WHY DOESN'T IGNORANTIA JURIS EXCUSE?

- A
STUDY OF THE LAW RELATING TO MISTAKES
Ankit Majmudar*
Nandan Kamath*

INTRODUCTION

The functions of criminal law are two fold in nature. Primarily, it aims at
the imposition of corrective measures to prevent the occurrence of criminal acts.
Subsidiarily it aims at correction in relation to the mental state of the person or
persons responsible for the criminal act. If the aim of criminal law were only the
former, it would serve to punish the act itself, irrespective of whether it was done
unconsciously, negligently or intentionally. However, the law aims at punishing
those respon~ible for the act, and responsibility appears to imply a certain mental
state - in this context, a guilty mind. The maxim "actus non fadt reum nisi
mensit rea" has acquired an imposing presence in criminal jurisprudence. It is
by virtue of this maxim that the idea of mistake as an excuse has come to be
accepted.
The general principle is that a person is presumed to know and intend the
natural consequences of his act and is, therefore, held responsible for it. However,
there are certain exceptions to this general rule, wherein a person may be excused
of his crime.
The absence of mens rea is one such excuse. The excuse of mistake is based
on the ground that a person who is mistaken or ignorant about the existence of a
fact cannot form the requisite intention to constitute the crime and is therefore
not responsible in law for his deeds. This has been incorporated in the common
law principle "ignorantia facit doth excusat, ignorantia juris non excusat"
(ignorance of fact excuses, ignorance of law does not excuse).1
The long application of this principle is apparent from the seventeenth
century case of R. v. Levett,2 where an accused was acquitted on this ground.
After this, there has been considerable development in the law relating to mistake,
in spite of which incoherence continues regarding the exact scope of this defence.
Added to this, the jurisprudence and statutes behind this defence continue to
vary from country to country, making it vital to examine the comparative position
in various countries. The principal issues that surround the question of mistake
as a defence relate to the presence of any additional requirements or qualifications
*

III Year B.A., LL.B. (Hons.), National Law School of India University

K.D. Gaur, indian Penal Code 93 (1992).

79 ER 1064, where the accused killed a woman, who was hiding behind a curtain in his house,
mistakenl y believing her to be a burglar.

Vol. 10]

Why Doesn't Ignorantia

other than a mere mistake.

negligence, etc.

11

Juris Excuse?

These could include reasonableness,

absence

of

Another important issue is the application of mistake as a defence in strict

liability offences. The question of greatest importance (which forms the principal
focus of this article) is that of the presence or absence of the defence of "mistake
of law". The maxim "Ignorantia juris non excusat" is under challenge by a number
of emerging developments and it, therefore, becomes vital to examine the precise
scope of this defence, and to study if these developments can be applied in the
Indian context.
MISTAKE

UNDER INDIAN

LAW

The defence of mistake in Indian law falls under the category of general
exceptions to criminal liability in the Indian Penal Code. Specifically, it is
incorporated in Ss. 76-79 of the Code. The justification for exemption on the
ground of mistake of fact, as mentioned earlier, is the principle that such a mistake
would negative the requisite intention. Thus, a bona fide belief of the existence
of facts which, if true, would have made the act innocent in law, is an excuse.
However, mistake of law is not a defence, because every man is presumed to
know the law and is to be held responsible in case of its breach.3
Thus, S.76 deals with persons who consider themselves bound to perform
certain acts, and as long as this belief is founded on a mistake of fact and not a
mistake of law, such an act is not an offence. S.79 deals with acts that a person
considers himself justified in performing because of a mistake of fact and not a
mistake of law.4 The distinction between the two sections lies in the difference
between legal compulsion and legal justification.
Courts in India, following
English decisions, have acknowledged mistake of fact as a defence in the c.,se of
bigamy and other statutory offences.5 Further, in Keso Sahu v. Saligram,6 it was
held that to bring a case under S. 79, it was sufficient to show to a reasonable
extent that the belief as to the fact was in good faith.
The defence of mistake of law is of no value in India. This is made clear by
its specific exclusion in S.76 as well as S.79. The justification for this is that the

3
4

State of Maharashtra

v.

M.H. George, AIR 1965 SC 722.

