law. If it is so, it is very easy, for any person can put forward ignorance as a defense even though he was actually aware of the law and its consequences. The law enforcement machinery shall come to a grinding halt if ignorance is accepted as a defense. Being a negative fact, court cannot insist on proof also. It requires the study of the mental position of the law breaker which is a real difficult exercise. For all these reasons the policy of law has always been to reject the plea of ignorance of law. Lord Ellenborough said there is no saying to what extent the excuse of ignorance might not be carried, it would be urged in almost every case. Thus, the above discussion explains the philosophy or rationale behind the latin maxim Ignorantia legis neminem excusat which means that ignorance of law shall not excuse a person.
People and sometimes even legal experts express the maxim in a different way by stating that every person is presumed to be aware of law as if both are same and carry the same effects or consequences. They assert or believe that Every person is presumed to know the law or ought to have known the law is a statement which emerges from the statement ignorance of law is no excuse. There is a real difference between the two statements. This article examines both the statements and makes an attempt to establish that both do not produce the same result or impact.
ORIGIN OF THE MAXIM
It is quite often said ˜ignorance of law is not an excuse™. As already stated above, it is based on the Latin Maxim ignorantia legis neminem excusat or ignorantia juris ,quod quisque ,saire tenetur neminem excusat .
It may be noted that ignorance of fact can be an excuse but not that of law. To quote an instance, if a legal heir on whom the estate falls is ignorant of the death of his ancestor, he is ignorant of a fact. But even if he is aware of the death, he is said to be ignorant of a law if he is not aware of his rights as the heir ((see in 1 spence™s chin juris 632- 633). Take another example. In India hunting of a Wild Buffalo (Bubalus bubalis) is an offence as per section 9 of the Wild life Protection Act 1972. If a person, who is ignorant of section 9, shoots a wild Buffalo thinking that it is a domestic buffalo he is said to be acting in ignorance of law as well as of a fact.
It is generally accepted that the maxim had its origin in Roman law and there is a direct mention about the same in The digest of Justicia or Justinian™s Code. It is stated therein that ignorance of fact may be excused but not of law. English law is largely based on Roman law and thus, the maxim crept into English law also.
The earliest reference of the maxim in English law can be found in Blackstone™s commentaries where he observed like this often a mistake in point of law which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defense. Ignorantia juris, quod quisque teneture scire, neminem excusat is as well the maxim of our own law as it was of the Roman.
From the above it is clear that he traces the origin of the maxim to Roman law and states that every person is bound or presumed to know the law. But he states that in Criminal cases it is not a defense. From there onwards English courts applied this maxim consistently as a rule of law and thus firmly got established in English law.
Is the rule rigid and without exceptions?
We noticed that the maxim had originated from Ancient Roman law. In those days the number of laws were quite few and thus can be easily remembered and understood. Therefore, in such a situation the rule may be justified. But what about the present day situation? There are thousands of laws and rules made by the legislature and the executive. Even the courts have framed rules of procedure/practice etc. There are customary and personal laws. There are thousands of notifications and circulars binding on various parties. Above all, we have number of judge made laws also. Even the Government itself is not aware of the number of laws that are in operation and force in this country. Some of the laws like Companies Act, 1956 contains 658 sections with so many rules, regulations, notifications, circulars. It is humanly impossible to remember much less understand this army of laws stacked in front of the citizens. Better not to say anything about illiterates or those who cannot understand the language. Viewed thus, there is a good justification for dilution of this rule. In fact courts in India , England and elsewhere refused to apply the maxim bluntly so as to render justice and to provide relief wherever it was found to be due applying the principles of justice, equity and good conscience.
Every person is presumed to be aware of the law?
The maxim ignorance of law is not an excuse is sometimes thought to be equivalent to the statement Every person is presumed to be aware of the law. But on a closer analysis it can be seen that both statements are not one and the same. There is absolutely no justification for the presumption that everybody is aware of all the laws in operation. If everybody knows the law, then what is the necessity for the courts and consulting a lawyer? We quite often find that District Court is reversed by the High Court which is in turn reversed by the Supreme Court. Is it not because the High Court was ignorant of the law? If High court was aware of the law then why Supreme Court reversed it? It happens sometimes that the Supreme Court may over rule or reverse its own decision leading to the conclusion that the previous decision was taken in ignorance of the law!!.
