1. 'Mandatory or directory provision does not depend upon language used in the statute'.

Discuss. (4)
2. Explain the guidelines for interpreting the provisions of a statute as mandatory or
directory.
3. Explain rules of interpretation of mandatory and directory provisions.
4. "Provisions are either Directory or Mandatory". Discuss.

MANDATORY OR DIRECTORY STATUTE

INTRODUCTION
The term statute is defined by Black’s Law Dictionary as a formal written enactment of a legislative
authority that governs a country, state, city, or a country. Typically, statutes command or prohibit
something or declare policy. The word is often used to distinguish law made by legislative bodies from
the judicial decisions of the common law and the regulations issued by Government agencies.

The Constitution of India does not define the term ‘statute’. Instead, it uses the term ‘law’. The term
‘law’ is defined by Article 13 (3)(a) as including any ordinance, order, bye-law, rule, regulation,
notification, custom, or usage having the force of law. Therefore, a statute is the will of the legislature.
An Indian statute is an act of the Central or State Legislature. Statutes also include Acts passed by the
Imperial or Provincial Legislature in Pre-independence days as well as regulations. Statutes generally
refer to the laws and regulations of every sort, every provision of law which permits or prohibits
anything.

CLASSIFICATION OF STATUTES
A statute may be classified with reference to its duration, nature of the operation, object, and extent of
application. The classification of statutes with reference to the basis of duration is as follows: (Refer to
the picture)

CLASSIFICATION WITH REFERENCE TO METHOD

Such a mode classifies a statute as:
1. Mandatory, imperative, or obligatory statute
2. Directory or permissive statute

MANDATORY STATUTE
A mandatory statute is one that compels the performance of certain things or compels that a certain thing
must be done in a certain manner or form. Their performance can neither be avoided nor can be
construed. They cannot be ignored also.

DIRECTORY STATUTE
A directory statute merely directs or permits a thing to be done without compelling its performance. In
some cases, the conditions or forms prescribed by the statute have been regarded as essential to the Act
or thing regulated by it, and their omission has been held fatal to its validity. Their performance or non-
performance depends upon discretion. On non-performance of such enactments, no sanction could be
imposed.
Thus, performances of Mandatory enactments are legally binding whereas the performance of directory
enactments is voluntary, optional, or discretion.

Mandatory and Directory Enactments have an important role in ‘the interpretation of statutes’. Many
times a question arises before the Court whether an enactment or its provision is of Mandatory or
Directory Nature. In such situations, rules of interpretation are applied. No universal rules 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
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.

Hari Vishnu Kamath v/s Ahmed Ishaq (1955)

The meaning of Mandatory and Directory Enactments was clarified and it was said that it is compulsory
to strictly and literally perform Mandatory enactments whereas the performance of Directory
Enactments is voluntary and discretionary. Non-performance of Mandatory Enactments shall be
penalized and non-performance of directory Enactments cannot be penalized.

Vijay Kumar Vishwash v/s Navjug Large Size Cooperative Agricultural Credit Society Ltd.
(1998)
Calcutta High Court said about Mandatory and Directory Enactments that if a definite time is fixed for
the performance of the statute, it shall be Directory and not mandatory.

RULES OF DETERMINATION OF MANDATORY AND DIRECTORY STATUTE

There are no established Rules or Principles for determining the Nature of Statute as Mandatory or
Directory. Its determination depends upon the following points:

1. Intention of the Legislature:

In the determination of the question, of whether a provision of law is directory or mandatory, the prime
object must be to ascertain the legislative intent by considering the entire statute, its nature, its object,
and the consequences that would result from violating it. It appears to be well settled that in order to
judge the nature and scope of a particular statute or rule, ie, whether it is mandatory or directory, the
purpose for which the provision has been made, and its nature, the intention of the legislature in making
the provision, have to to be taken into account in arriving at the conclusion whether a particular
provision mandatory or directory.

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 work only as aids for
ascertaining the true intention of the legislature which is the determining factor, and the courts must
ultimately depend upon the context of the statute.

