IGNORANTIA JURIS NEMINEM EXCUSANT: A CRITICAL OVERVIEW WITH REFERENCE TO DELEGATED LEGISLATION

Updated: Aug 21, 2020

by Vinudeep R, Tamil Nadu National Law University, Tiruchirappalli


ABSTRACT

Not all laws are made in the Parliament (For the purposes of this paper, ‘Parliament’ shall mean both Parliament and other Legislative bodies such as the Legislative Assemblies and Legislative Councils of States and Union Territories.). The Parliament in its wisdom delegates certain of its function to the Executive or others as it thinks fit to frame rules and other such sub legislations for various purposes. These legislations are called delegated legislations. There is a school of thought that says that the maxim ignorantia juris neminem excusant† does not create a presumption of knowledge of law but only says that the ignorance of law is not an excuse or a defence for a wrongdoing.[1] This article will try to trace the evolution of the principle in the maxim ignorantia juris neminem excusant. It seeks to find the difference between the presumption of knowledge of law and the inability to use ignorance of law as a defence. This article further seeks to find the rationale behind the principle behind the inability to use ignorance of law as a defence when there is no presumption of knowledge of law.


KEYWORDS: ignorance of law, publication of law, publishing.

INTRODUCTION

The doctrine of ignorance of law not being a valid defence against prosecution of a person evolves from the early concepts of the Roman Jurisprudence. There are also Biblical references to this doctrine, showing its antiquity. The doctrine is used for a rationale of disallowing people from using the ignorance of law as a defence against their prosecution, which will create a legal vortex. It is also sufficient cause for creating confusion and chaos, subsequently creating an anarchic state with no rule of law. However, there needs to be a distinction with regard to this maxim. Whether there is a presumption of the knowledge of law in all the people or is it just a disallowance of using such ignorance as a defence against prosecution or conviction needs to be answered. Laws, especially the ones that are delegated by the Parliament to concerned authorities are usually published in the appropriate Gazettes. The requirement of publication whether creates a presumption of knowledge of such law or not is another question worthy of being answered.


LITERATURE REVIEW

Hall J, ‘Ignorance and Mistake in Criminal Law’ (1939) 88 Indiana Law Journal, was one of the first articles the researcher used for the purposes of this paper. It deals in depth with the development of the doctrine according to Austin and other such scholars who succeeded him in the study of this area. His paper gave a clear insight on the development map of the doctrine.

Cass RA, ‘Ignorance of the Law: A Maxim Reexamined’ 17 William & Mary Law Review, examines the maxim of the ignorantia legis and its roots. This article gave an insight on the further developments from Hall’s article and predominantly was on the American Jurisprudence.

Narashimhan RL, ‘Ignorantia Juris Non Excusat’ (1971) 13 Journal of the Indian Law Institute, discussed both the aforementioned papers along with the developments of the maxim and its application in the Indian Scenario. The article was of great importance as it gave a judge’s opinion on the development and usage of the principle being studied.


HISTORY OF THE DOCTRINE

He who sins and does anything forbidden by any of the Lord’s commands, even unknowing of it, is guilty and shall be held responsible, says the Holy Bible.[2] This is one of the most ancient references to the principle of ignorantia juris non excusant. However, it cannot be said that the concept evolved Biblically. It is pertinent to note that the concept of ignorance of law not being a defence comes from the broad principle of ignorantia legis non excusat, from the Roman jurisprudence.[3] This statement is also reiterated by Austin in his Lectures on Jurisprudence. Blackstone was also of the view that every prudent person knew law and ignorance was culpable.[4] Hall’s article[5] in this regard also in detail discusses the evolution of the principle post-Austin. Hence, the author deems it fit to move on to further questions that need to answered.


PRESUMPTION OF KNOWLEDGE?

The first question that the researcher intends to answer is whether there is a presumption of knowledge or whether there is just a disallowance of the defence of ignorance from being pleaded. Salmond says that in a complex legal system, it takes more than common sense and conscience for a person to not violate law.[6] He further points out that there is no justification for implementing the maxim to its fullest extent. Granville Williams says that there needs to be a distinction as regards to the offences that are based on right or wrong that have been passed on to us from time immemorial.[7]

In the case of Wilson v. Inyang[8] an English High Court saw a peculiar case. An African who lived in England for a period of two years started practicing as a naturopath physician and giving himself a degree title too. Albeit this action of Inyang being in violation of the Medical Law, the High Court acquitted him on the ground that he was in his right to practice so, on the ground of ignorance. Thus, the English Courts have had certain amount of autonomy in this regard to define the scope of the maxim.


