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    Interpretation of Statutes: Problems and Limitations in Applying The Mischief Rule

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    Ajit Singh Parihar
    The document discusses the mischief rule, a rule of statutory interpretation used to determine legislative intent. It aims to identify the problem or defect the statute intended to address by examining the common law prior to the statute's enactment. The rule has advantages like closing loopholes and avoiding absurd results, but also disadvantages like giving judges lawmaking power. Problems with applying the rule include judges having to rely on their own views and potentially creating crimes retroactively. The document analyzes cases where courts in the UK and India have applied the mischief rule and discusses limitations of its application.

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    Interpretation of Statutes: Problems and Limitations in Applying The Mischief Rule

    Uploaded by

    Ajit Singh Parihar
    466 views7 pages
    The document discusses the mischief rule, a rule of statutory interpretation used to determine legislative intent. It aims to identify the problem or defect the statute intended to address by examining the common law prior to the statute's enactment. The rule has advantages like closing loopholes and avoiding absurd results, but also disadvantages like giving judges lawmaking power. Problems with applying the rule include judges having to rely on their own views and potentially creating crimes retroactively. The document analyzes cases where courts in the UK and India have applied the mischief rule and discusses limitations of its application.

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    IOS- Mischief Rule

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    The document discusses the mischief rule, a rule of statutory interpretation used to determine legislative intent. It aims to identify the problem or defect the statute intended to address by examining the common law prior to the statute's enactment. The rule has advantages like closing loopholes and avoiding absurd results, but also disadvantages like giving judges lawmaking power. Problems with applying the rule include judges having to rely on their own views and potentially creating crimes retroactively. The document analyzes cases where courts in the UK and India have applied the mischief rule and discusses limitations of its application.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    466 views7 pages

    Interpretation of Statutes: Problems and Limitations in Applying The Mischief Rule

    Uploaded by

    Ajit Singh Parihar
    The document discusses the mischief rule, a rule of statutory interpretation used to determine legislative intent. It aims to identify the problem or defect the statute intended to address by examining the common law prior to the statute's enactment. The rule has advantages like closing loopholes and avoiding absurd results, but also disadvantages like giving judges lawmaking power. Problems with applying the rule include judges having to rely on their own views and potentially creating crimes retroactively. The document analyzes cases where courts in the UK and India have applied the mischief rule and discusses limitations of its application.

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    INTERPRETATION OF STATUTES

    Problems and Limitations in applying the Mischief Rule


    INTRODUCTION

    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. The
    mischief rule is a rule of statutory interpretation designed to assist a Court in
    identifying the proper construction of statutory wording according to the
    original intention of the legislators. The rule requires the Court to identify
    the relevant pre-Act common law and from that the “mischief” or
    injustice/defect that the Act was designed to remedy. The Mischief Rule is a
    certain rule that judges can apply in statutory interpretation in order to
    discover Parliament's intention. It essentially asks the question: By creating
    an Act of Parliament what was the "mischief" that the previous law did not
    cover? 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. When it is not clear whether an act falls within what is
    prohibited by a particular piece of legislation, the judges can apply the
    mischief rule. This means that the courts can take into account the reasons
    why the legislation was passed; what ‘mischief’ the legislation was designed
    to cure, and whether the act in question fell within the ‘mischief’.
    INTERPRETATION OF THE LAW

    The Mischief Rule is a certain rule that judges can apply in statutory
    interpretation in order to discover Parliament's intention. It essentially asks
    the question: By creating an Act of  Parliament what was the "mischief" that
    the previous law did not cover?  This was set out in Heydon's Case 1  where it
    was stated that there were four points to be taken into consideration when
    interpreting a statute:  

    1. What was the common law before the making of the act?
    2. What was the "mischief and defect" for which the common law did not
    provide?
    3. What was the remedy the parliament hath resolved and appointed to
    cure the disease of the commonwealth? and
    4. What is the true reason of the remedy?

    The rule was illustrated in the case of  Smith v Hughes 2  , where under the
    Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in
    the street for the purposes of prostitution". The defendants were calling to
    men in the street from balconies and tapping on windows. They claimed they
    were not guilty as they were not in the "street." The judge applied the
    mischief rule to come to the conclusion that they were guilty as the intention
    of the Act was to cover the mischief of harassment from prostitutes. This  rule
    of construction  is of narrower application than the  golden rule  or the plain
    meaning rule, in that it can only be used to interpret a statute and, strictly
    speaking, only when the statute was passed to remedy a defect in the common
    law.

    1
    [1584] 3 CO REP 7a
    2
    [1960] 2 All E.R. 859
    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. In  Smith v Hughes  the mischief approach gave
    a more sensible outcome than that of the literal approach.
    ADVANTAGES AND DISADVANTAGES:

