Unitedworld School of Law

Mid-Semester Examination Semester: 6 (Batch 2018)

Subject: Interpretation of Statute (IOS)
Enrollment number- 20180401093
Name- Vedant Vyas
Answer Sheet

Ans-1
The truth of the matter is that many words have a variety of meanings, and the only way of
identifying their meaning on a particular occasion is by reference to the context within which
they are used. The first and foremost step in the course of interpretation is to examine the
language and the literal meaning of the statute. The words in an enactment have their own
natural effect and the construction of an act depends on its wording. On the other hand, the
mischief rule is a rule of statutory interpretation that attempts to determine the legislator’s
intention. 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.

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. A principle to be valued must be capable of wider
application than the mischief which gave it existence. These are designed to approach
immortality as nearly as human institutions can approach it’. Mischief Rule is applicable where
the language is capable of more than one meaning. It is the duty of the Court to make such
construction of a statue which shall suppress the mischief and advance the remedy. The mischief
rule of statutory interpretation is the oldest of the rules. The mischief rule was established in
Heydon’s Case.

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 Smith v. Hughes. 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). 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.’

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. Considering what the mischief is 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.

The mischief rule fits best here otherwise the justice will not be delivered.

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.
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.

The scope of the rule in Heydon’s case was explained in Prashar v. Vasantsen 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. That is the
rule in Heydon’s case which was accepted in R.M.D.Chamarbaughwalla v. Union of India.

The main aim of the rule 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. In applying the
Mischief Rule, the court is essentially asking what part of the law, did the law not cover, but was
meant to be rectified by the parliament in passing the bill. The intention of this rule is to make
such an interpretation as shall suppress that mischief and advance the remedy.

This rule of interpretation was laid down in the case of Heydon’s Case, in which it was held four
things are to be considered:-

 What was the common law before the making of the Act?
 What was the mischief and defect for which the common law did not provide?
 What remedy the parliament had resolved and appointed to cure the disease of
commonwealth?
 The true reason of the remedy.

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. It 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 .

Another landmark case that took the mischief rule under consideration was Commissioner of
Income Tax v. Sodra Devi. There existed a partnership firm with Ms. Sodra Devi and her 3
minor sons as partners. It was questioned as to whether the income of the three minor sons was
to be included in her income for the purposes of tax.

It was then held that,The legislature certainly was guilty of using an ambiguous term in enacting
s. 16(3) of the Act as it did. In order to resolve this ambiguity therefore we must of necessity
have resort to the state of the law before the enactment of the provisions; the mischief and defect
for which the law did not provide; the remedy which the legislature resolved and appointed to
cure the defect.

Before the enactment of the sub-section, there was no provision for the inclusion of the income
of a wife or a minor child in the computation of the total income of an individual.

The Apex Court held that individual only meant males on perusal of the statements and objects
of the act as decided by the judiciary, however, it was not possible for the courts to fill the gaps
in a fiscal statute.
The main aim of the rule 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. In applying the
Mischief Rule, the court is essentially asking what part of the law, did the law not cover, but was
meant to be rectified by the parliament in passing the bill. The intention of this rule is to make
such an interpretation as shall suppress that mischief and advance the remedy.
Ans-2
The documentary gives a very detailed idea about what the life of a judge may entail even
though the society expects them to be the perfect, distant, unbiased and indifferent beings in the
business of delivering justice even though they are obviously not. They are still humans with a
fairly normal life even though they may be accused to be closely knit with an elitist social group
the judges seem fairly grounded and belonging to various backgrounds as well.

There were 4 Judges that were involved in the documentary –

1. Lord Philip
2. Lord Hope
3. Lord Kerr
4. Lady Hale

All the judges agree that they are not in the business of delivering justice but in the profession of
interpreting law that is formulated by the parliament and the fairness of such a crucial function of
a democracy can only be ensured by the complete separation of the parliament from the judiciary
which the judges of the documentary seem to be really proud of.

The separation of powers seem to be a major focal point of the documentary which seem to be
more of a reassurance to the public that they are not in cahoots with the politicians or big
organizations which are responsible for making major decisions for the country.

