Interpretation of Directory and Mandatory Provisions

Held. The requirement was mandatory and the petition was liable to be dismissed. The Court set out the propositions that govern the question.

The question depends upon the language of the provision, the context in which it is enacted, and its object.

The difference between the two is that a mandatory rule must be strictly observed, while in the case of a directory rule substantial compliance may be sufficient to achieve the object regarding which the rule is enacted.

The word "shall" is not conclusive. The fact that the statute uses the word "shall" while laying down a duty is not conclusive on the question whether it is a mandatory or a directory provision. To find out the true character of the legislation, the court has to ascertain the object which the provision is to subserve, its design, and the context in which it is enacted.

If the object of a law would be defeated by non-compliance with it, it has to be regarded as mandatory.

But where a provision of law relates to the performance of a public duty, and the invalidation of an act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and who have no control over the performance of the duty, such a provision should be treated as directory.

Where a provision prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right, and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as mandatory.

A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification at a subsequent stage, unless by according such permission another rule would be contravened.

Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and that the specified consequence should not follow.

Why it matters. That last proposition decided the case: section 94(1) laid down the consequence, dismissal, and once the statute has itself said what happens on breach, the argument that the requirement is directory has nothing left to stand on.

The indicators, gathered as a checklist

Apply these in order and the answer usually appears.

One, does the statute state the consequence of breach? If it does, that is nearly decisive, and the provision is mandatory. This is the Sharif-Ud-Din proposition and it is the first thing to look for.

Two, would non-compliance defeat the object of the provision? If yes, mandatory.

Three, is the provision for the benefit of a person who has no control over its performance? If yes, and if invalidating the act would prejudice that very person, directory.

Four, is the defect curable at a later stage? If it can be rectified without contravening another rule, that points to directory.

Five, does the provision prescribe how a right is acquired, coupled with an immunity for the other side if it is not done that way? If yes, mandatory.

Six, is the provision negative in form? "No court shall", "no person shall", "shall not be granted unless" are strong indications of a mandatory requirement, because a prohibition leaves no room for substantial compliance.

Seven, is compliance impossible or seriously inconvenient in the ordinary case? A requirement that cannot always be met is more likely to be directory, because the legislature is not presumed to command the impossible: lex non cogit ad impossibilia, the law does not compel a person to do what is impossible.

Eight, what class of statute is it? A provision conferring jurisdiction, a limitation period, and a condition on the exercise of a penal power are ordinarily mandatory. A provision about the form of a record, the time within which an official is to act, or the manner of keeping a register is ordinarily directory.

Words that mislead

"Shall". Not conclusive, on Sharif-Ud-Din. Statutes are full of "shall" in provisions everybody accepts are directory.

"May". Ordinarily permissive, and not always. Where a power is coupled with a duty, or is given to enable a right to be enforced, "may" has been read as "shall". The question, again, is the object.

"It shall be lawful". A form of "may", and subject to the same qualification.

Time limits. A period for a private party to act is usually mandatory; a period within which a public officer is to do something is often directory, because the person the provision benefits has no control over the officer, which is the third indicator above.

Section 21 of the General Clauses Act, and why it belongs here

Section 21 provides that where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.

Two things follow, and the second is the connection to this chapter.

The power to make includes the power to unmake. An authority that has issued a notification may amend or rescind it, without needing express words.

But it must be done "in the like manner and subject to the like sanction and conditions". So where the parent Act required previous publication, or the approval of some authority, or a hearing, before the notification was issued, the same conditions bind the amendment or rescission. Whether one of those conditions is mandatory, so that an amendment made without it is void, is precisely the question this chapter answers, and section 21 is where it arises most often in practice.

Section 23 sets out what "previous publication" requires: the authority must publish a draft for the information of persons likely to be affected, in the prescribed manner, and must consider objections and suggestions received within the period specified.

A worked example

A fictitious Land Acquisition (Maharashtra) Act contains four provisions.

8. The Collector shall, before making an award, give notice to every person interested, and shall hear any objection filed within thirty days.

9. No award shall be made unless the notice under section 8 has been served.

12. The Collector shall make his award within two years of the notice, and if he fails to do so the proceeding shall lapse.

15. The Collector shall enter every award in a register maintained in Form IV.

Section 8. Notice to a person whose land is being taken, and a hearing on objections. Apply the indicators. Non-compliance would defeat the object, which is to let an owner be heard before their land is taken. It is a condition on the exercise of a power that deprives a person of property. And it is negative in effect. Mandatory.

Section 9. Negative in form, "no award shall be made unless". That form leaves no room for substantial compliance. Mandatory, and it confirms the reading of section 8.

Section 12. The statute itself states the consequence of breach: the proceeding shall lapse. On Sharif-Ud-Din, where a statute prescribes that an act is to be done in a particular manner and lays down that failure leads to a specific consequence, it is difficult to hold the requirement anything but mandatory. Mandatory.

Section 15. The register. This is a record-keeping requirement addressed to an officer, the person affected has no control over it, and invalidating an award because the Collector used Form III would prejudice the very people the Act is concerned with. The defect is curable. Directory, and an award entered in the wrong form is still an award, though the officer may face administrative consequences.

Now the trap. Every one of the four uses the word "shall", and three are mandatory and one is not. That is why Sharif-Ud-Din says the word is not conclusive, and it is why an answer that decides the question by looking for "shall" is wrong.