In Raj Kapoorv. Laxman (1980) 2 SCC 175, it was held that "if the act was done by one who by
reason of a mistake of fact in good faith believes himself to be justified by law in doing it, then the
exception operates, and the bona fide belief, although mistaken, eliminates the~ulpability. If the
offender can irrefutably establish that he entertained a mistake of fact and in good faith believed
that he was justified by law in committing the act, then the weapon of S.79 demolishes the
prosecution."
5 In Kohu M.K. [smail v. Mohammed K. Umma, AIR 1959 Ker 151, the accused was charged with
bigamy under S.494 of the IPC for contracting a second marriage during the continuanc,e of the first
marriage. She was acquitted on the grounds that she honestly and on reasonable grounds believed
that she had obtained a divorce from the complainant, although the divorce was unauthorised.
6 1977 Cri LJ 1725 (Ori).

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operation of a provision is supposed to be independent of its being known to

everybody. If this were not the case, great difficulty would be experienced in the
enforcement of the law.7 The burden of proof to show the existence of a mistake
lies on on
the adefence,
andprobabilities.8
it has been held that the defence must discharge such
burden
balance of
Sections 76 and 79 require that any mistake of fact be made with due care.
S.52 defines an act done in good faith as done with "due care and attention". The
phrase "due care and attention" implies genuine effort to reach the truth and not
the ready acceptance of an ill-natured belief. 9
When a question arises as to whether a person did an act in good faith, it
devolves upon him to show not merely that he had a good intention, but also that
he exercised such care and skill as the duty reasonably demanded for its due
discharge.IO Moreover, the Courts have also held that reasonableness
is a
prerequisite of good faith." In this regard, it appears that a new element has
been introduced.
Reasonableness
is a component of non-negligence.
The
implications of this inclusion would be that an honest mistake, negligently made,
would not provide an excuse, in spite of the fact that there was no guilty mind on
the part of the accused. The requirement of reasonableness has been dispensed
within Common Law.12 It is therefore submitted that good faith is a level distinct
from reasonableness. Therefore, to equate the two is, it is submitted, erroneous.
Further proof of this is found in the definition of good faith that in the General
Clauses
states or
thatnot.
an act is done in good faith if it is done honestly,
whether Act,
done which
negligently
THEORY

OF MISTAKE

The question of mistake arises in the case of a conflict between objective

existent facts and subjective impressions of those facts on the part of a person.
Traditionally, mistakes have been classified into mistakes of fact and law, i.e.,
7

Law Commission of India, 42nd Report, 1971, pp. 83-85. Thus in State of Maharashtra v. M.l/.
George. AIR 1965 SC 722, the Supreme Court, while refusing to accept a plea of ignorance of a
Reserve Bank notification, the Court held that for an Indian law to operate and be effective within
the
the country.
territory of India, it is not necessary that it should either be published, or be made known outside

<}

In l/arbhajan Singh v. State of Punjab, AIR 1961 Punj 215. the court held that "under S. 105, if an
accused person claims the benefit of exceptions, the burden of proving his plea that his case falls
under the exceptions lies on the accused. Where the burden of an issue lies upon the accused, he is
not required to discharge that burden by leading evidence to prove his case beyond a reasonable
preponderance
probabilities.
doubt ... In suchof cases,
law treats the onus as discharged if the accused succeeds in proving a
Hidayatullah

and Manohar

(Ed.), Ratanlal and Dhirajlal in the Indian Penal Code 41 (1996).

10 Gaya Din, (1934) 9 Luck 517. Again, in Damodar Shenoi v. Public Prosecutor, 1989 Cri LJ

II Id.
2398,

it was held that the accused would also have to show that there was no malice on his part.

