MISCHIEF RULE OF LAW IN THE EYES OF

INDIAN JUDICIARY

[This Final draft is submitted in the partial fulfillment of the requirement for the
award of degree B.A. LL.B (Hons.) for the course of Interpretation of Statutes
and Principles of Legislation for Academic Session 2021-22]

Submitted by:
Ram Kumar, B.A., LL.B. (Hons.) (1961)

Submitted to:
Dr. Father Peter Ladis F.
Professor, Interpretation of
Statutes and Principles of Legislation

AUGUST 2021
 DECLARATION BY THE CANDIDATE

I, hereby, declare that the work reported in the B.A., LL.B. (Hons.) Project Report titled
“MISCHIEF RULE OF LAW IN THE EYES OF INDIAN JUDICIARY” submitted at
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of my
work carried out under the supervisions of Dr. Father Peter Ladis F.. I have not submitted this
work elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

(Signature of the Candidate)

Ram Kumar (1961)

4th Year, B.A., LL.B. (Hons.)

SEMESTER – Seventh

CNLU, Patna

Dated: 31.08.2021

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 ACKNOWLEDGEMENT

I would like to show my gratitude towards my guides Dr. Father Peter Ladis F., Faculty of,
Interpretation of Statutes and Principles of Legislation under whose guidance, I structured my
project.

I owe the present accomplishment of my project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldn’t have
completed it in the present way.

I would also like to extend my gratitude to my friends and all those unseen hands that helped
me out at every stage of my project.

THANK YOU.

RAM KUMAR

SEMESTER – Seventh

CNLU, PATNA

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Table of Contents
DECLARATION BY THE CANDIDATE.............................................................................2
ACKNOWLEDGEMENT..........................................................................................................3
Table of Contents........................................................................................................................4
Table of Cases.............................................................................................................................5
1. INTRODUCTION...............................................................................................................7
1.1 AIMS AND OBJECTIVES...............................................................................................8
1.2 HYPOTHESIS...................................................................................................................8
1.3 RESEARCH QUESTIONS...............................................................................................8
1.4 RESEARCH METHODOLOGY......................................................................................8
A. SOURCES OF DATA COLLECTION......................................................................9
B. METHODS OF DATA COLLECTION.....................................................................9
C. LIMITATIONS...........................................................................................................9
2. COPYRIGHT LAW IN INDIA.........................................................................................10
3. FAIR USE DOCTRINE: AN EXCEPTION TO INFRINGEMENT................................12
4. POSITION WORLDWIDE...............................................................................................13
Position in US........................................................................................................................13
Position in UK.......................................................................................................................13
Position in Australia..............................................................................................................14
5. INDIAN PERSPECTIVE OF FAIR DEALING...............................................................16
6. RAISON D’ETRE.............................................................................................................18
7. JUDICIAL TREATMENT OF FAIR DEALING.............................................................20
8. CONCLUSION..................................................................................................................26
Bibliography.............................................................................................................................28

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 Table of Cases

S.n Case Name Citation Pg.

o. No.
1. Academy of General Edu, Manipal and 2009(2) SCALE 310 Para 20 15
Anr v. B Malini Mallya
2. Barbara Taylor Bradford v. Sahara Media 2004 (28) PTC 474 (Cal) 21
Entertainment Ltd Para 56
3. Blackwood and Sons Ltd and Others v. AIR 1959 Mad 410 Para 84 15
AN Parasuraman and Ors.
4. CCH Canadian Ltd v. law Society of (2004)1S.C.R.339.2004SCC 14
Upper Canada 13
5. Civic Chandran v. Ammini Amma 1996 PTR 142 15
6. Eastern Book Company v. DB Modak AIR 2008 SC 809 Para 38 13
7. E M Forster and Anr v. A N Parasuram AIR 1964 Mad 331 Para 14 17
8. Folsom v. Marsh 9 F Cas 342 21
9. McMillan v. Khan Bahadur Shamsul ulma (1895) ILR Bom 557 12
Zaka
10. SK Dutt v. Law Book Co and Ors AIR 1954 All 570 Para 45 15
11. Super cassette Industries v. Nirulas Corner 148(2008) DLT 487 Para 20 16
House (P) Ltd
12. The Chancellor Masters and Scholars of 2008 (38) PTC 385(Del) Para 14,
the University of Oxford v. Narendra 33 16
Publishing House and Ors
13. Wiley Eastern Ltd and Ors v. Indian 61 (1996) DLT 281 Para 19 14
Institute of Management

