Chapter VII

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MaAdatory and Directory Provision in Statutes

Q.51. What do you understan d by ·mandatory and
directory provision s in a statute? Distingui sh between
n;iandatory and directory provision s.
What are the tests to determin e whether a provision in
a statute is directory or imperativ e?
. Ans.-Man datory and Directory .-The _ enactment s
enjoining that action shall or may be taken under them raise· the
problem of deciding whether they are .,to· be· considered , as
mandatory or directory. Where the enactment prescribes that the
contemplated action be taken without any option or discretion, it
will be called peremptor y or mandatory. Where however the acting
'\,

authority is vested with discretion, choice or judgement , the

enactment will be taken to be .permissive or directory.· Sometimes,
however, the Legislature does not use words in their literal sense
and mandatory and directory verbs are used interchangeably. In
such cases, the endeavour · of the interpreter of law ·would, be to
assign to the language used . the meaning which the legislators
intended for it. ·· · · · · · :.. , . · ,, •·., ,, ;
·., In deciding whethe/th ~ provisiori is .directory or·~andato ry, ,
the ·question is whe~her ther~ is anything that :ffiakes it the duty of
the person on whom the power is ~onferred to ·exercise that power.
If not, the exercise is discretionary. But when the· power ·iJ 'coupled
with a duty of the person: to whom it is given to exercise it, then it
is imperative. · · ;_. · !' ' "' , !' • •'

: ' : Distinctio n ;' · between.. . ma~dator y · 'and . directory 1

provision s.- ·. Whereas m·a~datory provisions · should _be · fulfilled

and' obeyed exact}y, :substantia l compliance is all thatris necessary ·
with the provision's of a directory enactment.- . · ·· ,.: _-,
· The practical: b~aring of the ·distinction bet\yee•n' a proyision
which is mandatory and one which· is .directory: is 'that while'· 'the
1

former must be strictly observed, in .the case of the latter, it is

sufficient that it is ~ubstantially· complied :with. Hari' Vishnu
Karnath v. Ahmad Ishaque~1955
. . . S:C.R: 1104.' ·'' , . , , · ·
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• ~ ' • t l .if
'I
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 LEG ISLA TION
90 Q/A ON INTERPRETATION OF STATUTES AND
t a pro visi on is not
It is one of the rule s of con stru ctio n tha
is mad e pen al. Jaga n,
man dato ry unle ss non- con1 plia ncc with it
.
Nat h v. Jasw ant Sing h, A.I. R. 195 4 S.C . 210
nda tory or ~ire ctor y
The ques tion as to whe ther _a stat u~e is ma_
hgh t of the inte ntio n
is a que stio n whi ch has to be adJu dge d 11!- the
p~p ose and scop e of
of the legi slat ure as disc lose d by the obJe ct,
t]un g don e not in the
the stat ute. If the stat ute is man dato ry, the
ct or val idit y ; •if it is
man ner or form pres crib ed can hav e no effe
plia nce but the act or
dire ctor y, pena lty may be incu rred for non -com
thin g done is rega rded as good . Moh anla l Gan
pat ram v. Shr i Saya ji
6 Guj . 96. ·
Jubi lee Cott on and Jute Mill s Co. Ltd ., A.I. R. 196
in a stat ute
Tes ts for det erm inin g whe the r a pro vis ion
ons of. a . stat ute
is dire ctor y or imp era tive .-W hen the pro visi
cas e is suc h that
rela te to the perf orm ance of a pub lic dut y and the
dut y wou ld:work
to hold null and void ·acts don e in neg lect of.t his
s who hav e no
seri ous gene ral inco nven ienc e, or inju stic e to per son
at the sam e time
cont rol over thos e entr uste d with the duty , ,and
ture , it -has been
wou ld not prom ote the mai n obje ct of the Leg isla
only , the ·neg lect
the prac tice to hold such prov isio ns to be dire ctor y
idit y of the -act
of them , thou gh pun isha ble, not affe ctin g .the val
ge:r :iera lly take ~
done . The use of the wor d shal l in a stat ~te, tho ugh
t 1n eve ry cas·
in a man dato ry sens e, does not nec essa nly mea n tha
the wor ds.! ofithe
it shal l have that effect, that is to say, tha t unl ess
or the outc ome 0;
stat ute are punc tilio usly followed, the pro cee ding
han d,1 it .is·. ~ot
the proceeding, wou ld be inva lid. On the oth er
bee n use d the
alwa ys_corr ect to say that whe re the ~or d 'ma y' has
. stat ute . is .only perm issiv e . 9r, _dire c~~ ry i~
the , ~en s~·. 'that
non -co~ pli~ ce ·. with , thos e I pr.o ~sip ns .~il l
n~t . re~d ~r,, 1 th~
, , ,.. ,.·,, . , _,, 1 • • l I ,
procee_ding mva hd. , . • ~ ., ,
1