The truth of the fact is that the judges are not there to make law which is an often misunderstood
fact among the common public but they are in there to interpret law which is vastly different.
This fact is only proven further when various cases are discussed in the documentary such as –

1. The case pertaining to the British soldiers – There was a major discourse whether the
actions of the British soldiers shall be covered by their laws considering that they fall
under the scope of the UK’s jurisdiction or should they be treated by the international
human rights laws and the Judges against popular opinion of the parliament and the
public where the verdict given made it clear that the soldiers of UK when overseas shall
abide and when necessary be punished under the International Human Right Laws. This
decision was not a result of the fair consideration of morality but the result of careful
deliberation of different international and national statutes.

2. The case of LGBT refugees seeking asylum – The other major case discussed in the
documentary was related to people of the LGBT community seeking asylum in the UK
and the question was if they should be allowed. Here is where there may have been a
conflict of personal beliefs and what the law states may have occurred especially
considering the background of Lord Kerr who had a very religious background (Catholic
Christian). Despite that conflict the judges allowed the refugees fleeing persecution on
the basis of sexuality to seek asylum in the UK as it was a mandate of the Human Rights
law.
 3. The case of the MP’s exorbitant expenses – When some MPs were found to have
conducted expenses beyond their capacity this issue was raised in the court and they
argued that submitting the expenses were merely parliamentary procedure and they were
protected under preliminary privilege but the court righteously submitted in their verdict
that they had full authority over the supervision of unjust expenditure by the MP and the
defense of parliamentary privilege was denied.

4. The pre-nuptial agreements case – In this discourse a couple seeking divorce filed a case
in the court where the spouse was belonging to a super wealthy family and the groom
wanted monetary compensation. In this case Lady Hale wished to give the verdict in the
favor of the groom arguing that it is generally the woman in the relationship who stands
to be at a considerable disadvantage thus a precedent must be made and there was a
different argument over if the pre-nuptial agreement shall be considered to be a legally
binding document as there is no law stating it to be a binding document but the rest of the
judges decided in the favor of the spouse arguing that they were consenting adults who
had made the agreement on their own accord void of any misplay.

5. The case regarding overdraft charges of the bank – this is a case where the interest of the
judge as a private citizen was at a conflict with the law. When the media and the public
were arguing about the existence of overdraft charges by the bank the main issue on the
hands of the judges was whether the OFT should be allowed to regulate or supervise the
overdraft charges and the law doesn’t allow such thing and the judges had to place their
verdict accordingly even though they themselves and the public thought otherwise.

6. The control orders passed by the parliament to curb terrorism – after a series of terrorist
attacks on the UK the parliament sought to pass control charges that put the suspects
under house arrest without chance of a fair trial for an unspecified period of time and
such a law was completely against human rights and when this case reached the court, the
court struck it down completely saying it was against human rights then a similar law
reemerged in front of the court with the change that the suspect will be displaced away
from his original home which was once again a blatant violation of human rights which
was once again struck down by the court.

This entire documentary shows how the judges are forced to be detached from emotions and
their personal morals and sometimes also have to overlook the public good to provide a proper
interpretation of law.

Emotion is a fundamental aspect of human existence. In normal, healthy people, feelings about
options exert a powerful influence on choice. Intuition and anecdote suggest that people react
more positively toward others whom they like or for whom they feel sympathy than toward
others whom they dislike or for whom they feel disgust. Empirical research in the field of
psychology confirms that impression. Experiments also show that this effect extends to legal
contexts, revealing that emotional reactions to litigants influence the decisions of mock jurors in
hypothetical civil and criminal cases. This Article explores the question whether feelings about
litigants also influence judges’ decisions. Unlike jurors, judges are expected to put their
emotional reactions to litigants aside.

Clear separation between parliament and Supreme Court vital truth is,
“Those who make the law should be answerable to Law.”

There has to be somebody who decides whether you are complying with what you have
signed or not for this Independence Judiciary is the best to do it.
Ans-3

One of the major functions of a judge is to interpret the law so that it can be effectively applied
to a fact situation before him.

Salmond describes interpretation or construction as the process by which courts seek to ascertain
the meaning of the legislature through the medium of authoritative forms in which it is
expressed. According to Gray, the process by which a judge (or indeed any person, lawyer or
layman, who has occasion to search for the meaning of a statute) constructs from the words of a
statute-book, a meaning which he either believes to be that of the legislature, or which he
proposes to attribute to it, is called ‘interpretation’ . According to Allen, the operation of a statute
is not automatic, and can never be so. Like all legal rules, it has to operate through application -
in other words, through the interpretation of the courts.