12 D.P.P. v. Morgan [1975] I All ER 8.

Vol. 10]

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Why Doesn't Ignorantia Juris Excuse?

mistakes that result out of a misconception of facts as they exist, and those because
of a mistake in the existing legal position. However, a more appropriate
classification has been made by George Fletcher,13 who classifies them on the
basis of legal outcomes. Thus, by his method, there are three kinds of mistakes:
Mistakes barring liability altogether.14
Mistakes barring liability only if the making of the mistake is free from
culpability. 15
The mistake might have no effect on the outcome of the case.16
It is in third category that, at present, mistakes of law would appear to fall.
Mens rea can be loosely translated as guilty mindY It can occur in a number
of forms, such as intention, knowledge, negligence, etc. Any offence, if it is not
a strict liability offence, requires a certain mental element. This mental element
forms the mens rea of the offence. The evidence of a genuine mistake of fact,
therefore, which, if the facts existed as the offender believed them to, would
make his act innocent, would, on principle, negative the mens rea and result in
acquittal.18 A mistake of fact which negates an intention to cause a consequence
prohibited by law is a defence because a person must intend to cause all the
consequences which he has in fact caused if he is to be held criminally responsible
for causing these consequences.19 As regards a mistake of law, it is submitted
that the present position not allowing it as a defence requires reconsideration.
The same principle applies as in the case of mistake of fact, i.e. the person did
not intend the consequences to occur, in terms of the fact that he did not wish to
breach the law. It is therefore submitted that at least a reasonable mistake of law
should be allowed as a defence.

In common law, the law in this regard has been laid down by the decision
of D.P.P. v. Morgan,2 which made it clear that where the offence required
intention or recklessness as part of its ingredients, a mistake of fact which

13 Fletcher,

Rethinking

Criminal Law 687 (1978).

14 The first bases itself on the presumption that every offence requires a certainmellS rea. TIllis in the
Indian context, murder requires an intention to cause death. If there exist a mistake which obviates
such intention, a person cannot be punished for it.
15 In tbe second category, would fallmistakes such as those, which exempt the person only if they are
reasonable. Thus, if we consider S. 304A of the IPC, it would require the accused to have made a
mistake, which does not seem to be negligent. Only then can he claim exemption from culpability.
16 As regards the third kind of mistake, this kind has no exculpatory
defence arises. whether the mistake is reasonable or not.

effect. Here no question

17 Smith and Hogan, Crimillal Law 53 (1992).

18 Don Stuart, Mells Rea 15CrimLQ
19 R.W. Thompson.
20

176(1972-73).

The Criminal Act. all Analysis

[1975] 2 All ER 347.

18 Crim LQ 78 (1975-76).

of a

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precludes both states of mind will excuse, irrespective of whether tbe mistake is
reasonable or not.
As regards mistake of law, it is submitted that here it would be appropriate
to use reasonableness as a Criterion. Thus, a person who had used all reasonable
means to ascertain the law, and had still remained under a misconception, is
certainly less culpable than an offender who, without any semblance of care,
perfonns actions without ascertaining their legality. Such a limited use of mistake
of law would serve the purpose. As regards the lndian law, tbe position reflected
in the IPC (that of requiring mistakes to be perfonned in good faith) is ideal.
This enables a compromise between reasonableness and reckless mistakes.
DISTINCTIONS

BETWEEN

MISTAKES

OF FACT AND LAW

Considerable controversy bas, of late, erupted over this area. The distinction
between mistakes of fact and law lie primarily in their capacity as defences; As a
result, tbere are often attempts to project a certain mistake as one of fact and not
of law.21 In Thomas v. The King,22 it was held that "a mistake as to the existence
of a compound event consisting of law and fact is in general one of fact and not
one of law". This is also supported by Glanville Williams.23 However, in R. v.
Cunningham,22a it was held that an accused who speeds cannot claim a defence
of having misread the speed limit sign, as this was a mistake of law. It is submitted
that this decision goes against the views expressed earlier.
The solution to this quandary lies in allowing a reasonable mistake of law
as a defence. This would remove the necessity of distinguishing between mistakes
of fact and law, for, in both the cases, if the mistake is reasonable, the defence
exists. In tbe alternative, a much wider interpretation must be given to mistakes
of fact so as to incorporate cases of mixed mistakes.
THE COMPARATIVE

POSITIONS

ABROAD

Common lAw
The land mark decision of D.P.P. v. Morgan24 settled the law in tbis regard.
A mistake, whether reasonable or not, will excuse criminal liability if it precludes
the requisite state of mind. In case the law requires negligence alone, then only
21

Thus, in R v. Prue, R v. Basil, (1979) 46 CCC (2ed) 257, the court held that lack of knowledge as
to the suspension of licenses constituted a defence to the charge, mens rea being an essential part of
the offence. The majority held the mistake to be one of fact.

