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September 28, 2012

INDIA A LAND OF SCANDALS


‎|| INDIA A LAND OF SCANDALS || And now, ahem, Coalgate. Why call it Coalgate? Because coal fields were allocated? Can't those jaded journos find another name that could nail the coffin, such as, erm, Kholsakhol (Kholsa for coal and khol for open)? There has been a procession of scams tainting the nation and who can keep quiet when all hell is breaking loose? Has a sense of shame left us? Is there no end to this loop of corruption? Anyways, Coalgate it is. The list recent scams is endless: Commonwealth Games (remember toilet rolls worth Rs 400?) Adarsh (bureacrats and relatives of politicians cornering flats in a housing society meant only for former soliders) Irrigation scam (involving billion wherein money was spent but no dams or canals were built) The 2G spectrum scam Why bother to rack our poor over-worked brain tottering towards senility when there is the following list of scandals on Wikipaedia. Scandals (scams) in India. Do the political class think that they are invincible and not answerable to anyone? We don't have the answers. Do you? We are glad the judge who adjudicated the Aseem Trivedi case said as follows as reported by The Times of India: "Today you attacked a cartoonist. Tomorrow it could be a filmmaker and then a screenplay writer. We are living in a free society. Everybody has freedom of speech and expression," said a division bench of Justice Dhananjay Chandrachud and Justice Amjad Sayed. We have full faith in the Indian judiciary and the press which time and again have come to the rescue of the nation.

September 24, 2012

Husbands shouldn't be termed as free ATM machines


This is with regard to the news article appearing in various news papers on 10-June-2010 wherein the Supreme Court has observed that “Husbands should forget about their freedom”. This is a very insensitive remark from the highest court of this country. I strongly protest to treat husbands as free ATM machine who are punished in a failed marriage even if the wife is at fault. This is a well known fact that divorces are on rise in India at an alarming rate due to the heavy misuse of “Gender biased laws” which is breaking the families. Most of the laws in India which were made by British Government prior to the Independence were designed in such a way that it will cause harassment and torture to the innocents and rarely gave justice to anyone. In the context of Hindu marriage laws which were written long back needs urgent overhaul. This law was written at a time when divorce was rare and the social situation and circumstances were different. Now in a marriage at the drop of a hat women are rushing to the nearest police station to lodge a false complaint of “Dowry harassment” and “Domestic violence”. The laws which are many decade old and have not kept pace with the changed social circumstances and situations. The law makers are completely unaware of the ground realities. The law implementers namely police are not trained to deal with matrimonial disputes. They approach the matrimonial disputes in the same way as they deal a pick pocket case or a murder case and are insensitive and incapable. The law interpreters namely judges who are expected to deliver justice are unable to see the changed times where a wife is adamant, aggressive and violent and is misusing the laws made for the needy such as Domestic violence Act and IPC 498A. The husband and wife, who are caught in the litigation and counter litigation and do not have a way out as the Supreme Court has recently observed that “Whenever a person is married, there is no question of independence”. By making the observations, the court revisited the remarks of the vacation bench of Justice Markandey Katju and Justice Verma of 2009 wherein it had said: “Do what the wife tells you and never question her authority”. Justice Katju had said: “If men want to rule their life then they should always be on the right side of their wife. Otherwise, a defiant husband’s life would be ruled by others.” He said that if the “wife says turn right, turn right and if she says turn left, then turn left”. The above are highly insensitive remarks from the highest court of this country which considers husband to be a slave and free ATM machine. In this context the decision of the Union Cabinet on 10-June-2010 to approve Marriage Laws (Amendment) Bill, 2010 to further amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, to provide therein irretrievable break down of marriage as a ground of divorce is laudable. It provides for a way out for the litigating couple and a glimmer of hope that “Wedlock should not become Deadlock”.

