(B) MISCHIEF RULE OF

CONSTRUCTION

PURPOSIVE CONSTRUCTION
- PURPOSE OF THE STATUTE -

Subject Object
History of the rule
The times that were…

Common Law
Statutory Law
The importance of Interpretation in
Context

Different
shades of
ambiguit
y Statute to be
applied to
particular facts
& circumstances
in the light of
suitable context
 Regard to Subject and Object
“The words of a statute, when there is doubt about their
meaning, are to be understood in the sense in which they best
harmonize with the subject of the enactment and the object
which the legislature has in view. Their meaning is found not
so much in a strict grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in the
occasion in which they are used, and the object to be attained.”
Workmen of Dimakuchi Tea Estate v. Management of
Dimakuchi Tea Estate
Mischief Rule….A Flashback!!

The classic Heydon’s case (1584)

Mischief Rule

Purposive Construction
 The Mischief Rule Mantra

Suppress the Mischief &

Advance the Remedy
 The Heydon’s case (1584)
The first case on Mischief Rule
A brief understanding of some terms

A Manor
Copyhold Lease
 Heydon’s case- Facts

This tenancy Subsequently, the

A Religious was granted by manor was also
college in England
way of a leased to a man
had given tenancy
in the manor to a copyhold & was named ‘Heydon’
a long-running for a period of 80
man and his son
lease years

A year later, the This rendered

Parliament several rents
enacted the ‘Act
of Dissolution’ severally for
declaring the said several parcels
lease void. of land.
 The effect of the statute on the
leases that were created
• The statute dissolved religious
colleges and such leases that were
1.) created were declared void.

• But one particular provision in the statute

which kept in force, for a term of life, any
grants that had been made “more than a year
2.) prior to the date on which the statute had
been enacted.”
 The Main issue before the Court
The • Whether the copyhold estate of Ware
question and Ware, which had been created
for their lifetime, be called ‘estate for
before the a lifetime’ and thereby continue to
have legal validity…?
Court
• The lease granted to Ware and Ware
The continued to have legal validity; the
lease made to Heydon was void as
unanimous the said lease clearly fell within the
decision words and meaning of the enacting
statute.
 Lord Coke
• “to arrive at the real meaning, it is always
necessary to get an exact conception of the
aim, scope and object of the whole Act. And
for the sure and true interpretation of all
statutes in general, be they penal or
beneficial; restrictive or enlarging four
things are to be discerned and
considered…”
 Cornerstone of the Mischief Rule- The
Four Questions
(1)What was the common law before making of
the Act ?
(2)What was the mischief and defect for which
the common law did not provide ?
(3)What is the remedy that the Parliament had
resolved and appointed to cure the disease of
the Commonwealth ? and
(4)What is the reason of the remedy?
 Question Answer
What was the common The religious and ecclesiastical houses could make leases for
law before making of as many years as possible.
the Act?

What was the mischief The mischief was that when the religious houses perceived the
and defect for possibility of a situation wherein their manors & houses
which the would be dissolved, they engaged in creation of long and
common law did unreasonable leases- such unreasonable leases- the common
not provide? law failed to provide for.

What is the remedy After the ‘Act of Dissolution’, such unreasonable leases would
that the be dissolved; and any estate or interest for life would be
Parliament had declared as null and void.
resolved and
appointed to cure
the disease of the
Commonwealth?
What is the reason of Main intent was preventing the doubling of estates.
the remedy? Simultaneous existence of estates for two lives at the same
time has to be stopped.
 Factors
adding
to
mischief

Factors
that need Factors
Factors
advancing
mischief
to be hiding
mischief
suppresse
d
Factors
continuing
mischief
 Therefore, the court arrived at a
conclusion
• When an Act of Parliament alters the service, tenure and
interest of the land in prejudice of the tenant, the general
words of an Act of Parliament shall not extend to estates
created by way of copyholds.