22

(1937) 59 CLR 279.

22a[1957]

2 All ER 412.

23

Glanville Williams, Criminal Law - The Second Part 568 (1961), where the author states that if a
mistake contains any element of mistake of fact, then it must be governed by the rules as to mistake
of fact and is none the Jess a defence on that ground because accompanied by an interwoven mistake
oflaw.

24

[1975] 2 All ER 347.

Vol. 10]

Why Doesn't Ignorantia Juris Excuse?

15

a reasonable mistake will serve as an excuse.25In case of a strict liability offence,

no mistake would serve to excuse.
Mistake of law, however, is no excuse,26 for knowledge of the act being
forbidden is not part of the mens rea but in case the mens rea requires a legal
concept, then it may serve as an excuse.27 In the case of R v. Tolson,28 the court
held that a woman who believed her husband was dead and therefore remarried
was not guilty of bigamy, because her belief was reasonable. However, the decision
in Morgan's case, settled the fact that a mistake in offences which do not demand
non-negligence, does not necessarily need to be reasonable. It was held in Barrett
and BarreU29 that an honest belief in a certain state of things does offer a defence,
including an honest though mistaken belief about legal rights.
The applicability of the defence depends upon the mens rea required by the
crime. A mistake negating mens rea as to some element in the actus reus is no
defence if the law does not require mens rea as to that element. If the definition
of actus reus contains some legal concept as to which a mistake has occurred,
then the definition could operate. It has no application, however, if the law has
fixed a standard different from that believed by the defendant.30
In essence, English law is almost identical to the Indian position, except
that the Indian law imposes a standard of reasonableness unlike Common law.
Australia
In He Kaw Teh v. The King31 it was summarised "either the accused has a
guilty mind or not: and if an honest belief, whether reasonable or not, points to
the absence of the required intention, then the prosecution fails to prove its case."
It can be clearly seen from the above, that Australian criminal jurisprudence
recognises mistake as a defence which negatives mens rea irrespective of its
reasonableness.
As regards the question of burden of proof, He Kaw Teh is clear on the
point, stating "the accused does not have the onus of proving honest and reasonable
mistake, provided there is evidence raising the question, the prosecution must
establish the absence of honest and reasonable mistake." A limitation to this
was, however, placed in Proudman v. Dayman32 which held that defences like
this must be a mistaken belief rather than a mere ignorance of facts. It is therefore
25 Smith. supra n. 17 at 216.
26 Id.
27 Id.
28 (1889) 23 QBD 168.
29 (1980) 72 Cr App Rep 121.
30 Smith supra n. 17 at 85.
31 (l985) 157CLR523.
32 (1941) 67 CLR 536.

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clear that the factor that removes mens rea is not merely the absence of knowledge
of facts, but a mistaken belief which precludes the very presence of such a mental
element; Le., it is a positive affirmation of the absence of mens rea. Proudman
introduced a further aspect regarding mistake in the context of strict liability
offences. "A statute which appears to impose strict responsibility may nevertheless
be understood as allowing the defence that the accused held an honest and
reasonable belief in the existence of circumstances that would make innocent the
act with which he or she was charged."
In other words, mistake of fact has been recognised as a defence in even
strict liability cases. It is submitted that this is the correct position. The presence
of a mistake of fact negates the question of the accused intending to commit the
act mentioned in the statute. Therefore, such an interpretation is in conformity
with the rationale behind strict liability.
MISTAKE