Interpretation of Constitution


Should there be any difference of opinion between the Supreme Court of India and the Law Ministry? It is the Supreme Court that will prevail. Pakistan lives by a different philosophy. The legislatures legislates but it is the Judiciary that interprets that legislation and decides that it is in conformity with the letter and spirit of the Constitution presently in force. The Executive makes exrcutive decisions, both in policy matters and in day to day affairS but their action or inaction has to conform to the Constitution of the country concerned. Judiciary indeed is the final interpreter of law and arbiter of disputes. The Supreme Court of a country is the highest court and, therefore its interpretation of Law is final and must be obeyed by one and all. As a matter of fact what the Supreme Court lays down as the final interpretation of a Law or a Statutory Rule in turn becomes Law. The age-old maxim on Law is: HOWEVER HIGH ONE MAY EVER BE, THE LAW IS ALWAYS ABOVE HIM. Thus, the Law of the land is above one and all and it is Final. Even the Supreme Court abides by it. Naturally, no other institution dares change the situation or interpret the importance of Law in a different manner. The Constitution of India enacted, adopted and promulgated on 26 January 1950 by the People of India is above all laws. All laws passed by the Indian Parliament have to conform to the basic structure of the Constitution of India. Even the Parliament cannot pass a law that contravenes the basic structure of the Constitution. Should there be a requirement to change the basic structure of the Constitution of India, a new Constituent Assembly will be elected, convened and asked to frame a new Constitution or just interpret a relevant article in relation to the new situation obtaining in the country at that moment. ARMY CHIEF Vs DEFENCE MINISTRY Of late, an interesting case arose where age of Chief of the Army Staff had to be fixed as per documents that had to be reconciled. Two important documents had two different entries. The High School certificate takes the final call in such matters. Apparently, there was a clash of ego too and that too at the highest echelon. When the Army Chief made Statutory complaints and sought correction of date of birth as per the High School certificate, the vested interests prevailed on the Raksha Mantri to dismiss it. The Chief made two complaints, one in July 2011 and the other in July 2011 but both met with the same tragic end under pressure of vested interests who wished to see a kin from Punjab as the next Army Chief. They lobbied hard and had the two Statutory complaints of General Vijay Kumar Singh dismissed without assigning any reasons. The dismissal was a case of high handedness, a brute show of authority unaccompanied by logic or law. A sheer product of jungle raj and not rule of law. General Vijay Kumar Singh went in appeal to the Supreme Court under Article 32 of the Constitution of India. The Govt of India was represented by a phalanx of Senior Advocates led by the Attorney General of India. The Supreme Court two-judge bench saw through the game and admitted General Singh’s petition and chastised the Attorney General for being a part of the rejection process of the statutory complaint boththetimes and thus vitiating the process. Their Lordships wanted AG to seek fresh instructions from the Govt of India after the second dismissal is withdrawn. Thus, their Lordships gave an opening to the govt to correct its mistake and arrive at a legal settlement. The petition is posted for 10th Feb 12 for a hearing just in case no out of court settlement could be reached. Moral of the story is: Law is supreme and where ulterior motive comes in pay, the process is vitiated and must be set aside. The Ministry of Defence got a bad name for being unjust. Army Chief got bouquets for getting his Honour and TRUTHFUL STAND UPHELD. LOOKING AT PAKISTAN Pakistan has these Constitutional provisions but these exist just on paper. The Pakistan Army staged coups galore and Supreme Court put its stamp of approval and thereby weakened itself. There is just one exception to the Judiciary succumbing to barrel of a gun cocked at it by the Generals of the Pakistan Army. It was Chief Justice Iftikhar Chaudhury, Chief Justice of Pakistan Supreme Court who preferred to lock up courts of law rather than sign on dotted lines on orders dictated by the Pakistan Army Generals. The stand off continued for a long time until it was time to usher in a civil govt to replace army rule. Now the Second Stand Off between the Civil Govt of Pakistan and its Supreme Court is in the offing. The Pakistan Supreme Court had asked to write to the Swiss Govt to dig out illegal wealth and bank accounts of President Asif Ali Zardari. Prime Minister Yusaf Reza Gilani declined to do so as the President enjoyed immunity from criminal investigation and prosecution. The Supreme Court has opined that it is for the judges to look into the immunity aspect and the Prime Minister, as an Executive Head, should have written a letter to the Swiss government. The crux of the matter is that action should be taken against the corrupt politicians, irrespective of immunity granted to them. Democracies all over the world have supremacy of Judiciary in interpretation of law. Rule of Law is the hallmark of a democratic system of governance.

