MISCHIEF RULE

 

MISCHIEF

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. The 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.

DAVID HUME once asked,’ referring to Pope’s Essay on Man, 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 the interpretation of statutes really depend on the rules which are Supposed to regulate it?

 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?

To these questions Hume’s reply to Pope suggests one answer. He would be sorry, he said, “to think that human affairs admit of no greater stability than what they receive from the humours 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 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.

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, bygiving 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 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.”

 

Heydon's case as follows, namely- "That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

(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 remedy the Parliament have resolved and appointed to cure the disease of the Commonwealth

(4) The true reason of 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, and to suppress subtle inventions and evasions for the continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico."

When the rules of construction are relied upon, the court must always bear in mind - "When Rules of construction are relied on they are not rules in the ordinary sense of having some binding force. They are our servants not our masters. They are aids to construction presumptions of pointers. Not infrequently one 'rule' points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment that weight to attach to any particular 'rule'.

In GIT v. Sodra Devi2 * the Supreme Court (Bhagwad J) expressed the view that the rule in Heydon's case is applicable only when the words in question are ambiguous and are reasonably capable of more than one meaning.

Gajendragadkar J in Kanailal Sur v. Parmanidh pointed out that the recourse to consideration of the mischief and defect which the Act purports to remedy is only permissible when the language is capable of two constructions.

In R.C. Cooper's (Bank Nationalisation Case) case the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 was passed for the nationatisation of banks. But the Act was struck down by a majority opinion on the ground of inadequacy of compensation

Gujrat Lokayukta case where the court observed: The court must adopt a construction which suppresses the mischief and advances the remedy and “to suppress subtle inventions and evasions for continuance of the mischief

In the case of Surinder Singh CASE  the court extracted from State of Maharashtra v. Natwarlal Damodardas Soni, and reiterated that: the provisions have to be specially construed in a manner which will suppress the mischief and advance the object which the legislature had in view

It is obvious that an enactment without a purpose or social objective will be meaningless.

Therefore, the enactment must be read in the light of such assumed purpose, for then only will it make sense, and the court will also be doing its duty of merging the enactment into the general system of law taking into account its policy; and necessarily, the reports of select committees, the debates on the floors of the legislatures and a historical knowledge of contemporary thinking and campaigning which highlight the goal to be achieved and the evil to be eradicated will have to be given due weight by the interpreting judge.

 

In this process, so that courts may not themselves go on a voyage of discovery and waste precious time, advocates may collect all the relevant material and supply hem to courts while emphasising their points of view as to what the object of the legislature was and how the legislature intended to achieve that object. Even when the rule is applied, there may be an honest difference of opinion, amongst judges as to what he object of a particular legislation is, and how the legislature intended to achieve that object.

The purposes of the Act and the mischief rule are, therefore, closely connected, and it is very genuine to look at the long title.

 

The Supreme Court in P.H.K. Kalliani Amma (SmtJ v. K. DevP referred extensively to the rule in HeYdon's case and to the opinions of Bhagwad J. and Gajendragadkar J. Thus in the construction of an Act of Parliament, it is important to consider the mischief that led to the passing of the Act and then give effect to the remedy as stated by the Act in order to achieve its object. This has its drawbacks; the language of the statute may have inadequately expressed the objective intended to be achieved.

In Utkal Contractors & Joinery (P) Ltd. v. State of Orissa it was held: "The reason for a statute is the safest guide to its interpretation. The words of a statute take colour from the reason for it. the reasons can be discovered from the external and internal aids.

No provision in the statute and no word of the statute may be construed in isolation.

Every provision and every word must be looked at generally before any provision or word is attempted to be construed. Further the parliament is neither expected to use unnecessary expressions nor is expected to express itself. Even as parliament does not use any word without meaning something, parliament does not legislate where no legislation is called for. Again, while the words of an enactment are important, the context is no less important. The general words should be read in the context and not in isolation. The context of an Act may well indicate that wide or general words should be given a restrictive meaning. But the rules of construction are mere aids to construction, presumptions. having no binding force. In each case, court must look at all relevant circumstances and decide the weight to be attached to any particular rule of construction.

