-Srinjoy Debnath


            For an act to be criminal, a person should not only commit an offense but should also have mens rea or guilty mind; but what happens when someone commits an illegal act but did not have the knowledge that it was criminal or illegal? The maxim Ignorantia Juris Non Excusat which literally means, “Ignorance of the law is no excuse” clearly calls for attaching criminal liability to the person claiming to have committed something without the knowledge of the law. The basic assumption was that everyone could be expected to know the laws of the land as criminal law was based on moral principles of society but does it hold true in today’s context as well, when certain things have been prohibited which are not inherently harmful or against the moral values of the society? Mistake of law has long been held as no excuse in criminal law. The Indian Penal Code, in line with the long-standing principles of criminal law, does not include mistake of law under the list of available defences. However, the evolution and complexities of the law in the modern times call for a review of the rigid stance on mistake of law.

This article argues that criminal liability should not be attached to cases where the accused is not expected to know the provision of law that the accused has breached and a mistake of law defence should be added to the penal provisions of the country. To that end, this article shall first, highlight the need for a mistake of law defence and make a case for the same. Secondly, this article shall look into the type of offenses where a mistake of law defence should be provided and then explore ways in which a mistake of law defence can be framed and interpreted.


In India, a parent statute has bye-laws, rules, notifications, etc which keep changing from time to time. The laws are usually coded in a complex language which makes them difficult to understand for a normal person even if that individual tries to understand them. Legal systems are getting more complicated with each passing day and in view of the same, a person needs more than just common sense and good conscience to fully understand laws. In such a situation, the accused should at least be provided an opportunity to claim that a reasonable person is not expected to know such a provision.  In spite of these complexities, the Indian legal system does not recognize mistake of law as a valid defence.

In a recent judgment , the Karnataka High Court said that the POCSO Act overrides personal laws. So, a man can be charged with rape for having consensual sex with his wife even though the personal law allows the marriage. This effectively criminalizes any kind of sexual activity with a minor with no defence whatsoever but is it possible for everyone to know this law, especially in a country that varies vastly in terms of culture and socio-economic conditions? According to a report by UNICEF, there are approximately 223 million child brides, many of whom are happily living and following their own customs. Most of these families also come from underprivileged backgrounds and most of them don’t even know that the POCSO act exists. They are often arrested on the charges of rape until bail is granted which is not easy to get when someone is charged with such a heinous offense.

The situation is worse in cases where the law varies from one state to another. According to the census 2011, 37% of the Indian population are migrant workers who travel from one state to another. The state where they are working might have different laws. Gujarat, for example, is one of the states with a huge number of migrant workers in its labour force. It is also one of the few states in India which prohibits the possession of alcohol. It is very difficult for migrant workers to be well-versed with all the laws of the new state, especially considering the fact that most of them come from poor socio-economic backgrounds and struggle to earn a livelihood. Similarly, laws vary from country to country. A person can legally carry cannabis up to a certain limit in Canada. However, cannabis is strictly prohibited in India by very stringent provisions.  Even foreigners who might have come as a tourist for only a few days are not entitled to a mistake of law defence.

Ordinances get promulgated overnight and the law changes within a matter of days. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 declared sweeping changes to the rules of converting to another religion or procedures to follow in case of inter-religion marriages. Within a month of the ordinance, 51 people were arrested, one of them just a day after the ordinance was promulgated.

The requirement of a guilty mind is necessary while holding someone guilty of an offense but can someone be said to possess a guilty mind when he did not even know that it was wrong or prohibited? In view of this, courts have, on various occasions, acquitted the accused by citing the object of the law.

In the case of Mohammad Waseem Ahamad v. State of Karnataka, the Karnataka high court has quashed the criminal proceedings against the accused for impregnating his wife who was a minor at the time of the incident. Similarly, the Meghalaya High court has recently relied on Vijayalakshmi and anr. v. State and Ranjit Rajbanshi v. State of West Bengal, to quash the proceedings against the accused who was in a consensual sexual relationship with a minor. Courts have in certain cases pointed out the intent of the legislature to acquit the accused as a literal interpretation points towards the conviction of the accused. All of these individuals were incarcerated before the case reached the high court. Adding a mistake of law defence could have saved these individuals at an early stage, especially when the accused is a minor himself or is a young adult.     


