UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

CHANDIGARH

A project report submitted as a part of curriculum of B.com LLB (Hons.) in the

subject of Interpretation of Statues

TOPIC- Mischief Rule+ Ut Res Magis Valeat Quam Pereat

SUBMITTED TO: SUBMITTED BY:

Ms. Nancy Sharma Deepanshu Mittal
190/18
B.com LLB (H)

Sem-6 Section-D

ACKNOWLEDGEMENT

1
I would like to express my special thanks of gratitude to my teacher
Ms. Nancy Sharma who gave me the golden opportunity to do this
wonderful project on the topic Mischief Rule+ Ut Res Magis Valeat
Quam Pereat which also helped me in doing a lot of research and I
came to know about so many new things. She provided with
guidelines from time to time. Her profound knowledge of the subject
helped me in writing meaningful content in the project. I am really
thankful to her.

Secondly I would also like to thank my parents and friends who

supported me morally as well as helped me in finding relevant
material regarding the project so that I could complete it in the
limited time frame.

DEEPANSHU MITTAL

CERTIFICATE

2
This is to certify that DEEPANSHU MITTAL, A STUDENT OF
Bcom.L.L.B (Hons.) has successfully completed the research on the
my project on Mischief Rule+ Ut Res Magis Valeat Quam Pereat
under the guidance of Ms. Nancy Sharma during the academic
session 2020-2021 as per the guidelines issued by Panjab
University, Chandigarh.

Ms. Nancy
Sharma

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 MISCHIEF RULE

           The Mischief Rule in the content of interpretation means-to

prevents the misuse of provisions of the statute. Mischief should not
have a place in the statute. If an attempt is made to add Mischief in any
statute, then it must be prevented by the Mischief Rule.

The Rule of Mischief says that the statute should be construed in such a
way to suppress the Mischief.

‘Smith v/s Huge’ is a good example in this context. It is based on the

‘Street Offence Act’. It provides for prohibition of inducement by
prostitutes over roads to the passing public. This act was interpreted in
such a way to misuse it by not including the inducement by prostitutes
from the windows and balconies of their houses. But Court said while
rejecting this agreement that the inducement by prostitutes from the
windows and balconies of their houses is also prohibited under this act,
because the purpose of this act is to prevent prostitution, that is, protect
the on goes from the effect of a prostitute’.

A similar important case is Heydon’s Case. Heydon1—lays down those

four points which are required to be considered interpreting—

 What was the common law prevailing before passing this act?
 Which is the mischief or defect for that there was no provision in
common law?
 What remedy was decided or promised by the parliament to
remove the defect of the commonwealth?
 What is the actual reason for the remedy?

In the context of above propounding, it is the duty of Courts to construct

the statute in such a way to suppress the mischief and encourage the
remedy according to the intention of the legislature.

Two important formulas related to mischief are—

 Pro-private commando: and

 Pro-bona public

1
[76 E.R. 637: (1854) 3 CR 7]

4
Both these formula means that the Courts should construe the statute in
such a manner as to suppress the mischief and encourage the remedy.
Simultaneously, further mischief could be prevented from finding out
the intention of the legislature. It should be encouraged in such a way
that the intention of the legislature is achieved

Two examples in this respect are—‘Alamgir v/s State of Bihar’ 2 is the

first example. Appellant changed under sec 498 of Indian Penal Code,
1860. A married woman was living with the appellant on her own will.
The Appellant argued that he does not fall within the limits of sec 498.
But Supreme Court said while rejecting this argument, that sec 498
contains words ‘taking’ or ‘enticing’ or ‘concealment’ or ‘detained. The
Appellants case falls within the last word ‘detained’ because the
intention of the legislature is to avoid the mischief of preventing the
husband from having intercourse with his wife.

Another similar case is Ranjet Odesiey V/S State of Maharashtra3.

The accused was charged under section 292 of the Indian Penal Code,
1860, which is a punishable offence for selling or having possession for
sale of the obscene book. Accused argued that the shopkeeper is not
expected to go through each book to see whether books contain obscene
literature. He had not read the book ‘Lady Chatterley’s Lover earlier.
Therefore, his case does not come under section 292. But the Supreme
Court rejected the arguments of the accused on the basis of Mischief
Rule.