• But when an Act of Parliament is made for the good of

the general public itself, and no prejudice would accrue,
then such copyhold estates would be under the purview
of the Act.

***
 TRACKING THE
JOURNEY OF THE
MISCHIEF RULE
 Macmillan v. Dent

• The rule then directs that the

courts must adopt that
construction which “shall
suppress the mischief and
advance the remedy”.
 Macmillan v. Dent

The Mischief The

Rule envisages
Common
Law

State of
Bound to
law at the
look at the
time of
Object &
passing of
Purpose
the Act
 Bengal Immunity Co. v. State of
Bihar
• The judges are to make such construction as shall
suppress the mischief and advance the remedy, and
to suppress subtle inventions and evasions for
continuance of the mischief 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.

• This principle is also known as the rule of

Purposive Construction.
 Smith v. Hughes

• The prostitutes were

soliciting customers from
the house adjoining the
FACT street.
• They were calling out to
S the men in the street from
the balcony, tapping the
windows of the first and
second floor of the house.
Sec.1(1) of the Street Offences Act, 1959: It shall be an offence for
a common prostitute to loiter or solicit in a street or public place
for the purpose of prostitution.
Whether in the circumstances the appellant was soliciting in a street or public place?

• The provision does not

specifically say that the
person who is soliciting
Observations must be in the street.
• It does not also say that
the person who receives
solicitation is in the street.
 The Court noted
• 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 this
way, it can matter little whether the prostitute is soliciting while
in the street or in a doorway or in a balcony, or at a window; 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.
 Purpose should not be frustrated

Harmonizes
the subject of Advances the
Object
the statute remedy and
Oriented
and object of suppresses the
the mischief. Approach
Legislature
 Limitations of the Mischief Rule
Cannot cause violence
to the plain language
of the statute

No re-writing of the
Cannot be used when
section or
no uncertainty,
substituting the
ambiguity or gaps
words
U.P.Bhoodan Yagna Samiti v. Braj
Kishore
U.P.Bhoodan Yagna Samiti v. Braj
Kishore
U.P. Bhoodan Yagna Act, 1953 came for the purpose of
implementing the Bhoodan movement.

This movement aimed at distribution of land to landless

laborers who were versed in agriculture and who had
no means of subsistence.
 ‘Landless persons’

It was held that the expression ‘landless persons’ in S.14 was

limited to landless laborers as described above and did not include
landless businessman residing in a city.
Workmen of Dimakuchi Tea Estate v.
Management of Dimakuchi Tea Estate
Construction of the term ‘any person’
Sec. • “Industrial dispute means
2(k) of any dispute or difference
the between
employees
employers
or
and
between
Industri employers and workmen, or
between workmen and
al workmen which is connected
with the employment or non-
Dispute employment or with the
s Act, conditions of labour of any
person…”
1947
Two crucial limitations to the
expression ‘any person’
Must be a real Parties to the dispute
have a direct and
dispute substantial interest

Dispute
Capable of regarding
employment,
settlement or non-employment,
adjudication terms of
employment etc.

One party The parties to the

dispute have a
giving direct or
necessary relief substantial
to the other interest
 K.Prabhakaran v. P.Jayarajan

Sec 8(3) of • ‘A person convicted of any

the offence and sentenced to
imprisonment for not less
Representati than two years is disqualified
on of the for being chosen as and for
People Act, being a member of the
1951 Legislature of a State.’
 The Issue
• Is it necessary that the term of
imprisonment for not less than 2
years must be in respect of one
single offence to attract the
disqualification?
The Supreme Court decoding the object of
the statute

Relevant for Actual Period

that a convict
purpose of of
has to undergo
S.8(3) Imprisonment

He may be
In a factual sentenced to For different
scenario different terms of
imprisonment
offences

Individually But It may

the term may collectively or
exceed 2
be less than 2 added
years
years together
The court interpreting the word ‘any’
‘any’ may have
several
meanings
according to
context &
‘Any’ may circumstances ‘any’ may be used
mean all, every, to indicate the
quantity such as
each, some or ‘some’, ‘out of
‘one or many many’, ‘an
out of several’ infinite number’.