or directory
•

The ques tion as to whe ther a stat ute 1s man dat ory
.. 4

t ,
upo n ·the
depends upon the inte nt of the legi slat ure and not
int~ntion
language ;in which the inte nt [Link]~d. T~e mea nin g: apd
rtai ned ,.not
of the legislature l}lUSt govern, and ~he,s e ~re..to be asc~
siderin ·
only fyom th~ phraseology of th~ proyi~ion, but also by con
ld fqlio!
its nature, it~ de~ign, and ~he ~~~seque~ce~ ' whic;h wou
~o~ con~tr1:11~g 1t ~~e. one way r,o~ the other. Sta
te of ,U.P. ·v.
'. . ·
ManbodhaTJ, ,Lal Srivastava, 1957 ·A.L.J. 921; S. C. ~ ' _

~-ta~d
: r ,
'- f I I
1 • 1 J • .• " ► " lo I )

_e ..
(

· 'fhe. relevant rules of in½rpre~-~tion ~ay · br_iefly 1 .b

• '•

thus ; when a '..~tatute_ . uses t~e word_ "shall", pr~ma_

.faci~, jf is
of the
.ma?datory, but the Court ma!° asce rtai n ,t~e r~al ,in~entioq
legislature ?Y. carefully at~nd1n~ to the whole scope of the
statute.
r, inter
For ascertrun1ng the real intention, ~e Court may conside
 OJA ON INTERPRETATION OF STATUTES AND LEGISLATION 91

.alia, the nature and the design of the statute, and the consequence
which would follow from construing it the one way or the other, the
impact of other provisions whereby the necessity of complying with
the provisions in question is avoided, the circumstances, namely,
that the statute provides for a contingency of the non-compliance
with the provisions, the fact that the non-compliance with the
provisions is or is not visited by some penalty, the serious or trivial
consequences that flow therefrom and, above all, whether the object
of the legislation will be defeat~d or furthered. State of Uttar
. Pradesh v. Babu Ram Upadhyaya, A.I.R. 1961 S.C. 751 and Gela
'Hira Rabari v. S. V. Pandya, A.I.R. 1970 Gujarat 235.
, Technicality to be avoided.-The tendency of the Courts
towards technicality is to be deprecated ; it is the substance that
counts and must take precedence over mere form. Some rules are
vital and go to the root of the matter ; they cannot be broken ;
others are only directory and a breach of them can be overlooked
provided there is substantial compliance with the rules read as a
whole'· aJ d provided also no prejudice ensues ; and when the
legislature does not itself state which is which, it is for the judges
to determine the' matter and, exercising a nice discrimination, sort
out oiie class from .the 'other along broadbased, commonsense lines.
Pratap Singh v. Shri Krishna Gupta, (1956) 2 S.C.R. 1029 ; [Link].
~ 1 .. ~: •

1956 Orissa 12.

• 1• /I' < • I • ••
,,
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'. •• !,,Visco~nt ..Maugham observed in Punjab Co-operative Bank
1
Ltd. Amritsar v. Income-tax Officer, Lahore, [Link]. 1940 P.C. 230,
• • I f " •

233 ,: . , , . . , . . , .
"It is a well settled general rule that an absolute
. enactment must be obeyed or fulfilled exactly, but it is.
• . sufficient if a directory enactment be obeyed or fulfilled
. , substantially."
I • ; ~ t
· • I