            The main argument against the mistake of law defence is that it will lead to every accused claiming a mistake of law defence and it would be very difficult for the prosecution to prove knowledge of the law. In this section, the author shall elucidate on how a mistake of law defence may look like and in which cases can it be used to escape culpability.

§2.04 of the US model penal code explicitly mentions mistake of law as a defence if the mistake negates the mens rea required for such an offense. It provides a very detailed provision that also takes into consideration situations where a mistake of law can act as a partial defence or reduce the sentence even if the person is convicted. This provision was interpreted in the case of cheek v United Stateswhere the US Supreme Court had observed that a good-faith belief that the act one is doing is legal and is not against any legal provision negates the mens rea and is a good defence. However, a belief that the provision is unfair or unconstitutional cannot be used to claim the defence. The courts have granted this defence only when the accused had not been negligent. In Crystal Mason v The State, the accused was under supervised release after completing a five-year-long sentence for committing tax fraud. The election code of Texas explicitly mentions a person who is under supervised release after being convicted of a felony as disqualified from voting. The fact that she was ineligible was sent to her shortly after her conviction. In spite of that, the accused went to the polling booth to cast her vote, and when the volunteer at the polling booth could not find her name. She chose to vote by using a provisional ballot where the votes will only be counted after her credentials are proven. The provisional ballot also had a warning stating that convicts out on supervised release are ineligible to vote. The accused still cast her vote and when a case was registered against her, she pleaded mistake of law as a defence. The court convicted her as the defence of mistake of law cannot be granted to individuals who were negligent. The US Supreme Court in another case had held that in order to convict a person, the prosecution has to prove that the accused was carrying a firearm as well as the fact that it was prohibited by law. Thus, knowledge of the law was held as a pre-requisite for imposing liability.

Similarly, section 17 of Strafgesetzbuch, the German Penal Code contains mistake of law as a defence if the accused was unaware of the fact that the act was unlawful. It can also be used as a mitigating factor where the prosecution establishes that the accused was negligent and that law should have been known by a reasonable person. However, it should not be gross negligence. Article 38 of the Japanese Penal Code and section 26 of the Norwegian Penal Code also have similar provisions where defence is granted if the mistake has negated the mens rea required.

Mistake of law should be recognized as a defense in India where the accused believed in good faith that the act which they are committing is not illegal. The court while deciding these claims, should decide whether the offense is a mala prohibita offense or a mala in se offense. Defence of mistake of law should only be available in case of mala prohibita offenses as mala in se offenses cover offenses that are inherently wrong and against moral principles. The education and socio-economic condition of the person claiming it as well as any special factor, by virtue of which, the accused should have been aware of such provision must be taken into consideration before granting such defence. For example, the standard of proof should be higher for a tax professional claiming mistake of law for tax fraud than a matric-passed individual. The court should also consider the amount of publicity that such law has received and any other factor which the court deems fit to consider what a reasonable person should have known. The legislature should also try to make the laws lucid and comprehensible for the common man which will then help prevent frivolous claims of mistake of law defence.


            Life is becoming more and more complicated with each passing day. Technological advancement and an ever-changing society need laws that needs to be enforced for the welfare of society. However, such enforcement should not come at the expense of innocent individuals being incarcerated. From the above discussion, the author has made a case for a mistake of law defence by pointing out the inherent problems and scope of injustice present because of a complete absence of the said defence from the Indian penal provisions and suggested ways of enacting and interpreting a mistake of law defence. The defence is already in existence in various jurisdictions and India too should add one, in order to save every innocent person from being incarcerated, in line with the famous quote by Sir William Blackstone, “It is better that ten guilty men go free than that one innocent man be convicted”.

[Author is a first-year student B.A.LLB (Hons.) student at the National Law School of India University (NLSIU), Bengaluru].


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