Audio Video recording in Court

It is high time that court proceedings are recorded to avoid any sort of mis-reporting or levelling of false charges against media-persons. The issues assumes significance in view of recent contempt of court notices issued to two reputed English dailies for alleged misreporting. THIS REFERS to the Supreme Court issuing contempt notices on September 20 to two English dailies, The Pioneer and The Indian Express allegedly for misreporting Court proceedings. It is indeed a matter of concern that misreporting of court’s proceedings, deliberately or un-deliberately, may adversely affect the prestige of judiciary. Suggestions for video-recording of courts’ proceedings are being floated for quite some now which is not at all difficult and expensive in present-days’ advanced technology. Steps should be taken for immediate implementation of the much-needed project, at least in Supreme Court and High Courts. Rather there should be a system of audio-recording of complete court proceedings. Copies of these audio-tapes may also be supplied to recognised media subscribers on payment after the court proceedings are over for the day to avoid any chance of misreporting. Such audio-recordings will also provide a justified opportunity to defend mediapersons in case they are slapped with charges of mis-reporting. System will also be advantageous in many other ways including upholding accountability in judicial system.

September 21, 2012

Politics through the common people


India IS relatively a very young country where a major segment of population is in the age group of 18-45 years. With such a large population of youngsters, isn’t there a need that this young section gets more representation and a more relevant say in the decision-making process of India? Maybe yes, maybe no. Different people, different perspectives. But most people, like me, believe in a balanced amalgamation of the youth and experienced in the political sphere. Many people believe that experience matters the most in decisions regarding national issues. But many disagree. ‘Experience vs energy’ is a much mooted issue. But it all boils down to one notion – whosoever has the right kind of background, money and ‘backing’ will succeed and progress in politics. For common voters, entering politics is a strict ‘no-no’ and they want to continue as mere voters, without efforts to bring about any change. Is this an ideal democracy? What is the reason for such apathy? Dynastic politics, oligarchy, a fear of power or the common notion that instead of you changing the system, the system changes you? Though over the years, many young faces have entered the parliament – Sameer Bhujbal, Nilesh Rane, Milind Deora, Priya Dutt, Varun Gandhi, Jyoti Mirdha, Deependra Hooda – to name a few. But the family profiles of these show a strong political mooring. This virus of political parties, promoting the kith and kin of aged politicians in elections, is epidemic, having a universal effect on all parties – left, right and centre. The irony is that those ‘immune beings’ who rose against this virus of dynastic politics, eventually became the carrier of the same! All this has reduced politics to a kind of ‘family business’ where ‘merit’ is not valued and there are no opportunities for vertical growth. There is a need to arrest this new form of political succession, which is giving rise to a new oligarchy. The fact remains that the common masses do not want to enter the political arena, thus maintaining passive or entirely indifferent. This attitude is upsetting, but true. But strangely, truth is always upsetting. In order to bring about some change, if we want to engage more youth and the masses into political processes, firstly it is necessary to ensure that they are aware of the political processes and secondly, rather than being indifferent, they duly exercise their universal adult franchise. The youth can change this entire system of ‘dirty’ politics but for that they need to be aware and conscious about problems of the country and should be willing to improve it. The Jaago Re campaign of Tata Tea clearly puts across the animosity of people against politics and tries to awaken the youth not only to vote but also to fight against the wrong. We need many more such inspiring campaigns to empower the youth. I hope that the present and the coming generation will be more aware and more responsible towards their country and will rejuvenate the ageing politics.

