Loading

“The essence of law lies in the spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it.”

Salmond

Introduction:

Statutory law is a law written and is set in place by the lawmakers (legislature). It overrules, modifies and extends the prevailing definition of the present common law. Interpretation or construction is the process by which the courts seek to ascertain the meaning of legislation through the medium of the authoritative form in which it is expressed. [1][2]There are principles or rules of Construction and interpretation that are applied by Courts when required, which are: Literal rule, Mischief rule and Golden rule. The aim of these rules or principles as mentioned above is to find the true intent and meaning of every statute. Mischief rule is one of the oldest of all the rules.

What is Mischief Rule?

The mischief rule is “the most firmly established rule for construing an obscure enactment”.[3]

This rule focuses on the ‘mischief’ or ‘evil’ which the statute is trying to correct. It is a rule of statute law that tries to know the legislator’s intention. This rule was laid down in Heydon’s Case which is a 16th century case. The main aim of the rule is to decide mischief and defect which the statute is questioned to set out to remedy and what ruling would effectively implement this remedy. By applying the mischief rule, the judiciary basically questioned in regard to what area of the statute have not been covered, that was meant to be corrected by the parliament in passing the bill. The purpose of this rule is to form such an interpretation as shall forestall that mischief and advance the remedy.

Heydon’s Case

The principle was originated from this case. The rule says when the words in the statute are capable of bearing two or more constructions the most securely established rule or construction of such words “of all statutes, in general, are they penal or beneficial, restrictive or enlarging of the common law.[4]  This case explicit the four things that are to be considered:

  • What was the common law before the creation of the Act?
  • What remedy the parliament had provided and appointed to cure the disease?
  • What was the ‘mischief and defect’ to which the common law didn’t focus?
  • What is the true cause for the remedy?

This rule offers the judges a lot of discretion than the literal and the golden rule because it permits them to critically and effectively analyse and decide on the parliament intent. It absolutely was affirmed that this rule erodes the supremacy of the parliament and is not democratic as it occupy the power of law making from the parliament.

The scope of the rule in Heydon’s case was explained in the case of Prashar v. Vasaantsen Dwarkadas, “In construing an enactment and determining its true scope, it is permissible to have regard to all such factors as can be legitimately be taken into account to ascertain the intention of the legislature such as history of the Act, the reasons which led to its being passed, the mischief which had to be cured as well as the cure as also the other provisions of the Statute.”[5]

Application of Mischief Rule

This mischief rule of construction is of narrower application as compared to the Golden and the Literal Rule. The mischief rule is applied to identify what ‘mischief’ Parliament was trying to rectify. The court examines the present legislation and attempts to identify what parliament was trying to accomplish. While applying the Mischief Rule, Judges need to consider what the law was before the Act was passed, identify the wrong with the legislation, determine how parliament tried to enhance the statute in question and apply that finding to the related case brought before the court. This rule says that where an act has been approved to correct a gap in the law, the interpretation which is able to correct that gap is the one to be considered.

What are the issues with mischief rule?

This rule offers additional discretion to the judges than the other rules. It permits the judges to constructively decide on the parliament’s intent. The parliament’s intent is decided by scrutinising secondary sources, law article review, treatises and committee reports. So basically it was affirmed that this rule undermines the supremacy of the parliament and isn’t democratic as it takes away the power of law making from the parliament.

  • It was contended that the rule generates a crime after the event, violating the rule of law. As in the case of Smith vs Hughes, after applying the rule it created a crime to solicit from the balcony with the motive or object of prostitution.
  • Grants judges a power of law making which also violates the separation of powers as it is the power of legislature to make laws.
  • Judges can bring their own views, sense of morality and prejudices to a case. The inflexibility of this principle sometimes can create injustices.

Important aspects of Mischief Rule

This rule has issues sometimes but is also just and fair at the same time. The important aspects of this rule are:

  • This rule permits the law to improve and refine to the changing needs. However, the additional discretion of the judges means that their views and prejudices can influence the final decision which can result in the justice.
  • The fact that this principle help to attain parliamentary intent which is very important. It makes such interpretation which prevents the mischief and advance the cure.
  • It helps to avoid ambiguity and absurdity and provides access to justice.
  • Most modern commentators regarded this rule as the best rule of all other rules as it focuses on the true intention of the parliament.