·· N~ general rule __ can be laid down for deciding. whether any

partic~ar provision in a statute . is mandatory, meaning thereby
that; n~n-,obse:rvance thereof involves the consequence _of invalidity,
or only directory, i.e., a direction the· non-observance of which does
not · entail the., consequence of invalidity whatever ~ther
c·~n~e·q~ences _may occur. To de~ide this, we. have ' to con~idcr not
_9nly the actual words used in the scheme of the statute, but also the
to
i_nte.~de~ h~ne~t the ·public by what is enjoined by the provisions
and the material danger to the public by the contravention of the
s~~e: Banwarilal Agarwalla v. State of Bihar, [Link]. 1961 S.C. 849.
. ·' .. '' ' . ' . ' .;
: ...~ '. . .' { .
 .
· F STATUTES AND LEGISLATION
. ON INTERPRETATION 0
92 0/A f ,
· n the uses o the word
rt note o d t . s 'h.
Q.52. Write a sho'th reference. to , e erm~ning "t'•~~,
'shall' and ,must' .WI. haracter, ,· It~lt-•'
rm1ss1ve c ,
imperative or pe . Or .

ent of the auxiliary ,verb 'sli ,

Q.53. 'The empl?~ ly the mere absence 0 ll 11
1
t
.
.inconclus1vc . and s1m1 ar . either." D'iscuss. . . . ft.••~
. . . t conclusive
imperative 1s no and Must.-The ~ords '~ay', 'shan,
Ans.-May, Shal d 1 d to have been used 1n their n &llq
. •t'ally be eeme . d. atu
'must, sho uld 1ru 1 · y' . . 'fies permission an implies th ta}
and ordinary sense. 'Ma Ji~cretion. "Shall" in the normal _a t the
authority has been ~~w t> . ~oubtlessly a word ot command ;ense
imports a command. . us ;;00 of the legislature will guid n all
~ases, how~ver,. the mte~or meaning. It wa~ held in People e the
interpreter m his search h t "the1question as to whether 'a st v. De
Renna 1 N.Y.S. 2d 694, t a . · h·I • • atut
. 'd t d ds upon the intent of t e egis1ature arid e
1s man a ory epen • · 1 th d II I · not
upon the Ianguage I •0
which the intent
. IS c o e
• .
• n cases '"h
YV
•
ere
th e normaI s1gru. 'ficance of imperative and permiss1ve· terms
1 . leads to
.
absurd, mconvem •ent or unreasonable ·resu ts, they should> be
discarded. . . ··· ,
"May" observed Cotton L.J., "can never mean 'must' so ion
'
as the English language retains ' its · m~amng · ; b~t I't gi~es
· a powerg
and then it may be a question, in what case, wh~n any authority or
body has a power given to it by the w~rd 'may' It becomes its dµty
to exercise that power." In re Baker Nichols v. Baker, (1890) 44 'Ch.
D., 262. . . .
It is well-settled th~t ordinarily the wo~d '~ay' is always used
in a permissive se~e, but there may be circumst~ce~ where this
word will have to be construed as having been used In a mandatory
or compulsory sense. Where the word 'may' has been used as
implying a requisite condition to be fulfilled, the court will and
ought to exercise the powers which it should and in such a case the
word 'may' will have a compulsory force.
It is not always correct to say that where the word 'may' has
been used, the statute is only permissive or directory in the sense
that non-compliance with those provisions will not ' render the
proc~eding invalid. Sta:te of U.P. v. Manbodhan L~l, 1958. S.C.R.
533. . '
·
Where a statute u·ses the word 'shall' prima acie' it is f
mandatory, but it is sometimes not so interpreted if the context or
the intention otherwise demands. Sainik Motors v. State of
- 93
Q/A ON INTERPRETATION OF STATUTES AND LEGISLATION

Rajasthan, 1961 S.C. 1480.

"It is well-settled that the use of the word 'shalP does not
always mean that the enactment is obligatory or mandatory ;
it depends upon the context in which the word 'shall' occurs
and the otJ:ier circumstances ." State of Madhya Pradesh v.
Azad Bharat Finance Co. , A .I.R. 1967 Supreme Court, 276,
278.
The questio~ whether a particular provision of a statute which
on the face of it appears mandatory inasmuch as it used the word
'shall' or is merely directory cannot be resolved by laying down any
general rule and depends upon the facts of each case and for that
purpose . the object of, the statute in making the provision is the
determining factor. The purpose for which the provision has been
made and its nature, the intention of the Legislature in making the
1
l
proyisi~n, the s_e rious general inconvenience or injustice to persons
resulting from whether the provision is read one way or the other,
I· the relation of the particular provision to other consideration s
which may arise on the facts of a particular case including the
language _of the provis~on, have all taken into account in to ?.e
arriving at the conc~usion whether a particular provision is
mandatory or directory. Raza Buland Sugar Co. Ltd., Rampur v.
¥,uni.~ipa,l) 3~ard, ·Rampu,r, _(}965) 2 S.C.A. 431.
, ~. Undcr.\_. certain circumstances, ... the. expression "shall" is
construed as ."may". The term "shall''. µi its ordinary significance is
mandatory. and fh~ Court shall _ordinarily give that interpretation
to that term unless such ·an interpr~tation leads to some absurd or
inconvenient consequence or be at variance with the intent of the
( " I .,. • ,

