By Subhyanka Rao, RMLNLU
Editor’s Note: The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament’s intention. The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament’s intent. It can be argued that this undermines Parliament’s supremacy and is undemocratic as it takes law-making decisions away from the legislature. Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes. This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be applied but associated problem is that the fact that this rule helps achieve that the use of this rule is limited due to Parliamentary intent. So according to the author, this modern use of the mischief rule ought to be understood as one of the components of what is characterized as the “modern” method of statutory construction, rather than a stand-alone rule serving (as it formerly had), as an alternative to the methods of construction proposed by the plain meaning rule and the golden rule.
When we read an Act of Parliament the first and fundamental point of note is that it is not like reading a book or a newspaper. Legislative text must be read according to the principles and rules as decided upon by the judges and the statute itself. A special skill is required to understand the meaning. This project will deal briefly with the subject, but it is hoped it will provide a better understanding of how a Judge approaches the problems.
DAVID HUME once asked,’ referring to Pope’s Essay on Man, whether there is any essential difference between one form of government and another; and whether every form is not to be regarded as good or bad, according to whether it is well or ill-administered. Similar questions are likely to occur to anyone who begins to examine the theory and practice governing the interpretation of statutes. Does the interpretation of statutes really depend on the rules which are
Supposed to regulate it? Does not a judge, according to his outlook and capacity, simply use these so-called rules to justify a decision which he has already reached on other grounds? And should the Law Commissions, before embarking on an inquiry into the interpretation of
Statutes, have asked themselves whether their journey was really necessary? To these questions Hume’s reply to Pope suggests one answer. He would be sorry, he said, “to think that human affairs admit of no greater stability than what they receive from the humours and characters of particular men”. But as applied to the interpretation of statutes today, this answer is unsatisfying. It is true that a judge may express or reveal certain distaste for the policy of a statute and some reluctance to accept that it is intended to override not only his personal predilections (which of course he would not dispute) but also a long-established principle of the common law. That this reluctance can still be of the greatest practical importance may be seen in the decision of the Court of Appeal in Allen v. Thorn Electrical Industries.
Winn L.J., for example, in that case described the role of the judge as, in effect, the guardian of the common law against the inroads of statute in the following very strong terms:
“I must reject as quite untenable any submission that, if in any case one finds
(a) that a statute is worded ambiguously in any particular respect, and
(b) finds also clear indications aliunde (from another place)that Parliament intended they should have the strictest and most stringent meaning possible, the court is therefore compelled to construe the section in the sense in which Parliament would desire it to take effect, bygiving the words their most stringent possible meaning.
On the contrary I think the right view is, and I understand always has been, that in such a case of ambiguity, it is resolved in such a way as to make the statute less onerous for the general public and so as to cause less interference, than the more stringent sense would, with such rights and liberties as existing contractual obligations.”
Nevertheless I do not maintain that we could justify an enquiry into the interpretation of statutes solely on the ground that the judiciary approach statutes with some regard to what they conceive to be the generally accepted values of the society in which they live, or because they read statutes to some extent in the context of those values. On the other hand I am far from suggesting that the present system of interpretation gives all the assistance which it might to the judge in determining in the first place whether the words of a statute really are ambiguous.
If I might put in a few words the underlying contention of the Working Paper’, I should be tempted to say that just as there are shades of meaning, so there are shades of ambiguity; that the tendency of our tradition in statutory interpretation has been to make too many sharp distinctions, giving a misleading appearance of simplicity to the judicial function; and that more can be done to help the judge in what will in the marginal case always remain a task of very great difficulty. A better answer to the questions which initially faced the Law Commissions with regard to the interpretation of statutes must begin by admitting that, whatever rules are devised for interpreting statutes, that task has many of the qualities of an art rather than of a science; and that an inspired interpretation of statutes cannot be achieved by the mechanical application of certain rules any more than a performance on the piano worthy of a Richter will automatically follow a diligent attention to the exercises of Czerny.
