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INERPRETATION OF STATUTES

THE MISCHIEF RULE OF INTERPRETATION

SUBMITTED BY: SUBMITTED TO:

Prarthana Duggal Ms. Tamanpreet
5th semester
Ba.llb (Hons)
94/14
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TABLE OF CONTENTS

I. Table of cases...................................................................03
II. Introduction......................................................................04
III. Case laws..........................................................................11
IV. Conclusion........................................................................16
V. Bibliography......................................................................18

TABLE OF CASES
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Smith v. Hughes 11
Royal College of Nursing v DHSS .12
Elliot v Grey[iv].........................................................................12
Corkery v Carpenter ..12
DPP v Bull..13
Sodra Devi v. Commr. Of Income Tax .14
Allen v. Thorn Electrical Industries............................................07

INTRODUCTION
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The supreme judicial system has been set up in all countries to ensure the
provision of justice to all and this can only be ensured by proper interpretation of
the statutes. For the same purpose the Canons of Interpretation have been
expounded. These Canons are those rules which have been evolved by the
judiciary for aiding courts in their process of interpretation.

Salmond defines it as the process by which the Courts seek to ascertain the
meaning of the Legislature through the medium of authoritative forms in which it
is expressed.

Words spoken or written are the means of communication. A distorted

communication leads to distorted results. a word spoken or written can mean two
different things at the same time. To avoid this confusion in our daily activities we
have ample if time to get the meaning verified when two or more people are sitting
face to face. However, in the legal world, where all the organs of the government
play different roles that are clearly demarcated. That is when the actual issue of
multiplicity of meanings of words is realised.

The legislature enacts laws and the judiciary interprets. However, it is also not
possible for the legislature to foresee all the circumstances and formulate the law
accordingly, that is when the actual skill of the judiciary comes into question.

The problem which mostly arises is that the judiciary have to give meaning of the
laws keeping in mind the legislative intent and also providing justice to the society,
individual and the accused.
The judiciary cannot excuse itself by saying that it does not know the meaning of
the law and nor can it give a distorted version of it.
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This is when we realise the need for interpretation.

WHY INTERPRETATION?

In his The Law-Making Process, Michael Zander gives three reasons why statutory
interpretation is necessary:

1. Complexity of statutes in regards to the nature of the subject, numerous

draftsmen and the blend of legal and technical language can result in incoherence,
vague and ambiguous language.

2. Anticipation of future events leads to the use of indeterminate terms.

The impossible task of anticipating every possible scenario also leads to the use of
indeterminate language. Judges therefore have to interpret statutes because of the
gaps in law. Examples of indeterminate language include words such as
reasonable. In this case the courts are responsible for determining what
constitutes the word reasonable.

3. The multifaceted nature of language.

Language, words and phrases are an imprecise form of communication. Words can
have multiple definitions and meanings. Each party in court will utilize the
definition and meaning of the language most advantageous to their particular need.
It is up to the courts to decide the most correct use of the language employed.

General Rules of Interpretation, Internal Aids to Interpretation, and External Aids

to Interpretation, Literal Rule, Golden Rule, Mischief Rule, Subsidiary Rules and
Harmonious Construction are some of the most important rules.
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THE MISCHIEF RULE OF INTERPRETATION

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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 Popes 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 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?

Statutes, have asked themselves whether their journey was really necessary? To
these questions Humes 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, by giving 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.
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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

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 Heydons 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 courts
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 Heydons 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 Heydons 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 Heydons 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 courts role is to suppress the mischief the Act is aimed at and
advance the remedy.

Mischief Rule
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This is a very important rule as far as the Interpretation of Statute is concerned. It

is often referred to as the rule in Heydons 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 by Lord 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 the 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[1982] 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 behaviour 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.
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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[1975] 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 Courts 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 Parliaments intention and to give the judge more
discretion than any other rule as it allows him to effectively decide on Parliaments
intent. But at the same time It can be argued that this undermines Parliaments
supremacy and is undemocratic as it takes law-making decisions away from the
legislature. Theres 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
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reports, white papers, etc. The purposive interpretation involves a rejection of

the exclusionary rule.

CASE LAWS
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 810 feet above street
level). The defendants 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
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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 defendants 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]
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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 offence under s.1(1) of the Street Offences Act 1959
which makes it an offence 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 behaviour 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 offence. 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.
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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 Heydons 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 legislators 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
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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 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

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Advantages:

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

Disadvantages:

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.

CONCLUSION
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
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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.

[i] [1854] EWHC Exch J36

[ii] [1960] 1 WLR 830

[iii] [1981] 2 WLR 279

[iv] [1960] 1 QB 367

[v] [1951] 1 KB 102

[vi] [1995] QB 88

[vii] (1967) p 105

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BIBLIOGRPHY

Prof. T. Bhattacharya, Interpretation of Statutes, Ninth edition, Central Law

Agency, Allahabad.
D N Mathur, Interpretation of Statutes.