Central University

of South Bihar

SCHOOL OF LAW AND GOVERNANCE

Under the guidance of Dr. Avinash Kumar

Name : Pritam Kumar

Course : B.A. LL.B. (Hons)
Semester : VII
Enrollment No. : CUSB1513125030
Subject :
Project Topic

ACKNOWLEDGEMENT
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The project work of “Interpretation” on the topic “Smith V. Huges”. This
project is given by our honorable subject professor “Dr. Avinash Kumar” and
first of all I would like to thank him for providing me such a nice topic and making
me aware as well providing me a lot of ideas regarding the topic and the methods
to complete the project.

I would like to thank all the Library staffs who helped me to find all the desired
books regarding the topic as the whole project revolves around the doctrinal
methodology of research. I would like to thank to my seniors as well as class
mates who helped me in the completion of this project. I would also like to thanks
to Google and Wikipedia as well as other web sites over web which helped me in
the completion of this project. Last but not the least, thanks to all who directly or
indirectly helped me in completing of this project.

I have made this project with great care and tried to put each and every
necessary information regarding the topic. So at the beginning I hope that if once
you will come inside this project you will be surely glad.

-Pritam Kumar.

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 SMITH

v.

HUGES,

[1960] 2 All ER 859, [1960] 1 WLR 830

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CORAM : LORD PARKER

JURISDICTION: ENGLAND AND WALES

FACT OF THE CASE : A prostitute offered her services from the balcony of a house.
Held: She was guilty of the offence of soliciting ‘in a street or public place’ contrary to section
1(1) of the 1956 Act. Applying the mischief rule, it could be seen that her solicitations took
place in a ‘street or public place’ for the purposes of the Act.
Lord Parker said that it does not say there specifically that the person who is doing the
soliciting must be in the street equally it does not say that it is enough if the person who receives
the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by
considering what is the mischief aimed at by this Act. 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 that way, it can matter little whether
the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at
a window, or whether the window is shut or open or half open; 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. I think that the magistrate came to a correct
conclusion in each case, and that these appeals should be dismissed.’

ISSUE OF THE CASE : Some prostitutes were accused of soliciting, contrary to the Act. The
defendant along with other prostitutes , sat on a balcony, or inside a building tapping on the
window, to attract the attention of men in the street. Apply the literal rule. Will the defendant
be guilty of soliciting.

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 Index
S.No Contents PAGE NO.

1. Introduction 06

2. Mischief rule 07

3. Purposive Approach 07-08

4. Indian Approach 09-11

5. 11

Judicial Review vis-à-vis Legislative

Policy

6. Conclusion 12

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INTRODUCTION
The 1960 case of Smith V Hughes is a landmark case1 where D was a prostitute who had
solicited on a balcony and a window from inside a building at men passing by. They were
charged under Section 1(1) of the Streets Offence Act 1959 for soliciting at a public place. The
issue in the case was whether the balcony and the windows of a privately owned house should
be considered as a ‘street or public place’. The literal interpretation of the provision of the Act
would consider these places as private places. However, the court applied the mischief rule in
this case and the defendants were charged under the Act.

The primary rule used in this case is the ‘mischief rule’ which is established from another
landmark case of Heydon2. In this project, the student will be focusing on the application of the
mischief rule, how the mischief rule became the purposive approach of interpretation and how
it is applied in Indian cases along with the adverse effect it has on the separation of powers
between the Judicial Bench and the Legislature.

1 Here, the case of Smith V Hughes [1960] 1 WLR 830 is the primary case dealt with in this project.
2 The Heydon's Case [1584] EWHC Exch J36 is a landmark case which originated the ‘mischief rule’.

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MISCHIEF RULE
The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to
discover Parliament's intention3. This was set out in Heydon's Case. It defined the mischief rule
and declared for the true interpretation of a statute by following four points4:

· What was common law before this Act was made?

· What was the mischief & defect that the existing law did not provide?
· What remedy does the Act attempt to provide to cure the defect?
· What is the true reason underlying the remedy?

This rule gives more discretion to the judges compared to other similar rules such as the literal
rule and the golden rule. This rule effectively allows the judge to decide on the Parliament’s
intent which also takes away the separation of powers between the judiciary and legislature.

