BANARAS HINDU UNIVERSITY
FACULTY OF LAW
ASSIGNMENT ON LAW OF INTERPRETATION OF
STATUTES
ON
“THE MISCHIEF RULE”
SUBMITTED BY:- SUBMITTED TO:-
NAME: - PRAGYA SRIVASTAVA
CLASS: - [Link].B Vth SEMESTER
ROLL NO.:- 40 REMARKS:-
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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher
Abhishek who gave me the golden opportunity to do this
wonderful project on the topic “The Mischief Rule”, which also
helped in doing a lot of research and I came to know about so many
new things and I am really thankful to them.
Secondly I would also like to thank my parents and friends who
helped me a lot in finalizing this project within the limited time frame.
---Pragya Srivastava
INDEX
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S. NO. CONTENTS PAGE
NO.
1. Introduction
2. Mischief Rule and Purposive Approach
3. Indian Approach
4. Judicial Review vis-à-vis legislative
approach
5. Conclusion
6. Bibliography
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INTRODUCTION
The 1960 case of Smith V Hughes is a landmark case1 where D was a prostitute who had
solicited on a balcony and a window from inside a building at men passing by. They were
charged under Section 1(1) of the Streets Offence Act 1959 for soliciting at a public place.
The issue in the case was whether the balcony and the windows of a privately owned house
should be considered as a ‘street or public place’. The literal interpretation of the provision of
the Act would consider these places as private places. However, the court applied the
mischief rule in this case and the defendants were charged under the Act.
The primary rule used in this case is the ‘mischief rule’ which is established from another
landmark case of Heydon2. In this project, the student will be focusing on the application of
the mischief rule, how the mischief rule became the purposive approach of interpretation and
how it is applied in Indian cases along with the adverse effect it has on the separation of
powers between the Judicial Bench and the Legislature.
MISCHIEF RULE
The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to
discover Parliament's intention3. This was set out in Heydon's Case. It defined the mischief
rule and declared for the true interpretation of a statute by following four points4:
1. What was common law before this Act was made?
2. What was the mischief & defect that the existing law did not provide?
3. What remedy does the Act attempt to provide to cure the defect?
4. What is the true reason underlying the remedy?
This rule gives more discretion to the judges compared to other similar rules such as the
literal rule and the golden rule. This rule effectively allows the judge to decide on the
Parliament’s intent which also takes away the separation of powers between the judiciary and
legislature.
In Smith V Hughes the Judiciary believed that the intention of the purpose of the Act was to
prevent soliciting in public places. If the plain meaning rule 5 had been applied to this case,
1
Here, the case of Smith V Hughes [1960] 1 WLR 830 is the primary case dealt with in this project.
2
The Heydon's Case [1584] EWHC Exch J36 is a landmark case which originated the ‘mischief rule’.
3
According to Farlex’s Dictionary, the definition of the mischief rule is as given. Available online at:
[Link] accessed on 8th August 2014.
4
These were the four steps laid down for the application of mischief rule determined in the Heydon’s Case
[1594] EWHC Exch J36.
5
The ‘Plain Meaning Rule’ is one of the three rules of statute interpretation in English Law. The other two rules
are the ‘Golden Rule’ and the ‘Mischief Rule’.
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then the balcony and the window of the defendants would fall within private purview as the
Section 1(1) of the Act6 which stated that− it should be “an offence to solicitude a prostitute
on the streets or at public places” while the balcony and window could never be considered
to fall under the street or a public place. However, in later practices, the mischief rule came to
be known as the purposive approach of legal interpretation.
PURPOSIVE APPROACH
The purposive approach is also sometimes known as ‘purposive interpretation’ or ‘purposive
construction’. It is mostly referred to as the ‘modern principal of construction’ as it
approaches the statues and constitutions (be it a statute, a part of it or a clause in the
constitution) in order to enlighten their purpose of enactment. Purposive Rule was made in
order to replace the three rules− the mischief rule, the plain reading rule and the golden rule
while rejecting the exclusionary rule. In this form of interpretation, the Court utilizes pre-
enacted legislation such as drafts and committee reports.
The criticism behind this rule is that the separation of powers between the Legislator and the
Judiciary is totally regarded. The role of the Legislator is to make the laws while the
Judiciary’s role is to interpret these laws in cases. However, purposive approach allows the
Judiciary to go beyond the words of the statues create an assumption in which the statue is
applied with what is thought to be the intention of the Legislators. This rule gives the judges
powers to look into extraneous matters and apply the law according to the aid they believe is
required. Parliament intends that an enactment shall remedy a particular mischief and it is
therefore presumed that Parliament intends that the court, when considering, in relation to the
facts of the instant case, which of the opposing constructions of the enactment corresponds to
its legal meaning, should find a construction which applies the remedy provided by it in such
a way as to suppress that mischief7.
The rule of statutory interpretation is simple. All the words and phrases when they are clear
and unambiguous they should be interpreted just the way they have been drafted. There
should be no addition of words as should there be no rejection. If this is not followed then
there could be misleading in the interpretation where the Legislators’ intentions are
completely diverged. Legislative wisdom cannot be replaced by any judge’s view; this is the
6
Here ‘Act’ refers to the Streets Offence Act, 1959.