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ur, revenue taxation and administration branches of law. In Free Lanka Insurance Co. Ltd. v.
Ranasinghe. (1964) AC 541 a Statute made it felony 'to break from prison". Held it would not
apply to a prisoner who escaped while the prison was on fire. Since his act was, not to recover
liberty, but to save his life. Similarly a statute which made 'an act' criminal in unqualified
terms was understood as not applying where the act done was excusable or justifiable on
grounds generally recognized by law.
In Luke v. R.R.C1 , Lord Reid said: "An intention to produce unreasonable result is not to be
imputed a statute if there is some other construction available. Where to apply words literally
would defeat the "obvious intention of the legislation and produce a wholly unreasonable
result" we must do some violence to the words and so achieve that obvious intention and
produce a rational construction. Though our standard of drafting is such that it rarely emerges,
but a problem may arise where more than one meaning arc available
through the words of the statute, that meaning should be chosen which is reasonable and
rational." In R. v. London Justices2, section 105 of the Highways Act, 1835 gave an appeal to
'any person' who though himself aggrieved by any order, conviction, judgment or
determination of a justice under the Act. This was held not to apply to 'an informant who
complained of an acquittal' on a charge of obstructing of highway, for if it did, the person
acquitted would be liable to be twice vexed for the same offence.

In Day v. Simpson3, it was held that the Theatres Act, 1843, which prohibited under a penalty
the performance of plays without license, would extend to a performance where the players
did not come on the stage, but acted m a chamber below it, their fingers being reflected by
mirrors so as to appear to the spectators to be on the stage. To carryout effectually the object
of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an
indirect or circuitous manner that which it has prohibited or enjoined. This manner of
construction has two aspects; one is that the courts, mindful of the Mischief Rule will not be
astute to narrow the language of a statute so as to allow persons within its purview to escape
its net. The other is that the statute may be applied to the substance rather than the mere form
of transactions, thus defeating any shifts and contrivances, which parties may have devised in
the hope of thereby falling outside the Act. When the courts find an attempt at concealment,
they will, "brush away the cobweb varnish, and shrew the transactions in their true light.
Thus, in the name of justice or beneficial construction, the language of a statute cannot be

1
(1963) AC 557
2
(1890) 25 QBD 357
3
(1885) 34 LJMC 149

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narrowed down so as to permit one to escape from the purview of law. However, where the
language itself is evasive and ambiguous, modification of it is permissible.4
In Inland Revenue Commissioner v. J.B. Hodge & Co. (Glasgow) Ltd., (1961) 1 WLR 92
held; "Where possible, a construction should be adopted which will facilitate the smooth
working of the scheme of legislation established by the Act, which will avoid producing or
prolonging artificiality in the law and which will not produce anomalous results. Where two
possible constructions present, the more reasonable one is to be chosen. In Gill v. Donald
Humberstone & Co. Ltd., (1963) 1 WLR 929 per Lord Reid: 'Beneficial laws are addressed to
practical people, and ought to be construed in the light of practical consideration, rather than a
meticulous comparison of the language of their various provisions. If the language is capable
of more than one interpretation, we ought to discard the more natural meaning if it leads to an
unreasonable result, and adopt that interpretation which leads to a reasonably practical result."