DPP v/s Bull4- A man was charged with an offence under s.1(1) of the
Street Offences Act 1959 which makes it an offence for a ‘common
prostitute to loiter or solicit in a public street or public place for the
purposes of prostitution’. The court held that the Act did only apply to
females. The word prostitute was ambiguous and they applied the
mischief rule. The Street Offences Act was introduced as a result of the
work of the Wolfenden Report into homosexuality and prostitution. The
Report only referred to female prostitution and did not mention male
prostitutes. The QBD therefore held the mischief the Act was aimed at
was controlling the behaviour of only female prostitutes.

2
(A.IR 1959 S C 436)
3
(A.I.R. 1965 S.C. 881)
4
1994 158 J.P 1005

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Royal College of Nursing v. DHSS5- The Royal College of Nursing
brought an action challenging the legality of the involvement of nurses
in carrying out abortions. The Offences Against the Person Act 1861
makes it an offence for any person to carry out an abortion. It was legal
for nurses to carry out such abortions. The Act was aimed at doing away
with back street abortions where no medical care was available. The
actions of the nurses were therefore outside the mischief of the Act of
1861 and within the contemplate defence in the 1967 Act.

Rex v/s Ramdayal6– Allahabad High Court decided that while

interpreting, it should be tried to provide an actual remedy by removing
the mischief as much as possible. If the statute can be adopted with
meaning then, It must be done so provided that it does not ignore the
natural meaning.

Sewantilal v/s Income Tax Commissioner 7——The Supreme Court

said that—It is an established rule of interpretation that the words used
in the statute should be construed in such a way to prevent mischief or
consequences from it and achieve the intention behind the statute.

Pyarelal v/s Ramchandra Mahadev8 an exciting question arose in this

matter. Accused was charged with sweetening the supari with artificial
sweetener. He argued that supari was not a food under the food
adulteration act. 1954. Supreme Court rejected this argument and held
that supari is an article of food. The definition of food should be
interpreted in the context of the mischief which the provision of the act
was intended to suppress and advance the remedy

This view was followed in Glaxo Laboratories v/s Presiding Officer 9.

Supreme Court said that the purpose of interpretation is to give effect to
the intention underlying the statute, and therefore, unless the literal or
grammatical construction leads to absurdity, it has to be given effect to.
If two construction is possible, that construction which advances the
intention of legislation and remedies the mischief should be accepted.

5
1981 ER 545
6
(I.L.R 1950 Allahabad 935)
7
(A.I.R 1968 S C 697)
8
(AIR 1974 S.C. 223)
9
(A.I.R. 1984 S.C. 505)

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Regional Provident Fund Commissioner Vis Shree Krishna Metal
Manufacturing Company10– The respondent factory which consisted of
four separate units for manufacturing brass and copper sheets and
utensils therefrom for milling paddy, a flour mill and a sawmill was
asked to comply with the provisions of the Employee’s Provident Fund
Act: 1952. But the respondent refused the Act because in each of the
four units less than fifty numbers were employed and therefore the
provisions of the Act did not apply to him. But the Supreme Court
rejected the argument and said that the expression in which qualifier
the word factory and not the word industry. If it is not considered a
factory then the purpose of the act would fail. Therefore, the mischief is
to be suppressed

Private Mehta v/s Amrender Banerjee 11 and Tej Kumar Balkrishna

Ruiyya v/s A.K. Menon12 In all, it was decided that where there are two
constructions of a word, their such interpretation would be adopted
which fulfils the purpose of the statute and suppresses the mischief.

Advantages and Disadvantages of Mischief Rule

Advantages:

1)      The Law Commission sees it as a far more satisfactory way of

interpreting acts as opposed to the Golden or Literal rules.

2)      It usually avoids unjust or absurd results in sentencing.

3)      Closes loopholes

Disadvantages:

10
(A.l R. 1962 S.C. 1536)
11
(A.l R. 1997 Patna 114)
12
(A.I.R. 1997 S.C. 442)

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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.

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.

