INTERPRETATION OF MANDATORY AND DIRECTORY PROVISIONS IN STATUTES

Introduction

No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. Courts of justice must try to get the real intention of the Legislature by carefully understanding the intent of the statute. The Supreme Court of Indian has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.

According to Crawford 3—

“A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory”.

In DA Koregaonkar v State of Bombay, it was held that one of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, then the Court would say that, the provision must be complied with and that it is obligatory in its character.

DIFFERENCE BETWEEN MANDATORY AND DIRECTORY PROVISIONS:

According to Sutherland

“The difference between mandatory and directory statutes is one of effect only. The question generally arises in a case involving a determination of rights as affected by the violation of, or omission to adhere to, statutory directions. This determination involves a decision of whether or not the violation or omission is such as to render invalid Acts or proceedings pursuant to the statute, or rights, powers, privileges or immunities claimed there under. If the violation or omission is invalidating, the statute is mandatory; if not, it is directory”.

RULES FOR DETERMINATION OF MANDATORY AND DIRECTORY STATUTE:

Intention of the Legislature:

In determination of the question, whether a provision of law is directory or mandatory, the prime object must be to ascertain the legislative intent from a consideration of the entire statute, its nature, its object and the consequences that would result from construing it in one way or the other, or in connection that with other related statutes, and the determination does not depend on the form of the statute.

In Hari Vishnu Kamath v Ahmad Ishaque , the Supreme Court observed that the various rules for determining when a statute might be construed as mandatory and when directory are only aids for ascertaining the true intention of the Legislature which is the determining factor, and that must ultimately depend upon the context. An enactment, mandatory in form, might in substance be directory. The use of word 'shall' does not conclude the matter.

• Purpose behind the Statute:

In Chandrika Prasad Yadav v State of Bihar, it was held that, the question as to whether a statute is directory or mandatory would not depend upon the phraseology used therein. The principle as regards the nature of the statute must be determined having regard to the purpose and object the statute seeks to achieve.

According to Sutherland,

"It can be stated as a general proposition that, as regards the question of mandatory and directory operation, the courts will apply that construction which best carries into effect the purpose of the statute under consideration. To this end, the Court may inquire into the purpose behind the enactment of the legislation, requiring construction as one of the first steps in treating the problem. The ordinary meaning of language may be overruled to effectuate the purpose of the statute".

In Lila Gupta v Laxmi Nariain, the Court was interpreting the proviso to section 15 of the Hindu Marriage Act 1955 (which was repealed in 1976). The expression read as follows- "Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance". The Court observed that when a statute prohibits a certain thing being done, thereby making it unlawful without providing for the consequence of the breach, it was not legitimate to say that such a thing when done was void because that would be tantamount to saying that every unlawful act is void. On the basis of this reasoning, the Court held that a marriage in violation of the proviso would not be a nullity, irrespective of the use of the word 'shall' in the provision.

Use of prohibitory words—

In State of Himachal Pradesh v MP Gupta, the Court was interpreting section 197 of the Code of Criminal Procedure 1973, which provided 'that no court shall take cognizance of any offence alleged to have been committed by a public servant, judge, magistrate, or member of the armed forces'. It was held that the use of the words 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete.

MANDATORY AND PERMISSIVE WORDS:

In Sidhu Ram v Secretary Railway Board, the Court had to consider the import of Rule 1732 of the Railway Establishment Code. The relevant portion of the Rule read thus—

“where the penalty of dismissal, removal from service, compulsory retirement, reduction in rank or withholding of increment has been imposed, the appellate authority may give the railway servant either at his discretion or if so, requested by the latter a personal hearing, before disposing of the appeal”

The Court has to consider whether the obligation to give a personal hearing was mandatory or directory. On plain reading of the Rule, the Court held that if the expression 'may' were to be read as 'must', it would impose a duty on the appellate authority to give a right of personal hearing in each case. In the opinion of the Court, if that was the intendment of the Legislature, it would have expressed it in much simpler and explicit terms. Hence, the Court held that the provision was directory and not mandatory. In arriving at this decision, the Court observed—

"Ordinarily the words 'shall' and 'must' are mandatory and the word 'may' is directory although they are often used interchangeably. It is this use, without regard to the literal meaning, that generally makes it necessary for the Court to resort to construction in order to ascertain the real intention of the draftsman. Nevertheless, it is generally presumed that the words are intended to be used in their natural meaning. Law reports do show that when a statute deals with the right of the public, or where a third person has a claim in law to the exercise of the power, or something is directed to be done for the sake of justice of public good, or when it became necessary to sustain the constitutionality of a statute, the word ‘may’ is sometimes used as ‘must’. In the final analysis, it is always a matter of construction of the statute in question”

It may, however, be noted that the presumption that the Legislature used mandatory and permissive terms in their primary sense is a rebuttable one. The intention of the Legislature will control and prevail over the literal meaning of these words. The literal and ordinary meaning of imperative and permissive terms will give way when the interpretation of the statue according to the literal meaning of its words leads to absurd, inconvenient, or unreasonable results.