Indian Cases

In India there are several good examples where the Supreme Court or High Courts have
applied the Golden Construction of Statutes. Certain confusion one may face when it appears
that even for literal rule, this rule is named. As golden rule initially starts with the search of
literal meaning of the provision, and if there is unequivocal meaning, plain and natural and no
repugnancy, uncertainty of absurdity appears, apply the meaning. But when there is
possibility of more than one meaning, we have to go further to avoid the inconvenience by
even modifying the language by addition, rejection or substitution of words so as to make
meaning accurate expounding of intention of the legislature.5

In Uttar Pradesh Bhoodan Yagna Samiti v. Brij Kishore 6, the Supreme Court held that the
expression "landless person" used in section 14 of U.P. Bhoodan Yagna Act, 1953 which
made provision for grant of land to landless persons, was limited to "landless laborers". A
landless labour is he who is engaged in agriculture but having no agricultural land. The Court
further said that "any landless person" did not include a landless businessman residing in a
city. The object of the Act was to implement the Bhoodan movement, which aimed at
distribution of land to landless labourers who were verged in agriculture. A businessman,
though landless cannot claim the benefit of the Act.
4
Brazier v. Skipton Rock Co. Ltd. (1962) 1 WLR 1839.
5
Kafaltiya A.B.,Interpretatation of Statutes, Universal Law Publishing, 2008 ,pp 52
6
AIR 1981 SC 1656

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In Lee v. Knapp,7 section 77(1) of the Road Traffic Act, 1960 provided that "a driver causing
accident shall stop after the accident", the interpretation of the word “stop" was in question. In
this case, the driver of the motor vehicle stopped for a moment after causing an accident and
then ran away. Applying the golden rule the court held that the driver had not fulfilled the
requirement of the section, as he had not stopped for a reasonable period so as to enable
interested persons to make necessary inquires from him about the accident at the spot of
accident

In Ramji Missar v. State of Bihar8 in construing section 6 of the Probation of

Offenders Act, 1958, the Supreme Court laid down that the crucial date on which the age of
the offender had to be determined is not the date of offence, but the date on which the
sentence is pronounced by the trial court An accused who on the date of offence was below 21
years of age but on the date on which the judgment pronounced, if he was above 21 years, he
is not entitled to the benefit of the statute. This conclusion reached having regard to the object
of the Act. The object of the Statute is to prevent the turning of the youthful offenders into
criminals by their association with the hardened criminals of mature age within the walls of
the prison. An accused below 21 years is entitled to the benefit of the Act by sending him
under the supervision of the probation officer instead of jail.

In Narendra Kiadivalapa v. Manikrao Patil,9 section 23 of the Representation

of People Act, 1951, which permitted inclusion of the name in the electoral roll "till the last
date for nomination" for an election in the concerned constituency, has been construed.
Section 33(1) of the R.P. Act, 1951 specifies that the nomination papers shall be presented
between the hours of 11'O clock in the fore noon and 3'0 clock in the after noon. Reading
these provisions together in the light of the object behind them, the Supreme Court construed
the words "last date" in section 23 as "last hour of the last date" of nomination under section
33(1) of the Act.

In Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax, U P., 10 Sales

Tax was fixed at two per cent, of the turnover in the case of "cooked food" under section 3A
7
(1966) 3 AH ER 961.
8
AIR 1963 SC 1088: (1963) Supp 2 SCR 745
9
AIR 1977 SC 2171
10
AIR 1981 SC 1656

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of the U.P. Sales Tax Act, 1948. The appellant firm engaged in the business of biscuit
manufacture and sale. Whether biscuits though intended for human consumption, can be
construed as "cooked food" and liable to be taxed as per the notification issued under the said
provision. Held that if an expression is capable of a wider meaning, the question whether the
wider or narrower meaning should be accepted depends on the context of the statute. Here
biscuit was not covered within the words 'cooked food'. However, where the precise words
used are plain and unambiguous the court is bound to construe them in their ordinary sense
and not to limit plain words in an Act of Parliament by consideration of policy which has to
decided not by court but by Parliament itself.
In Tirath Singh v. Bachitter Singh11 the appellant argued that it was obligatory under
Section 99 (1) (a) of the Representation of the Peoples Act, 1951 for the tribunal to record
names of all persons who had been guilty of corrupt practices including parties and non-
parties to the petition and that under the proviso, notice should be given to all persons named
under Section 99(1)(a)(ii) He being a party to the petition was, therefore, entitled to a fresh
notice. Supreme Court said that such an interpretation will lead to an absurdity and held that
the proviso along with clause (b) thereto and the setting of the section pointed out that notice
is contemplated only against non- parties to the petition.