AND STRICT

LIABILITY

Strict liability crimes have been defined33 as crimes which do not require
intention, recklessness or even negli~ence as to one or more elements in the
offences. Thus in regard to a certain element in the actus reus, no mens rea need
be proved.34 If a certain element of an offence is described as falling within the
ambit of strict liability, a reasonable mistake as to that particular fact is not a
defence. A mistake as to other circumstances may well allow a defence. This was
illustrated in R. v. Prince,35 where the accused was convicted under s.20 of the
Sexual Offences Act, 1956, although he had made a reasonable mistake about
the age of the girl he was taking. However, a substantial mental element was
required - this was demonstrated when the majority stated that the accused must
have intended to take the girl out of possession of the guardian - L e., the mental
element of intent. If a mistake had been made as to that particular element, it
would have served as a defence.
Thus, an offence of strict liability only partially does away with the mental
element. Again, in State of Maharashtra v. M.H. George,36 the Supreme Court
stated that the accused was guilty because he intended to bring a particular item
into India.
One of the prominent arguments brought forward by some authorities37
regarding the justification for dismissal of mistake as a defence in strict liability
offences, is that wrongdoers take the risk of their act turning out worse then they

33 Hogan supra II. 17 at 99.

34 Whitehouse v. Gay News Ltd, [1979] 1 All E R 898.
35 (1875) LR 2 CCR 154.
36 AIR 1965 SC 722.
37 See, Fletcher, supra n. 13 at 723.

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Why Doesn't Ignorantia

Juris Excuse?

17

expect. Thus, in U.S. v. Feola,38 the Court reasoned that an offender takes the
victim as he finds him and is correspondingly liable, even if circumstances of
which he was ignorant, make his act more serious than he intended. In Prince,
Bramwell, J, stated that the accused had committed a wrong by taking a girl of
such tender years out of the possession of her father. The trouble with this
argument is that it ignores the requirement of proportionality of punishment. Its
application would cause a person who commits a statutory offence with full mens
rea to be punished as much as one who by virtue of a mistake of fact committed
a magnified offence, although his intent might have been to commit a much
smaller offence.
STRICT

LIABILITY

AND MISTAKES

OF LAW

It is now well settled that ignorance of the law is not an excuse. As a result,
there is occasioned an occurrence of strict liability, in that whenever there is a
mistake as to law, regardless of culpability, the offender is punished. The issue
was examined in Hopkins v. State39 where a person was convicted for an offence
although he had been advised by the Attorney General that his actions did not
constitute an offence. The question is wheth~r it is just to convict a person who
acts reasonably and yet suffers from a mistake of law. Maintaining a policy that
every person is presumed to know the law, may be appropriate for natural offences
like murder, rape, etc. but with regard to areas where laws are complex and
subject to change such a presumption would not be just.
It has been argued40 that in the absence of the presumption, ignorance of
the law '!Vouldbe encouraged and it is in the larger interests of justice must be
sacrificed. Such an argument, however, detracts from the principle of not
punishing any innocent person, even if guilty ones may escape. The utilitarian
principle advocated by Justice Holmes would go against this. Moreover, these
arguments ignore the fact that no culpability can be attached to a person who has
made a reasonable mistake of law. Law seeks to punish those who are accountable
for their offences but in the case of a person who has made a reasonable mistake
of law, the person can no longer be held liable.
In view of the above, it is submitted that the imposition of strict liability, in
the context of mistake of law, especially those which are reasonable, is not
justified.
MISTAKE
INDUCED

OF LAW AND THE DEFENCE OF OFFICIALLY

ERROR

The defence of officially induced error is of relatively recent origin, and it

is necessary to identify its constituents. The beginning of this defence can be
38420US671.
39 193 Md 489.
40 Justice Holmes, c.! Fletcher, supra n.13 at 732.

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traced to the considerable confusion prevailing over the distinction between

mistakes of fact and law. The hardship that often resulted because of the absence
of any defence in mistake of law has played an important role in the development
of this defence.41 Its beginnings can be seen in an Ontario decision, where the
Court held that if a public official charged with responsibility in a matter led a
defendant to believe that the act was lawful, the defendant may have a defence if
be was subsequently cbarged with doing that act.42Further, in R v. Macdougall,43
the Supreme Court of Canada left this defence open, to an extent approving the
decision of the Court of Appeal, which had stated that while it had yet to be
expressly sanctioned, it was in accordance with the needs of society. In the
dissenting opinion, however, it was stated that ignorance of the law cannot be an
excuse, no matter how induced.
This defence has been subjected to a number of restrictions most of which
were laid down in R v. Robertson.44 These requirements would serve to ensure
the absence of any form of mal-intent on the part of the accused. As a result, they
would allow the defence of mistake of law to operate under controlled
circumstances and within reasonable limits.
There are other unresolved issues as well, as for example, what if the
erroneous advice of a lawyer is relied upon by his clients? And what if people
rely on judicial decisions that are later held to be erroneous?45 In England, mistake
of law is still not regarded as an excuse.46 In America, however, mistake of law
is a defence when the defendant was assured by the Government agency having
general jurisdiction in the matter tbat his act was legal, and it later emerges that
this advice was wrong.47The American Law Institute, in its Model Penal Code48
proposes a mistake of law if the mistake negatives mens rea, or the law specifically
provides for such a defence.
It is submitted that this particular defence would serve the purpose of
providing a limited defence of mistake of law, in situations where a citizen has
41