7
As written in HALSBURY’S LAWS OF ENGLAND , (4th Edn., Vol. 44(1), Law Publishers, Canada 1984) at
paragraph 1474, on page 906-907.
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first rule of interpretation8. As observed by the Supreme Court in somewhat different context:
“When a procedure is prescribed by the Legislature, it is not for the court to substitute a
different one according to its notion of justice . When the Legislature has spoken, the Judges
cannot afford to be wiser.”9 However, this is an exception to the purposive approach. When
the words used in the statutory provision are vague and ambiguous or where the plain and
normal meaning of its words or grammatical construction thereof would lead to confusion,
absurdity, repugnancy with other provisions, the courts may, instead of adopting the plain and
grammatical construction, use the interpretative tools to set right the situation, by adding or
omitting or substituting the words in the Statute 10. This does not mean that the Court will
assume that the Legislature has introduced an absurd or irrational provision. Instead, they will
merely assume that the mistake made is with the draftsmen who has drafted in such a way
that the provision becomes grammatically incorrect or ambiguous, the Court will use the
purposive rule of approach in deriving a meaning to what is intended by the legislation when
drafting such provisions.
According to Maxwell11,
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads
to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience
or absurdity, hardship or injustice, which can hardly have been intended, a construction may be
put upon it which modifies the meaning of the words, and even the structure of the sentence. This
may be done by departing from the rules of grammar, by giving an unusual meaning to
particular words, or by rejecting them altogether, on the ground that the legislature could not
possibly have intended what its words signify, and that the modifications made are mere
corrections of careless language and really give the true meaning. Where the main object and
intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s lack of skills
or ignorance of the law, except in a case of necessity, or the absolute intractability of the
language used.”
8
Ibid.
9
From the article of Rajgat Agarwal ‘INTERPRETATION OF STATUTE- THE PURPOSIVE RULE’ (Legal Service
India, 30 July 2012) available online at [Link]
accessed on 9th August 2014.
10
Ibid.
11
As seen in Peter Benson Maxwell, ‘INTERPRETATION OF STATUTES’ (12th Edn., LexisNexis Butterworths
Publications, Wadhwa Nagpur, August 1969) at page 228.
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INDIAN APPROACH
In India, Supreme Court had in the case of Tirath Singh V. Bachittar Singh12 approved and
adopted the purposive rule of approach. The Bombay High Court in Shamrao V. Parulekar
V. District Magistrate, Thana13, recapitulates from Maxwell:
“If one construction will lead to an absurdity while another will give effect to what
commonsense would show was obviously intended, the construction which would defeat the
ends of the Act must be rejected even if the same words used in the same section, and even the
same sentence, have to be construed differently. Indeed, the law goes so far as to require the
Courts sometimes even to modify the grammatical and ordinary sense of the words if by
doing so absurdity and inconsistency can be avoided.”
The Court has also observed an exception to the rule in Molar Mal V. Kay Iron Works (P)
Ltd14 where it stated that “Exception comes into play when application of literal construction
of the words in the statute leads to absurdity, inconsistency or when it is shown that the legal
context in which the words are used or by reading the statute as a whole, it requires a
different meaning.”15
The Privy Council had also held that the object of the construction of a statute, be it to
ascertain the will of the legislature, it may be presumed that neither injustice nor absurdity
was intended and if, therefore a literal interpretation would produce such a result, and the
language admits of an interpretation which would avoid it, then such an interpretation may be
adopted16.
According to Justice G.P. Singh there are four conditions that should be present to justify
departure from the plain words of the Statute17:
12
In the case of Tirhat Singh V. Bachittar Singh 1955 AIR 830, 1955 SCR (2) 457; where the respondent in an
election petition contended that the allegations in the election petition were vague and wanting in particulars, but
did not call for any particulars which it was open to him to do and was not found to have been misled or in any
way prejudiced in his defense, it was not open to him to contend that the petition was liable to be dismissed for
non-compliance with the provisions of s. 83 of the Representation of People’s Act 1951.
13
As seen in Shamrao V. Parulekar V. District Magistrate, Thana (1952) 54 BOMLR 877; deals with the
detention of the petitioner and the applicability of his detention.
14
In the case of Molar Mal V. Kay Iron Works (P) Ltd (1998) 120 PLR 579; the Court while reiterating that
courts will have to follow the rule of literal construction, which enjoins the court to take the words as used by
the Legislature and to give it the meaning which naturally implies, held that there is an exception to that rule.
15
Ibid.
16
This was decides in the case of Mangin V. Inland Revenue Commission [1971] 1 All ER 179.