Difficulties in the Application of Golden Rule

Lord Moulten in Vacher & Sons v. London Society of Compositor 12 had explained the
reasons for adopting caution before application of the golden rule of construction in these
words: "There is a danger that it may generate into a mere judicial criticism of the propriety of
the Acts of legislature. We have to interpret statutes according to the language used therein,
and though occasionally the respective consequences of two rival interpretations may guide us
in our choice in between them, it can only be where, taking the Act as a whole and viewing it
in connection with the existing state of law at the time of the passing of the Act, we can
satisfy ourselves that the words cannot have been used in the sense the argument points. "It
may sometimes happen that laws made for the benefit of public at large may come in conflict
of some individual interest or take away his legal right and cause injustice to him. That is to
say, like public policy, absurdity, uncertainty or repugnance, are very unruly horses.

11
AIR 1955 SC 850
12
 [1912] UKHL 3; (1913) AC 107

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 In State Bank of India v. Shri N. Sundara Money 13, the Supreme Court said that "it is the
duty of all courts of justice, to take care for the general good of the community, that hard
cases do not make bad law. Referring earlier cases the court observed that absurdity should be
understood in the same sense as repugnance that is to say something which would be as
absurd with reference to the other words of the statute as to amount to repugnance
Grundi v. Great Boulder Proprietary Cold Mines Ltd., 14 Lord Greene M.R. said, "Although
absurdity or non-absurdity of one conclusion as capered with another may be and very often
is, of assistance to the court in choosing between two possible meanings of ambiguous words.
The Golden Rule of Construction is a doctrine, which must be applied with great care,
remembering that judges may be fallible in this question of absurdity and in any event it must
not be applied so as to result in twisting language into a meaning, which it cannot bear. It is a
doctrine which must not be used to re-write the language in a way different from that in which
it was originally framed."
Criticism of Golden Rule
The Golden Approach can be criticized:
The United Kingdom Law Commissions commented in their report that:
“There is a tendency in our systems, less evident in some recent decisions of the courts but
still perceptible, to over emphasise the literal meaning of a provision (i.e. the meaning in the
light of its immediate and obvious context) at the expense of the meaning to be derived from
other possible contexts; the latter include the ‘mischief’ or general legislative purpose, as well
as any international obligation of the United Kingdom, which underlie the provision”.15
They also stated that to place undue emphasis on the literal meaning of words is to “assume
an unattainable perfection in draftsmanship”16 This was written in 1969 and in the light of
more recent judicial developments,17 it seems that the courts have shifted somewhat from the
literal approach. Zander18 contends that:“The main principles of statutory interpretation-the
literal rule, the golden rule and the mischief rule-are all called rules, but this is plainly a
misnomer(A misnomer is a term that suggests an interpretation known to be untrue). They are
not rules in any ordinary sense of the word since they all point to different solutions to the
same problem. Nor is there any indication, either in the so-called rules or elsewhere, as to

13
[1976] 3 S.C.R. 160
14
1948 1 All ER 21
15
“The Interpretation of Statutes”, (Law Com No 21) (Scot Law Com No 11), Report No 21, paragraph 80
(1969).
16
Ibid ,at para 30
17
Pepper v Hart [1992] 3 WLR 1032.
18
. The Law Making Process (2nd edition, 1985), 129 (http://lawaids.blogspot.com/2010/05/chapter-10-criticism-
of-golden-rule.html)