Nancy Kaster, Mistake of Law and the Defence of Officially Induced Error 28 Crim LQ 308
(1985-86).

42

R v. Walker and Somma, (1980) 1 CCC (2d) 423 (Ont C.A.).

43

(1981) 60 CCC (2d) 137.

44

(1984) 43 CR (3d) 39. The court laid down the following conditions: The actor must advert to his
legal position; The actor must seek advice from an offici?l; The official must be one who is in volved
in the administration of the law in question; The official must give erroneous advice; The erroneous
advice must be apparently reasonable; The error of law must arise out of the erroneous advice; The
actor must act in good faith and without reason to believe that the advice is erroneous; The actor's
error of law must be apparently reasonable; The actor must, while seeking advice, act in good faith
and take reasonable care to give accurate information to the official whose advice he solicits.

45

As in the case of R v. Campbell and Mlyancheck, (1972) 10 CCC (2d) 26.

46

A.J.L. Ashworth,

Excusable Mistake of Law, (1974) Cri L Rev 652.

47 Wi1\iams, supra n. 23 at 15l.

48

Model Penal Code, S. 2.04.

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Why Doesn't Ignorantia

Juris Excuse?

19

behaved perfectly and in accordance with rules. Punishment in these cases would
be pointless and against all principles of justice.
CONCLUSION

It is clear from the above discussion, that the present jurisprudence relating
to mistake tends to give a great deal more importance to a mistake of fact than to
a mistake of law. This is to the extent that a mistake of fact, whether reasonable
or not, acts as an excuse, while a mistake of law does not amount to one under
any circumstances. While the rationale behind this seems to be, simply, that
every man is expected to know the law, it is submitted that such an assumption is
too broad. The reason for which mistake as a defence is simply that it does away
with the mens rea necessary for the offence. However, it is submitted that the
same is applicable to a mistake of law as well. There too, the offender does not
intend to commit the offence. The maxim "ignorantia juris non excusat" should
not operate when the person does not even know that his actions constitute an
offence.
No doubt, doing away entirely with the ongoing presumption of every man
knowing the law would act as an incentive to develop ignorance; however, if a
person has used all possible means to ascertain the law, and still operates under
a mistake of law, it would be manifest injustice to punish him. He cannot be held
responsible for not knowing the law. It is in these cases that mistake of law must
operate as a defence. If an unreasonable mistake of fact is accepted as a defence,
it is implicit that the person is being excused for his stupidity and/or negligence.
In the case of a reasonable mistake of law, a person has fulfilled the criteria
demanded by law, i.e. he has behaved like a reasonable man. Nor does he have
any culpable mental element. It is submitted that the focus must always be whether
the mental element of the accused corresponds to the mental element envisaged
by the offence. If it matches, as must the actus reus, then no doubt he is liable,
and must be punished, But if it does not, then irrespective of whether it is a
mistake of fact or law, it must exonerate the accused.
An unreasonable mistake of law, however, need not be an excuse. This is
not because the guilty mind is present, but because, if a person is reckless or
negligent in determining what the law is, he cannot claim this as an excuse to
commit the crime.
In conclusion, therefore, the recommended position is as follows. In the
Indian context, any mistake of fact, in order to operate as an exculpation, must
conform to the requirement of good faith. Mistakes of law, however, must be
allowed as a defence only if reasonable. The above arrangement, it is submitted,
would best serve the ends of justice.