CONSTRUCTION of MANDATORY PROVISIONS

Interpretation of Statutes CONSTRUCTION OF MANDATORY PROVISIONS I. INTRODUCTION There is no universal rule regarding the construction of statutes. It is the duty of the judiciary to try and determine the real intention of the legislature by prudently taking into consideration the entire scope of the statute to be interpreted.[1] The study of various cases on this topic does not provide a universal rule except that the language itself should not be decisive as the context, subject-matter and the statutory provision must also be taken into consideration while determining whether the said statutory provision is directory or mandatory in nature.[2] According to the words of the Supreme Court, “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.”[3] Mandatory rules are vital and go to the root of the matter, they cannot be broken; while others are only directory and a breach of them can be overlooked provided there is substantial compliance. The general rule is that an absolute enactment must be obeyed or fulfilled substantially.[4] II. DEFINITION A mandatory statute or statutory provision is one which must be obeyed so as to make the proceeding to which it relates valid.[5] According to Crawford,[6] a mandatory statute is defined as one whose provisions, if not obeyed to, will result in the proceedings to which it relates to becoming void and illegal. Therefore when statutes prescribe certain conditions for the conduct of any profession or business, and if similar conditions are not followed, agreements entered into in the course of such profession or business become invalid, if it the aim of imposing such conditions is the preservation of public safety and order.[7] Some examples of mandatory statutes: 1. The provisions concerning limitation for seeking redressal in Tribunals or Courts; 2. The provisions concerning principles of natural justice; 3. The provisions concerning registration of certain documents;

1. If negative words have been used then it shows the clear intention that the provision legislated is mandatory-

1. Section 80 CPC.
2. Section 87 B, CPC.
3. Section 77 of Railways Act, 1890,
4. Section 213 of the Succession Act, 1925, Section 7 of the Stamp Act, 1899.
5. Section 20 (1) of the Prevention of Food Adulteration Act, 1954,

2. Affirmative words is secondary to negative words for interpreting the provision as mandatory.
3. When there is no discretion needs to be applied in enforcing the provision, it is usually treated as mandatory.

III. TESTS FOR DETERMINING WHETHER A PROVISION IS DIRECTORY OR MANDATORY No universal rule can be formulated as to when may a statutory provision be considered as mandatory or when merely directory. Each case must be adjudged in the light of the intention of the law makers as revealed by the scope, object and purpose of the statute. In State of U.P. V. Manbodhan Lal Srivstava,[8] it was held by the court that, “The State Public Commission shall be consulted on all disciplinary matters affecting a person serving the government of a state in a civil capacity”. It was further held that the relevant provision cannot be interpreted as mandatory and that it did not impose any right or obligation on a public servant, so that, the lack of discussion or irregularity in it did not give him any right to raise a cause of action. Whether an enactment is mandatory or directory depends on the scope and the object of the statute. In Jyoti PrasadMitter v. The Chief Justice,[9] the interpretation of Article 217(3) of the constitution was in question. The provision says: ‘If any question arises as to the age of a judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final’. It was held by the Supreme Court that consultation with Chief Justice of the India was a mandatory requirement. One of the important tests that must always be employed in order to determine whether a provision is mandatory of directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if does, then the court would say that provision must be complied with and that it is obligatory in its character. Mandatory provision of a statute cannot be ignored merely on the ground of hardship or as merely procedural. If a provision is clearly of mandatory nature it should not be interpreted as directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory. If the legislative intent is expressed clearly and strongly, such as the use of ‘must’ instead of ‘shall’ that it will be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the inquiry further. IV. LEGISLATIVE INTENT Whether a statute is mandatory or directory rests on the intention of the law makers and not upon the language in which the intent is dressed.[10] In order to determine the question as to whether a statutory provision is mandatory or directory, the primary objective is to determine the legislative intent from a study and consideration of the entire statute, its object, its nature and the imports that would result from interpreting it one way or the other, or in conjunction with other similar statutes, and the ascertainment does not depend on the form of the statute.[11] In Hari Vishnu Kamath v Ahmed Ishaque,[12] the Supreme Court observed that the numerous rules for ascertaining when a provision might be interpreted as mandatory and when directory are only helpful in determining the real intention of the law makers and that must eventually depend upon the context. When a statute necessitates that something shall be conducted or conducted in a specified method of form without clearly stating what shall be the magnitude of non-compliance, the question often arises what meaning is to be ascribed by implication to the legislature. It has been observed that no universal rule can be created for determining whether the necessity is to be viewed as an instruction or a mere direction containing no particular significance for its contempt, or as authoritative with an applied nullification for non-compliance, outside the rule that it depends on the object and scope of the enactment.[13] V. WHEN CONSEQUENCES PROVIDED BY STATUTE When on failure to comply with a prescribed requirement nullification as a consequence is provided by the statute itself, there is no doubt that such statutory requirement must be interpreted as mandatory. For example: The period prescribed in the schedule to the Indian Limitation Act 1963, for bringing a legal proceeding are mandatory because the consequences of the expiry of the period of limitation is provided by S. 4 of the Act in that the court is enjoined to dismiss a legal proceeding instituted after expiry of the prescribed period. Sec. 17 of the Registration Act 1908 and provisions of Transfer of Property Act 1882 prescribe certain requirements as to registration of certain documents. These requirements are mandatory as the consequence of non-registration is provided by s. 49 of the Registration Act in that such documents if not registered do not affect the property comprised therein. In some cases the consequence provided for breach of a mandatory duty may itself require construction in the light of other provisions of the Act.[14] Thus Section 64 of the Police and Criminal Evidence Act, 1984 prohibiting use of a sample, which should have been destroyed, as evidence or for investigation was construed not to affect admissibility of other evidence in court collected in an investigation which was prohibited provided it did not affect fairness of the trial under section 78 of the same Act.[15] When the statute does not expressly provide for nullification as a consequence of the non-compliance of the statutory injunction but imposes expressly some other penalty, it is a question of construction in each given case whether the legislature intended to lay down an absolute prohibition or merely to make the offending person liable for the penalty. VI. MANDATORY AND PERMISSIVE WORDS