In Smith V Hughes the Judiciary believed that the intention of the purpose of the Act was to
prevent soliciting in public places. If the plain meaning rule5 had been applied to this case, then
the balcony and the window of the defendants would fall within private purview as the Section
1(1) of the Act6 which stated that− it should be “an offence to solicitude a prostitute on the
streets or at public places” while the balcony and window could never be considered to fall
under the street or a public place. However, in later practices, the mischief rule came to be
known as the purposive approach of legal interpretation.

PURPOSIVE APPROACH
The purposive approach is also sometimes known as ‘purposive interpretation’ or ‘purposive
construction’. It is mostly referred to as the ‘modern principal of construction’ as it approaches
the statues and constitutions (be it a statute, a part of it or a clause in the constitution) in order
to enlighten their purpose of enactment. Purposive Rule was made in order to replace the three
rules− the mischief rule, the plain reading rule and the golden rule while rejecting the
exclusionary rule. In this form of interpretation, the Court utilizes pre-enacted legislation such
as drafts and committee reports.

The criticism behind this rule is that the separation of powers between the Legislator and the
Judiciary is totally regarded. The role of the Legislator is to make the laws while the Judiciary’s
role is to interpret these laws in cases. However, purposive approach allows the Judiciary to go

3 According to Farlex’s Dictionary, the definition of the mischief rule is as given. Available online at:
http://encyclopedia.thefreedictionary.com/mischief+rule accessed on 8th August 2014.
4 These were the four steps laid down for the application of mischief rule determined in the Heydon’s Case [1594] EWHC

Exch J36.
5 The ‘Plain Meaning Rule’ is one of the three rules of statute interpretation in English Law. The other two rules are the ‘Golden

Rule’ and the ‘Mischief Rule’.

6 Here ‘Act’ refers to the Streets Offence Act, 1959.

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beyond the words of the statues create an assumption in which the statue is applied with what
is thought to be the intention of the Legislators. This rule gives the judges powers to look into
extraneous matters and apply the law according to the aid they believe is required. Parliament
intends that an enactment shall remedy a particular mischief and it is therefore presumed that
Parliament intends that the court, when considering, in relation to the facts of the instant case,
which of the opposing constructions of the enactment corresponds to its legal meaning, should
find a construction which applies the remedy provided by it in such a way as to suppress that
mischief7.

The rule of statutory interpretation is simple. All the words and phrases when they are clear
and unambiguous they should be interpreted just the way they have been drafted. There should
be no addition of words as should there be no rejection. If this is not followed then there could
be misleading in the interpretation where the Legislators’ intentions are completely diverged.
Legislative wisdom cannot be replaced by any judge’s view; this is the first rule of
interpretation8. As observed by the Supreme Court in somewhat different context: “When a
procedure is prescribed by the Legislature, it is not for the court to substitute a different one
according to its notion of justice. When the Legislature has spoken, the Judges cannot afford
to be wiser.”9 However, this is an exception to the purposive approach. When the words used
in the statutory provision are vague and ambiguous or where the plain and normal meaning of
its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy
with other provisions, the courts may, instead of adopting the plain and grammatical
construction, use the interpretative tools to set right the situation, by adding or omitting or
substituting the words in the Statute10. This does not mean that the Court will assume that the
Legislature has introduced an absurd or irrational provision. Instead, they will merely assume
that the mistake made is with the draftsmen who has drafted in such a way that the provision
becomes grammatically incorrect or ambiguous, the Court will use the purposive rule of
approach in deriving a meaning to what is intended by the legislation when drafting such
provisions.

According to Maxwell11,
“Where the language of a statute, in its ordinary meaning and grammatical construction,
leads to a manifest contradiction of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, which can hardly have been intended, a
construction may be put upon it which modifies the meaning of the words, and even the
structure of the sentence. This may be done by departing from the rules of grammar, by

7 As written in HALSBURY’S LAWS OF ENGLAND, (4th Edn., Vol. 44(1), Law Publishers, Canada 1984) at paragraph 1474, on
page 906-907.
8 Ibid.

9 From the article of Rajgat Agarwal ‘INTERPRETATION OF STATUTE- THE PURPOSIVE RULE’ (Legal Service India, 30 July 2012)

available online at http://www.legalservicesindia.com/article/print.php?art_id=1223 accessed on 9th August 2014.