Actual period
of
imprisonment
is necessary
 The Purpose of the provision
‘any’ • The section uses ‘any’ as an
used as adjective qualifying the word
‘offence’ to suggest not the
an number of offence but the
nature of the offence.
adjective
Purpose • To prevent criminalization of
of the politics.
provisio • Those who break the law should
not make the law.
n
 Thus….
• A person who is sentenced for two
offences in one trial but is not sentenced
for any of the offences to a sentence of
more than 2 years will still be disqualified
if the total sentence of imprisonment for
the two offences to run consecutively
exceeds two years.
***
 Reema Agarwal v. Anupam &
Others
• The appellant was admitted to the hospital for
consuming poison.
• She was married to the defendant Anupam; was
harassed by parents-in-law and brother-in-law for
dowry and was made to drink poison.
• She started vomiting and in unconscious state
admitted to the hospital.
• This was the second marriage for both the parties.
 Reema Agarwal v. Anupam & Others
Whether offence under S.498-A & 304-B,
IPC pre-suppose valid marriage between the
parties?
Marriage is a
legal union of a
The language
man and Reference was
used in S. 498-A
woman as H made to Ss 5(i),
is “husband or
and W and 11 and 16 of
relative of the
cannot extend to HMA, 1955.
husband”.
a legally void
marriage.
 The Issue

• Can a person who enters into a marital

arrangement be allowed to take a shelter
behind a smokescreen to contend that
since there was no valid marriage the
question of dowry does not arise?
 Meaning of ‘husband’ u/s 498-A, IPC
Section 2 of • Any property or valuable security given
or “agreed to be given” either directly or
the Dowry indirectly by one party to the marriage to
Prohibition the other party to the marriage “at or
before or after the marriage” as a
Act “consideration” for the marriage.
The purpose • The purpose for which Ss 498A
behind the and 304B IPC and 113B of the IEA
IPC were introduced cannot be lost
sight of.
provisions
The obvious • To prevent harassment to a woman
who enters into a marital
social relationship from becoming a
objective victim of the greed for money.
 Restricted Meaning would not
further legislative intent
Hairsplittin
Hyper-
g legalistic
technical Destroy the
approach to
approach purpose
be avoided
Cannot be
interpreted Legalistic
pedanticall Legislation Niceties
y s with
public
policy
R.M.D. Chamarbaugwala v. UOI
AIR 1957 SC 628
Petitioners engaged in promoting and
conducting ‘prize competitions’ in different
States of India
Provisions of the Prize Competition Act, 1956 are challenged by the petitioners

The • “to provide for the

CONTROL and
Obje REGULATION of
ct of prize
competitions”,
the involving
Act gambling.
 Sec 2(d) of the Act defines “Prize Competition”

• “any competition” (whether called a cross

word prize competition, missing-word or
picture prize competition or by any other
name), in which prizes are offered for the
solution of any puzzle based upon the
building-up, arrangement, combination
or permutation of letters, words or
figures.”
Prize Competition
- A Floating Casino in Goa -
 The Main Issue

Whether in view of the definition

u/s. 2(d), the Act applies to
competitions which involve
substantial skill and are not in the
nature of gambling.
The Legal Brains behind the arguments

Petitioners Respondents
 CONTENTIONS
Petitioners Respondents
(i) Prize Competition (i) ‘Prize Competition means
include competitions in and includes only
which success depends competitions in which
upon chance and success does not depend
upon any substantial
substantial degree of
degree or skill and are
skill.
essentially gambling in
(ii) The Act encroaches upon their character;
the right to carry on (ii) Gambling Activities are not
trade and is violative of trade or business w/in the
Art.19(1)(g). meaning of Art. 19(1)(g).
 CONTENTIONS
Petitioners
(iii) The impugned law
constituted a single
inseparable enactment and
so it must fail in its
entirety in respect of both
classes of competitions.
Respondents
(iii) The reasonable
restrictions u/Art 19(6) are
protected and that would
not affect the validity of
the enactment as regards
the competitions which are
in the nature of gambling.
The Act is severable in its
application.
 Observations of the Court

