ABSTRACT
The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament's intention. The application of this rule gives the judge more guardedness than the simple and the excellent rule as it allows him to adequately decide on Parliament's aim. It can be argued that this undercuts Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature. 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 but associated problem is that the fact that this rule helps achieve that the use of this rule is limited due to Parliamentary intent. Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes. 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. 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. This project will deal briefly with the subject, but it is hoped it will provide a better understanding of how a Judge approaches the problems. A lot of work has been done on this particular topic which belongs to Interpretation of Statute because of the peculiar nature of its operation as it is considered to discover Parliament's intention and to give the judge more discretion than any other rule as it allows him to effectively decide on Parliament's intent. But at the same time it can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature. Scheme of research would be historical research, doctrinal research and case law analysis. Areas of concern are - What was the common law before the passing of the Act, What was the mischief and defect for which the common law did not provide, what remedy the Act attempts to provide to cure the defect and the true reasons for the remedy.
SYNOPSIS
Survey of the existing literature – There are many cases which are interpreted through mischief. We need to survey those cases to understand about the working of mischief rule. The mischief rule of statutory interpretation is the oldest of the rules. The mischief rule was established in Heydon's Case [1584] Case summary. In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. Under the mischief rule the court's role is to suppress the mischief the Act is aimed at and advance the remedy. Some case examples Smith v Hughes [1960] 1 WLR 830, Elliot v Grey [1960] 1 QB 367, Tirhat singh vs Bachittar singh etc.
Objective and scope of the research – The main objective of this research is to find out how this rule was established, how it worked in past, does it made working of court easy, is it successful, What was the common law before the passing of the Act, why it was made, What was the mischief and defect for which the common law did not provide, what remedy the Act attempts to provide to cure the defect and the true reasons for the remedy. The limitations of this subject is that 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. It gives too much power to the unelected judiciary which is argued to be undemocratic.
Research Methodology adopted – Research methodology adopted in this research is theoretical. Main sources used are books, internet and case laws. Case laws helped to know the evolution and working of the rule. Books and internet helped to know about the previous researches done on the particular subject and about the origin of the rule.
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. This is not often the case in modern legal systems. The rule can make the law uncertain, susceptible to the slippery slope. Therefore Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain meaning rule and the golden rule to determine cases.
Chapterisation -
Introduction
Mischief rule
Case laws
Purposive approach
Indian approach
Advantages and disadvantages of mischief rule
Conclusion
