Open Access Research Article
ROLE OF GOLDEN AND MISCHIEF RULE IN PROMOTION OF JUDICIAL ACTIVISM (By- Gayatri Suraj Chawla)
Abstract
ROLE OF
GOLDEN AND MISCHIEF RULE IN PROMOTION OF JUDICIAL ACTIVISM
Authored By- Gayatri
Suraj Chawla
TABLE OF
CONTENTS
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Sr.no
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CHAPTERS
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1
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CHAPTER 1: INTRODUCTION
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2
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CHAPTER 2: METHODS OF JUDIAL ACTIVISM
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3
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CHAPTER 3: GOLDEN RULE
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4
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CHAPTER 4: MISCHIEF RULE
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5
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CHAPTER 5: ELEMENTS OF GOLDEN AND MISCHIEF RULE
WHICH PROMOTES JUDICIAL ACTIVISM
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6
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CONCLUSION
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ABSTRACT
Interpretation
of statue plays a very important role in the delivery of justice in the modern
world. We are well aware that each and every word can bear more than one
meaning, so as to understand the true intention of the law making body, it is
necessary for the monitoring and law interpretating body to interpret the
statute, keeping in mind the real intention of the law makers and, delivery
justice accordingly. There are 4 main rules of statutory interpretation which
is accepted globally. They are: 1) Literal rule, 2) Golden rule, 3) Mischief
rule & 4) purposive approach.
In
India, we are well aware that by the constitution, there has been distribution
of powers between the legislative, executive and judicial body and they are to
exercise their powers in limitations to the potentiality allotted. So as to
deliver justice, there had been instances where judicial body has gone beyond
their extended powers, which in a way is necessary to protect the innocent.
Such an act wherein the judicial body goes beyond the applicable law, so as for
the protection of the interest of the society and the innocent, is called as
‘judicial activism’.
Golden
and mischief rule due to its nature given scope for the judges to interpret law
of which in a way motivates or supports the revolutions of judicial activism.
In this research paper, the researcher intents to explain how the golden and
mischief rule of interpretation of statues, aids and promotes the revolution of
judicial activism.
CHAPTER 1: INTRODUCTION
‘Statute
Law’ is law which made by the legislative body in written form. For the
delivery of justice it is very necessary for the judicial body to adhere the
statute laid down by the parliamentary body. But at times there are
circumstances where any particular word or any phrase defined in the statutes
denotes more than one meaning, here it is the duty of the judicial body to
interpret the statute keeping in mind the intentions of the legislative body.
But wherein the statute defines the true intentions of the law makers without
any ambiguous, the judicial body is bound to adhere the same[1].
Lord Diplock[2] defined
‘Rule’ stating that, where the
meaning of the word mentioned in a written statute is plain and unambiguous,
here the judges to invent fancied ambiguity as an excuse so as for falling to
giving meaning would be unjust. Basically, judges should not deviate from the
literal meaning of the words even if the outcome is unjust. In today’s modern
world, there is a wave of’ Judicial
Activism’ which was first introduced by Arthur Schlesinger Jr.[3]
which basically meant using the courts power to promote liberal social causes.
There are 4 main rules of interpretations which are globally accepted which are
as follows 1) literal rule- here the statute are to be read as it is by the
judges, 2) Golden rule- this rule is modification of the literal rule which is
used to avoid absurd out-comes. 3) Mischief rule- here in the judges are given
discretionary power to refine and frame the statute in such a way that aids to
fair and reasonability. 4) Purposive approach- This rule is used for as for to
ensure the law is effective as it would have intended by the law making body.
Out of all 4 rules, Golden Rule & Mischief Rule due to its very nature
gives the judges scope for reviewing and going beyond the statute defined so as
for pertaining social justice.
Type Of
Methodology Used
DOCTRINAL AND ANALYTICAL RESEARCH
Statement Of Problem.
Role of golden rule and
mischief rule in promotion of judicial activism
Literature
Review
Judicial
Activism
‘Judicial
Activism’ is an approach of a judicial body for the exercise of judicial
review.[4]
The term ‘activism’ is used in relation to political as well as academic
researches. In relation to academic research, activism usually is referred only
with the context where the willingness of the judicial body is to strike down a
particular rule of code, laid by the law making body. Whereas in political
approach, ‘activism’ is used in context wherein the judicial body implies their
own policy rather than interpreting the statute provided. The concept of
judicial activism in India could be traced backed to the English concept where
‘equity’ and ‘natural rights’. The seed of judicial activism can be traced in
the year 1893 when justice Mehmood , honorable judge of Allahabad High Court
delivered a dissenting judgment where, there was a case of an under trial who
could not afford to engage a lawyer, to the bench had the question if the court
could decide his case merely by his papers. Here Justice Mehmood held that the
statute defined “heard” which could also be interpreted if someone could speak.[5] In the historic case Mumbai Kamgar Sabha V.