Political system in India is heading towards anarchy

The present crisis in the Congress-led UPA government is of serious concern for the body polity of Indian Parliament. Besides several other things, it points out two concerns - one is the fragility of a coalition government and other - it has to live at the mercy of even fringe parties. THE fragility of not only this coalition, but for that matter all coalitions has become a debatable topic. Ever since the single party or the absolute majority became a lost entity in the Indian political system, the coalition factor and regional politics has become the order of the day. Regional parties led to the decentralization of power in Indian politics, from a strong Centre to a weak one, where it depended not only on essentially regional parties with a national colour, but also where regional parties started holding sway in some states, and some national parties controlled some states, as for example the BJP and the Leftists, which again is a coalition. Coalition politics therefore led to decentralization, and the body politic of a strong Centre gradually weakened. The majority party in the coalition has always been at the mercy and ransom of the other parties, essentially regional in both content and intent. Then again, in this present scenario the withdrawal of the Trinamool Congress underlies not only the adamant nature of its leader, but shows that she is adamantine as a rock. Anything going against what she considers to be against people's interests, she is relentlessly against. That is why she scored on Nandigram and Singur. She maybe dismissed as an unruly eccentric, but she can take an obdurate stance on issues. The very fact that the ruling party capitulated to her stricture against a former Railway Minister, wanting him to be replaced by a person of her choice, shows clearly how she can hold powers that are, at ransom. She got her way. But the fact that she single handedly defeated the Leftists, who held sway for over three decades, should have sounded as a grim warning, to those who wanted to woo her, for obvious short term gains. Now the whole question is, will she retract? She is prone to whimsicality, as was evident in her dithering regarding selection of the presidential candidate. Whatever might be the political fabric in India, the Indian polity is very vulnerable as never before, because centrifugal forces are giving way, or have already given way to regional, decentralized forces. The Centre cannot hold, to use an Yeatsian expression. How long will the politics of shameless expediency continue? If it does not, then a single party without absolute majority is an impasse, and the situation of a hung Parliament. But gone are the days of one party, with two thirds majority. The last time it happened was in the seventies. We seem to be heading for an anarchic situation.

September 13, 2012

Can anyone say how much Indian is our constitution ?

The founding fathers of India came from rural areas mostly and hence knew little of the language used to frame the constitution, making it a body but bereft of soul.

The constitution of India was framed by the Constituent Assembly that was absolutely Indian. An overwhelming majority of members of the body that enacted the most important document for governance of Bharat and observe Rule of Law comprised of freedom fighters who had given their best to make India free. Their credentials were above reproach. Our founding fathers of the Constitution enjoyed the love, respect and admiration of people of India.

Language, culture, dress, education, sanskars and above all the mindset make up the Indian-ness or otherwise our Constitution. The vast majority of constitution makers came from villages of India. They were soaked in the soil, water and air of India. Regretfully they were not allowed to have their say in matters constitutional.

Leaders like Jawaharlal Nehru, Sardar Patel, Dr Rajendra Prasad, Dr Bhimrao Ambedkar and many legal luminaries dominated the proceedings of the Constituent Assembly from A to Z. The semi-literate Ram and Ghanshyam followed no English, what to say of legal language in a foreign tongue. Their presence in the Hall was the only contribution that they could make. Thus the Constitution of India in its final shape did not have an imprint of the People of India, notwithstanding the fact that it was enacted, adopted by the People of India and promulgated by the People of India just two months after enactment and being signed by one and all concerned.


The Constitution was finished as a product in the shape of a book on 26 November 1949. It was adopted on 26 January 1950 and the same day the Republic of India came into being. One regrets to note that despite all factors being favourable to India and Indians, the Constitution of India lacked an Indian soul that was needed to make it effective at the grassroots level. It failed the litmus test of being Indian in character. It was everything but a document for the People, by the People and of the People of India that is Bharat. What a pity that the members of that august body, the Constituent Assembly failed to give just one Indian name to the motherland. It is called India that is Bharat.