But if we forswear any intention to devise a comprehensive code of new rules for the interpretation of statutes, we may nevertheless justify a more modest enquiry and indeed explain its purpose by another musical analogy. Even a great pianist may be hampered by a bad instrument. The purpose of the Law Commissions has been to discover how far the present body of law and practice which is supposed to guide and assist the judge in his task of interpretation in fact fulfils that function; to determine how much of the vast mass of learning which surrounds the interpretation of statutes is meaningful in the light of that function; and to make proposals which will not indeed ensure that statutes are better interpreted but at least put at the disposal of the judge an instrument sensitive and flexible enough to respond to the various and intricate demands of modern legislation.
Much more significant is the link which Lord Simonds’ statement provides between the concept of a so-called plain meaning, free from ambiguity, and the concept of the mischief of a statute emphasised by Heydon’s Case. Here again I would say in parenthesis that we need not spend many words on the golden rule, for on closer examination when a court decides that particular words of a statute read in the context of ordinary usage, are absurd, it implies, although often tacitly, that the construction is absurd because it is irreconcilable with the court’s conception of the general policy of the statute; in other words, the golden rule turns out to be a disguised version of the mischief rule of uncertain and imprecise application.
As regards the mischief rule proper, you will have observed that Lord Simonds concedes that the mischief is part of the context and that he says that other sections of the statute, the preamble, the existing state of the law and other statutes in pari materia may be used to throw light on that mischief. But you will have also noted that he refers to “other legitimate” but unspecified means to ascertain the mischief. This seems to us the central problem connected with the rule in Heydon’s Case, which in many respects has much to recommend it. The attempt which has been made in a number of Commonwealth countries to give the rule in Heydon’s Case statutory effect and to make it the central principle of statutory interpretation has produced disappointing results because little guidance has been given as to how the mischief is to be ascertained.
The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule was established in Heydon’s Case. In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. Under the mischief rule the court’s role is to suppress the mischief the Act is aimed at and advance the remedy.
This is a very important rule as far as the Interpretation of Statute is concerned. It is often referred to as the “rule in Heydon’s Case“[i]. This very important case reported by Lord Coke and decided by the Barons of the Exchequer in the 16th century laid down the following rules:
That for the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law; four things are to be considered –
1) What was the common law before the passing of the Act?
2) What was the mischief and defect for which the common law did not provide?
3) What remedy the Parliament hath resolved and appointed to cure the “disease of the Commonwealth”.
4) The true reasons for the remedy.
And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy. Before proceeding any further, a word of warning is appropriate. Uses the exact words – “disease of the Commonwealth” – used byLord Coke in his report and it is important to bear in mind that words had different meanings. It is necessary to discover their meaning at the time of writing. From the 14th century to the end of the 17th, the meaning of disease was lack of ease, disquiet or distress and Commonwealth, of course, meant the Country.
According to an early case, The Longford(1889) 14 P.D. 34 an Act must be construed as if one were interpreting it on the day it was passed. Thus, we ask ourselves what the word meant on the day it was uttered if by analogy we argue that the same can be said of a judgment. The importance of the mischief rule in criminal law can best be shown by considering examples. An Act of Parliament will state the purpose for which it was enacted. If we take the case of Parkin v. Norman 2 All E.R. 583, (reserved judgment), it can be seen that the court decided that the Public Order Act 1936 was never designed to deal with homosexual behavior in public toilets. The long title to the Act reads:
“An Act to prohibit the wearing of uniforms in connexion with political objects and the maintenance by private persons of associations of military or similar characters; and to make further provision for the preservation of public order on the occasion of public processions and meetings and in public places.”