USE OF WORD ‘MAY’: -

It is well settled that the use of the word 'may' in a statutory provision would not by itself show that the provision is a directory in nature. In some cases, the Legislature may use the word 'may' as a matter of pure conventional courtesy and yet intent a mandatory force. In order, therefore, to interpret the legal import of the word 'may'. The Court has to consider various factors, namely the object and the scheme of the act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word 'may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the Court advances a remedy and suppresses the mischief, or were giving the words a directory significance would defeat the very object of the act, the word 'may' should be interpreted to convey a mandatory force.

In Alcock, Ashdown & Company Ltd v Chief Revenue Authority, the appellants claimed exemption from excess profit duty, but this contention was rejected. They applied to the High Court for an order directing the respondent to state a case of the opinion of the High Court and the question was whether the High Court had jurisdiction to do so. Section 15 of the Excess Profits Duty Act 1919 made section 51 of the Indian Income Tax Act 1918 applicable to proceedings under the former act. Section 51 of the latter Act provides that if— " in the course of any assessment a question has arisen with reference to the interpretation of any of the provisions of the act, the Chief Revenue Authority may draw up a statement of the case and refer it to the High Court.

It was held that it was true that 'may' does not mean 'shall' but when a capacity or power is given to a pubic authority, there may be circumstances which couple with the power a duty to exercise it. In their Lordships' view, always supposing that there is a serious point of law to be considered, there does lie a duty upon the Chief Revenue Authority to state a case for the opinion of the Court, and if he does not appreciate that there is such a serious point, it is in the power of the Court to control him and to order him to state a case.

USE OF WORD SHALL:

The word 'shall' is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the Court to try to get at the real intention of the Legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration.

• STATUTES RELATING TO JUDICIAL DUTIES AND PROCEEDINGS: -

A statutory requirement relating to a matter of practice or procedure in the Court should be interpreted as mandatory if it confers upon a litigant a substantial right, the violation of which will injure him or prejudice his case. On the other hand, a statutory provision regulating a matter of practice or procedure will generally be read as a directory when disregard of it or the failure to follow it exactly will not materially prejudice a litigant's case or deprive him of a substantial right.

In Kasi Bishwanath Dev v Paramananda Routrai, the matter before the Court was whether, under 35B of Civil Procedure Code, the payment of costs would be a mandatory condition precedent to the proceedings of the suit. The relevant portion of the provision read as follows—

"The Court may for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date and such order shall be condition precedent to the further prosecution of"

The Court held that the cause of justice was paramount, and a procedural law could not be raised to the pedestal of a mandatory provision as would take away the Court's right in a given vase to exercise its discretion in the interest of justice. Hence, the language in which section 35B of the Civil Procedure Code had been expressed must be considered to be directory.

Conclusion :-

From the above discussion, the following rules regarding can be summarized regarding the mandatory and directory statutes—

1. When the Legislature used 'must' instead of 'shall' it uses a word which is most strongly imperative.
2. In some cases the word 'must' or the word 'shall' may be substituted for the word 'may' but only for the purpose of giving effect to the clear intention of the Legislature.
3. Normally, however, the word 'may' must be taken in it naturally, that is, permissive sense and not in its obligatory sense.
4. In matters of procedure, mandatory words may be construed as directory.
5. 'May and 'shall' are generally used in contradistinction to each other and normally should be given their natural meaning especially when they occur in the same section. But in phrases like, it "shall be lawful for the court', 'shall be liable to pay costs' and "shall be liable to be forfeited', the meaning is not mandatory. The first expression means the Court has discretion; the second expression gives a discretion to the Court to award costs or interest, and the third not that there should be an absolute forfeiture but a liability to forfeiture which might or might not be enforced. 6. Similarly, it may happen that in an Act the word 'may' is used in such a way as to create a duty that must be performed.