Abdul Bhai, Justice Krishna Iyer explained, legislation was the best solution,
but where the law making body take it long, the society is ultimately
suffering. Here the duty of courts is to interpret, carve and sculpt the statute.
CHAPTER 2: METHODS OF JUDIAL ACTIVISM
·
Judicial Review
If there is any particular law made by the law making body or the
Executive body, which is in conflict with the constitution here the judicial
bodies have power to interpret the statute and declare such law or order void.
In the case of State of Uttar Pradesh vs. Raj Narain, HC held that the PM
Indira Gandhi was guilty of electoral Malpractice, which further is believed to
be resulted in Emergency in India of year 1975
·
Public Interest Litigation
PIL is filed in the court of law for the interest of public at large.
Basically any conduct of the government body or any institution by which
creates scope of violation of right even if it’s lawful by nature, here the
people together can file a single petition together for demanding justice. In
the case of Hussainara Khatoon vs. State of Bihar[6]
here SC had ruled that the A
nd trials in Bihar had already served time for more period that for hey
could have convicted. This case is also known as the ‘mother case’ in the
history of Indian Public Interest Litigation
·
Constitutional Interpretation.
Since the very beginning, the courts have read the constitution and
interpret every article in many ways. For instance, art 21 has been one of the
article which has been interpreted the most of all other articles. Now right to
life is not only limited to life but also limited for having quality life,
right to clean environment right to privacy and much more. For instance in the
case of Kesavananda Bharti Vs. State of Kerala[7] SC
held that the basic structure of constitution cannot be amended. Also in case
of Golaknath vs. State of Punjab[8] SC
held that Fundamental rights cannot be amended by the parliament as stated in
Art.13 and for amendment of any fundamental rights new constituent assembly has
to be formed.
CHAPTER 3: GOLDEN RULE
‘Golden rule’ is said to be
the modification of ‘literal rule’. This rule is one of the bases of English
Law used for statutory construction applied by English Courts. In ‘literal rule
the statute is to be read as it is as defined by the lawmakers without any
prejudice interpretation, whereas the golden rule gives the law interpretating
bodies to modify the statute in such a way so as to, to avoid an absurd
outcome. But for golden rule to be applicable, there should be some kind of
absurdity in the statute[9]
this was observed when the court held that the widow could not claim the due
compensation as the wording of the statute didn’t allow for this circumstance.
One of the main advantages of the golden rule is that the drafting errors can
be rectified at very initial stage. One of the most remarking case where golden
rule was implemented while interpretating was in R V. Allen[10]
here the defendant was charged with the
offence of bigamy which in the statute stated that ”whosoever being married shall marry any other person during the
lifetime of the former husband or wife should be held guilty of offence.”. here
if the court would have followed the strict rule of Literal rule, then bigamy
would not have found any base as it was impossible as civil courts did not
recognize second marriage, hence golden rule was applied to determine that the
word ‘marry’ should be deemed to go through ceremony and the convict was
upheld. There are two different approach of this rule-
·
Narrow Approach
This rule can be applied in narrow approach when there is scope of
ambiguity or absurdity the words held in statute itself
·
Wider Approach
In this approach the rule is used to avoid obnoxious of principles in
interest of public policy, wherein even where words may prima facie could carry a single meaning
Lord
Wensleydale’s Golden Rule
Lord
Wensleydale was the first one to come up with the ‘Golden Rule of
Interpretation of Statue’ in the landmark case of Grey v. Pearson [11]
here it was held that the grammatical and ordinary sense of words is to adhered
unless there is scope of such words to lead to absurdity or inconsistency with
the rest of the statute where the grammar would ordinarily sense the word may
modified.
CHAPTER 4:
MISCHIEF RULE
‘Mischief
rule’ is one of the 4 rules used for interpretation of statute which is
accepted globally. This rule has been a significant part of English court
practice and has played an important role in determining and interpretating the
intentions of the law makers defined in statute. It basically defines the scope
of “mischief” that the statute in question has set out for proclamation of
remedy. The main motive of this rule is to suppress the mischief caused by the
statute and promote the remedy. This rule takes into consideration the words in
statute as well as the true intentions of the law making / legislative body. In
Conway vs. Rimmer the court held that
the judges can use the mischief rule of interpretation in order to denote the
true intentions of the law making body. Mischief rule was introduced in heydon’s case[12] back
in late 15th century. This case was related to construction of
leases, life estate and statute. Here, there was a religious college named
Ottery College which gave tenancy to a person name Mr. Ware & his son. This
tenancy was secure by the way of ‘copyhold’ which basically was a form of
custom used for land common laws in England during the Middle Ages. This
copyhold was allotted to Mr. Ware and his son for their life. Thus copyhold was
also part of parcel occupied by some other tenants at will. Later the college
leased the same parcel to another man named ‘Heydon’ for the tenure of 80
years. Later, the parliament enacted the Suppression of Religious House Act
1535[13].