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which to apply in any given situation. Each of them may be applied but need not be” Zander,
in his more recent book,19 criticized the golden rule for being silent as to how the court should
proceed if it does find an unacceptable absurdity
1. It suffers from the same difficulties as the literal approach vis lack of wider contextual
understandings of "meanings."
2. The idea of "absurdity" covers only a very few cases. Most cases involve situations where
difficult choices have to be made between several fairly plausible arguments, not situations
where the words lead to obvious absurdities.
3. The use of the "absurdity" safety valve can be very erratic as pointed out by Professor
Willis in his famous article, "Statute Interpretation in a Nutshell" (l938) l6 C.B. Rev.l. Willis
at l3-l4:
What is an 'absurdity'? When is the result of a particular interpretation so 'absurd' that a court
will feel justified in departing from a 'plain meaning'? There is the difficulty. 'Absurdity' is a
concept no less vague and indefinite than plain meaning': you cannot reconcile the cases
upon it. It is infinitely more susceptible to the influence of personal prejudice. The result is
that in ultimate analysis the 'golden rule' does allow a court to make quite openly exceptions
which are based not on the social policy behind the Act, not even on the total effect of the
words used by the legislature, but purely on the social and political views of the men who
happen to be sitting on the case ...
What use do the courts make of the 'golden rule' today? Again the answer is the same - they
use it as a device to achieve a desired result, in this case as a very last resort and only after all
less blatant methods have failed. In those rare cases where the words in question are (a)
narrow and precise, and (b) too 'plain' to be judicially held not plain, and yet to hold them
applicable would shock the court's sense of justice, the court will if it wishes to depart from
their plain meaning, declare that to apply them literally to the facts of this case would result in
an 'absurdity' of which the legislature could not be held guilty, and, invoking the 'golden rule,'
will work out an implied exception. It was defined in Grey v. Pearson “the ordinary sense of
the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may
be modified to avoid the absurdity"

19
The Law Making Process (4th edition, 1994), 130

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Conclusion
The 'Golden rule' could, thus, be explained as follows:—
1. It is the duty of the Court to give effect to the meaning of an Act when the meaning can be
fairly gathered from the words used, that is to say, if one construction would lead to an
absurdity while another will give effect to what common sense would show, as 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.20
2. The Court should not be astute to defeat the provision of the Act whose meaning is, on the
face of it, reasonably plain. Of course, this does not mean that an Act or any part of it can be
recast. It must be possible to spell the meaning contended for, out of the words actually
used.21
3. Unless the words are without meaning or absurd, it would be safe to give words their
natural meaning because the framer is presumed to use the language which conveys the
intention22 and it would not be in accord with any sound principle of construction to refuse to
give effect to the provisions of a statute on the very elusive ground that to give them their
ordinary meaning leads to consequences which are not in accord with the notions of propriety
or justice entertained by the Court. 23

20
See the Speech of Lordship Wensleydab in Grey v. Pearson [1857] 6 H.L.C. 61
21
Shamarac v. Parulkarv. Distt. Magistrate, Thana 1952 SCR 863.
22
Glaxo Laboratories (I) Ltd. v. Presiding Officer AIR 1989 SC 505.
23
State of Rajasthan v. Mrs. Leela Jain AIR 1965 SC 1296.

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Bibliography

1. Kafaltiya A.B.,Interpretatation of Statutes, Universal Law Publishing, 2008

2. Bindra, N.S., The Interpretation of Statutes And General Clauses Acts (Central and
State) with Phrases and Words, Law Publishers, Allahabad, 1961.

3. Gandhi, B.M., Interpretation of Statutes, Eastern Book Co., Lucknow, 2006.

4. Singh,G.P., Principles of Statutory Interpretation, Wadwa and Co., Nagpur, 2006.

5. Yog, A.K., Interpretation of Statutes, Modern Law Publishers, New Delhi, 2009.

6. Maxwell, Interpretation of Statutes, P.St. Langan, Lexis Nexis, 10th Edition,New Delhi,
2004

7. Bakshi P.M. , Interpretation of Statutes, Orient Publications., New Delhi (2008)

8. Bhattacharyya. T, The Interpretation of Statutes, Central Law Agency, Allahabad

(2009)

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