Mandatory and Directory Provisions

Statutes constantly prescribe what must be done, how and by when. When the prescription is not followed, the question is whether the act done is void or still valid. If the provision is mandatory, non-compliance invalidates the act; if it is directory, substantial compliance is enough. The word used, 'shall' or 'may', is the starting point but not the answer. This note sets out the tests courts apply, the meaning of 'shall' and 'may', and the leading cases.

1. The Distinction

• Mandatory. Must be strictly complied with; non-compliance renders the act invalid.
• Directory. Requires substantial compliance; non-compliance does not by itself invalidate the act, though it may attract other consequences.
• No fixed rule. There is no universal test; the question in each case is the intention of the legislature, gathered from the whole statute.

2. The Tests

Figure 1: How courts decide

In State of UP v Babu Ram Upadhya (1961) the Supreme Court held that when a statute uses the word 'shall', prima facie it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For that purpose it may consider the nature and design of the statute, the consequences of reading it one way or the other, the impact of other provisions, whether non-compliance is visited by a penalty, the serious or trivial consequences that flow from it, and whether the object of the legislation would be defeated or furthered.

• Public duty. In Dattatraya Moreshwar v State of Bombay (1952) the Court held that where a statute imposes a public duty and lays down how it is to be performed, the provision is usually directory where holding the act void would cause serious inconvenience to the public who have no control over the officials.
• Negative words. Prohibitive or negative words, such as 'no person shall', are a strong indication that a provision is mandatory.
• Sanction provided. Where the statute itself provides the consequence of non-compliance, that consequence follows; where none is provided, the provision may be directory.
• Rights of individuals. Provisions that protect private rights or confer a benefit subject to conditions are more readily held mandatory.

3. 'Shall' and 'May'

• 'Shall'. Prima facie mandatory, but may be read as directory where the context and object show that (Babu Ram Upadhya)
• 'May'. Prima facie permissive or enabling, conferring a discretion.
• 'May' read as 'shall'. Where a power is conferred for the benefit of others and the conditions for its exercise exist, 'may' can carry a duty to exercise it; courts read it as 'shall' only where the context requires.
• Time limits. A time limit for a public officer or court to act is often directory, since invalidating the act would penalise persons not at fault.

4. The Leading Cases

Figure 2: Mandatory or directory: decided examples

• Manbodhan Lal Srivastava (1957). The duty to consult the Public Service Commission under Article 320(3)(c) was held directory; failure to consult did not invalidate the disciplinary order.
• Kailash v Nanhku (2005). The 90-day limit for filing a written statement under Order VIII Rule 1 CPC was held directory, being procedural; extension is allowed only in exceptional cases with reasons recorded, since procedure is the handmaid, not the mistress, of justice (Topic 25)
• C. Bright (2020). The time limit of 30 days, extendable to 60, for the Magistrate under s.14 of SARFAESI was held directory, so delay does not invalidate the order.

5. Frequently Asked Questions

What is the difference between a mandatory and a directory provision?

A mandatory provision must be strictly obeyed, and anything done in breach of it is invalid. A directory provision requires only substantial compliance, and failure to follow it exactly does not by itself invalidate what is done. Whether a provision is one or the other depends on the intention of the legislature, gathered from the statute as a whole.

Is a provision using 'shall' always mandatory?

No. In State of UP v Babu Ram Upadhya (1961) the Supreme Court held that 'shall' is prima facie mandatory, but the court must ascertain the real intention of the legislature from the whole scope of the statute, considering its nature and design, the consequences of each reading, whether a penalty is provided for non-compliance, and whether the object of the law would be furthered or defeated.

Why are time limits for courts and officials often held directory?

Because holding an act void for delay by a court or public officer would penalise parties and members of the public who have no control over that delay, and would often defeat the purpose of the statute. The Supreme Court applied this reasoning to the time for filing a written statement in Kailash v Nanhku (2005) and to the Magistrate's time limit under Section 14 of SARFAESI in C. Bright (2020).

6. Related Topics

• Topic 17: Meaning of Words. How individual words are read.
• Topic 25: Interpretation of Procedural Laws. Procedure as the handmaid of justice.