When Can Ignorance Of Law Be Taken As Defence?Supreme Court Explains

The Supreme Court recently held that neither unawareness of the law nor ignorance of law cannot be claimed as an excuse for storing or possessing child pornography in a plea taken by the accused that he was not aware of the fact that storing child pornography was a punishable offence under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The accused had also argued that the child pornographic material which was found stored in his mobile phone was due to his "unawareness of the law" accompanied by a bona-fine belief that such storage was not an offence. Additionally, he stated that the videos stored on his mobile phone were automatically downloaded onto his mobile phone without his knowledge or volition. Therefore, he should not be held liable under the provisions of the POCSO Act.

Holding against the accused, a bench comprising CJI DY Chandrachud and Justice JB Pardiwala held that mere storage of “child sexual exploitative and abuse material" (child pornography) without deleting or reporting the same would indicate the intention to transmit, and merely watching it without download would amount to "possession" under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

When can plea of ignorance of law can be a defence?

The Court stated that a plea of unawareness of law can be a valid defence if it "consequently gives rise to a legitimate and bonafide mistake of fact as to the existence or non-existence of a particular right to claim".

Laying down the test for taking the plea of unawareness of incognisance of law as valid defence, the Court said: "This may be better understood through a four-prong test wherein for a valid defence, there must exist (1) an ignorance or unawareness of any law and (2) such ignorance or unawareness must give rise to a corresponding reasonable and legitimate right or claim (3) the existence of such right or claim must be believed bonafide and (4) the purported act sought to be punished must take place on the strength of such right or claim. It is only when all the four of the above conditions are fulfilled, that the person would be entitled to take a plea of ignorance of law as a defence from incurring any liability."

In this case, the accused relied on Chandi Kumar Das Karmarkar v. Abanidhar Roy (1956) and Motilal Padmapat Sugar Mills v. . v. State of U.P (1979) to argue his plea. However, the Court found that the reliance on the two judgment is misplaced because storage or possession of child pornographic material cannot be equated or traced to any right or assertion as was the case in the two judgments. 

Explaining this, the Court noted: "Even if a person is unaware that the possession or storage of such material is punishable, it by no stretch can be considered to give rise to any right or assertion as there exists no such right to either store or possess such material, and thus it is not a valid defence. We say so because, no person of an ordinary prudent mind with the same degree of oblivion or unawareness as to the law, more particularly Section 15 of POCSO could as a natural corollary be led to a belief of existence of a right to store or possess any child pornographic material."

Further, the Court stated that the ignorance or unawareness must have a "reasonable nexus with a right or assertion claimed, i.e., the ignorance or unawareness must be such which could legitimately and reasonably give to a corresponding right or claim the existence of which must be bona-fidely believed."

Adding a caveat, the Court said: "Otherwise, anyone could make a bald or blanket claim of having a bonafide belief of any right to wriggle out of any liability arising out of its actions on the touchstone of unawareness of any particular law. Thus, even if the accused was unaware about Section 15 of POCSO, this by itself does not give rise to a corresponding legitimate or reasonable ground to believe that there was any right to store or possess child pornographic material. As such the four-prong test is not fulfilled and the defence of ignorance of law by the accused must fail."

The Court also noted that the defence of unawareness of law is not a plea of statutory defence. It is rather a by-product of the doctrine of equality.

"Even otherwise, one must be mindful to the fact that such a plea is not a statutory defence with any legal backing, but rather a by-product of the doctrine of equity. Whether such a defence is to be accepted or not, largely depends upon the extant of equity in the peculiar facts and circumstances of each individual cases. It is an equally settled cannon of law that equity cannot supplant the law, equity has to follow the law if the law is clear and unambiguous," the Court averred.

Unawareness of law v. ignorance of law 

The Court clarified that this was a case of "ignorance of law" and should not be conflated with "unawareness or incognisance of law".

The Court said: "Unawareness or incognizance of law should not be conflated with ignorance of law. This Court in Motilal Padampat Sugar Mills (supra) duly acknowledged that a plea of unawareness of law is fundamentally different in scope and application from the rule that ignorance of the law does not excuse anyone. The former as explained above, is a byproduct of the doctrine of equity whereas the latter is a cardinal rule of criminal jurisprudence and no person can claim to be absolved of any criminal offence or liability on a plea of ignorance of law.

Thus, where something is specifically made punishable under the law, then in such cases the law would prevail over equity, and no plea of ignorance of law can be taken as a defence to absolve or dilute any liability arising out of such punishable offences. Thus, even if all four preconditions are satisfied, the courts are not bound to accept such a plea, if it is in negation or derogation of any law or the idea of justice."

Appearances: Senior Advocate HS Phoolka (for petitioner), Senior Advocate Swarupama Chaturvedi (for NCPCR, intervenor supporting petitioner), Prashant S. Kenjale (for accused), D Kumanam (for the State of TN, supporting petitioner)