The founding fathers of the Constitution of India were in favour of adopting just one national anthem – vande mataram. What a shame the present national anthem jana gana mana came from behind riding the shoulders of Jawaharlal Nehru and usurped the throne.

FEATURES OF OUR CONSTITUTION


The Constitution of India is a written document and relies solely on its text by the judiciary. Unlike the British constitution which is by and large convention and tradition based and is in a written form to a minor degree, the Indian constitution gives a little scope to judicial interpretation where written word is clear in its intent. Indeed the Supreme Court and the High Court have the constitutional mandate for a judicial review and their interpretation is not only the last word in the matter but also lays down law of the land.

The Judiciary ensures that the country is governed by the provisions of law and that the Rule of Law will be respected and obeyed always. The jurisprudence lies down:

HOWEVER HIGH YOU MAY EVER BE, THE LAW IS ABOVE YOU.

The Fundamental Rights and the Directive Principles are a part of the Constitution of India. It has 395 Articles and Nine Schedules. With the result, the Indian Constitution is a bulky book, difficult to carry and harder to understand in letter and spirit. It falls on the strong shoulders of the Indian Judiciary to interpret the Constitution of India for the benefit of the People of India.

September 11, 2012

Is ignorance of law an excuse ?

Law is all pervading. Almost all your actions are regulated by law except a few. We have all sorts of law like personal, family, civil, criminal, revenue, commercial, taxation, public and private international law and so on. Law can be statutory, customary, moral or ethical, ecclesiastical etc. But it is well known that ignorance of any of these laws cannot constitute an excuse. You are not permitted to plead ignorance as a defense to escape the rigors of law. If it is so, it is very easy for any person can put forward ignorance as a defense even though he was actually aware of the law and its full consequences. The law enforcement machinery shall come to a grinding halt if ignorance is accepted as a defense. Being a negative fact, court cannot insist on proof also. It requires the study of the mental position of the law breaker which is a real difficult exercise. For all these reasons the policy of law has always been to reject the plea of ignorance of law. Lord Ellenborough said “there is no saying to what extent the excuse of ignorance might not be carried, it would be urged in almost every case.” Thus, the above discussion explains the philosophy or rationale behind the latin maxim “Ignorantia legis neminem excusat” which means that ignorance of law shall not excuse a person.


People and sometimes even legal experts express the maxim in a different way by stating that “every person is presumed to be aware of law” as if both are same and carry the same effects or produce same consequences. They assert or believe that “Every person is presumed to know the law or ought to have known the law” is a statement which emerges from the statement “ignorance of law is no excuse”. There is a real difference between the two statements. This article examines both the statements and makes an attempt to establish that both do not produce the same result or impact.

ORIGIN OF THE MAXIM

It is quite often said ‘ignorance of law is not an excuse’. As already stated above,it is based on the Latin Maxim “ignorantia legis neminem excusat” or “ignorantia juris ,quod quisque ,saire tenetur neminem excusat ”.

It may be noted that ignorance of fact can be an excuse but not that of law. To quote an instance, if a legal heir on whom the estate falls is ignorant of the death of his ancestor, he is ignorant of a fact. But even if he is aware of the death, he is said to be ignorant of a law if he is not aware of his rights as the heir ((see in 1 spence’s chin juris 632- 633). Take another example. In India hunting of a Wild Buffalo (Bubalus bubalis) is an offence as per section 9 of the Wild life Protection Act 1972. If a person, who is ignorant of section 9 of the Wild life protection Act, shoots a wild Buffalo thinking that it is a domestic buffalo he is said to be acting in ignorance of law as well as of a fact.

It is generally accepted that the maxim had its origin in Roman law and there is a direct mention about the same in “The digest of Justicia” or Justinian’s Code. It is stated therein that ignorance of fact may be excused but not ignorance of law. It is a matter of common knowledge that English law is largely based on Roman law and thus naturally, the maxim crept into English Common law also.

The earliest reference of the maxim in English law can be found in Blackstone’s commentaries where he observed like this “often a mistake in point of law which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defense. Ignorantia juris, quod quisque teneture scire, neminem excusat is as well the maxim of our own law as it was of the Roman”.

