Mandatory and Directory Enactments – Interpretation of Statutes Notes
Mandatory and Directory Enactments have an important role in ‘interpretation of statutes’, Many times a question arises before the Court that whether an enactment or its provision is of Mandatory or Directory nature. In such situations, rules of interpretation are applied.
What are Mandatory and Directory Enactments :
Mandatory Enactments or Statutes means 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.
Whereas Directory Enactments 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.
Thus, performances of Mandatory enactments are a legal binding whereas the performance of directory enactments is voluntary, optional, or discretion.
The intention of the legislature is expressed by the use of expressions like, may, shall, must etc. Ordinarily, the use of the word may mean that the legislature intends the enactment to be directory only, while the use of words shall and must mean that intention is that the enactment is imperative or obligatory.
But there have been many occasions where the courts have held an enactment directory even though the legislature has used expressions such as shall and must. Similarly, many enactments have been held mandatory even though the word may have been used by the legislature.
State of Madhya Pradesh v/s Azad Bharat Finance Company, it was said that it is necessary that the word ‘Shall’ need not always be Mandatory. It also depends upon the context of the statute and the circumstances related to its passing off.
A similar view has been expressed by Karnataka High Court in A.B. Purushottam v/s N.K. Nagraj, It was held that the word ‘Shall’ need not be always mandatory. Its construction depends upon two facts—intention or object of the legislature and its context.
Rangaswami v. Sagar Textile Mills : Where a public authority has been vested with a discretion coupled with an obligation, the expression may denoting the discretion shall be interpreted as a command in the form of shall or must.
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.
In Ganesh Prasad v/sLakshmi Narain, it was said that in such matters, where provision contains both ‘Shall’ and ‘May’, words should be construed in accordance with the intention of the legislature.
The SC held that, it is true that where the legislature uses two words ‘may’ and ‘shall’ in two different part of the same provision, prima facie it would appear that it manifested its intention to make one part directory and the other mandatory. But that by itself is not decisive.
The Supreme Court in Sub-Divisional Magistrate, Delhi v. Ram Kali, interpreted section 190(1) of The Code of Criminal Procedure.
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.)
The Court held that, the word ‘may’ in the provision must be interpreted as ‘must’ as the provision is obligatory in nature and there is no discretion left to the Magistrate.
Remington Rand(India) Ltd. v. its Workmen :
Interpretation of Section 17(1) of the Industrial Disputes Act, 1947
17. Publication of reports and awards.-
(1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.
The SC held that, the government was duty bound to publish an award but the requirement that it should be published within thirty days is not obligatory and as such its publication after the expiry of this period does not render the award invalid.
State of Madhya Pradesh v. Azad Bharat Finance Company :
The respondents truck was being used for carrying contraband Opium without the respondent knowing about it. An order of confiscation of the truck was passed under section 11, Opium At, 1878 as modified by Opium (Madhya Bharat Amendment) Act, 1955. Under the Act of 1955 the words used are shall be confiscated whereas the main Act of 1878 provided the words shall be liable to be confiscated.
The SC held that, the confiscation unlawful and ordered release of the truck. It said that there are numerous instances where the word ‘shall’ has been interpreted as ‘may’, that is to say, as permissive and not obligatory on the ground that the context of an enactment so desires. In the present context also, a mandatory confiscation leads to absurdity, hardship and injustice because the respondent did not know that the truck was being used for such a purpose.
State of Uttar Pradesh v. Manbodhanlal, the interpretation of Art. 320(3) of the Constitution was involved which says ‘The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted…’
The Supreme Court held the provision permissive mainly because it has nowhere been mentioned either expressly nor is it deducible by necessary implication that, in case of non-compliance of the provision the proceedings will be invalidated.
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