Mischief Rule Essay Example

Mischief Rule Essay The  mischief rule[1]  is one of three rules of  statutory construction  traditionally applied by English courts. [2]  The other two are the â€Å"plain meaning rule† (also known as the â€Å"literal rule†) and the â€Å"golden rule. † The main aim of the rule 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 rule was first laid out in a 16th-century ruling of the  Exchequer Court. - History The rule was first set out in  Heydons Case  [1584]76 ER 637  3 CO REP 7a. 3]  where the court ruled that there were four points to be taken into consideration when interpreting a statute: â€Å"| 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:(1st). What was the common law before the making of the Act? (2nd). What wa s the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And,(4th). The true reason of the remedy;(5th).The core principle of the last of us. 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 continuance of the mischief, and  pro privato 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| - Advantages 1. In a  common law  jurisdiction, the existence of precedent and the knock-on effects of construing a statute prevent misuse of the rule; 2.The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules; 3. It usually avoids unjust or absurd results in sentencing; 4. It is consistent with parliament sovereignty. - 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 It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established; 2.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.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. This is not often the case in modern legal systems; 4. The rule can make the law uncertain. Problems with the mischief rule 1. Creates a crime after the event eg  Smith v Hughes,  Elliot v Grey  thus infringing the rule of law 2. Gives judges a law making role infringing the separation of powers. 3. Judges can bring their own views, sense of morality and  prejudices to a case eg  Smith v Hughes,  DPP v Bull. CASE LAW-: Heydon’s Case Smith v Hughes  [1960] 1 WLR 830The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public. Held:The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place. R. M. D. C. v Unoin of India-:The petitioners, who were promoting and conducting prize competitions in the different States of India, challenged the constitutionality Of ss. and 5 Of the Prize Competitions Act (42 of 955) and rr. xi and 12 framed under S. 20 Of the Act. Their contention was that prize competition as defined in S. 2(d) of the Act included not merely competitions that were of a gambling nature but also those in which success depended to a substantial degree on skill and the sections and the rules violated their fundamental right to carry on business, and were uns upportable under Art. 19(6) of the Constitution, that they constituted a single inseverable enactment and, consequently, must fail entirely.On behalf of the Union of India this was controverted and it was contended that the definition, properly construed, meant and included only such competitions as were of a gambling nature, and even if that was not so, the impugned provisions, being severable in their application, were valid as regards gambling competitions. Held, that the validity of the restrictions imposed by SS. 4 and 5 and rr. ii and 12 of the Act as regards gambling competitions was no longer open to challenge under Art. 19(6) of the Constitution in view of the, decision of this Court that gambling did not fall within the purview of Art. 9(i) (g) of the Constitution. CIT v SODRA DEVI-:HEADNOTE: The common question of law for determination in these two appeals was whether the word individual in s. 16(3) of the Indian Income-tax Act, 1922, as amended by Act IV of 1937, includ es a female and 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. Held, (Per Bhagwati and Kapur jj. , S. K. Das J. dissenting) that the question must be answered. The word individual occurring in s. 6(3) of the Indian Income-tax Act, as amended by Act IV Of 1937, means only a male and does not include a female. Utkal contractors;amp; joinerys Pvt Ltd. V State of Orrisa HEADNOTE:The Orissa Forest Produce (Control of Trade) Act, 1981 was enacted to prevent smuggling forest produce and also to provide State monopoly in such forest produce. The State was empowered under section 1(3) of the Act, from time to time to issue a notification specifying the area or areas, the forest produce in relation to which and the date from which the Act shall come into force.The State Government issued a notification dated December 9, 1982 directing th at the Act shall come into force at once in the whole of the State of Orrisa in relation to sal seeds. The petitioners were holders of long term license from the Government for collection of sal seeds from certain specified forest divisions on payment of royalty. Consequent upon the issue of the above notification, the Government refused to accept royalty from the petitioners in respect of certain forest divisions on the ground that the notification had the effect of rescinding the existing contracts between the Government and the petitioners.The petitioners thereupon filed writ petitions before the High Court for a declaration that the above notification was void, and did not have the effect of rescinding their contracts in relation to sal seeds. The High Court dismissed the writ petitions. The Supreme Court, allowing the appeals of the petitioners, held that the Act and the notification issued thereunder did not apply to forest produce grown in Government forests and that it was n ot, therefore, open to the Government to treat the contract dated May 25,1979. s rescinded. On May 29, 1987, the Governor of Orissa promulgated orissa Forest Produce (Control of Trade) (Amendment and Validation) ordinance 1987 deeming it to have come into force with effect from September 5,1981, when the principal Act was notified in the Gazette, rendering the aforesaid decision ineffective. The petitioners challenged the validity of this ordinance in this Court. Dismissing the writ petitions, this Court, ^HELD: 1. 1. The impugned ordinance is valid and cannot be challenged on any ground. [327B]

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