The enforcement of this act resulted in dissolving Ottery College which lead to
loss of land. The court here had held that the grant to wares was protected by
the provision, but lease to Heydon was held to be void. The significance of
this case created a he impact that the ruling was based on an essential
discussing of inter-relation of a statute to pre-existing common law. This case
was concluded by determining the purpose of the statute was to cure a mischief
resulting from defect in element of common law. It was essential for the judges
to determine and conclude the issue keeping in mind the pro bono public which
means intent for public welfare.
In
the case of Ranjet Odesiey vs. State of Maharashtra[14]the
accused was tried and charged under sec 292 of Indian Penal Code. The accused
had a book stall and he was found selling obscene literature book named ‘Lady
Chatterley’s Lover’ in his defense he pleaded that being a book shop owner does
not mean that he will have idea about each and every book and that he had no
idea that such book was deemed to be an obscene book. Supreme Court rejected
the arguments of the accused on the basis of mischief rule. After complete
analysis of mischief rule, the following elements should exist in order for the
judges to use this rule-
·
There
should be an element in statute which is causing mischief.
·
Such
an element is surprising the true intention of the legislative body.
·
Here
for providing justice, such mischief should shall be suppressed.
·
And
remedy should be provided.
CHAPTER 5: ELEMENTS OF GOLDEN AND MISCHIEF RULE WHICH
PROMOTES JUDICIAL ACTIVISM
Golden
and mischief rule both due to it element give support and uplift the promotion
of judicial activism. in golden rule, no doubt there comparatively less scope than mischief rule, but then too
it provides a little gap wherein the judges can play active role and go beyond
the typical rule of literal and define the true intentions of the statute. For
example, if courts would have sticked to the literal rule, then there would
have no scope interpretation of Art 21 of
Constitution of India. This rule of interpretation is used totally on the
discretion of the judges. For example s. 125 of Cr.PC which deals with
‘maintenance’ for women. Here while the courts interpret the term ‘wife’ also
includes women who have entered into Bigamy or talakshuda & divorced women. During many cases, the courts have
stated that, even if a women wills to relinquish her rights over divorce, she
still has rights to claim maintenance u/s 125. Justice Holmes had mentioned
that “A word is not crystal transparent
and unchanged. It is the skin of the living thought and it may vary greatly in
colour and content according to the circumstances and the time in which the
word is used”. In the case of Kartar Singh v. SO. [15]Punjab,
the bench was observed to use the golden rule of interpretation herein the
judge mentioned that, the landlord requires his land for his bona fide us, here
his is not only limited to the use of landlord but also the use of his family
member.
In
the context of mischief rule with judicial activism, here if there is a
particular phrase or any particular term in a statute which promotes mischief
and defame the actual cause of the statute, here judges have the power to
remove such mischief cause from the statute and promote remedy. Due to the very
nature of the mischief rule, the judges get ground to interpret and up bring
their views by eliminating the mischief caused and promoting. In the case of
Alamgir v. State of bihar [16]
the court had used mischief rule while pronouncing the judgment. Here the
appellant was charged under sec 498 of Indian Penal Code, 1860. A married women
was willfully living with the appellant. The women had charged the appellant
that curtly, whereas the appellant argued that he does not fall within the
limits of sec 498. Supreme Court rejected the arguments mentioning that, the word
‘taking’ or ‘enticing’ or ‘concealment’ or ‘detained’ are the elements of sec
498 and the applicant falls under the head of ‘detained’. Basically, while
interpreting, the court should try and provide some remedy by removing the
mischief.[17] It is
an established rule of interpretation that the words used in statute should be
in such way that it should prevent mischief and define the true intentions
behind the statute.
CONCLUSION
The
concept of judicial activism is one of the most highly debated concepts in the
modern world. From criticizing the rule of separation of power to actually
providing justice to society, judicial activism has taken striking role in the
modern world. If literal rule of interpretation in strict way was to be
followed in modern world, the judges would act just as a robot without
pertaining its own intellectuals. Due to the nature and scope of Golden and
Mischief rule, there comes a gap which the judges have been allotted to fill
in. The ultimate concern of authority should be social welfare and protection
of innocence.
Published Paper
Author Details
Author Name: Gayatri Suraj Chawla
Title: ROLE OF GOLDEN AND MISCHIEF RULE IN PROMOTION OF JUDICIAL ACTIVISM
Email Id: gayatric86@gmail.com
Article Information
ROLE OF GOLDEN AND MISCHIEF RULE IN PROMOTION OF JUDICIAL ACTIVISM (By- Gayatri Suraj Chawla)
Authors: Author Name: Gayatri Suraj ChawlaTitle: ROLE OF GOLDEN, MISCHIEF RULE IN PROMOTION OF JUDICIAL ACTIVISM
- Journal IJLRA
- ISSN 2582-6433
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International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
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