legislature, J~ to be ·collected from other parts of the Act. The

, T' I \ I ,. l ! 0
1

const~ction, of the ' said, expression depends

,
on the provision of a
.. ~ ' .. . ., l • •
particula~ Act, ,the. setting 1n V{hich the expression appears, the
object f~r' which the dir_ection is given, the consequences that would
' .t• • •. ~ - ~ ~

flowI · from the '• .

infringement
. \' •
of the direction and such other J I

[Link]. "Khub. Chand v. State of Rajasthan, A.I.R. 1967 S.C.

107i 1077, ,·, : i ••. ;•
I • •
1

• J I r , ~,. • , I , ,

of
'

The employment the auxiliary verb 'shall' is inconclusive

and similarly
•
the
,,,
mere
: •
absence
I • •
of the imperative
• •
is not conclusive J • •
• , ,
~

cit~er. The question whether any requiremen~ i~ mandatory or

directory has to be decided not merely on the basis of any specific
p~ovisi~n \ yhich, for instance, sets out t~e c~nsequences of the
~mission
• II
to~observe the requirement, but
' '
the purpose for which I. '
on • • • •

the· requirement h~s been e_iiacted, parti~ul~rly i:11 the co~text of the
otlier provisions 'of the ·Act\• and the ·general ·scheme ·thereof. ·It
 ATION OF STATUTES A~D, ~~GISLATION
Q/A ON 1NTERPRET I •

94 :
whether the reqwrement is .
. depend on f th , . ht' f l'b lllsi ,
would, inter_ alia, he safeguarding o . ' e ng ,o l erty ofStQ~
as a protection, for. ht the act1'on [Link]. yollector of ~ ~ !lQr ()4
'R 98 , ~v,1 a()
or of property whic k (1963) 1 S.C. · · , 0 hgi. 4
ad Goen a, , , ,b d . 'L.}i
v. Keshava Pras . . }ias to be o serye strictly b. ,.

. d t provision'sion substan . t' I' , ' , ' ut, .,lll tt

A roan a ory 18 . compliaric
. tory provi t b11. b ., . e 18 . {'"
case of a d,irec ute enactment mus e o eyed . or , , <>q111
sufficient. An absolffi . t if 8 directory e~a~tment is hfu1n11 )
exactly, but it is ..su icien .; ' ·.. r tIO . eyed Q(}
7 0
fulfilled substantially. t ·.' • • • ,~ • .•• • t
. th re is Jno hard and fast
Q.54. "While e provision is directory'or lllat"ule fo
8
determining whctbersought from the recognised n~ato~
assistance may be \ ,· • aids t '
construction.• Discuss. ., . . , i , •• o

Ans.-Aids to Const~_ct~onh fodr. dedtf:ermt~nul . ation of 'th

ds -There is no ar an as r e for d . . . <l
character t o wor · d t 'E' }i'' ec1ct·
o:
whether a provision is director~ man . ~ Oory: fac I~divictu·al lflg
. d d on the basis of its facts. ~e o the meth'od ~ase
has to be JU ge . . d ' 'd , t · s is to
• tance of the 'recogruze ai s. o construction 0
, seek th e ass1s • , h • t· 1 h' · · ne
.the aids is to seek the ~~ose of~ e 1e~s1a ion;-w ich \ viU reve of
the real intent the legislaiors w~te~ -~ ,attach t~, the ~~gislatio al
The Court has held that: "In deter~1rung :'hether t~e:p~ovi_sion n.
a statute is manda~ry, ~he end sought. to b~ . ~ttru~~d . by th~
P h considered
rovision is always important ,to ,be b if the end
. . t, and,
cannot he effectu~ted_'by 1~oldin? t e proVIsion .~' e _directory,.it
must, if it can co~~istently with the lan~age, ,_he•-~eld to· be
mandatory. In [Link] of Cuddeb~ck, 39 N.Y.S. 388. 1 ,1~ :
J ,.