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 Ut Res Magis Valeat Quam Pereat

Ut Res Magis Valeat Quam Pereat Maximum is used in India. The literal
meaning of this legal maxim is that it is better for a thing to have an
effect than to be made void, which means that it is better to validate I
think instead of invalidating it. A statute is considered to be an authentic
repository of legislative will and therefore it is the function of the court
to interpret it according to the intent of them that made it. That function
of the court has to abide by the maxim Ut Res Magis Valeat Quam Pereat
as far is the intention of the legislature may go to vain or may even be
left to evaporate in thin air. It is the duty of the court to try and avoid
that construction which attributes irrationally to the legislature. And
hence must obviously Prefer such a construction which renders the
statutory provision constitutionally valid instead of making it void.

Therefore we can say that the above maxim is primarily a rule of

construction which states that construction of a rule should give effect
to the rule instead of destroying it. In simple words, in case of a
situation where there are two constructions possible from a single
provision, of which one renders the provision inoperative while the
other give effect to the provision, the latter which gives effect to the
provision is adopted and the former is discarded. It usually begins with
the presumption in favour of constitutionality and prefers the
construction which solely embarks the statute within the domain of
competency of the legislature. However, it is also noted that if the
presumption of a Constitution fails, then in such a case the statute
cannot be rendered operative or valid accordingly. In the landmark case
of Indira Sawhney Vs. Union of India and Others. 13, the Supreme Court
had struck down the state legislation as it was a violation of the
constitution and was ultra-vires of the legislative competency.

In the case of Mark Netto Vs State of Kerala14, the plaintiff was a

manager of the school who on assertation by a Christian community
admitted girls to a boys school. When this matter was presented before
the district administration they denied the admissions and claimed the
refuge under rule 12(3) of chapter 6 of the Kerala Education Bill, 1959.

13
AIR 1993 SC 477, 1992 Supp 2 SCR 454
14
1979 AIR 83, 1979 SCR (1) 609

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According to the rule, girls can be admitted to secondary schools for
boys in areas where there are no girls’ school, in which case adequate
arrangement should be made for the necessary convenience. The
admissions shall be subject to general permission given by the director
of particular boys school which will then be specified by him. A wider
application of the aforementioned provision would lead to the inclusion
of minorities within the specified rule which would then lead to making
the above rule nugatory as there would be a violation of rights
conferred upon the minorities under article 30 of the Indian
Constitution. The Supreme Court, in this case, observed that the rule
with its wide amplitude sanctioning the withholding of permission for
the purpose of admission of girl students in the boys’ minorities school
is a violation of article 30. If it is widely interpreted it fully crosses the
barriers of regulatory measures and enters the region of interference
with the administration of the institution, a right that has been
guaranteed to the minority under the provisions of article 30. Thus, the
rule must be interpreted in a narrow manner.

When it comes to interpreting any provision or law it is very vital to

note that there are almost always two interpretations that may arise.
One which is ultra vires while the other which is intra vires. According
to this maxim, the latter interpretation shall always prevail over the
former.

While resuming the constitutionality of any problem the words of the

provision should not be given any form of unnecessary extension. Since
the role is established to gauge the intentions of the legislature in a case
where it couldn’t be gauged from the word that are employed by it, thus
reading this particular aspect of the rule essentially leads to a claim for
‘textualist’ interpretation or can also be viewed as something imposing a
rider on the ‘contextual’ interpretation.

In the case of Dhoom Singh Vs. Prakash Chandra Sethi 15, a petition was
filed by Mr. C against Mr. A who had won the elections of legislative
assembly from Ujjain North campus constituency. In this case, Mr. A had
raised an objection that the annexures of the election petition weren’t
signed by the Mr. C, the petitioner. Therefore, the petition does not
comply with the mandate set out in section 81(3) of the representation

15
1975 AIR 1012, 1975 SCR (3) 595

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of peoples act and thus is liable to be dismissed under section 86(1) of
the same act. Mr. B later made an intervening application during the
hearing of petition claiming that Mr. C has willfully colluded with Mr. A
and therefore he should not to be impleaded in the proceedings. High
Court further dismissed his claims and stated that the provision only
speaks regarding the “withdrawal or abatement” and does not provide
for “intervention” by third-party. The apex court sentenced a defect in
the scheme of the statute and therefore held that the argument in such a
situation where “the intention of the legislature that the petition should
not fail, by the reason of any collusion or bargain between a successful
candidate and the election petition would be frustrated”, was fully
repelled on the grounds that there undoubtedly exists a lacuna in the act
as it creates the provision for when an election petitioner is allowed to
withdraw however does not make a provision regarding if he just
refuses to prosecute.

