Introduction
Ignorantia lex non excusat. It is a core principle of the modern legal system that ignorance of law is no excuse. No lawbreaker can be heard to say that s/he was not aware of the law. Provided the law is “published” in writing, a duty is cast on individuals to educate themselves about the law. The Supreme Court said so in Bhoj Raj: “[i]ndividual service of a general notification on every member of the public is not required and the interested person can acquaint himself with the contents of the notification published in the Gazette.” The principle has some intuitive appeal; if ignorance of law were an excuse, every lawbreaker would invoke it, and the law would lose its deterrent value.
Yet, beyond a point, it is difficult to take the principle seriously. The most obvious hurdle is that it disproportionately harms the insufficiently educated, i.e., those who are illiterate or otherwise not equipped with the know-how to find, read and understand the law, and to whom even the most well-published law is inaccessible. To demand regular and updated knowledge of law from such persons is to demand the impossible. The Rule of Law, which stands tall against arbitrariness, cannot possibly accept such an unfair principle.
Neither are the educated in a position to stay abreast with the law. The rest of this essay discusses the specific reasons why legislation (primary and secondary) and judgments, both of which constitute ‘law’ in India, are inaccessible to ordinary persons, implying that there must be a shift in our understanding of the principle that ignorance of law is no excuse.
Inaccessibility of Legislations
It is a principle of natural justice that no person shall be condemned under a law which he was not made aware of. It is also a fundamental right of every citizen to receive information, which, if anything, must include a right to know the law which binds him and subjects him to unpleasant consequences. Traditionally, therefore, the principle ignorantia law non excusat applies only when the law is “published”. In other words, in order that an obligation to know the law can be placed on citizens, the State must make the law accessible to them. In B.K. Srinivasan (1987), the Supreme Court held: “There can be no doubt about the proposition that where a law, whether parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the “conscientious good man” seeking to abide by the law or from the standpoint of Justice Holmes’s “unconscientious bad man” seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.” Once the law is published, however, the citizen is deemed to know it.
As to the mode of publication, in MH George (1965), the Court held that the law should be published “in the usual form, i.e., by publication within the country in such media as generally adopted to notify to all the persons concerned.” In compliance with this requirement, primary legislation (statutes) and secondary legislation (rules, regulations, notifications, governmental orders etc.) are traditionally published similarly—i.e., in the Gazette, which is an official publication of the Government. This mode of publication was held to be sufficient by the Court in MH George (supra).
However, it seems unreasonable to treat mere Gazette publication as sufficient publication. The Gazette is not a document that citizens do, would want to, can afford to, or can be expected to read regularly. For the publication requirement to be fulfilled fairly, citizens should also be informed that a new law has been published in the Gazette, and must be given a reasonable opportunity to access the contents of the Gazette at a time of their convenience. In Bhoj Raj (supra), Lahoti J. in his part dissent indicates a view that mere publication in the Gazette may not be sufficient: “Non-availability of the Gazette carrying the notification may provide the foundation for a defence plea of innocence where mens rea is an ingredient of offence…. Where mens rea is not an ingredient, want of circulation of the Gazette may still be a reason for leniency in punishment.” Lahoti J. imagines a proactive approach which requires the State to not only publish the law in the Gazette but also take steps to spread awareness about the factum of publication. It is not enough, in other words, to tell the subjects to go and read the Gazette.
The case of MH George (supra) is a great example of the injustice that may otherwise be caused. The petitioner was a German national. On 24th November, RBI issued a notification introducing a new rule to be followed when bringing gold into India. This notification was published in the Gazette which—in that pre-internet era—was available only within the territory of India. On 27th November, MH George boarded a Switzerland-Philippines flight having a stopover in India. However, having not been to India after 24th November, MH George had no knowledge of the contents of the notification issued three days previously. He was nonetheless held criminally liable for contravening the notification. The Supreme Court, while upholding his liability, found it “wholly irrelevant” that he was a foreigner who had no actual notice of the notification. This (rather harsh) judgment tells us that the State is deemed to have fulfilled its duty of publication by simply printing the law in the Gazette. In other words, it makes no difference whether the person being prosecuted had any real opportunity to see the Gazette.
In a compelling dissent, Subba Rao J. refuses to find MH George liable. He holds that imposing such strict liability on individuals does nothing for the law; all it does is “catch innocent persons in the net of crime”. This is because persons like the petitioner who have no actual knowledge of the law cannot possibly help the implementation of the law (or be deterred by it). Of course, if Subba Rao J.’s argument is accepted, there can be absolutely no constructive knowledge imposed on any person merely because a law has been published, irrespective of how widely the publication has been done. Such a position may not be ideal in light of the concerns outlined in the beginning of this essay. Nonetheless, the concerns raised by the dissent are important and, at the very least, should compel us to demand as much publicity of laws as possible.