10 Ibid.

11 As seen in Peter Benson Maxwell, ‘INTERPRETATION OF STATUTES’ (12th Edn., LexisNexis Butterworths Publications,

Wadhwa Nagpur, August 1969) at page 228.

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 giving an unusual meaning to particular words, or by rejecting them altogether, on the
ground that the legislature could not possibly have intended what its words signify, and
that the modifications made are mere corrections of careless language and really give the
true meaning. Where the main object and intention of a statute are clear, it must not be
reduced to a nullity by the draftsman’s lack of skills or ignorance of the law, except in a
case of necessity, or the absolute intractability of the language used.”

INDIAN APPROACH
In India, Supreme Court had in the case of Tirath Singh V. Bachittar Singh12 approved and
adopted the purposive rule of approach. The Bombay High Court in Shamrao V. Parulekar V.
District Magistrate, Thana13, recapitulates from Maxwell:

“If one construction will lead to an absurdity while another will give effect to what
commonsense would show was obviously intended, the construction which would defeat
the ends of the Act must be rejected even if the same words used in the same section, and
even the same sentence, have to be construed differently. Indeed, the law goes so far as
to require the Courts sometimes even to modify the grammatical and ordinary sense of
the words if by doing so absurdity and inconsistency can be avoided.”

The Court has also observed an exception to the rule in Molar Mal V. Kay Iron Works (P) Ltd14
where it stated that “Exception comes into play when application of literal construction of the
words in the statute leads to absurdity, inconsistency or when it is shown that the legal context
in which the words are used or by reading the statute as a whole, it requires a different
meaning.”15

The Privy Council had also held that the object of the construction of a statute, be it to ascertain
the will of the legislature, it may be presumed that neither injustice nor absurdity was intended
and if, therefore a literal interpretation would produce such a result, and the language admits
of an interpretation which would avoid it, then such an interpretation may be adopted 16.

12 In the case of Tirhat Singh V. Bachittar Singh 1955 AIR 830, 1955 SCR (2) 457; where the respondent in an election petition
contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars
which it was open to him to do and was not found to have been misled or in any way prejudiced in his defense, it was not open
to him to contend that the petition was liable to be dismissed for non-compliance with the provisions of s. 83 of the
Representation of People’s Act 1951.
13 As seen in Shamrao V. Parulekar V. District Magistrate, Thana (1952) 54 BOMLR 877; deals with the detention of the

petitioner and the applicability of his detention.

14 In the case of Molar Mal V. Kay Iron Works (P) Ltd (1998) 120 PLR 579; the Court while reiterating that courts will have

to follow the rule of literal construction, which enjoins the court to take the words as used by the Legislature and to give it the
meaning which naturally implies, held that there is an exception to that rule.
15
Ibid.
16 This was decides in the case of Mangin V. Inland Revenue Commission [1971] 1 All ER 179.

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According to Justice G.P. Singh there are four conditions that should be present to justify
departure from the plain words of the Statute17:

1. There is clear and gross balance of anomaly;

2 Parliament, the legislative promoters and the draftsman could not have envisaged such
anomaly and could not have been prepared to accept it in the interest of a supervening
legislative objective;
3. The anomaly can be obviated without detriment to such a legislative objective; and
4. The language of the statute is susceptible of the modification required to obviate the
anomaly.”

By now, it is well settled that in order to fulfill the purpose of interpretation of a statute such
applications has to be made. In such cases, the principle of purposive construction must be
applied. In the case of Chief Justice of Andhara Pradesh V. L.V.A. Dikshitulu18, the Court has
observed that the primary principle of interpretation is that a Constitutional or statutory
provision should be construed according to ‘the intent of they that made it’19. This intent is
normally gathered from the language of the provision. When the language and the phrase used
by the legislation is plain and precise and with a simple reading of the provision the intention
of the legislature can be gathered in equivocal terms, it must be applied in this manner, without
changing anything within the statue when the interpretation of it is done by the Court,
regardless of the consequences that may follow. However, if the words used in the provision
lacks precision, protean or evocative, bears a meaning more than one or has grammatical error
that prevents reaching of the legislative intention, then, in such cases, in order to ascertain the
true meaning and intention behind the phrases used, the Court may have to go beyond the
confinement of the literal interpretation of the phrases and use other well-recognized rules of
construction such as the legislative history behind the Statute and why such statute was made,
throwing light to ever portion and try soughing the purpose and avoid any other form of
interpretation.