The purposes of the Act and the mischief rule are, therefore, closely connected, and it is very genuine to look at the long title. Another example of the application of the mischief rule is found in Ohison v. Hylton 2 All E.R. 490. The facts, briefly, were a carpenter was on his way home from work. He boarded a train which was crowded. Another passenger objected and subsequently both finished up on the platform. The defendant, the carpenter, took one of his tools of his trade, a hammer, from his briefcase and struck the other man with it. He was charged under the Prevention of Crime Act 1953. Lord Widgery, CJ, said, inter alia:
“This is a case in which the mischief at which the statute is aimed appears to me to be very clear. Immediately prior to the passing of the 1953 Act the criminal law was adequate to deal with the actual use of weapons in the course of a criminal assault. Where it was lacking, however, was that the mere carrying of offensive weapons was not an offence. The long title of the Act reads as follows:
‘An Act to prohibit the carrying of offensive weapons in public places without lawful authority or reasonable excuse’. Parliament is there recognizing the need for preventive justice where, by preventing the carriage of offensive weapons in a public place, it reduced the opportunity for the use of such weapons. If, however, the prosecutor is right, the scope goes far beyond the mischief aimed at, and in every case where an assault is committed with a weapon and in a public place an offence under the 1953 Act can be charged in addition to the charge of assault. Whilst on the subject of offensive weapons, mention must be made of the Divisional Court’s decision in Gibson v. Wales(1983) 147 J. P. 143, which decided that a “flick knife” is an offensive weapon per se.’”
Literature Survey: A lot of work has been done on this particular topic which belongs to Interpretation of Statute because of the peculiar nature of its operation as it is considered to discover Parliament’s intention and to give the judge more discretion than any other rule as it allows him to effectively decide on Parliament’s intent. But at the same time It can be argued that this undermines Parliament’s supremacy and is undemocratic as it takes law-making decisions away from the legislature. There’s Judicial Overreach, So this controversy has been considered in favour by many authors in their books of which some are like “Interpretation of Statutes” by Kafaltiya, B.M. Gandhi, Maxwell and “Principles of Statutory Interpretation” by G.P. Singh and many more in this regard and therefore Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden rule to determine cases. Purposive interpretation is exercised when the courts utilize extraneous materials from the pre-enactment phase of legislation, including early drafts, hansards, committee reports, white papers, etc. The purposive interpretation involves a rejection of the exclusionary rule.
Smith v. Hughes [ii]
The brief facts were that the defendant was a common prostitute who lived at No. 39 Curzon Street, London and used the premises for the purposes of prostitution. On November 4, 1959, between 8.50 p.m. and 9.05 p.m. the defendant solicited men passing in the street, for the purposes of prostitution, from a first-floor balcony of No. 39 Curzon Street (the balcony being some 8–10 feet above street level). The defendant’s method of soliciting the men was
(i) to attract their attention to her by tapping on the balcony railing with some metal object and by hissing at them as they passed in the street beneath her and
(ii) having so attracted their attention, to talk with them and invite them to come inside the premises with such words as ‘Would you like to come up here a little while?’ at the same time as she indicated the correct door of the premises.
It was contended on behalf of the defendant, inter alia, that the balcony was not ‘in a Street’ within the meaning of section 1(1) of the Street Offences Act, 1959, and that accordingly no offence had been committed. “The sole question here is whether in those circumstances the appellant was soliciting in a street or public place. The words of s. 1(1) of the Act are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’.
Lord Parker CJ said Case that she ‘being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to section 1(1) of the Street Offences Act, 1959.’ It was found that the defendant was a common prostitute, that she had solicited and that the solicitation was in a street. The defendants in this case were not themselves physically in the street but were in a house adjoining the street, on a balcony and she attracted the attention of men in the street by tapping and calling down to them. At other part the defendants were in ground-floor windows, either closed or half open. The sole question here is whether in those circumstances each defendant was soliciting in a street or public place. The words of section 1(1) of the Act of 1959 are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.’
Observe that it does not say there specifically that the person who is doing the soliciting must be in the street. Equally, it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street. For my part, I am content to base my decision on that ground and that ground alone.
Royal College of Nursing v DHSS [iii]
The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (i.e. a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses it was Held: It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.