The Supreme Court of the USA in Lambert v. California[9] the due process clause of the US Constitution saves a person from any breach of statutory rule that s/he neither knew nor would have known.


In the case of India, the Acts of the Parliament are published and widely circulated for any vigilant and diligent person to see and know the law.[10] Therefore, the principal legislations pass the test of knowability in India.[11] However, it is difficult for the delegated legislations to pass the test. The delegated pieces of legislation are made under the parent act and are generally published in the appropriate official gazette. These gazettes are not readily available to the general public and are hard to procure. No more is the Government of India’s Gazette published as hardcopy[12] and is available only in its electronic form[13]. Hence, from this we may infer that there is no presumption of knowledge of law but only a non-allowance to use such ignorance of law as a defence to plead innocent.


REQUIREMENT FOR PUBLICATION

In the case of Harla v. State of Rajasthan[14] question arose as to whether a legislation made by delegated authority that neither was published nor was made known to public was valid. The Supreme Court held that the publication of some reasonable sort is essential for the validity of such delegated legislation. Likewise, non-notified rules were held to be ineffective by the Supreme Court in the case of Narendra Kumar Jain v. Union of India[15].

In the case of State of Maharashtra v. Mayer Hans George[16] there was a notification prohibiting import of gold into India except under certain circumstances, notified on November 24, 1962. The respondent travelled from Zurich on November 27, 1962 carrying gold and was subsequently arrested at the Bombay Airport. The respondent was not allowed to take the defence of ignorance of the law, though there could be no way that the respondent, who was at Zurich at the time of the notification in India, had knowledge of such notification.

In Pankaj Jain Agencies v. Union of India[17] a notification that was published on February 13, 1986, that was to come into force on February 19, 1986 was held to be valid. Hence, we get to know that publication of a delegated legislation is sine qua non for effectuation of the delegated legislation.


CONCLUSION

The application of this principle is rather a paradox. If the principle is held to be applicable, as in the Mayer Hans case[18], even a person who genuinely did not know the notification of a law could be aggrieved or even be put behind the bars. If it not be applied, then everyone would claim that they did not know the law and there would be chaos and disharmony. This paradox has to be addressed by the legislature and it has to make clear as in what offences may, in genuine cases, ignorance of law be claimed as a valid defence. It is also necessary for all the delegated pieces of legislations to be compiled and be placed at all public libraries for the public view, so that interested people may access the law and benefit out of it. This way, the maxim can also be made applicable.

This maxim is also referred to as ignorantia juris non excusant.

[1] Lord Attain in Evans v. Bartlam, 1937 AC 473. [2] The Holy Bible (n.d.), Leviticus Ch. 5 Verse 17. [3] See: Jerome Hall, ‘Ignorance and Mistake in Criminal Law’ (1939) 88 Indiana Law Journal 35, 15. [4] ibid 16. [5] Hall (n 3). [6] PJ Flitzgerald, Salmond on Jurisprudence (12th edn, 2012) 395. [7] Granville Williams, Textbook on Criminal Law (3rd edn, 2015) 130. [8] Wilson v. Inyang, [1951] 2 All E.R. 237. [9] Lambert v. California, (1957) 355 U.S. 225. [10] RL Narashimhan, ‘Ignorantia Juris Non Excusat’ (1971) 13 Journal of the Indian Law Institute 70, 76. [11] ibid 76. [12] Ministry of Law and Justice, ‘Press Notification’ <http://pib.nic.in/newsite/PrintRelease.aspx?relid=130058> accessed 31 October 2018. [13]Government of India, Gazette <www.egazette.nic.in> [14] Harla v. State of Rajasthan, AIR 1951 SC 497. [15] Narendra Kumar Jain v. Union of India, AIR 1960 SC 430. [16] State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722. [17] Pankaj Jain Agencies v. Union of India, (1994) 5 SCC 198. [18] State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722.

(The Author is the winner of Article Writing Competition held on 7th August 2020)