The main task of the judge would, therefore, be to discover the true meaning of the words used
by the legislature, and its intention in the enactment, since it is presumed to have expressed its
will in the words of the enactment.

The English courts developed a number of principles which are of immense help in the
construction and interpretation of statutes, which have become hallowed, not by prescription, but
by usage over centuries. Maxwell on the Interpretation of Statutes has come to occupy the centre
stage in this field symbolising the canons of interpretation evolved by the English courts over
several centuries.

The purpose of this paper is to critically examine if an indigenous alternative can be posited for
the principles of interpretation of statutes symbolised by Maxwell. One such alternative system
of interpretation prevalent in India is the mimamsa system fine-crafted by the Indian thinkers
over millennia. Lately, there have been attempts in judicial essays and treatises to project this
system as a credible and viable alternative.

Thus, it becomes necessary to examine as to how far the principles of mimamsa could supplant
or supplement the canons of construction presently adopted by the Indian courts as compared to
the Maxwellian system. Here it is necessary to make a brief survey to highlight the broad
thinking of the Indian systems of knowledge.

TheMimangsa/Mimansa

“Mimangsa” (or Mimansa) is a scripture related to Hindu Religion and is considered the most
important tool for the interpretation of other Hindu Scriptures. The meaning of Mimangsa refers
to the act of taking serious concern over the religious matters stated in the Vedas. It provides
particular methods for interpreting the matters stated in the scriptures like ‘Vedas’, ‘Smirities’
etc. In the course of interpretation, there can be found many methods of interpretation given by
Manu, Yagyabalkya, Narad, Vyas, Bhrihaspati and others but no concrete method of
interpretation is given by them as given by Jaimini in Mimangsa. The Mimansa Principles were
the traditional system of interpretation of legal texts. Although originally they were created for
interpreting religious texts [pertaining to the Yagya sacrifice], gradually they came to be utilized
for interpreting legal texts and also for interpreting texts on philosophy, grammar, etc. i.e. they
became of universal application. Thus, Shankaracharya has used the Mimansa adhikaranas in his
bhashya on the Vedanta sutras. There were hundreds of books [all in Sanskrit] written on the
subject, though only a few dozens have survived the ravages of time. 
Mimangsa is divided into two parts the first one is the Eastern Mimansa (Purvi Mimangsa)
which is propounded by Jaimini while the other is the Northern Mimansa (Uttar Mimansa or
Vrahma Mimangsa). The Purvi Mimangsa is decides about the proper intrepretation rules of the
Karmakandaparak Mantras and Vedas while the Uttar Mimangsa (also known as Vedanta
(j]bfGt)) consists of the situation of the eternity. In the course of interpretation, the Purvi
Mimangsa is the main reference. 

Rule for interpretation under Mimangsa

The Rules of Interpretation under Mimangsa can be classified into following five categories: 
a. Primary Rules of Interpretation
The primary rules of interpretation is classified into following categories:
i. Sarthakya
It states that every word that is stated in the scriptures consists of meaning and there is no world
which is used there without meaning. 

ii. Laghav

This rule indicates that in the case a single rule is generated from a particular text or word, other
interpretation giving different interpretation should not be resolved. 

iii. Arthekatwo
This rule signifies that the single word or the sentence used must be given single meaning and
should not be given different meanings. 

iv. Gunapradhan
It states that whenever a word denoting the secondary thought stands contrary to the primary
thought, the word should either be corrected as per the primary thought or should be left. 

v. Samanjasya

It states that the possible coalition between the word and sentence of the particular text should be
used as per the spirit of the text itself. The contrary coalition of the words and sentence should
not be used. 

vi. Bikalpa
It states that whenever there arises controversy between two texts exists, any one text should be
adopted as an alternative. 

b. Basic Principles of Interpretation

The basic principles of interpretation also consists of following categories:
i. Shruti
It refers that the words should be taken in their simplest meaning. 
ii. Wachan
Wachan indicates that if there arises any conflict regarding the resolving meaning of the word in
terms of tense, the interpretation should be made looking at the tense used in remaining texts or
words. In this regard, Maxwell has also given similar kind of rule of interpretation that the
interpretation of particular text should be done in accordance to other texts as well. No
interpretation of the tenses contrary to the Vedic Wachan is permitted under Mimangsa.
However, a general rule under this principle has been propounded that says that the word
denoting singular thing also denotes the plural things.