Conclusion The provisions of any statute must be construed in an

operative as well as effective manner based on the principle of “Ut Res
Magis Valeat Quam Pereat”. There is obviously no doubt that if a statute
is absolutely vague and the language is mostly untraceable and
somewhat meaningless the statute can be declared void for the
vagueness that it carries. The maxim is pressed into service so as to
contend that the duty of every court is to constitute the enactment of a
provision in such a way so as to implement it for enforcing a taxing law
or regulating law. According to this maxim, the courts strongly lean
against a construction which reduces the statute to futility and there is a
presumption in favour of the constitutionality of the statute.

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 Case Study- Pandit M. S. M. Sharma v. Shri Sri Krishna
Sinha
Citation 1959 AIR 395         
Petitioner: Pandit M. S. M. Sharma
Respondent: Shri Sri Krishna Sinha And Others
Date Of
12/12/1958
Judgment:
Sudhi Ranjan (Cj), Bhagwati, Natwarlal H. Sinha,
Bench:
Bhuvneshwar P.Subbarao, K.Wanchoo

Facts

Petitioner M. S. M. Sharma was a journalist and the editor of

“Searchlight”—one of the well-known English daily newspapers having
a wide circulation in Bihar. Respondent Krishna Sinha was the “Chief
Minister of Bihar and the Chairman of the Privileges Committee of the
Bihar Legislative Assembly.”  [p.1]

On May 30, 1957, Maheshwar Prasad Narayan Sinha, a member of the

Bihar Legislative Assembly delivered a speech on the floor of the
Assembly described as “one of the bitterest attacks against the way the
Chief Minister was conducting the administration of the State.” He
alleged that Mahesh Prasad Sinha guided the Chief Minister in the
selection of Ministers and the transfer of public servants, and he also
alleged several instances of encouragement of corruption by the
Government. For instance, he referred to the case of a District Judge
who was only “transferred” and not “discharged” as per the advice of
the Chief Justice of the High Court of Bihar, because of the intervention
of Mahesh Prasad Sinha. The member also criticized the appointment of
Mahesh Prasad Sinha to the post of Chairman of Bihar State Khadi Board
and alleged that it was made “to enable him to stay in Patna (the capital
of Bihar) where residential accommodation at Bailey road was procured
for him.” Immediately thereafter, on a point of order being raised by
member of the Legislative Assembly, the Speaker stated:

“I have already ruled with reference to whatever has been said

about Mahesh Babu that such words would be expunged from the
proceedings. But, whatever may be said with reference to the

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Chairmanship of the State Khadi Board will remain in the proceedings
and the Honorable Member has the right to speak on the matter.”

In spite of the remarks being expunged, on May 31, 1957, “Searchlight

published a report of the speech of Maheshwar Prasad Narayan Sinha.”

On June 10, 1957, Nawal Kishore Sinha, a member of the Legislative

Assembly gave notice to raise a question of breach of privilege of the
House in the Legislative Assembly. The notice stated that “Searchlight…
published the entire speech of Maheshwar Prasad Narayan Sinha
containing all the references to Mahesh Prasad Sinha which were
ordered to be expunged”. Consequently, the Legislative Assembly
referred the matter to the Privileges Committee.

On August 18, 1958, a notice was served to the Petitioner calling upon
him to show cause establishing “why appropriate action should not be
recommended against him for breach of privilege of the Speaker and the
Assembly in respect of the offending publication.”

The Petitioner filed a writ petition under Article 32 of the Constitution

in the Supreme Court of India contending that the said notice and the
proposed action of the Privileges Committee violated his fundamental
right to freedom of speech and expression under Article 19(1)(a) and
the protection of his personal liberty under Article 21 of the
Constitution of India.

The Respondent, relying on Article 194(3) of the Constitution,

contended that a State Legislative Assembly “enjoys all powers,
privileges and immunities enjoyed by the House of Commons of the
British Parliament at the time of commencement of the Constitution of
India (i.e., 26 January 1950).” Thus, “proceedings in the House are not in
the ordinary course of business meant to be published at all and that
under no circumstances is it permissible to publish parts of speeches
which had been directed to be expunged.” Consequently, such a
publication is a clear breach of the privilege of the Legislative Assembly
and it is entitled to protect itself by calling the offender to account.