2. Purpose behind the Statute:

In the case of Chandrika Prasad Yadav v State of Bihar, it was held by the Supreme Court that the
question as to whether a statute is directory or mandatory would not depend upon the phraseology used
in the statute. The nature of the statute must be determined by the purpose and object that the statute
seeks to achieve.
If an object of the enactment is defeated by holding the statute as a directory then it should be construed
as mandatory. But if holding it mandatory causes serious general inconvenience for innocent persons of
the general public, then the same should be construed as a directory statute.

3. 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 offense 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 the power of the Court to take cognizance of any offense is absolute and complete.

4. Mandatory and permissive words

In respect to the performance of the statute following words are used—
● Shall,
● may,
● must,
● It shall be fill,
● As he deems fit, etc.

These words should be understood in their natural sense while construing. Also, the intention of
the legislature should be kept in mind.

‘Shall’
The word 'shall' is not always decisive. Regard must be given 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 on 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 analyzing the whole scope of the
statute or section or a phrase under consideration
When any statute uses ‘Shall’ then it shall be construed firstly as Mandatory provision.
(State of Uttar Pradesh v/s Baburam,( 1961) but this is not an absolute rule.
In Shariffuddin v/s Abdul Gani (1980), the Supreme Court said that while ‘interpreting
the word ‘Shall’, the intention of the legislature should be considered.

‘May’
The word ‘May’ used in statute represents the discretionary powers of performance of that
statute or its optional. In some cases, the Legislature may use the word 'may' as a matter of pure
conventional courtesy and yet intent a mandatory force. To interpret the legal importance 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.

● But if liability has been imposed along with the discretion of public authority in a statute,
the word ‘May’ be construed as ‘shall’ or ‘must’ [Ranga Swami v/s Sagar Textile Mills
(1977)]
● Similarly, if any provision contains both ‘Shall’ and ‘May’, then these words should be
construed as Mandatory and Directory respectively. But this is also not an absolute rule.
● Ganesh Prasad v/s Lakshmi Narain (1995) – It was said that in such matters, words
should be construed in accordance with the intention of the legislature even though it may
be in a different form.

‘Must’
The word ‘Must’ represents compulsorily as mandatory. Such words should be construed as to
be performed compulsorily. There is no place for Discretion.

It must be Lawful
The phrase ‘It must be Lawful’ represents duty. It includes both duties and powers. It provides
powers to perform and function and simultaneously also imposes duty with it. Such provisions
are required to be performed.
Lord Blackburn says that the words ‘it shall be lawful’ are not ambiguous. This is a phrase that
provides power and jurisdiction. [Julius v/s Bishop of Oxford, (1880)]

As he Deems Fit
The Expression ‘As he deems fit’ represents discretionary powers to do an act. It depends upon
the discretion of the Court to do any act or not. But it does not mean that the Court can act
voluntarily. Courts are required to use this discretionary power in Accordance with Judicial
Principles.
 5. Nature of Procedural Provisions
Generally, procedural provision is considered to be Directory in nature, provided that the
intention of the legislature is not violated, but it is also not an absolute rule or principle.
Provisions regarding the procedure can be Mandatory also.

In, Raghunath v/s Sunder Das, Provisions of Code of Civil Procedure, 1908 were considered to
be Mandatory Nature.

6. Nature of Time-related Provisions

Where there is the provision of performing an act within a time period, there shall be considered
to be of Mandatory Nature otherwise Directory. In other words, it can be said that where time is
the essence of the contract, such provisions are of Mandatory Nature. Provisions regarding time
may be considered mandatory if the intention of the legislature appears to impose literal
compliance with the requirement of time.
In, Bhavnagar University v/s Palitana Sugar Mills Ltd. (2003)—It was held where the
limitation to do an act and its consequences have been expressed, such provisions should be
deemed Mandatory.
If the legislature intends for the completion of an act within a definite time period, then
this intention is required to be provided in the statute, [Hindustan Life Insurance Company V/ s
Life Insurance Corporation (1963)]

CONCLUSION
As stated above mandatory statutes compel the performance of certain things or the performance of
certain things in a particular manner while a directory statute directs the commission of a thing without
compulsion, which if neglected, may give rise to or penalty.