iii. Linga
This rule states that in the condition where a word cannot stand on its ordinary meaning, then the
technical meaning of that word should be resolved. For example, the word denoting the
masculine gender also refers to the feminine gender.

iv. Wakya
This rule states that whenever a word or a sentence in the text does not give clear meaning, then
the composition of such sentence or word should be taken into concern and the possible relevant
meaning should be resolved.

v. Prakaran
When the words or the sentence of text fails to give concrete meaning, the meaning of those
words of sentences should be resolved with the context of the text. 

c. General Rules regarding the application of texts

These rules are also divided into four categories:

i. The principle of conceptualizing the texts of compulsive, quasi-compulsive and non-

compulsive nature 
the following five groups are divided under this rule:
a. Kanoon/ Bidhi
It defines law as a command which is positive in nature, possesses meaning and has meaningful
objective. 

b. Nisedh
It refers to such a law which is mandatory in nature. It consists such provisions which denote
“not to be done”. Thus all the texts of Smiritis which signify the works which should not be
done, falls under this category. 

c. Arthavadh and Naamdhaya

They are not mandatory in nature. It is used only in the course of helping the interpretation and
clarification of law. 

d. Mantra
Mantra is considered as the formula. It is sometimes mandatory in nature and sometimes not-
mandatory in depending upon the situation.

ii. Adhikar Bidhi

Adhikar Bidhi states to whom the law applies to. It directs towards the ownership of result of any
action of someone. 
iii. Uha Bichar
The general meaning of Uha Bichar becomes ‘Arguments.’

iv. Badh
Badh is such a principle of interpretation which talks about the exclusion of some things which
are contrary. This principle helps to coordinate conflict of texts. It says that if two unusual
procedures are such that one is former while the other is latter, the latter would prevail. 

e. Principles having special relation with the interpretation of texts and customs
According to this rule, Smirities are superior than Shrutis but the customs are superior than
Smirities. Such customs can also be denied under undesirable condition. In the situation the two
customs contradict to each other, the customs which is supported by the Sasthras are followed. 

f. Formula or Justice

This rule is applied in special matters. There are many such formulae in Mimangsa. The

formulae on “ रात्रीसूत्र न्याय ” resembles with the modern rules of interpretation of statute. 

Applicability of Mimangsa Rules of Interpretation

The application of Mimangsa Rules of Interpretation although is primarily focused with the
interpretation of many Hindu Scriptures like Vedas, Smirities, Shrutis etc, its application in
modern times also cannot be ignored. 
There are two reasons for the application of Mimansa principles to law : (1) The Mimansa Rules
deal with the Brahmana portions of the shruti, i.e., the portion which laid down injunctions, and
the law, too, being largely in the form of injunctions was attracted to them; (2) Mimansa is a
practical subject, and the law, too, being practical was inclined to incorporate them. The great
commentators like Vijnaneshwara (author of the Mitakshara), Jimutvahana (author of the
Dayabhaga), Nanda Pandit (author of Dattak Mimansa), Vachaspati, Neelkanth, etc., were all
profound scholars of Mimansa, and they regularly used the Mimansa Principles when confronted
with any difficulty regarding interpretation of the Smrities (which contained the law in those
times).

Talking about the application of Mimangsa Rules of Interpretation in the interpretation of the
statutes and laws of Nepal, it is not found so much used. But in the context of India, the use of
Mimangsa Rules of Interpretation has been used for exploring the meaning of the legal
provisions.
Vijay Narayan Thatte & ors. Vs. State of Maharashtra & ors

Introduction :

“It is deeply regrettable that in our Courts of law, lawyers quote Maxwell and Craies but nobody
refers to The Mimansa Principles of Interpretation”- These words are mentioned in Para 7 in
Vijay Narayan Thatte & ors. Vs. State of Maharashtra & ors. ( 2009(3) G.L.H. 221 S.C.) on 18th
August 2009 by Supreme Court of India. The fact of the case is that a notification under section
4 of the Land Acquisition Act, 1894 was issued in respect of the land of question on 29/8/2002.
Then a notification under sec.6 of the Act was issued on 18/6/2003. But the Notification under
sec.6 was challenged by a writ and it was allowed on 20/1/2004 and the Notification under sec.6
of the Act dated 18/06/2003 was quashed. Then a second Notification under sec.6 dated
30/10/2006 was issued by the State Government. And hence, the question was arisen whether the
second Notification can be issued after the expiry of one year from the date of publication of the
Notification or not?

