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MANDATORY AND DIRECTORY

STATUTES
Interpretation of Statutes
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INTRODUCTION
The role of Mandatory and Directory Statutes in Interpretation Statutes is frequently called
into the issue by the Court, which must determine whether an enactment or its provision is
mandatory or directory in character. In such cases, interpretation rules are applied. And
whether a statute is mandatory or directory is determined by the language in which the intent
is clothed. In addition, the legislature's intention must and are to be discovered not only from
the provision's phraseology, but also from its nature, design, and consequences that might
result from construing it one way or the other. In order to evaluate whether a statute is
mandatory or directory, the scope and object of the statute must be considered. The
legislation is peremptory or mandatory if it requires the performance of a certain provision
without any option or discretion; on the other hand, the enactment is a directory if the acting
authority is given discretion, choice, or judgment.
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MANDATORY AND DIRECTORY STATUTES

Mandatory Statutes: Mandatory enactments or statutes mean such statutes whose

provisions are required to be followed as they are. Their performance can neither be avoided
nor can be construed. They cannot be ignored also. The general rule is that non-compliance
with mandatory provisions results in the nullification of the act. There is an exception to this
rule. If the requirements are for the interest of a particular person or authority, even though
mandatory can be waived if not in the public interest. Whereas breach of directory provisions
does not entail any invalidity. 1

Directory Statutes: It means such enactments which or whose provisions are not required
to be followed as they are. Their performance or non-performance depends upon discretion.
On non-performance of such enactments, no sanction could be imposed. The provisions of a
directory statute are a matter of form only and do not affect any substantial right, and do not
relate to the essence of the thing to be done so that compliance is a matter of convenience
rather than substance. The strict fulfillment of directory statute is not necessary to the validity
of a proceeding, but with which there is a duty to comply as nearly as practicable.

 Thus, the performance of Mandatory enactments is legally binding whereas the

performance of directory is voluntary, optional, or discretion.

CASE LAW:

a) Hari Vishnu Kamath V. Ahmed Ishaque2

In this case, 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
directory enactments cannot be penalized.
b) Punjab Co-operative Bank Ltd. Amritsar V. Commissioner of Income Tax 3
Privy Council held that mandatory enactments are capable of being strictly followed while
directory enactments could be sufficient to Perform summarily.

1
Mandatory and Directory Statutes, available at: https://www.socialthikana.in/post/mandatory-statutes-and-
directory-statutes, March 06, 2021
2
1955 AIR 233, 1955 SCR (1)1104, available at: https://indiankanoon.org/doc/1450722/
3
(1941) 43 BOMLR 372, available at; https://indiankanoon.org/doc/605319/
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PRINCIPLES FOR DETERMINING THE NATURE OF STATUTE

a) Language of Statute: In respect of the performance of statute following words are used:

- Shall: When statutes use “Shall” then it shall be construed first as mandatory. 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 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.

- May: The word “May” represents optional or discretionary Acts or their provisions.
In other words, it could be said that the words “May” in statute represent the
discretionary powers of performance of that statute or its provisions. 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’ involve 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 was 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.
 If liability has been imposed along with the discretion of public authority in a statute, the
word ‘Maybe construed as ‘Shall’ or ‘Must’.4
 If any provisions contain both ‘Shall’ and ‘May’, then these words should be construed as
Mandatory and Directory

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

Use of ‘Shall’ or ‘Shall and May’ or ‘Must and Should’

4
Ranga Swami V. Sagar Textile Mills, A.I.R. 1977 S C 1516
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The use of the word ‘shall’ raises a presumption that the particular provision is mandatory.
But this prima facie interference may be rebutted by other considerations such as scope and
object of the enactment and the consequences flowing from such considerations.

b) Intention of the legislature: In the determination of the question, whether a provision of

law is a 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.5

DIFFERENCES BETWEEN MANDATORY AND DIRECTORY STATUTES

Mandatory Directory
 Such provisions are required to be  Such provisions are not required to be
followed as they are. followed as they are.
 Their performance can neither be  Their performance or non-performance
avoided nor can be construed. depends upon discretion.
 They cannot be ignored.  On non-performance of such
enactments, no sanction could be
imposed.

5
Interpretation of Mandatory and Directory Provisions in Statutes, available at: https://nitimanthan.in/blog-
posts/blog-niti-manthan/2020/02/17/interpretation-mandatory-and-directory-provisions-statutes/
#:~:text=While%20usually%20in%20order%20to,substance%2C%20are%20mandatory%2C%20and%20those
,
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CONCLUSION
According to Lord Campbell, there is no general rule as to whether mandatory enactments
should be deemed just directory or mandatory with an implied nullification for non-
compliance. It can be summarized in terms of mandatory and directory statutes that the
Legislature used the term must instead of ‘shall’, which is a very strong imperative word. The
words ‘must’ or ‘shall’ may be replaced for the word 'may' in specific situations, but only to
give effect to the Legislature's obvious meaning. Normally, however, the word 'may' must be
understood in its natural context, that is, in a permissive rather than compulsory sense.
Mandatory words might be interpreted as a guideline in questions of procedure. 'May' and
'shall' are frequently used in opposition to one another, and should be given their natural
meaning when they appear in the same section. The interpretation is not mandatory in terms
like "must be lawful for the court," "shall be liable to pay costs," and "shall be liable to be
forfeited." The first term denotes that the Court has discretion; the second expresses that the
Court has the discretion to award costs or interest, and the third expresses that there should be
a liability to forfeiture that may or may not be enforced. Similarly, it is possible that the word
'may' is employed in an Act to create a responsibility that must be fulfilled. 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. 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. Hence, we can conclude that there are
several standards that can be used to evaluate whether a statute's provision is ‘mandatory’ or
'directory.'