JAMIA MILLIA ISLAMIA

FACULTY OF LAW

INTERPRETATION OF STATUTES & PRINCIPLES

OF LEGISLATION

“THE MISCHIEF RULE”

NAME MADIAH SHAHJAR

ROLL NO 33
STUDENT ID 20182855
SEMESTER VI – REGULAR

B.A.LL.B (H) 2018 - 2023

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 TABLE OF CONTENT

Sl. No. CONTENT PAGE NO

1. ACKNOWLEDGEMENT 3

2. ABSTRACT 4

3. INTRODUCTION 5

AN ANALYSIS OF MISCHIEF RULE AND THE ROLE OF

4. 6
JUDICIARY

5. ROLE OF JUDICIARY IN INDIA 11

6. ADVANTAGES AND DISADVANTAGES OF MISCHIEF 13

RULE

7. CONCLUSION 14

8. BIBLIOGRAPHY 15

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 ACKNOWLEDGEMENT

Firstly, I would like to express my profound sense of gratitude towards the Almighty
for providing me with the authentic circumstances, which were mandatory for the completion
of my research work.
Further, I am also thankful to Dr. Qazi Usman, for his invaluable support,
encouragement, supervision and useful suggestions throughout this research work. His moral
support and continuous guidance enabled me to complete my work successfully. His
intellectual thrust and blessings motivated me to work rigorously on this study. In fact, this
study could not have seen the light of the day if his contribution had not been available. It
would be no exaggeration to say that it is his unflinching faith and unquestioning support that
has provided the sustenance necessary to see it through to its present shape.

Madiah Shahjar
6th Semester, Regular

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 ABSTRACT

The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to
discover Parliament’s intention. The application of this rule gives the judge more discretion
than the literal and the golden rule as it allows him to effectively decide on Parliament’s intent.
It can be argued that this undermines Parliament’s supremacy and is undemocratic as it takes
law-making decisions away from the legislature. Legislative intent is determined by examining
secondary sources, such as committee reports, treatises, law review articles and corresponding
statutes. This rule has often been used to resolve ambiguities in cases in which the literal rule
cannot be applied but associated problem is that the fact that this rule helps achieve that the
use of this rule is limited due to Parliamentary intent. So according to the author, this modern
use of the mischief rule ought to be understood as one of the components of what is
characterized as the “modern” method of statutory construction, rather than a stand-alone
rule serving (as it formerly had), as an alternative to the methods of construction proposed by
the plain meaning rule and the golden rule.

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 I. INTRODUCTION

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. Further referring to
Pope’s Essay on Man, the question arises 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? And should the Law
Commissions, before embarking on an enquiry into the interpretation of

Statutes, have asked themselves whether their journey was really necessary? To these
questions David Hume’s reply to Pope suggests one answer which is as follows: -

"to think that human affairs admit of no greater stability than what they receive from
the humour 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 a 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

5
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.”

Further, it would be wrong if 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.
A better answer to the questions which initially faced the Law Commissions with regard to the
interpretation of statutes must begin by admitting that, whatever rules are devised for
interpreting statutes, that task has many of the qualities of an art rather than of a science; and
that an inspired interpretation of statutes cannot be achieved by the mechanical application of
certain rules any more than a performance on the piano worthy of a Richter will automatically
follow a diligent attention to the exercises of Czerny. But if we forswear any intention to devise
a comprehensive code of new rules for the interpretation of statutes, we may nevertheless
justify a more modest enquiry and indeed explain its purpose by another musical analogy. Even
a great pianist may be hampered by a bad instrument. The purpose of the Law Commissions
has been to discover how far the present body of law and practice which is supposed to guide
and assist the judge in his task of interpretation, in fact, fulfils that function; to determine how
much of the vast mass of learning which surrounds the interpretation of statutes is meaningful
in the light of that function; and to make proposals which will not indeed ensure that statutes
are better interpreted but at least put at the disposal of the judge an instrument sensitive and
flexible enough to respond to the various and intricate demands of modern legislation.