Issues
I. Has the House of the Legislature in India the privilege under
Article 194(3) of the Constitution to prohibit entirely the

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 publication of the publicly seen and heard proceedings that took
place in the House or even to prohibit the publication of that part
of the proceedings which had been directed to be expunged?
II. Does the privilege of the House under Article 194(3) prevail over
the fundamental right of the petitioner under Article 19(1)(a)?

Judgment

Majority opinion was given by Chief Justice Sudhi Ranjan Das

The Court said that the since legislature of Bihar had not passed any law
with reference to the powers privileges and immunities of the
legislative assembly as mentioned in schedule 7 list-II entry list number
39. Hence the Legislative assembly of Bihar will enjoy similar powers
privileges and immunities as that of House of Commons at the time of
commencement of the constitution as mentioned in Article 194(3). 
Hence all the powers privileges and immunities were examined by the
Court. In 1641, “the House of Commons of the Long Parliament framed
standing order ‘that no member shall either give a copy or publish in
print anything that he shall speak in the House’ and ‘that all the
members of the House are enjoined to deliver out no copy or notes of
anything that is brought into the House, or that is propounded or
agitated in the House’.”

The above mentioned order had not been abrogated or repealed and
was still in existence and applicable. Various other resolutions passed
by the house of commons were also considered and the conclusion was
that at the time of commencement of the constitution “the House of
Commons had at the time of commencement of the Constitution the
power or privilege of prohibiting the publication of even a true and
faithful report of the debates or proceedings that [took] place within the
House. A fortiori the House had at the relevant time the power or
privilege of prohibiting the publication of an inaccurate or garbled
version of such debates or proceedings.”

Hence the court held that as per Article 194(3) of the constitution the
Bihar state assembly had similar powers, privileges and immunities as
that of house of common at the commencement of the constitution.
Hence the assembly had the power to prohibit the petitioner from
publishing any part of debate which was by order of speaker expunged.

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The Petitioner argued that Article 19(1)(a) of the Constitution prevailed
over Article 194(3) of the Constitution which means that Article 194(3)
is subject to Article 19(1)(a).

The Court rejected this argument on the basis that the language of
Article 194 subjected only “clause (1) expressly to other provisions of
the Constitution”. On the other hand, “clause (2) to (4) [of Article 194]
had not been stated to be so subject. Hence it can be assumed that
Constitutional makers did not intend to subject those clauses to other
provisions of the Constitution.” Therefore, Article 194(3) was not
subject to Article 19(1)(a) of the Constitution. Hence, the Petitioner
failed in contending that the privileges of the Bihar Legislative Assembly
were subject to his fundamental right to free speech and expression.

The Petitioner contended that Article 194(3) is in violation of his

fundamental right to free speech under Article 19(1)(a) of the
Constitution. The Court held that a law passed by a “State Legislature in
pursuance of earlier part of Article 194(3) will not be a law in exercise
of constituent power, but will be one made in exercise of its ordinary
legislative powers. Consequently, if such a law takes away or abridges
any of the fundamental rights, it will contravene the provisions of
Article 13 and it will be void.”

 However, the powers, privileges or immunities of Legislative Assembly

provided by the latter part of Article 194(3) would not be void even if it
is repugnant to fundamental rights because “Article 194(3) is part of the
Constitution and as supreme as Part III of the Constitution.” In light of
the conflict between the Article 19(1)(a) and Article 194(3) of the
Constitution, the Court held that the “principle of harmonious
construction must be adopted and so construed, the provisions of
Article 19(1)(a), which are general, must yield to Article 194(3) which
are special”.

Conclusion

This case was a clear example of rule of harmonious construction. Main

issue that was raised in this case whether Article 194(3) would
supersede Article 19(1) (a) which is a fundamental right mentioned in
part-III of the constitution. The Court cleared the ambiguity with
regards to any law which would be made as per entry no32 list-II

15
schedule 7 of the constitution. Thus, the Court came to the conclusion
that notice and proposed action by the Committee of Privileges of the
Bihar Legislative Assembly was proper and hence dismissed the
petition.

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