The mischief rule (Heydon's case) and purposive construction

1. Heydon's case (1584)

The rule was laid down by the Barons of the Exchequer in Heydon's Case (1584), on the construction of a statute of Henry VIII dealing with leases of religious houses. They resolved that for the sure and true interpretation of all statutes in general, whether penal or beneficial, restrictive or enlarging of the common law, four things are to be discerned and considered:

• First, what was the common law before the making of the Act;
• Second, what was the mischief and defect for which the common law did not provide;
• Third, what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and
• Fourth, the true reason of the remedy.

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, 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 publico.

2. What the rule does

The mischief rule looks behind the words to the problem the Act was passed to solve. Where the words can bear more than one meaning, the court prefers the one that cures the mischief. It is also used to resist evasion: a person who arranges his affairs to slip through a gap in the words while doing exactly what the Act was aimed at will find the words read to catch him. In modern terms, “common law” in the first question means the law, statute or case law, as it stood before the Act.

The English illustration is Smith v. Hughes (1960). The Street Offences Act, 1959 made it an offence for a prostitute to solicit “in a street”. Women solicited from balconies and windows of houses facing the street. Lord Parker C.J. held them guilty: the mischief was that people walking along the street should not be molested or solicited, and that mischief was the same wherever the woman stood.

3. The rule in Indian cases

• Bengal Immunity Co. Ltd. v. State of Bihar, 1955 INSC 36, AIR 1955 SC 661. Construing Article 286, which restricts State taxation of sales, S.R. Das Acting C.J. applied the four questions expressly. Before the Constitution, several Provinces taxed the same inter-State sale on different nexus theories, so that one transaction could be taxed many times over and trade across the country was obstructed. That was the mischief, and Article 286 was construed so that States could not tax inter-State sales until Parliament provided otherwise.
• Kanwar Singh v. Delhi Administration, 1964 INSC 164, AIR 1965 SC 871. Section 418 of the Delhi Municipal Corporation Act, 1957 allowed the impounding of “abandoned” cattle. The accused, who had attacked a municipal party seizing cattle, argued that the cattle were not abandoned because their owners had not given up ownership. The Court held that the mischief was cattle straying on public streets; “abandoned” meant left loose and unattended, and the seizure was lawful.
• R.M.D. Chamarbaugwalla v. Union of India, 1957 INSC 35, AIR 1957 SC 628. The Prize Competitions Act, 1955 defined “prize competition” widely enough to cover competitions involving skill as well as chance. If read in that sense it would have been an unreasonable restriction on trade. Having regard to the history of the legislation and the mischief it addressed, the Court held that the Act was aimed only at competitions of a gambling nature, and upheld it as so confined.

4. From mischief to purpose

The purposive approach asks not only what mischief the Act cured but what purpose it was meant to achieve, and reads the words so as to achieve it. It is the dominant approach today, both in England and in India, though its application is disciplined by the text.

Its most famous statement is Denning L.J.'s in Seaford Court Estates Ltd. v. Asher (Court of Appeal, 1949). A judge, he said, cannot simply fold his hands and blame the draftsman when a defect appears. He must set to work on the constructive task of finding the intention of Parliament, from the language and from the social conditions that gave rise to the Act and the mischief it was passed to remedy, and then supplement the written word so as to give force and life to that intention. He should ask how the makers of the Act would have straightened out the ruck in its texture if they had come across it, and do as they would have done. “A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

The House of Lords at first resisted. In Magor and St Mellons R.D.C. v. Newport Corporation (1952) Lord Simonds called a later attempt by Denning L.J. to fill gaps a “naked usurpation of the legislative function under the thin disguise of interpretation”. The modern English position accepts the purposive approach but within the words, and Parliament's materials may now be consulted under Pepper v. Hart (1993).

5. The purposive approach in India

• Kehar Singh v. State (Delhi Admn.), 1988 INSC 200, (1988) 3 SCC 609. Shetty J. said that in recent years the golden rule has been given a go-by and courts now look for the intention or purpose of the statute. The court first examines the words; if they are precise and cover the situation, it goes no further. If they are ambiguous, it examines the Act as a whole, the necessity which gave rise to it and the mischief it was meant to redress, and puts on the language a rational meaning that avoids undesirable consequences.
• Workmen of Dimakuchi Tea Estate v. Management, 1958 INSC 2, AIR 1958 SC 353. “Any person” in the definition of industrial dispute was read in the light of the object of the Industrial Disputes Act, 1947, to mean a person in whose employment the workmen have a direct and substantial interest. The same words survive in section 2(q) of the Industrial Relations Code, 2020.
• Abhiram Singh v. C.D. Commachen, 2017 INSC 3, (2017) 2 SCC 629. Section 123(3) of the Representation of the People Act, 1951 makes it a corrupt practice to appeal for votes on the ground of “his religion”. By a majority of four to three, a seven-judge Bench read “his” as covering the religion of the candidate, his agent, the voter or any other person, relying on the purpose of the provision and the 1961 amendment that introduced it. The minority adopted the literal reading, confining “his” to the candidate and his agent. The case shows both approaches side by side.

6. Comparing the three primary rules

• Literal: what do the words say? Certain, but may defeat the purpose.
• Golden: what do the words say, unless that is absurd? A safety valve, used sparingly.
• Mischief and purposive: what were the words meant to achieve? Gives effect to policy, but risks judicial legislation if the text is not kept in view.

How this is examined

For the Heydon's case essay: the facts in one line, the four questions and the duty in full, Smith v. Hughes, then Bengal Immunity, Kanwar Singh and R.M.D.C., then purposive construction (Seaford Court, Magor, Kehar Singh, Abhiram Singh), the limit and the comparison. A question on “the modern approach to interpretation” uses the same material from section 4 onward.