"The enabling ·words are construed asi'compulsory 'when'ever

th:e object of the power is to effe~ua_te . a legal :r~ght." ·Juli~s v.
Bishop of Oxford, ibid. The use o~ permis~iv~ words 1rr such cases is
the usual courtesy of the legislature in dealing with the judicature
Re Neath and Brecon Ry. Co., (1874) 9 Ch. App. 263. ·· 1
., • •
' . '
It is also useful to . consult the,. history of the bill in the
legislature. It is sometimes · found that' the legislaturJ' origi~ally'
proposed the word 'may', but subsequently substituted· tlie te'rni
'shall'. · :, · ' ,:
The Supreme 'Court ·or Nebraska has laid down · a;:for~ula
which is' very convenient to ·apply. It runs like this: : "Whe~· the
particular provision of. th'e statute relates' · to some imma~rial
matter, where compliruice is ·a matter of convenie~ce· r~ther than
s?bstance, or w~er~ the directions of the statute are with. gi~eq' a
VIew to proper, or~erly ~i:id prompt conduct of business merely; Jhe
J ' ,' '· •
• • 4,,.
 0/A ON INTERPRETATION OF STATlJTES AND LEGISLATION 95

provision ~ay generally be re?arded · as directory. Wb~n a fair

interpretat10n of tho statute, which directs acts or proceedings to be
done in a, certain ' Way, shows that the legislature intended a
compliance with such provision to be essential to the validity of the
act or proceeding, or when some antecedent and prerequisite
condition· must, _ exist prior to the exercise of power, or must be
perfoz:med before ~ertain o~her powers can be exercised, then the
statute must be regarded as mandatory." Hurford v. City of Omaha,
4 Neb., 336.
In every case, where the Court is called upon to consider
whether the provisions of an enactment are mandatory or merely
directory in nature, the determining factor is the intention of the
Legislature. Where powers, rights or immunitie are granted with a
direction that certain regulations, formalities or conditions shall be
complied with, it seems neither unjust nor inconvenient to exact a
rigorous observance of them as essential to the acquisition of the
right or authority conferred. But when a public duty is imposed and
the statute requ~res that it shall be performed in a certain manner,
or within a certain time, or .under other .specified conditions, such
prescriptions may well. be regarded as intended to be directory only
in cases when injustice or inconvenience to others who have no
control over those exercising th~ d_uty would result if such
requirements were essential and imperative.
There is no rule of universal application for determining
whether a provision in a statute is absolute or directory. The
question. in each case has to be decided on a consideration of the
scope and object of the provision, the importance of the provision in
question in relation to general object intended to be secured by the
•Act and consideration of justice and convenience. The use of the
word "shall" is not decisive · of the provision being mandatory. So
also, the absence of any provision laying down the consequences of ·
the omission to observe a requirement is inconclusive. At the same
time, it is well settled that where a statute creates or grants a new
right, privilege . or immunity and regulates the manner of its
exercise, .it must be cohstrued as mandatory. Dwarka Prasad
Mishra v. Kamal Narain Sharma, A.l;R. 1964 Madh. Pra. 273.

· Q.55. Discuss the significance of affirmative and

negative words with·a view to determining their mandatory
or directory character. ·
Ans.-Mfirmative and Negative Words.-Prescnce of
negative words in a statute, be it. express or implied signifies that
96 Q/A ON INTERPRETATION OF STATUTES AND LEGISLArroN

exact compliance with the terms of the statute is can

absence of negative words suggests a ~ire~tory const;~ f~l'. ~
Bladen v. Philadelphia, (60 Pa. St. 464) it ,was remarked~~~ott_~flQ
the words are affirmative, and relate to the manner in Wh. · ~ l~
or jurisdiction v~st~d in a public •office~ o~ b?d~ is _to he ~ch
and not to the hm1ts of the ·power. or JUnsqict1on itself Jcetcis Qr
Po:~~
and often have been construed to be directory." Of co,:. . they h-ecl,
· · ~se ...,.q)
affirmative words have been used absolutely and perein t '. Whe
legislation will be deemed to be mandatory. p 011ly, th:

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