Case Laws

Smith vs Hughes, 1960 [Soliciting case][6]

FACTS:

  • There were two complaints against Marie Theresa Smith and four against Christine Tolan alleging that on varied days they being prostitutes did solicits within the streets for the objective of prostitution, which is contrary and arbitrary to the Section 1(1) of the Street Offences Act, 1959.
  • The defendants were prostitutes who on varied days used the streets for the objective of prostitution.
  • On 4th November, 1959, the defendant solicited a men passing from the equivalent street where they use to solicit for the objective of prostitution.
  • Her practice of soliciting included tapping with the metal object in the balcony, hissing if they’re passing by from the street.

ISSUES:

  • Whether the balcony contented by the defendant comes under the ambit of street within the meaning of Section 1(1) of the Street offences Act, 1959?

RULE:

Section 1(1) of the Street Offences Act, 1959, which states that it will constitute to an offence for a prostitute to solicit within a street or public place for the objective or intend of prostitution.

JUDGEMENT:

By applying the mischief rule of construction, the court held that the law doesn’t permit soliciting within the street and within the public places also, it doesn’t matter that they weren’t on the street themselves as they were still soliciting the man on their balcony. They were therefore convicted of the offence.

Corkery vs Carpenter, 1951[Drunk and Ride case][7]

FACTS: Corkery was riding a bicycle under the intoxication of alcohol. Section 12 of the Licensing Act, 1872 made it an offence to drink and ride a ‘carriage’ on the main road or a highway.

ISSUE: whether the defendant is guilty?

JUDGEMENT: The court applied the mischief rule and commands that riding a bicycle which is a carriage under the act was within the mischief of the act as corkery represented a danger to himself and different road users as well.

Bengal Community Co. vs State of Bihar[8]

FACTS:

  • A notice under section 13(5) of Bihar Sales Tax Act, 1947 was applied by the sales tax authorities calling the appellate company to apply for registration and to submit returns showing its turnover in duration of 26th January to 30 September, 1951.

JUDGEMENT:

The court applied the mischief principle or rule in the interpretation and construction of Article 286 of Indian Constitution.

“It was to cure this mischief of multiple taxations and to preserve the free flow of interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the constitution maker adopted Article 286 in the constitution.”

Chief Justice S. R Das[9]

Conclusion

The regular working of the courts involves interpretation and construction of statutes as it is the obligation of the judiciary to act according to the true intention of the legislature. So, the statutes are interpreted to avoid absurdity and failure of justice. But the interpretation which avoids justice or results in injustice must not be supported because the rule focuses on the providing access to justice. There are various rules or principles for the interpretation and it is the discretion of the judges which one to apply which best fits the case. In deciding the rule for interpretation, the intention and the linguistic part of the statute must be taken in to thought. If the statute is precise in itself then there’s no need to apply the rule.


References:

[1] Pooja Kapur, Interpretation of Statutes and its Rules, IPLEADERS,  https://blog.ipleaders.in/rules-interpretation-statutes/amp/

[2] Nishita Kapoor, All About Interpretation of Statutes, LATEST LAWS, (June 25, 2018), https://www.latestlaws.com/articles/all-about-interpretation-of-statutes-by-nishita-kapoor/

[3] G.S. Simhanjana, Literal rule and mischief rule in interpretation, LEGAL DESIRE, (Feb 23, 2017), https://legaldesire.com/literal-rule-and-mischief-rule-interpretation/

[4] Heydon’s Case (1584) 76 ER 637

[5] Prashar v. Vasantsen Dwarkadas, AIR 1963 SC 1356

[6] (1860) LR 6 QB 597

[7] [1951] 1 KB 102

[8] AIR 1995 SC 661

[9] Mayank Shekhar, Rules of Interpretation, LEGAL BITES, (April 1, 2017), https://www.legalbites.in/law-notes-interpretation-rules-of-interpretation/


0 Comments

Leave a Reply

Avatar placeholder

Your email address will not be published. Required fields are marked *