    Basically it has two main advantages - 1) The Law Commission sees it as a


    far more satisfactory way of interpreting acts as opposed to the Golden or
    Literal rules i.e. to say that it closes all the loopholes and allows the law to
    develop and adapt to changing needs.
    2) It usually avoids unjust or absurd results in sentencing. In the landmark
    case of Royal College of Nursing v. DHSS 3 , Lord Diplock said that Whatever
    may be the technical imperfections of its draftsmanship, however, its purpose
    in my view becomes clear if one starts by considering what was the state of
    the law before the passing of the Act, what was the mischief that required
    amendment, and in what respect was the existing law unclear.
    The disadvantages to mischief rule are 1) it is seen to be out of date as it has
    been in use since the 16th century, when criminal law was the primary source
    of law and parliamentary supremacy was not established. 2) It gives too much
    power to the unelected judiciary which is argued to be undemocratic. 3) In
    the 16th century, the judiciary would often draft acts on behalf of the king
    and were therefore well qualified in what the mischief the act was meant to
    remedy. 4
    The good thing about mischief rule is that it allows judges to put into effect
    the remedy parliament chose to cure a problem in the common law. It was
    discovered at a time when statutes were a minor source of law; drafting was
    not as precise as today and before parliamentary supremacy was established.
    But talking about its limitation, by this, judges can “rewrite” statutes law,

    3
    (1981) 1 AER 545
    4
    http://www.bookrags.com/wiki/mischief_rule
    which only parliament is allowed and initially it requires discovering the
    mischief in order for this rule to be applied. 5

    PROBLEMS WITH APPLICATION OF MISCHIEF RULE


    It creates the crime after the event, thus infringing the rule of law. It gives
    the judges a law making power infringing the separation of powers. The
    judges have to bring their own views, sense of morality and prejudices to the
    case. 6 The problems in application of mischief rule has been observed in
    various cases for e.g. in an important judgment of Elliot v. Grey 7 , 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 drivable.
    The judges 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.
    Also in the case of DPP v. Bull 8 , A man was charged with an offence under
    s.1(1) of the Street Offences Act 1959 which makes it an offence for a
    'common prostitute to loiter or solicit in a public street or public place for the
    purposes of prostitution'. The magistrates found him not guilty on the
    grounds that 'common prostitute' only related to females and not males. The
    prosecution appealed by way of case stated.
    The court held that the Act did only apply to females. The word prostitute
    was ambiguous and they applied the mischief rule. The Street Offences Act
    was introduced as a result of the work of the Wolfenden Report into
    homosexuality and prostitution. The Report only referred to female
    prostitution and did not mention male prostitutes. The QBD therefore held the

    5
    www.school-portal.co.uk/GroupDownloadFile.asp?GroupID=54718&ResourceId=213405
    6
    http://www.e-lawresources.co.uk/Mischief-rule.php
    7
    [1960] 1 QB 367
    8
    [1995] QB 88
    mischief the Act was aimed at was controlling the behaviour of only female
    prostitutes.
    In Corkery v. Carpenter 9 , The defendant was riding his bicycle whilst under
    the influence of alcohol. S.12 of the Licensing Act 1872 made it an offence to
    be drunk in charge of a 'carriage' on the highway.
    The court here also 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.
    So these are few cases where we see that the judges had to apply their own
    views and sense of morality to the case in order to deliver justice.
    APPLICATION OF MISCHIEF RULE IN INDIAN CASE LAWS
    Whenever there are two possible interpretations, the one which subserve to
    the intent of the legislature is to be accepted. The object of the aforesaid Act
    is for planned development and thus the interpretation, which upholds any
    such scheme, should be followed. Heydons principle is now well recognised
    in interpreting any enactment. It lays down that courts must see, (a) what was
    the law before making of the Act; (b) what was the mischief or defect for
    which the law did not provide; (c) what is the remedy that the Act has
    provided; (d) what is the reason of the remedy. It states that courts must
    adopt that construction which suppresses the mischief and advances the
    remedy. This has been approved by this count in number of decisions. 1 0 One
    of them is K.P. Varghese Vs. Income-tax Officer, Ernakulam a Anr. 1 1 , in this
    case, Heydon 's principle is applied when the Act is obscure and it is
    necessary to know the true intention of the Legislature from the language
    used. If interpretation results in absurdity and results in a situation which is
    quite contrary to the objects and reasons for which the enactment is made, the
    Court must eschew literal or plain interpretation and find the  true intention
    by purposively construing the statute. In the case of Swantraj v. State of

    9
    [1951] 1 KB 102
    10
    http://interpretationofstatutes.blogspot.com/2010/06/mischief-rule-heydons-principle.html
    11
    1981 (4) SCC 173
    Maharashtra 1 2   this Court held that every legislation is a social document and
    judicial construction seeks to decipher the statutory mission, language
    permitting, taking the one from the rule in Heydon's case of suppressing the
    evil and advancing the remedy. The Court held that what must tilt the balance
    is the purpose of the statute, its potential frustration and judicial avoidance
    of the mischief by a construction whereby the means of licensing meet the
    ends of ensuring pure and potent remedies for the people. The Court observed
    that this liberty with language is sanctified by great Judges and textbooks.
    Maxwell instructs us in these words:
    “There is no doubt that the office of the Judge is, to make such construction
    as will suppress the mischief, and advance the remedy, and to suppress all
    evasions for the continuance of the mischief. To carry out effectively 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: quando aliquid prohibetur, prohibetur et omne pe quod
    devenitur ad Mud.”
    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.
    Similarly in A.K. Desai And Co. And Ors. vs State Of Punjab And Anr. 1 3 The
    court said that it is well known principle of construction for interpreting
    provisions of such remedial provisions of Statute that courts are to make such
    construction as shall suppress the mischief and advance the remedy and also
    suppress subtle intervention and evasions in continuance of the mischief.

    12
    1974 AIR 517
    13
    (2008) 3 PLR 282

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