From the above it is clear that he traces the origin of the maxim to Roman law and states that every person is bound or presumed to know the law. But he states that in Criminal cases it is not a defense. From there onwards English courts applied this maxim consistently as a rule of law and thus firmly got established in English law.


Is the rule rigid and without exceptions?


We have already noticed that the maxim had originated from Ancient Roman law. In those days the number of laws were quite few and thus can be easily remembered and understood. The number of laws or rules was very small and you can even count them. Therefore, in such a situation the rule may be justified. But please look at the present situation .There are thousands of laws made by the parliament and different states. There are thousands of rules framed by the executive arm ie the government. Even the Supreme Court and various High courts have framed rules of procedure/practice etc. There are customary laws and personal laws like Mohammaden law etc. There are hundreds and thousands of notifications and circulars which are binding on various parties. Above all we have number of judge made law derived from various court decisions which as everybody knows keeps on changing. Even the Government itself is not aware of the number of laws that are in operation and force in this country. Some of the laws like Companies Act,1956 contains 658 sections and in addition to those vast army of sections there are number of rules regulations, notifications, circulars etc are also there. It is humanly impossible to remember much less understand this army of laws stacked in front of the citizens. Better not to say anything about illiterates or those who cannot understand English or Hindi ( the laws are framed in India in English and Hindi with translations in vernacular languages).

Viewed thus, there is a good justification for dilution of this rule. In fact courts in India , England and elsewhere refused to apply the maxim bluntly so as to render justice and to provide relief wherever it was found to be due applying the principles of justice, equity and good conscience.


Every person is presumed to be aware of the law?


The maxim “ignorance of law is not an excuse” is sometimes thought to be equivalent to the statement “Every person is presumed to be aware of the law”. But on a closer analysis it can be seen that both statements are not one and the same. There is absolutely no justification for the presumption that everybody is aware of all the laws in operation. It is a ridiculous presumption if not an arbitrary one. If everybody knows the law, then what is the necessity for the courts? If everybody knows the law then there is no need for consulting an advocate or a solicitor. We quite often find that District Court is reversed by the High Court which is in turn reversed by the Supreme Court. Is it not because the High Court was ignorant of the law?. If High court was aware of the law then why Supreme court reversed the judgement of the High court?. Thus it is crystal clear that High court was ignorant of the law. It is also equally possible that the Supreme Court itself may over rule or reverse its own decision and then it is quite clear that the Supreme Court was ignorant of the law while deciding the case at the first instance.

Over a hundred and thirty years ago, Maula J. pointed out in Martindalev. Falkner [1846] 2 CB 706 : " There is no presumption in this country that every person knows the law : it would be contrary to common sense and reason if it were so. "

Justice Lush in R v Tewkesbury corporation (LR 3 QB 629) observed that "there is no maxim which says that for all intents and purposes a person must be taken to know the legal consequences of his acts;" The great common law judge of the 20th century Lord Atkin observed in Evans Vs Bartam as follows “The fact is that there is no and never has been a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application”.


THE POSITION IN ENGLAND


The English judges long back kicked aside the maxim whenever situations warranted. Scrutton L.J once said “it is impossible to know all the statutory law and not very possible to know all the common law”.. It was also the accepted position that the rule ignorance of law does not excuse cannot be pleaded to escape the consequences of criminal law, yet the law can take notice of the existence of doubtful point of law about which a person may be ignorant.

According to Lord Westbury in Cooper v. Phibbs, L. R. 2 H. L. 170, the word “Jus” in the maxim ignorantia juris baud excusat is used in the sense of "general law, the law of the country," not in the sense of "a private right." The true meaning of that maxim is that parties cannot excuse themselves from liability from all civil or criminal con sequences of their acts by alleging ignorance of the law, but there is no presumption that parties must be taken to know all the legal consequences of their acts, and especially where difficult questions of law, or of the practice of the court are involved.

