Megha Viswanath ,06 March 2021
Introduction
Whether an enactment is mandatory or directory depends on the scope and the object of the statute. Where the enactment demands the performance of certain provision without any option or discretion it will be called peremptory or mandatory or the other hand if the acting authority is vested with discretion, choice or judgement the enactment is directory.
Distinction
It is one of the rules of construction that provision is not mandatory unless no-compliance with it is made penal mandatory provisions should be filled & obeyed exactly, whereas in case of provision of directory enactments substantial compliance is satisfiable. Non-compliance of mandatory provision has penal consequences whereas non-compliance of directory provision would not furnish any cause of action or ground of challenge.
Test for determining Lord Campbell observed that there can be no universal applications as to when mandatory. Maxwell says ‘that is impossible to lay down any general rule for determining, whether a provision is mandatory as directory.’ The supreme court of India stresses time and again that the question whether a statute is mandatory or directory, is not capable of generalization and that in each case the court should try & get at the real intention of the legislature by analyzing the entire provisions of the enactment and the scheme underlying it.
The intent of the legislature must be ascertained not only from the phraseology of the provision,but also from its nature, design & consequences which could follow construing it in one of form or another.
Specific terminologies Generally the intention of the legislature is expressed by mandatory & directory verbs such as ‘may’, ‘shall’ &’must’. However, sometimes the legislature uses such words interchangeably. In such cases, the interpreter of the law has to consider the intention of the legislature. The words ‘may’ ‘shall’ & ‘must’ should initially be deemed to have been used in their natural & ordinary sense.
Case law : “ In State of U.P. V/s Jogendra Singh”
The Supreme Court obeyed that ‘there is no’ doubt that the word ‘may’ generally does not mean ‘must’ or ‘shall’. But it is well settled that the word ‘may’ is capable of meaning ‘must’ or ‘shall’ in the light of context. It depends upon the context in which the word ‘shall’ occurs & the other circumstances. Unless an interpretation leads to some absurd consequences or contradicts with the intent of the legislature, the court shall interpret the word ‘shall’ in mandatory sense. ‘Must’ is doubtlessly a word of command.
Time fixations If time fixation is provided to the executive it is supposed to be permissive with regard to sue of the time only. However, provisions regarding time may be considered mandatory if the intention of the legislature appears to impose literal compliance with the requirement of time.
Conclusion
As stated above mandatory statutes compels the performance of certain things or the performance of certain thing in a particular manner while a directory statute direct the commission of a thing without compulsion, which if neglected, may give rise to or penalty.