Art 19(1)(g) and

‘Gambling’ is
301 protect lawful
trading activities not lawful

Therefore,
‘gambling’ does not
It is res extra
fall within the
purview of such commercium
Articles
 Observations of the Court
Competitions involving substantial skill, are
business activities which are protected by
Art.19(1)(g).

To ascertain the intent, the court has to find out

from the words actually used i.e. literal rule be
given prima facie preference.

When literal rule is leading to a different intention,

then to arrive at the real meaning. Thereafter, look
into exact conception of the aim, scope and object of
the whole Act.
The state of affairs in the erstwhile British
India
 History, Purpose, Mischief
‘Bombay Lotteries Object of controlling
and Prize and taxing lotteries
and prize
Competitions competitions within
(Control and Tax) the province of
Act’, 1948 Bombay

Parliament enacted To avoid the taxing

the Central provisions, people
Legislation for the shifted the venue of
control and their activities to the
regulation of Prize neighboring states
like Mysore etc.
Competitions.
The Bombay Legislative Assembly
resolved…

• “This Assembly do resolve that it is desirable

that control and regulation of prize puzzle
competitions and all other matters
consequential and incidental thereto insofar as
these matters are concerned with respect to
which Parliament has no power to make laws
for the States, should be regulated by
Parliament by law.”
 Therefore…

Control &
Regulate Only to be
regulated
& not
Competitions involving
Prize competitions of a controlled
gamblingskills
character
 Decision

Object & History of Severable Provisions Therefore…

the Act • The provisions are • The Act was
• The competitions SEVERABLE in passed with an
which are sought to their application
be controlled and avowed object of
to competitions in controlling and
regulated by the Act the nature of
are the ones of regulating the
gambling.
GAMBLING in gambling
character. activities.
 PURPOSIVE
CONSTRUCTION
 The onset of Purposive Construction
Heydon’s case (1584) Origin of Mischief Rule
In Re, Mayfair Property Co.(1898)
Heydon referred

Eastman Photographic Materials Co., (1898) the rule was

further re-affirmed as follows:
“My lords, it appears to me that to construe the Statute in question,
it is not only legitimate but highly convenient to refer both to the
former Act and to the ascertained evils to which the former Act had
given rise, and to the later Act which provides the remedy.”
Eastman Photographic Materials Co. v. Comptroller
General of Patents, Designs and Trademarks

Lord Reid in this case stated that “the word

mischief is traditional”.
…which
The the
The facts …when the unsatisfacto Parliament
ry state of
known to Bill came affairs
is supposed
Parliament before it disclosed by to have
these facts intended to
remedy
 Superior Purpose

• When two competing Acts construed to further the

purposes behind them produce a conflict, the court
may resolve a conflict by taking into consideration
as to which Act represents “the superior purpose”
in addition to other relevant factors.
Allahabad Bank v. Canara Bank
 Purposive Construction
An EXTENSION of the Mischief rule

There is a definite purpose and spirit behind

every Act in pursuance of which it was enacted
by the Parliament.

The Courts in the guise of interpretation, have to

do the job to promote that intended purpose and
spirit of the Act.
 CIT v. Sodra Devi
AIR 1957 SC 832

Sodr Included the minors into

Entered into
partnership with her a the benefits of
partnership
major children Devi
Adult Adult Adult Minor Minor Minor
Child: Child : Child : Child: Child: Child:
1 2 3 1 2 3
 Sec. 16(3) of the Act
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 directly or indirectly:
(i) from the membership of the wife in a firm of which her
husband is a partner;
(ii) from the admission of the minor to the benefits of the
partnership in a firm of which such individual is a
partner;
(iii) from assets transferred directly or indirectly to the wife
by the husband otherwise than for adequate
consideration or in connection with an agreement to live
apart; or …..
 Issues
• Whether the word ‘individual’
in S.16(3) of the Indian Income-
1.) Tax Act, 1922 (amended in
1937), includes a female.