II. AN ANALYSIS OF MISCHIEF RULE AND THE ROLE OF JUDICIARY

The mischief rule of statutory interpretation is the oldest of the rules. The mischief
rule was established in Heydon’s Case. In Re Sussex Peerage, it was held that the mischief rule
should only be applied where there is ambiguity in the statute. Under the mischief rule, the
court's role is to suppress the mischief the Act is aimed at and advance the remedy.

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Mischief Rule. This is a very important rule as far as the Interpretation of Statute is concerned.
It is often referred to as the “rule in Heydon’s Case”1. 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 before deciding the case: -

 What was the common law before the passing of the Act?

 What was the mischief and defect for which the common law did not provide?

 What remedy the Parliament hath resolved and appointed to cure the “disease of the
Commonwealth”.

 The true reasons for the remedy.

And then the office of all the Judges is always to make such construction as shall
suppress the mischief and advance the remedy. Before proceeding any further, a word of
warning is appropriate. Uses the exact words – “disease of the Commonwealth” – used byLord
Coke in his report and it is important to bear in mind that words had different meanings. It is
necessary to discover their meaning at the time of writing. From the 14th century to the end of
the 17th, the meaning of disease was lack of ease, disquiet or distress and Commonwealth, of
course, meant the Country. According to an early case named The Longford,2 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 the aforementioned decisions. If we take the case of Parkin v. Norman3, 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 of the Act reads:

"An Act to prohibit the wearing of uniforms in connexion with political objects and the
maintenance by private persons or 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."

1
[1854] EWHC Exch J36
2
(1889) 14 P.D. 34
3
[1982] 2 All E.R. 583

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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. Further, the application of the mischief rule is also
found in Ohison v. Hylton4, where 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 the tools of his trade, a hammer, from
his briefcase and struck the other man with it. He was charged under the Prevention of Crime
Act 1953. Lord Widgery, CJ, said, inter alia: "This is a case in which the mischief at which the
statute is aimed appears to me to be very clear. Immediately prior to the passing of the 1953
Act, the criminal law was adequate to deal with the actual use of weapons in the course of a
criminal assault. Where it was lacking, however, was that the mere carrying of offensive
weapons was not an offence. The long title of the Act reads as follows:

‘An Act to prohibit the carrying of offensive weapons in public places without
lawful authority or reasonable excuse’

Parliament is there recognizing the need for preventive justice where, by

preventing the carriage of offensive weapons in a public place, it reduced the
opportunity for the use of such weapons. If, however, the prosecutor is right, the scope
goes far beyond the mischief aimed at, and in every case where an assault is committed
with a weapon and in a public place an offence under the 1953 Act can be charged in
addition to the charge of assault. Whilst on the subject of offensive weapons, mention
must be made of the Divisional Court’s decision in Gibson v. Wales5, which decided
that a “flick knife” is an offensive weapon per se.’ Further, the other cases where
Mischief Rule has been applied by the English Court are as follows: -

 Smith v. Hughes6

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

4
[1975] 2 All E.R. 490
5
(1983) 147 J. P. 143
6
[1960] 1 WLR 830

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 passing in the street, for the purposes of prostitution, from the 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’.The sole question
here is whether in those circumstances each defendant was soliciting in a street or public
place. The words of section 1(1) of the Act of 1959 are in this form: ‘It shall be an
offence for a common prostitute to loiter or solicit in a street or public place for the
purpose of prostitution.' Observe that it does not say there specifically that the person
who is doing the soliciting must be on 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.
Lord Parker, C.J, held that 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 DHSS7

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

7
[1981] 2 WLR 279

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 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 Grey8

The defendant's car was parked on the road. It was jacked up and had its battery
removed. He was charged with an offence under the Road Traffic Act 1930 of using an
uninsured vehicle on the road. The defendant argued he was not ‘using' the car on the
road as clearly, it was not driveable. It was held: The court applied the mischief rule
and held that the car was being used on the road as it represented a hazard and therefore
insurance would be required in the event of an incident. The statute was aimed at
ensuring people were compensated when injured due to the hazards created by others.

 Corkery v Carpenter9

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 to transport while drunk.
Therefore a bicycle could be classified as a carriage.

