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