Mischief rule

Mischief rule

A completely different approach to statutory  interpretation is enshrined in the mischief rule.  English courts do not permit themselves to consider the preliminary discussions that took place before the enactment was made law.  Thus the courts will not look at debates in Parliament, or the reports of the law commissions to which effect was given in framing of the legislation.  The reason for excluding the first is that the views of different Members of Parliament vary, the reason for excluding the second is it may not have been the intention of Parliament to give precise effect to the report of the commission.  Whereas in the United States courts will look at the legislative history of an Act of Congress.

The rule which is known as ‘purposive construction’ or ‘mischief rule’, enables consideration of four matters in construing an Act of Legislature:  (i) what was the law before the making of the Act, (ii) what was the mischief or defect for which the law did not provide (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy.  The rule then directs that the courts must adopt that construction which “shall suppress the mischief and advance the remedy.”

Mischief Rule is also called as the Rule in Heydon’s case (1584).  In Heydon’s case, certain lands were the copyholds of a college.  The Warden and Canons of the college granted a part of the land to W and his son for their lives and the rest to S and G at the will of the Warden and Cannons in the time of King Henry VIII.  While so, the Warden and Cannons granted all the lands to Heydon on lease for 80 years.  Thereafter, the warden and Cannons surrendered their college to the King.  The Attorney General filed an information, on behalf of the Crown, for obtaining satisfaction in damages for the wrong committed in the lands, against Heydon, as an intruder on the lands.

The Statute 31 Henry VIII, provided that if a religious or ecclesiastical house had made a lease for a term of years, of lands in which there was an estate and not determined at the time of the lease, such lease shall be void.

It was decided by the Barons of the Exchequer 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:

(a) What was the common law before the making of the Act.

(b) What was the mischief and defect for which the common law did not provide.

(c) What remedy the Parliament hath resolved and appointed to cure disease of the commonwealth, and

(d) the true reason of the remedy?

 

In this case, the common law was that religious and ecclesiastical persons might have leases for as many years as they pleased, the mischief was that when they perceived their houses would be dissolved, they made long and unreasonable leases; now the Statute 31 Henry VIII, both provide the remedy and principally for such religious and ecclesiastical houses which should be dissolved after the Act, such as the college in the instant case, that all leases of any land, whereof any estate or interest for life or years was then in being, should be void; and their reason was, that it was not necessary for them to make a new lease, so long as a former had continuance; and therefore the intent of the Act was to avoid doubling of estates, and to have but one single estate in being at a time; for doubling of estates implies itself deceit , and private respect, to prevent the intention of the Parliament. If the copyhold estate for two lives and the lease for 80 years shall stand together there will be doubling of estates, which will be against the true meaning of the Act.

Mischief Rule as laid down in Heydon’s case was applied in many cases.  To mention a few, in Gorris v. Scott (1874), the court was concerned to interpret a statute providing that animals carried on board ships should be kept in pens.  The defendant carrier had failed to enclose in pens the plaintiff’s sheep which had accordingly, during a storm, been washed overboard.  Had they been safely penned, this could not have happened.  The plaintiff’s suit for breach of statutory duty was rejected by the court on the ground that this statute had been enacted in order to prevent infection spreading from one owner’s animals to those of another, and should not therefore be used to provide a remedy for a totally different mischief.

In Smith v. Hughes (1960), it was held that prostitutes who attracted the attention of passers by from balconies or windows were soliciting in a street within Section 1(1) of the Street Offences Act 1959.  Lord Parke C.J. said: “I approach the matter 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 prostitute.  Viewed in that way, the place from which a prostitute addressed her solicitations to somebody walking in the street became irrelevant.

 

The mischief rule was applied by the Supreme Court of India in the case of Bengal Immunity Co. v. State of Bihar (AIR 1955 SC 661), in construction of Article 286 of the Constitution.  After referring to the state of law prevailing in the provinces prior to the commencement of Constitution and also to the chaos and confusion that was brought about in inter state trade and commerce by indiscriminate exercise of taxing powers by the different provincial legislatures, S.R.Das C.J. observed: “It was to cure this mischief of multiple taxation and to preserve the free flow of inter state trade or commerce the Union of India be regarded as one economic unit without any provincial barrier that the constitution makers adopted Art.286 of the Constitution.

The case of CIT, M.P.S. Bhopal v. Sodra Devi (AIR 1957 SC 832) is another example of application of the mischief rule, in the construction of Section 16(3) of the Indian Income Tax Act, 1922.  The sub-section reads: “In computing the total income of any individual for the purpose of assessment, there shall be included (a) so much of the income of a wife or minor child of such individual as arises indirectly or directly….”  The question before the Supreme Court was whether the word ‘individual’ as used in the aforesaid sub-section meant only a male or also included a female.  Justice Bhagwati found that the word ‘individual’ in the context was ambiguous.  He observed: “In order to resolve this ambiguity, therefore, we must of necessity have resort to the state of the law before the enactment of the provisions, the mischief and the defect for which the law did not provide; the remedy which the legislature did not provide; the remedy which the legislature resolved and appointed to cure the defect; and the true reason of the remedy.”  He further observed: “It is clear that the evil which was sought to be remedied was the one resulting from the wide spread 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 enactment of Section 16(3) in the Act.  If this background of the enactment of Section 16(3) is borne in mind there is no room for any doubt that howsoever that mischief was sought to be remedied by amending the Act, the only intention of the legislature in doing so was to include the income derived by the wife or minor child, in computation of the total income of the male assessee, the husband or the father, as the case may be, for the purpose of assessment.”  Therefore, the words ‘any individual’ were construed as restricted to males.

 

In Sodra Devi’s case, Justice Bhagwati 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.  Similarly in Kanailal Sur v. Paramnidhi Sadhukhan (AIR 1957 SC 907) Justice Ganjendragadkar said that the recourse to object and policy of the Act or consideration of the mischief and defect which the Act purports to remedy is only permissible when the language is capable of two constructions.

 

It is submitted that for deciding whether the language used in the statute is plain or ambiguous it has to be studied in the ‘context’, embraces the previous state of the law and the mischief which the statute was intended to remedy.  Therefore, it is not correct to say that the Rule in Heydon’s case is not applicable when the language is not ambiguous.  The correct position is that after the words have been interpreted in their context and it is found that the language is capable of bearing only one interpretation, the rule in Heydon’s case ceases to be controlling and gives way to the plain meaning rule.  Lord Simon explained this aspect in Maunsell v. Olins (1975) by saying that the rule in Heydon’s case is available at two stages, first before ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there is no such plain meaning.

The rule which is also known as purposive construction has very often been employed in the interpretation of laws enacted to implement international agreements or conventions and regulations made to give effect to the directions of the Council of European Communities, Purposive construction has also been applied to penal statutes to avoid a lacuna and to suppress the mischief and advance the remedy.