8
[1960] 1 QB 367
9
[1951] 1 KB 102

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  DPP v Bull10

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. Brown11

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.

III. ROLE OF JUDICIARY IN INDIA

The Indian Judiciary also applied this rule in many of the cases, one of them is Sodra
Devi v. Commr. Of Income Tax12, where the court observed that the legislature was guilty of
using an ambiguous term. There is no knowing with certainty 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

10
[1995] QB 88
11
(1967) p 105
12
1957 AIR 832, 1958 SCR 1

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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.

Further, in RMDC v Union of India13 the definition of ‘prize competition’ under s 2(d)
of the Prize competition act 1955, was held to be inclusive of only those instances in which no
substantive skill is involved. Thus, those prize competitions in which some skill was required
were exempt from the definition of ‘prize competition’ under s 2(d) of the Act. Hence, in the
aforementioned case, the Supreme Court has applied the Heydon’s Rule in order to suppress
the mischief was intended to be remedied, as against the literal rule which could have covered
prize competitions where no substantial degree of skill was required for success.Within the
context of law, the mischief rule is a rule of statutory interpretation that attempts to determine
the legislator's intention. Originating from a 16th-century case in the United Kingdom, its main
aim is to determine the "mischief and defect" that the statute in question has set out to remedy,
and what ruling would effectively implement this remedy. When material words are capable
of bearing two or more constructions the most firmly established rule for the construction of
such words "of all statutes in general" is the rule laid down in Heydons case also known as
mischief rule. This rule is also known as purposive construction. The rules lay down that the
court should adopt the construction which shall suppress the mischief and advance the remedy.

In the Indian context, the rule was best explained in the case of Bengal Immunity co. v
State of Bihar14, where 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

13
AIR 1957 SC 628
14
AIR 1955 SC 661

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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 an 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 State
of Bombay v. The United Motors (India) Ltd15 was overruled, which raises the question of the
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 a tax on subjects divisible
by 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 further, Bhagwati, J. had agreed to the above interpretation.

IV. ADVANTAGES AND DISADVANTAGES OF MISCHIEF RULE

 Advantages:

o The Law Commission sees it as a far more satisfactory way of interpreting acts
as opposed to the Golden or Literal rules.

o It usually avoids unjust or absurd results in sentencing.

15
AIR 1955 SC 765

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 o Closes loopholes

o Allows the law to develop and adapt to changing needs example Royal College
of Nursing v DHSS

 Disadvantages:

o 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.

o It gives too much power to the unelected judiciary which is argued to be

undemocratic.

o Creates a crime after the event example Smith v Hughes, Elliot v Grey thus
infringing the rule of law.

o 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.

V. 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 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. 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 was therefore well qualified in what mischief the act was
meant to remedy. This is not often the case in modern legal systems. The rule can make the
law uncertain, susceptible to the slippery slope. Therefore Purposive interpretation was
introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden
rule to determine cases. A 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.

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 BIBLIOGRAPHY

BOOKS
 Avtar Singh & Harpreet Kaur. Introduction to Interpretation of Statutes. LexisNexis
India, Gurgaon
 Bawa & Roy. Interpretation of Statues. Allahabad Law Agency, Allahabad
 P.S Narayan. Statutory Interpretation. Asia Law House, Hyderabad
 P.M. Bakshi. Statutory Interpretation of Statutes. Orient Publishing Company, Orient
Publishing Company

ARTICLE
 Subhyanka Rao, Mischief Rule of Statutory Interpretation, ACADEMIKE (Sept. 5, 2014),
https://www.lawctopus.com/academike/mischief-rule-statutory-interpretation/
 Critical Analysis of the Literal, Golden and Mischief Rule, LAWTEACHER,
https://www.lawteacher.net/free-law-essays/administrative-law/critical-analysis-of-
the-literal-golden-and-mischief-rule-law-essay.php
 G S Simhanjana, Literal Rule and Mischief Rule Interpretation, LEGALDESIRE (Feb.
23, 2017), http://www.legaldesire.com/literal-rule-and-mischief-rule-interpretation/

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