Long ago, Maula J. pointed out in Martindalev. Falkner  2 CB 706 : ” There is no presumption in this country that every person knows the law : it would be contrary to common sense and reason if it were so. “
Justice Lush in R v Tewkesbury corporation (LR 3 QB 629) observed that “there is no maxim which says that for all intents and purposes a person must be taken to know the legal consequences of his acts;” The great common law judge of the 20th century Lord Atkin observed in Evans Vs Bartam as follows The fact is that there is no and never has been a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application
THE POSITION IN ENGLAND
The English judges long back kicked aside the maxim whenever situations warranted. Scrutton L.J once said it is impossible to know all the statutory law and not very possible to know all the common law. It was also the accepted position that the rule cannot be pleaded to escape the consequences of criminal law, yet the law can take notice of the existence of doubtful point of law about which a person may be ignorant.
According to Lord Westbury in Cooper v. Phibbs, L. R. 2 H. L. 170, the word Jus in the maxim ignorantia juris baud excusat is used in the sense of “general law, the law of the country,” not in the sense of “a private right.” The true meaning of that maxim is that parties cannot excuse themselves from liability from all civil or criminal consequences of their acts by alleging ignorance of the law, but there is no presumption that parties must be taken to know all the legal consequences of their acts, and especially where difficult questions of law, or of the practice of the court are involved.
Lord Westbury in Spread V Morgan 11 HL case 588(602) observed: it is true that the law will not permit the excuse of ignorance of law to be pleaded for the purpose of exempting persons from damages for breach of contract or for crimes committed by them but on other occasions and for other purposes it is evident that the fact that such ignorance existed will sometimes be recognised so as to affect a judicial decision
Thus it is clear that the maxim has been applied in England only when facts and circumstances justify its application.
Position in America
The status given to the maxim in the US is not different from that of England or India. Attention is invited to the celebrated case of Lambert v California, a case decided by the Supreme Court in America where it was held as follows
When applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge, this ordinance violates the Due Process Clause of the Fourteenth Amendment.
In Cheek v CHEEK v. UNITED STATES, 498 U.S. 192 (1991) the Supreme Court of America held thus. The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. See e.g., United States v. Smith, 5 Wheat. 153, 182 (1820); Barlow v. United States, 7 Pet. 404, 411 (1833): Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common law rule has been applied by the Court in numerous cases construing criminal statutes. See, e.g., United States v. International Minerals & Chemical Corp., 402 US 558 (1971); Hamling v. U.S, 418 U.S 87 (1974.
The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term “wilfully” as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws.
In United States v. Murdock, 290 U.S 389 (1933), the Court recognized that: “Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct.” Thus in the US also the maxim has been applied cautiously with so many exceptions.
Position in India
Let us see the position in India. India, being under British rule for a fairly long period has adopted the British laws though slightly modified to suite the Indian conditions and culture. Before the advent of the British power courts used to apply the personal laws of Hindus and Mohammadans to decide cases. But during the British rule the English common law was also applied to settle disputes along with native laws. However, by and large it is the English laws that predominate. So far as the maxim is concerned India too applied the same with exceptions.
The maxim was considered by the Hon Supreme Court in Motilal Padampat Mills Ltd V State of UP (1979) 118 ITR 326(SC) and observed as follows
It must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law.
So the Hon court in very clear terms has stated the law. There is no room for doubt. In a case decided by the Hon Supreme court the judges openly admitted that they have never heard of the law which was stated to have been violated by an illiterate person in a remote village. Therefore, the Hon™ court acquitted the person charged for violating that law. India did not bluntly apply the maxim.
Attention is again invited to the decision in CIT v PSS Investments  107 ITR 0001 wherein the Apex court made these important observations.
The intelligence of even those with legal background gets staggered in this continuous process of carving exceptions to exceptions. It seems more like a conundrum, baffling the mind and requiring special acumen to unravel its mystique. One can only wonder as to how the ordinary tax-payers, most of whom are laymen, can keep abreast of such laws. Yet the maxim is that everyone is presumed to know the law.
Thus it is clear that the courts have accepted ignorance of law as an excuse or refused to impose penalty when the violation of law was not deliberate.
In view of the discussions the author is of the view that the maxim has to be applied only in fit cases and that too when facts and circumstances warrants its application. The study of the status of the maxim in England, US and India above indicates that courts are reluctant to accept the maxim mechanically. It cannot be totally done away with.