Elliot v Grey[iv]
The defendant’s car was parked on the road. It was jacked up and had its battery removed. He was charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle on the road. The defendant argued he was not ‘using’ the car on the road as clearly it was not driveable. It was held: The court applied the mischief rule and held that the car was being used on the road as it represented a hazard and therefore insurance would be required in the event of an incident. The statute was aimed at ensuring people were compensated when injured due to the hazards created by others.
Corkery v Carpenter[v]
The defendant was riding his bicycle whilst under the influence of alcohol. S.12 of the Licensing Act 1872 made it an offence to be drunk in charge of a ‘carriage’ on the highway. It was held:
The court applied the mischief rule holding that a riding a bicycle was within the mischief of the Act as the defendant represented a danger to himself and other road users. According to S.12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the plain meaning rule a bike is not a carriage. Under the Mischief rule the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that of people being on the road on transport while drunk. Therefore a bicycle could be classified as a carriage.
DPP v Bull[vi]
A man was charged with an offense under s.1(1) of the Street Offences Act 1959 which makes it an offense for a ‘common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution’. The magistrates found him not guilty on the grounds that ‘common prostitute’ only related to females and not males. The prosecution appealed by way of case stated.
The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD, therefore, held the mischief the Act was aimed at was controlling the behavior of only female prostitutes.
Brown v. Brown [vii]
In Brown v Brown, Sir Jocelyn Simon P said that the disadvantage of the old law on condonation of adultery was that, though a resumption of cohabitation might actually promote a reconciliation which had yet taken place, a wronged spouse might be reluctant to resume cohabitation in case it did not succeed and he or she would then have lost the right to complain of the matrimonial offense. The provision in s 2(1) of the Matrimonial Causes Act 1963 (now contained in s 42 of the Matrimonial Causes Act 1965) that adultery shall not be deemed to be condoned by reason of a continuation or resumption of cohabitation between the parties for a period of up to three months was, therefore, limited to cases within this ‘mischief’- where the cohabitation was with a view to effecting a reconciliation, and did not extend to cases where it was in consequence of re3conciliation.
Sodra Devi v. Commr. Of Income Tax [viii]
By s 16(3) of the Indian Income Tax Act 1922, ‘In computing the total income of any individual for the purpose of assessment, there shall be included so much of the income of a wife or minor child of such individual as arises indirectly or directly’ In CIT v Sodra Devi the court observed that the legislature was guilty of using an ambiguous term. There is no knowing with certainly as to whether the legislature meant to enact these provisions with reference only to a male of the species using the words ‘any individual’ or ‘such individual’ in the narrower sense of the term indicated above or intended to include within the connotation of the words ‘any individual’ or ‘such individual’ also a female of the species.
Holding the words ‘any individual’ and ‘such individual’ as restricted in their connotation to mean only the male of the species, the court observed that the evil which was sought to be remedied was the only resulting from the widespread practice of husbands entering into nominal partnerships with their wives, and fathers admitting their minor children to the benefits of the partnerships of which they were members. This evil was sought to be remedied by the Income-tax Act. The only intention of the legislature in doing so was to include the income derived by the wife or a minor child, in the computation of the total income of the male assessee, the husband or the father as the case may be for the purpose of the assessment.
RMDC v. UOI [ix]
In RMDC v Union of India the definition of ‘prize competition’ under s 2(d) of the Prize competition act 1955, was held to be inclusive of only those instances in which no substantive skill is involved. Thus, those prize competitions in which some skill was required were exempt from the definition of ‘prize competition’ under s 2(d) of the Act. Hence, in the aforementioned case, the Supreme Court has applied the Heydon’s Rule in order to suppress the mischief was intended to be remedied, as against the literal rule which could have covered prize competitions where no substantial degree of skill was required for success.