17
Seen in Justice G.P Singh, ‘PRINCIPLES OF STATUTORY INTERPRETATION’ (12th Edn., LexisNexis Publications,
Nagpur, 2010) at page 144 from the decision of the House of Lords in Stock v. Frank Jones (Tipton) Ltd. [1978]
1 WLR 231.
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1. There is clear and gross balance of anomaly;
2 Parliament, the legislative promoters and the draftsman could not have envisaged such
anomaly and could not have been prepared to accept it in the interest of a supervening
legislative objective;
3. The anomaly can be obviated without detriment to such a legislative objective; and
4. The language of the statute is susceptible of the modification required to obviate the
anomaly.”
By now, it is well settled that in order to fulfill the purpose of interpretation of a statute such
applications has to be made. In such cases, the principle of purposive construction must be
applied. In the case of Chief Justice of Andhara Pradesh V. L.V.A. Dikshitulu18, the Court
has observed that the primary principle of interpretation is that a Constitutional or statutory
provision should be construed according to ‘the intent of they that made it’ 19. This intent is
normally gathered from the language of the provision. When the language and the phrase
used by the legislation is plain and precise and with a simple reading of the provision the
intention of the legislature can be gathered in equivocal terms, it must be applied in this
manner, without changing anything within the statue when the interpretation of it is done by
the Court, regardless of the consequences that may follow. However, if the words used in the
provision lacks precision, protean or evocative, bears a meaning more than one or has
grammatical error that prevents reaching of the legislative intention, then, in such cases, in
order to ascertain the true meaning and intention behind the phrases used, the Court may have
to go beyond the confinement of the literal interpretation of the phrases and use other well-
recognized rules of construction such as the legislative history behind the Statute and why
such statute was made, throwing light to ever portion and try soughing the purpose and avoid
any other form of interpretation.
The Court has held in the case of Kehar Singh v. State (Delhi Admn.)20, that if the words of
the provisions are ambiguous and uncertain, raising any doubt as to the terms employed, the
Court deems it as their paramount duty to put upon the language of the legislature rational
meaning.21 Then every word will be examined, along with every section and every provision.
18
Referring to the case of Chief Justice of Andhara Pradesh V. L.V.A. Dikshitulu AIR 1979 SC 193; the
Supreme Court gave its judgment under Justice Sarkaria.
19
Ibid.
20
In the case of Kehar Singh V State (Delhi Administration) AIR 1988 SC 1883; which is also known as the
Indhira Gandhi Murder Case.
21
Ibid.
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The Act as a whole will be examined in this context 22. Apart from this, the necessity which
arises with the Act will also be examined, the mischief that the legislature tries to redress, the
whole situation and not just one-to-one relation23. Any provision outside the framework of the
statute will not be taken into consideration and the provisions will not be viewed as abstract
principles separated from the motive force behind 24. The provisions will be taken under the
consideration of the circumstances to which they owe their origin and ensure coherence and
consistency within the laws as a whole to avoid undesirable consequences25.
The Supreme Court had also stated in the case of District Mining Officer v. Tata Iron &
Steel Co , that:
“The legislation is primarily directed to the problems before the legislature based on
information derived from past and present experience. It may also be designed by us of general
words to cover similar problems arising in future. But, from the very nature of things, it is
impossible to anticipate fully in the Varied situations arising in future in which the application
of the legislation in hand may be called for and words chosen to communicate such indefinite
referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to
controversial questions of construction. The process of construction combines both literal and
purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of
an enactment is derived by considering the meaning of the words used in the enactment in the
light of any discernible purpose or object which comprehends the mischief and its remedy to
which the enactment is directed.”
In India, the practice is carried out by preferring an interpretation which harmonizes the objects
over those that dilutes it.
JUDICIAL REVIEW VIS-À-VIS LEGISLATIVE POLICY
The decision made on a policy should not be lightly inferred to but this does not mean that
the appellants can appeal against the Court saying that the Judiciary cannot make such
decisions based on their purview. When the provisions of a Statute are made, it is made in
such a manner that it is not ultra-vires of the Constitutional rights of any other act that has
already been implemented. Likewise, on its interpretation, such precautions are made so as
to avoid the violation of one’s Constitutional rights and the rights bestowed on him
through other Acts. In this manner, the Judiciary takes extra precaution in order to respect
22
Ibid.
23
Ibid.
24
Ibid.
25
Ibid.
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the Legislative intention behind the Acts and interprets it accordingly.
CONCLUSION
Several changes have been made over the method of interpretation of Statutes and
significant effects have been made on our legal system in the context of literal and
purposive approach of interpretation. This has reached as far as the Judiciary powers and
the Legislative powers converging with one another. The Parliament has set many laws
that has more or less told the Judiciary on how to interpret the laws and in return, the
Judiciary has also read words into the legislation which could be considered as what they
believe is the purpose of the Legislature behind the statute. But this can be ways to to
furtherance their own personal policy agenda.
In relation to the mischief rule of interpretation or the purposive approach of
interpretation, what is as sake is ‘the separation of powers between the Judiciary and the
Legislature and the Judiciary bench in respecting the powers conferred to the Legislature
in their law making’. Although such rules of interpretation, to some extent maybe an
advantage, it could very well be misused and bring significant problems in the Legal field
in India.
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BIBLIOGRAPHY
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