At this juncture, it may be worthwhile to take note of the observations of Lord Westbury in Spread V Morgan 11 HL case 588(602) which is reproduced below:

“it is true that the law will not permit the excuse of ignorance of law to be pleaded for the purpose of exempting persons from damages for breach of contract or for crimes committed by them but on other occasions and for other purposes it is evident that the fact that such ignorance existed will sometimes be recognised so as to affect a judicial decision”

Thus it is clear that the maxim has been applied in England only when facts and circumstances justify its application.


Position in America

The status given to the maxim in the US is not different from that of England or India. Attention is invited to the celebrated case of Lambert v California, a case decided by the Supreme Court in America where it was held as follows

“When applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge, this ordinance violates the Due Process Clause of the Fourteenth Amendment.”

In Cheek v CHEEK v. UNITED STATES, 498 U.S. 192 (1991) the Supreme Court of America made the observations which are reproduced below.

“The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. See e.g., United States v. Smith, 5 Wheat. 153, 182 (1820); Barlow v. United States, 7 Pet. 404, 411 (1833): Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common law rule has been applied by the Court in numerous cases construing criminal statutes. See, e.g., United States v. International Minerals & Chemical Corp., 402 US 558 (1971); Hamling v. United States,418 U.S 87 (1974): Boyce Motor Lines, Inc. v. United States,342 U.S 337 (1952).

The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend (498 U.S 192 at 200) the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term "wilfully" as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws.

In United States v. Murdock, 290 U.S 389 (1933), the Court recognized that: "Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct."

Thus in the US also the maxim has been applied cautiously with so many exceptions.


Position in India

Let us now see the position in India. India being a country under British rule for a fairly long period of 200 and odd years have adopted the British laws though slightly modified to suite the Indian conditions and culture. Before the advent of the British power Indian courts used to apply the personal laws of Hindus and Mohammadans to decide disputes brought before it. If the litigants are Hindus then Hindu law will apply and if litigants are Muslims Islamic law will apply. If one party is a Hindu and the other a Muslim then the law of the defendant would apply. But during the British rule Indian courts started applying the English common law to settle disputes along with Hindu law and other purely Indian laws. However, by and large it is the English laws that predominate. So far as the maxim is concerned India too applied the same with exceptions carved out.

The maxim was considered by the Hon Supreme Court in Motilal Padampat Mills Ltd V State of Uttar Pradesh reported in (1979) 118 ITR 326(SC) . The Hon Court observed as follows

“It must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law.”

So the Hon court in very clear terms has stated the law. There is no room for doubt. In a case decided by the Hon Supreme court the judges openly admitted that they have never heard of the law which was stated to have been violated by an illiterate person in a remote village. Therefore, the Hon court acquitted the person charged for violating that law. India did not bluntly apply the maxim.

Attention is again invited to the decision of the Hon Supreme Court in the case of Commissioner of Income-tax v P.S.S. Investments P. Ltd reported in [1977] 107 ITR 0001 wherein the Hon court made these important observations which requires special attention.

“The intelligence of even those with legal background gets staggered in this continuous process of carving exceptions to exceptions. It seems more like a conundrum, baffling the mind and requiring special acumen to unravel its mystique. One can only wonder as to how the ordinary tax-payers, most of whom are laymen, can keep abreast of such laws. Yet the maxim is that everyone is presumed to know the law. “

Thus it is clear that the courts have accepted ignorance of law as an excuse or refused to impose penalty when the violation of law was not deliberate or was innocently violated.


CONCLUSION


In view of the discussions above the author is of the view that the maxim has to be applied only in fit cases and that too facts and circumstance of the case warrants its application. The study of the status of the maxim in England, US and India above clearly indicates that courts are reluctant to accept the maxim bluntly. It cannot be totally done away with. My submission is that in a fit case when circumstances clearly warrant it, the maxim need not be applied and a person may be excused for his ignorance. It may not be admissible in criminal matters but in other areas of law it can be applied only if it is warranted.