There is another reason why mere publication in the Gazette is insufficient. As previously argued by Dr. Arghya Sengupta here and here, our laws are drafted in unnecessarily complex language which makes it even harder for the layperson to understand them. Therefore, insisting that ignorance of law is no excuse is equivalent to insisting that every lay person must hire a lawyer to regularly understand and stay updated with the laws.
Technological advancement must also have a bearing on our understanding of the publication requirement—after all, the Supreme Court has read fundamental rights expansively, especially in areas where technological advancements enable rights to be realised in different ways. E.g., awareness about the law can now be created through various means other than a physical gazette, such as the digital media and social media. In the age of artificial intelligence, information kiosks can be set up by the government in local areas to help citizens understand the content of the law based on the specific queries raised by them. Provision of free legal advisory services can also be explored. Whatever the exact solution devised by the state, it is clear that a mere gazette publication is insufficient and cannot be justified in the present day and age.
Inaccessibility of Judgments
The inaccessibility of judicial verdicts adds to the dilemma of a common man. Judge-made law, or precedents, form the very foundation of a common law system. Further, Article 141 of the Constitution makes Supreme Court judgements binding as law. Highlighting the significance of Article 141, the Supreme Court in Raghubir Singh (1989) said: “The doctrine of binding precedent has the merit of promoting a certainty and consistency…besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs.” What the court remained oblivious to is the inaccessibility of such judicial decisions.
The foremost issue, also raised recently in the parliament, concerns the language of judgements. Judgments of the Supreme Court and most High Courts are issued only in English, a language alien to most Indians. Although vernacular judgements were introduced on the Supreme Court website in 2019, they are limited to only those cases wherein a translation has been requested. Illustratively, out of the 869 judgments passed by the Supreme Court in 2021, only 24 judgements are available on the website in vernacular languages. Most of the judgements, being published solely in English, are exclusively accessible to the educated class, rather the educated individual who can comprehend the complex language of the court.
A second issue pertains to the length and complexity of judgments. In July 2021, the Supreme Court stirred a debate when as part of the postscript in the Ajit Mohan case, S.K Kaul J. wrote: “it is the need of the hour to write clear and short judgments which the litigant can understand.” While the court itself acknowledged how they are “weighed down by judicial precedent”, one can assume how that handicaps a common man. The irony in the situation was that the Ajit Mohan judgement was itself 188 pages long.
To empirically gauge the prolixity of Supreme Court judgments, one of the authors (Rishav Devrani) recorded the word and page counts of all Supreme Court judgements passed in 2021. For the 869 judgements passed in 2021, the average page length rounds out to be 27.4 pages, while the median value is 17 pages. However, considering the severe inconsistency in the overall formatting of different judgements, page limit cannot alone be an appropriate indicator of prolixity. We therefore recorded the word counts for all judgements. The average word count is 6488 words, while the median value is 3763 words. These figures—enough to daunt even regular legal practitioners—raise the important question: How is one to democratise the law, when the length and language of judicial precedents make it inaccessible to a common man?
Finally, a third issue is simply the volume of judgments. In 2021 alone, the Supreme Court passed a total number of 869 judgements. Speaking in context of the doctrine of stare decisis in India, Raveendran J. (Retd.) of the Supreme Court argues[i] that the increasing volume of judgements being passed by the Supreme Court pose a threat to consistency of precedent because judges are unable to read and follow all developments in the various areas of law on a regular basis. If Raveendran J. (Retd.) is right, and it has indeed become impossible for judges themselves to stay updated with each judicial precedent, expecting the same from a common man is wholly impractical.
Conclusion
The common law principle that ignorance of law is no excuse is tough to accept in its entirety. Persons who are insufficiently educated cannot access the law no matter how widely it is circulated. Accessing the law is an uphill task even for the educated. The publication requirement in administrative law is deemed to be satisfied upon publication of the legislation in the Official Gazette, which is an unrealistic standard for persons who want to acquaint themselves with the contents of the law, especially in this age of technology. Similarly, judgments are inaccessible to the masses because they are (i) published mostly or only in English, (ii) prolix, and (iii) numerous. In view of these practical difficulties, the stringency with which the principle ignorantia lex non excusat is applied ought to be relaxed.
[i] Justice. R V Raveendran : “Precedents – Boon or Bane”, (2015) 8 SCC 1
This blog has been authored by Mr. Shrutanjaya Bhardwaj, an Advocate practicing at the Supreme Court of India and Mr. Rishav Devrani, law student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Expert series, initiated to bring forth discussion by experts on contemporary legal issues.