The Court has held in the case of Kehar Singh v. State (Delhi Admn.)20, that if the words of the
provisions are ambiguous and uncertain, raising any doubt as to the terms employed, the Court
deems it as their paramount duty to put upon the language of the legislature rational meaning.21
Then every word will be examined, along with every section and every provision. The Act as

17 Seen in Justice G.P Singh, ‘PRINCIPLES OF STATUTORY INTERPRETATION’ (12th Edn., LexisNexis Publications, Nagpur, 2010)
at page 144 from the decision of the House of Lords in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231.
18
Referring to the case of Chief Justice of Andhara Pradesh V. L.V.A. Dikshitulu AIR 1979 SC 193; the Supreme Court
gave its judgment under Justice Sarkaria.
19
Ibid.
20
In the case of Kehar Singh V State (Delhi Administration) AIR 1988 SC 1883; which is also known as the Indhira
Gandhi Murder Case.
21
Ibid.

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a whole will be examined in this context22. Apart from this, the necessity which arises with the
Act will also be examined, the mischief that the legislature tries to redress, the whole situation
and not just one-to-one relation23. Any provision outside the framework of the statute will not
be taken into consideration and the provisions will not be viewed as abstract principles
separated from the motive force behind24. The provisions will be taken under the consideration
of the circumstances to which they owe their origin and ensure coherence and consistency
within the laws as a whole to avoid undesirable consequences25.

The Supreme Court had also stated in the case of District Mining Officer v. Tata Iron & Steel
Co , that:

“The legislation is primarily directed to the problems before the legislature based on
information derived from past and present experience. It may also be designed by us of
general words to cover similar problems arising in future. But, from the very nature of
things, it is impossible to anticipate fully in the Varied situations arising in future in which
the application of the legislation in hand may be called for and words chosen to
communicate such indefinite referents are bound to be in many cases, lacking in clarity
and precision and thus giving rise to controversial questions of construction. The process
of construction combines both literal and purposive approaches. In other words, the
legislative intention i.e. the true or legal meaning of an enactment is derived by
considering the meaning of the words used in the enactment in the light of any discernible
purpose or object which comprehends the mischief and its remedy to which the
enactment is directed.”

In India, the practice is carried out by preferring an interpretation which harmonizes the objects over
those that dilutes it.

JUDICIAL REVIEW VIS-À-VIS LEGISLATIVE POLICY

The decision made on a policy should not be lightly inferred to but this does not mean that
the appellants can appeal against the Court saying that the Judiciary cannot make such
decisions based on their purview. When the provisions of a Statute are made, it is made in
such a manner that it is not ultra-vires of the Constitutional rights of any other act that has
already been implemented. Likewise, on its interpretation, such precautions are made so as
to avoid the violation of one’s Constitutional rights and the rights bestowed on him through
other Acts. In this manner, the Judiciary takes extra precaution in order to respect the
Legislative intention behind the Acts and interprets it accordingly.

22
Ibid.
23
Ibid.
24
Ibid.
25
Ibid.

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CONCLUSION
Several changes have been made over the method of interpretation of Statutes and
significant effects have been made on our legal system in the context of literal and purposive
approach of interpretation. This has reached as far as the Judiciary powers and the
Legislative powers converging with one another. The Parliament has set many laws that has
more or less told the Judiciary on how to interpret the laws and in return, the Judiciary has
also read words into the legislation which could be considered as what they believe is the
purpose of the Legislature behind the statute. But this can be ways to to furtherance their
own personal policy agenda.

In relation to the mischief rule of interpretation or the purposive approach of interpretation,

what is as sake is ‘the separation of powers between the Judiciary and the Legislature and
the Judiciary bench in respecting the powers conferred to the Legislature in their law
making’. Although such rules of interpretation, to some extent maybe an advantage, it could
very well be misused and bring significant problems in the Legal field in India.

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