Distinctions table

What this does NOT mean

"Shall" does not settle it, and neither does "may". The word is one indicator among several.

Directory does not mean optional. The provision must still be obeyed; only the consequence of breach differs.

Mandatory does not mean that no relief is possible. A statute may itself allow the defect to be cured, and a court may have power to condone delay.

The importance of the provision is not the test. Many important provisions are directory because invalidating what was done would hurt the very people they protect.

A single Act does not have one answer. As the worked example shows, four "shall" provisions in one Act can divide three to one.

Limits and criticism

No general test exists that decides every case, and Sharif-Ud-Din offers propositions rather than a rule. Two courts can weigh the same indicators differently.

The consequence-stated indicator is the only strong one, and it works precisely because it removes the question: where the legislature has said what happens, nothing is left to construe.

The distinction can produce harsh results either way. Treating a requirement as mandatory can defeat a claim on a technicality; treating it as directory can hollow out a safeguard. The courts have leaned towards directory where a private person would suffer for an official's default, and towards mandatory where the provision is a condition on a power that takes property or liberty, and that division is defensible without being a rule.

Quick revision

Mandatory: must be strictly observed; breach invalidates the act. Directory: substantial compliance suffices; breach does not invalidate.

Sharif-Ud-Din v. Abdul Gani Lone, AIR 1980 SC 303: the question depends on the language, the context and the object; "shall" is not conclusive; if the object of the law would be defeated by non-compliance it is mandatory; where the provision relates to the performance of a public duty and invalidation would seriously prejudice those for whose benefit it is enacted and who have no control over the performance, it is directory; where an act must be done in a particular manner to acquire a right and is coupled with an immunity for another if it is not, it is mandatory; a procedural rule is ordinarily not mandatory if the defect can be cured later without contravening another rule; and where the statute prescribes a manner and lays down that failure leads to a specific consequence, it is difficult to hold it anything but mandatory. On the facts, attestation of copies by the petitioner under his own signature under section 89(3), with dismissal prescribed by section 94(1), was mandatory.

Other indicators: negative form; impossibility, lex non cogit ad impossibilia; the class of provision.

General Clauses Act s.21: the power to issue includes the power to add to, amend, vary or rescind, exercisable in the like manner and subject to the like sanction and conditions. s.23: previous publication requires a draft published for those likely to be affected, and objections considered.

Test yourself

1. Distinguish a mandatory from a directory provision.

A mandatory provision must be strictly observed, and an act done in breach of it is invalid. A directory provision is one in the case of which substantial compliance may be sufficient to achieve the object for which the rule was enacted, so that a breach does not invalidate the act, although other consequences such as administrative action may follow. Directory does not mean optional: the provision must still be obeyed, and the difference lies in the consequence of not obeying it.

2. Is the word "shall" decisive?

No. Sharif-Ud-Din v. Abdul Gani Lone states in terms that the fact that a statute uses the word "shall" while laying down a duty is not conclusive on the question whether the provision is mandatory or directory, and that the court has to ascertain the object the provision is to subserve, its design and the context in which it is enacted. The same applies in reverse to "may", which is ordinarily permissive but has been read as obligatory where the power is coupled with a duty.

3. Set out the propositions in Sharif-Ud-Din.

That the question depends on the language, the context and the object of the provision; that a mandatory rule must be strictly observed while substantial compliance may suffice for a directory one; that "shall" is not conclusive; that if the object of a law would be defeated by non-compliance it is mandatory; that where the provision relates to the performance of a public duty and invalidating the act would seriously prejudice those for whose benefit it is enacted and who have no control over the performance, it is directory; that where an act must be done in a particular manner in order to acquire a right and is coupled with a provision conferring an immunity on another when it is not so done, the former is mandatory; that a procedural rule is ordinarily not mandatory where the defect can be cured later, unless curing it would contravene another rule; and that where the statute prescribes a manner and also lays down that failure leads to a specific consequence, it is difficult to hold the requirement anything but mandatory.

4. What were the facts of Sharif-Ud-Din, and why did the petition fail?

Section 89(3) of the Jammu and Kashmir Representation of the People Act 1957 required every copy of an election petition served on a respondent to be attested by the petitioner under his own signature as a true copy, and section 94(1) required the High Court to dismiss a petition not complying with section 89. The copies were attested by the petitioner's advocate instead. The petition failed because the statute had itself prescribed the consequence of non-compliance, namely dismissal, which on the Court's own propositions makes it very difficult to hold the requirement anything other than mandatory.

5. Which indicator is the strongest, and why?

Whether the statute itself states the consequence of breach. It is the strongest because it removes the question from the realm of construction: where the legislature has said that a failure to comply leads to a specified result, there is nothing left for a court to infer about what it intended, and treating the requirement as directory would mean disregarding an express provision. Every other indicator, including the object of the provision and the form of words used, is an inference about intention rather than a statement of it.

6. When is a time limit directory?

Typically where it is addressed to a public officer rather than to a private party. A period within which a person must act to acquire or protect a right is ordinarily mandatory, because the consequence of allowing more time is to disturb the other side's position. A period within which an officer is to perform a public duty is often directory, because the person the provision benefits has no control over the officer's compliance and would be prejudiced twice over if the officer's delay invalidated the act. The position reverses where the statute itself says the proceeding lapses on the expiry of the period.