The Mimansa Rules of Interpretation :

The Mimansa Rules of Interpretation has been taught to us in this case. And it begins from Para
7 of the case. Shri K.L.Sarkar’s MIMANSA RULES OF INTERPRETATION is a collection of
Tagore Law Lectures delivered in 1905. The Mimansa Rules of Interpretation has been laid
down by H’ble LORD JAIMINI. In our ancient Hindu Rules, whenever there was any conflict
between two smritis, e.g.Manusmriti and Yajnavalkya Smriti, or ambiguity in any smriti, these
principles were utilized. Formerly and originally, they were created for interpreting religious
texts pertaining to YAGNA, but thereafter they came to be utilized for interpreting legal texts
also. These Rules have been in our country for over 2500 years. While Maxwell’s book was
published in 1875.

Maxims used in this case :

One is not to eat KALANJAM or fermented\stale food. ( Para 10 & 16)

Dura Lex Sed Lex means THE LAW IS HARD BUT IT IS THE LAW. (Para 19)

When there is a conflict between the law and equity it is the law which must prevail(Para 19)
Application of the rules:

There are two kinds of prohibitions under the ancient theory. (1) Prohibitions against the whole
world means PRATISHEDHA (2) Prohibitions against particular persons only means
PARYUDASA. Judgements or rights in rem = PRATISHEDHA , Judgements or rights in
persona = PARYUDASA. Pratishedhas are divided into two sub-clauses, (1) Without any
exception (2) With some exception. Pratishedhas is also of two kinds, with some exceptions and
without any exceptions. And there are four classes of negative clauses in the Paryudasa. In the
Mimansa system illustrations of many Principles of interpretation are given in the form of
maxims (nyayas). The negative injunction is illustrated by the KALANJA NYAYA OR
KALANJA MAXIM. So the concept and concepts of Mimansa Jurisprudence has been
expounded by our H’ble Jurists in this case.

NA KALANJAM BHAKSHAYET :

Na Kalanjam Bhakshayet is known as the Kalanja Maxim. It states that a general condemnatory
text is to be understood not only as prohibiting an act, but also the tendency, including the
intention and attempt to do it. It is thus mandatory. By this way at Para 15 it has been
promulgated that the proviso to section 6 of the Land Acquisition Act shows that it is a general
( without any exceptions) prohibition against the whole world and not against a particular person.
Hence, the Kalanja Maxim of the Mimansa rules applies to sec.6. of the Land Acquisition Act.
Hence, the Second Notification had been declared as void and the appeal was allowed in the
case.

Conclusion:

I think we have to go back to that century to understand the maxim. At that time in India, Hindu
religion prevailed. All the kings had to follow smritis. And there were some differences between
one smriti and other smriti. At that time to make solution, Mimansa rules of Interpretation were
the true silver line for the learned Jurists of that time. So it was accepted by the Courts of Hindu
Kings and hence any follower of Austin theory can say that it had the sovereign power and it was
a set of promulgated rules. In ignorance of this rule would be resulted into loss of the case or
misinterpretation of the rule could be resulted into injustice to the party. Hence, it can be
accepted by the follower of the theory of Austin or Bentham. There may be some questions
regarding the theory of Hart. Whether the Kalanja Maxim is Preliminary rule or Secondary Rule
as per the theory of Prof. Hart? To me, it must be secondary rule. Had it been a preliminary rule,
it would not be mentioned in 2009 by these H’ble Jurists of our H’ble Supreme Court. That is
why I believe it to be the secondary rules as per the theory of Prof. Hart.

It means the Mimansa rules of Interpretation were the GENERAL CLAUSES ACT of that era.

So I think and believe that the different way of interpretation taken by H’ble Markandey Katju
And H’ble Asok Kumar Ganguly in this case are truly appreciated because they have opened a
new door of research and method of interpretation in India. It can be treated as the gift to the
research fellow in 21st century by these H’ble Judges. We cannot ignore the feedback presented
by the H’ble Lawyers of this case. The Kalanja Maxim can be used to understand the mandatory
provisions. It has been four years of this judgment. Though we can hope that the new method of
interpretation will be proved more useful than those of present Western styles. And the days are
not far when such types of method would be part of our syllabus of legal education.