Report No. 42
4.11. Subordinate legislation not to be excluded from scope of rule.-
It is unavoidable in modern regulatory legislation that a great many details of the law have to be left to be prescribed by means of rules and orders. Enforcement of such statutory rules and orders is the very basis for the enforcement of the parent Act. To introduce the concept of "invincible ignorance" as a legitimate defence in relation to the former but not in relation to the latter might well result in rendering the latter largely ineffective.
As a learned writer puts it, "such statutes are not meant to punish the vicious Will but to put pressure on the thoughtless and inefficient to do their whole duty in the interest of public health safety or morals1." We do not, therefore, share the view that a possible area for allowing ignorance of law as a defence may include "misdemeanours punishable only by small fine, various ordinances and technical regulations of administrative boards", and in these cases "actual knowledge of the law should be required2." We think that the present rule of ignorance of such regulations affording no justification for contravening them has to remain.
1. Roscoe Pound, The Spirit of the Common Law, p. 52.
2. Jeromel Hall, General Principles of Criminal Law, (1960), p. 404.
4.12. Argument of stigma attaching to conviction considered.-
It has been urged that even a conviction for a contravention of a statutory rule or order carries a stigma, and it is unfair that such stigma should attach to a person when he knew nothing about it and when he could not, with due diligence, have known sufficiently about it. We think this is somewhat exaggerated. The stigma arising out of a conviction for an offence like not fencing a machine in the prescribed manner, or not constructing a bath room in accordance with the municipal bye-law, or failing to file a tax return by the prescribed date, is negligible.
4.13. Majority or Judges against modifying present rule.-
We should mention here that a majority of the judges of High Courts and of the members of the higher judiciary who gave an opinion on the question were against recognising mistake of law as a defence or even as a mitigating circumstance to be expressly provided in the Penal Code.
4.14. Foreign precedents may not be suitable.-
We find that the penal codes of some countries provide for recognising ignorance of law as a proper defence. We feel, however, that the attitude of the courts towards such provisions in the code is of more importance than the provisions themselves. The magnitude of the population, the number of prosecutions involving such issues, the literacy of the citizens and other similar factors, which vary from country to country, will also have to be taken into account. What may have worked well elsewhere may not necessarily be suitable for India.
4.15. Modification of present rule not recommended.-
One of us considered that to prevent hardship in extreme cases, there should be an express power given to the Court to award a punishment different in nature from the punishment prescribed in the law, or lower in degree than the minimum punishment. We think however that, even under the existing provisions, where the Court is satisfied about the genuineness of the plea of ignorance, it takes that fact into account while passing sentence. We do not therefore recommend any change in the existing position.
4.16. Section 77.- Section 77, which protects a Judge while acting judicially, needs no change.
4.17. Section 78.-
Section 78 protects acts done in pursuance of a judgment or order of a Court of Justice, although the Court may not have had jurisdiction to pass such judgment or order, so long as the person acting under it believes in good faith that the Court had such jurisdiction. This protection is obviously necessary if decisions of the Courts are to be promptly enforced. We feel, in fact, that there ought to be no right of private defence against the enforcement of a Court's decisio.-a matter we deal with later1. Section 18 should, therefore, stand as it is.
1. See para. 4.
4.18. Section 80.-
Section 80 says that a person is not liable for the unintended and unknown consequences of his 'lawful act, done in a lawful manner by lawful means and with proper care and caution'. The illustration to the section brings out the meaning clearly, and no change is required.
4.19. Section 81 revised.-
Section 81 states that nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Then follows an explanation that it is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
The intention of this provision is clear enough. The main ideas being (i) the act which the law excuses is done in order to avoid other harm, (ii) the harm to be avoided must, in its nature and imminence, be such as to justify the risk of doing an act likely to cause harm, and (iii) the act is done in good faith without any intention of causing harm. One of these ideas is put in the Explanation, while the other two are in the main section. This splitting up does not seem to be necessary. The general exception will be easier to understand if it is stated as follows:
"81. Nothing is an offence which, though done with the knowledge that it is likely to cause harm, is done in good faith for the purpose of preventing or avoiding other harm to person or property, provided the latter harm is of such a nature and so imminent as to justify or excuse the risk of doing the act with such knowledge."
The illustrations help in understanding the meaning and should be retained.
4.20. Section 82.-
Section 82 completely exempts children under 7 years of age from criminal liability in respect of any act done by them. The basis of this total exemption is the assumption that a child below that age does not realise, and consequently does not intend, the consequences of his act and the necessary culpable state of mind must be deemed to be absent. In recent years there has been an increased weight of informed opinion in favour of changes in our methods of dealing with delinquent children.
This changed attitude is mainly due to the awareness that their delinquency stems largely from parental neglect, parental conflict, association with evil elements, poverty and similar factors which operate more intensively on children than on adults. Special legislation in the form of Children Acts provides for a variety of measures designed to correct, rather than punish, the erring child. The two main objectives of such measures are to take children as far as possible outside the ambit of criminal liability and the jurisdiction of the ordinary criminal Courts, and to make such arrangements for their correction, education and welfare as are appropriate.