In Shashikant Laxman Kale v. UOI it was held: "There is a distinction between the legislative intention and the purpose or object of the legislation. While the purpose or object of the legislation is to provide a remedy, the legislative intention relates to the meaning or exposition of the remedy." The court will be having larger material available for reliance when determining the purpose or object of the legislation as distinguished from the meaning of the enacted provision. "For determining the purpose or object of the legislation, it is permissible to look into the circumstances, which prevailed at the time when that law was passed and which necessitated the passing of the law. For the limited purpose of appreciating the background and the antecedent factual matters leading to the legislation, it is permissible to look into the statement of objects and reasons of the Bill which actuated the step to provide a remedy". For the purpose of construing and meaning of the enacted provision, it is not permissible to use these aids, yet it is permissible to look into the historical facts and surrounding circumstances for ascertaining the evil sought to be remedied.  

 In Directorate of Enforcement v. Deepak Mahajan, it was held, "Every law IS designed to further the ends of justice but not to frustrate on mere technicalities. Though the function of the courts is only to expound the law and not to legislate, nonetheless the legislature can not be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten supari which was sweetened with the help of an artificial sweetener. He was prosecuted under the Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The court held that the dictionary meaning is not always the correct meaning, thereby, the mischief rule must be applicable, and the interpretation which advances the remedy shall be taken into consideration. Therefore, the court held that the word ‘food’ is consumable by mouth and orally. Thus, his prosecution was held to be valid.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the corporation to round up the cattle grazing on the government land. The MCD rounded up the cattle belonging to Kanwar Singh. The words used in the statute authorised the corporation to round up the abandoned cattle. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned. The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR 1962 SC 1526, Issue, in this Case, was that the respondent concerned was running a factory where four units were for manufacturing. Out of these four units one was for paddy mill, other three consisted of flour mill, saw mill and copper sheet units. The number of employees there were more than 50. The RPFC applied the provisions of Employees Provident Fund Act, 1952 thereby directing the factory to give the benefits to the employees.

The person concerned segregated the entire factory into four separate units wherein the number of employees had fallen below 50, and he argued that the provisions were not applicable to him because the number is more than 50 in each unit. It was held by the court that the mischief rule has to be applied and all the four units must be taken to be one industry, and therefore, the applicability of PFA was upheld.

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in the streets of London and it was creating a huge problem in London. This was causing a great problem in maintaining law and order. To prevent this problem, Street Offences Act, 1959 was enacted. After the enactment of this act, the prostitutes started soliciting from windows and balconies.

Further, the prostitutes who were carrying on to solicit from the streets and balconies were charged under section 1(1) of the said Act. But the prostitutes pleaded that they were not solicited from the streets.

The court held that although they were not soliciting from the streets yet the mischief rule must be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus, by applying this rule, the court held that the windows and balconies were taken to be an extension of the word street and charge sheet was held to be correct.

Royal College of Nursing v DHSS 

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 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 Grey

 

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 Carpenter

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. It was held:
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 on transport while drunk. Therefore a bicycle could be classified as a carriage.

 

 

DPP v Bull

A man was charged with an offense under s.1(1) of the Street Offences Act 1959 which makes it an offense 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 mischief the Act was aimed at was controlling the behavior of only female prostitutes.

 

RMDC v. UOI 

In RMDC v Union of India 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.

 

In the Indian context, the rule was best explained in the case of Bengal immunity co. v State of Bihar. 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 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 any 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 The State of Bombay v. The United Motors (India) Ltd⁶ was overruled. It raises a question of 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 tax on subjects divisible in 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 in the court below. Bhagwati, J. had agreed to the above interpretation.

 

 

Advantages:

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

2)      It usually avoids unjust or absurd results in sentencing.

3)      Closes loopholes

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

Disadvantages:

1)      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.

2)      It gives too much power to the unelected judiciary which is argued to be undemocratic.

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

4)     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.

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 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 were therefore well qualified in what mischief the act was meant to remedy.