2. • Whether the income of minor sons from a

partnership, to the benefits of which they
were admitted, was liable to be included in
) computing the total income of the mother
who was a member of the partnership.
 Meaning of ‘any individual’

Contention of the
Appellant
‘Revenue’

Male &
female both
when in
juxtaposition
with child Individual
may mean
both male &
female of the
human specie
 Meaning of ‘any individual’
Respondents (Assessee)
• The word “individual” is not used in its
generic sense but is used in a restricted and
narrower sense and means only a male is
capable of having a wife or minor child or
both, and that individual can only be a male
of the species and not a female.
 The court examining the
background of the provision
‘any individual’- ambiguous

The state of law before the enactment has

to be seen.

Income Tax Enquiry Report, 1936

Widespread practice of husbands entering into nominal
partnerships with their wives; and fathers are admitting their
minor children to the benefits of partnerships to which they were
members.
 Majority Judgment

The only intention of the Legislature by putting

the words “any individual” could only have been
meant as restricted to the male and not including
the female of the species.

Therefore, the words “individual” in S.16(3) and

S.16(3)(a) of the Act are restricted in their
connotation to mean only the male of the species.
 AIR Karmachari Sangh v. AIR Ltd.
AIR 1988 SC 1325

• The appellants were

FACTS the employees of the,
AIR Ltd.
Cen.
Govt. • To make recommendations in
respect of fixing or revising
constitute wages for working and non-
d working journalists.
Tribunals
 Respondents objected to the Awards

They were not running a newspaper

establishment
and
 Publications published by the company
were not the newspapers .
 Issue

• Whether the law reports published by

the respondent are newspapers within
the meaning of the Act and whether the
employees engaged in production or
publication of the said law reports are
entitled to the benefits of the Award?
 Examining the definitions of Newspapers Employees
(Conditions of Service) and Miscellaneous Provisions Act,
1955
‘Newspaper’ • Printed periodical work
containing public news or
defined u/s comments on public news and
2(b) of the includes such other class of
printed periodical work as may,
Act from time to time be notified by
the Central Government.

‘Newspaper • Any working journalist and

employee’ is includes any other person
employed to do day to day
defined by work in, or in relation to,
S2(c) any newspaper
establishment.
Gap existed…!!!

Newspape
r employee
defined

But ‘News’
not defined in
the Act!!!
Observations & Decision of the Court
Oxford
News not Dictionary
defines news as
defined in tidings, new
the Act information of
recent events etc

It may after The contents of

sometime cease Publication these law reports
of recent constitute news
to be a
insofar as the
newspaper and judgments is subscribers &
become a book news readers are
of reference concerned
 Decision of the Court
Beneficent
Legislation

Therefore, the said

Enacted for the
law reports are
purpose of improving
newspapers and
conditions of
employees receive the
employees
benefit

If 2 opinions possible,
In favour of the
the one advancing the
persons for whom the
remedy should be
law has been passed
employed
Limits to the Heydon’s rule
Ambiguity
due to more
than one
meaning
Wide ordinary
meaning cannot Words must be
be confined to read in the
remedy the single context of the
identified statute
mischief

Use of this rule

should not lead to
absurd results
The length of applying the Rule…

 If there were many problems before the

enactment of the statute it does not follow that
in an effort to solve some of them the
Parliament intended to solve all.
 Limits to the Heydon’s rule

• After the words construed in their context

and found that the language is capable of
bearing only one construction, the rule in
Heydon’s case ceases to be controlling and
gives way to plain meaning rule.
***