Bengal immunity co. v State of Bihar [x]
Within the context of law, the mischief rule is a rule of statutory interpretation that attempts to determine the legislator’s intention. Originating from a 16th century case in the United Kingdom, its main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. When material words are capable of bearing two or more constructions the most firmly established rule for construction of such words “of all statutes in general” is the rule laid down in Heydons case also known as mischief rule. This rule is also known as purposive construction. The rules lay down that the court should adopt the construction which shall suppress the mischief and advance the remedy.
In the Indian context, the rule was best explained in the case of Bengal immunity co. v State of Bihar. The appellant company is an incorporated company carrying on the business of manufacturing and selling various sera, vaccines, biological products and medicines. Its registered head office is at Calcutta and its laboratory and factory are at Baranagar in the district of 24 – Perganas in West Bengal. It is registered as a dealer under the Bengal Finance (Sales Tax) Act and its registered number is S.L. 683A. Its products have extensive sales throughout the Union of India and abroad. The goods are dispatched from Calcutta by rail, steamer or air against orders accepted by the appellant company in Calcutta. The appellant company has neither any agent or manager in Bihar nor any office, godown or laboratory in that State. On the 24th October, 1951 the Assistant Superintendent of Commercial Taxes, Bihar wrote a letter to the appellant company which concluded as follows :-
“Necessary action may therefore be taken to get your firm registered under the Bihar Sales Tax Act. Steps may kindly be taken to deposit Bihar Sales Tax dues in any Bihar Treasury at an early date under intimation to this Department”.
The principal question is whether the tax threatened to be levied on the sales made by the appellant company and implemented by delivery in the circumstances and manner mentioned in its petition is leviable by the State of Bihar. This was done by construing article 286 whose interpretation came into question and the meaning granted to it in the case of The State of Bombay v. The United Motors (India) Ltd6 was overruled. It raises a question of construction of article 286 of the Constitution. It was decided that Bihar Sales Tax Act, 1947 in so far as it purports to tax sales or purchases that take place in the course of inter-State trade or commerce, is unconstitutional, illegal and void.
The Act imposes tax on subjects divisible in their nature but does not exclude in express terms subjects exempted by the Constitution. In such a situation the Act need not be declared wholly ultra vires and void. Until Parliament by law provides otherwise, the State of Bihar do forbear and abstain from imposing sales tax on out-of-state dealers in respect of sales or purchases that have taken place in the course of inter-State trade or commerce even though the goods have been delivered as a direct result of such sales or purchases for consumption in Bihar. The State must pay the costs of the appellant in this Court and in the court below. Bhagwati, J. had agreed to the above interpretation.
Advantages and Disadvantages of Mischief Rule
1) The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules.
2) It usually avoids unjust or absurd results in sentencing.
3) Closes loopholes
4) Allows the law to develop and adapt to changing needs example Royal College of Nursing v DHSS
1) It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established.
2) It gives too much power to the unelected judiciary which is argued to be undemocratic.
3) Creates a crime after the event example Smith v Hughes, Elliot v Grey thus infringing the rule of law.
4) Gives judges a law making role infringing the separation of powers and Judges can bring their own views, sense of morality and prejudices to a case example Smith v Hughes, DPP v Bull.
As it can be seen from the case, mischief rule can be applied differently by different judges. It is mainly about the discretion and understanding of the person applying it. Though, it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules. It usually avoids unjust or absurd results in sentencing but it also seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established. It gives too much power to the unelected judiciary which is argued to be undemocratic. In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy.
This is not often the case in modern legal systems. The rule can make the law uncertain, susceptible to the slippery slope. Therefore Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden rule to determine cases. The purposive approach is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (that is, a statute, a part of a statute, or a clause of a constitution) in light of the purpose for which it was enacted.
Fotmatted on 14th March 2019.
[i]  EWHC Exch J36
[ii]  1 WLR 830
[iii]  2 WLR 279
[iv]  1 QB 367
[v]  1 KB 102
[vi]  QB 88
[vii] (1967) p 105
[viii] 1957 AIR 832, 1958 SCR 1
[ix] AIR 1957 SC 628
[x] AIR 1955 SC 661