1. When ‘must’ instead of ‘shall’ is used by the legislature then the provision can be interpreted as strongly imperative.
2. In some cases the word ‘must’ or the word ‘shall’ may be replaced for the word ‘may’, but only for the objective of giving effect to the clear intention of the legislature.
3. Generally, however, the word ‘may’ must be taken in its natural meaning, that is permissive sense and not in an obligatory sense.
4. Mandatory words may be interpreted as directory in matters of procedure.
5. ‘May’ and ‘shall’ are normally used in contradiction to each other and generally should be accorded their natural meaning particularly when they appear in the same provision. But in phrases like, ‘it shall be lawful for the court’, ‘shall be liable to pay costs’ or ‘to interest’ and ‘shall be liable to be forfeited’, the meaning is not mandatory.[16]

A. Shall The use of the word ‘shall’ in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid. Where statute imposes a public duty and lays down the manner in which and the time within which the duty shall be performed, injustice or inconvenience resulting from rigid adherence to the statutory prescription may be a relevant factor in holding such prescriptions only directory. Ex: While construing sec. 17(1) of the Industrial Dispute Act, 1947, that it is obligatory on the government to publish an award, but the provision, that it should be published within thirty days, is not mandatory and an award published beyond thirty days is not invalid. B. May While construing the word May court has to consider following aspects;

1. Object and the scheme of the Act,
2. The context and the background against which the words have been used,
3. The purpose and the advantages sought to be achieved by the use of this word.

VII. OTHER RELEVANT FACTORS DETERMINING THE NATURE OF A STATUTE Where a statute generates a new privilege, right or immunity and controls the manner of its application, it must be interpreted as mandatory.[17] For example, the rights to hold an election, contest an election, and to be elected as a member of a municipal committee, are all rights created by the Madhya Bharat Municipal Act 1954 and the rules made thereunder. It follows consequently that the provisions of the Act created thereunder concerning the composition of the municipal committee must be firmly obeyed and the right to contest an election and to register for nomination can be applied only in the way and within the time given by the Act and the rules. One of the factors for determining the nature of a provision is to see whether it entails any penal consequences. In cases where the non-compliance of a provision is made penal, the provision can be safely regarded as mandatory.[18] In Banarasi Das v Cane Commr, Uttar Pradesh,[19] the Court said that the provision in Section 18(2) of the Uttar Pradesh Sugar Control Factories Act of 1938 is mandatory in nature as the word ‘shall’ has been used and provides for a penalty for intentionally failing to enter into an agreement as provided by S. 27(3) of the Act. Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951 states that a ballot paper will have to be declared as invalid if it is found false or if it so spoiled or disfigured that its identity as a genuine ballot paper cannot be determined. No degree of compliance can be afforded so far as rejection is the issue, and that is decisive to show that the provision is mandatory.[20] In order to ascertain whether a specific provision is obligatory or directory, it is essential to determine whether the error to obey the requirement influences the very groundwork of authority for the proceedings so that it makes it void and not capable of being validated. VIII. CONCLUSION The law on this subject can be summarised to the consequence that in order to proclaim a provision mandatory, the test to be exercised is whether disobedience of the provision would render entire proceedings null and void. Whether the provision is mandatory or directory, depends upon the intention of law makers not upon the language in which the intent is clad. The issue is to be scrutinised having a look at the object, subject matter and context of the statutory provisions in question. The Court may discover as what would be the significance which would run from interpreting it in one way or the other and as to whether the provision delivers a contingency of the disobedience of the provisions and as to whether the disobedience is corrected by minor penalty or grave consequence would flow therefrom and as to whether a specific construction would overthrow or frustrate the law and if the provision is obligatory, the act committed in breach thereof will be considered illegal. BIBLIOGRAPHY Page | 1

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[1] Liverpool Borough Bank v Turner (1860)30 LJ Ch 379 [2] GP Singh, 389 [3] Passage from CRWAFORD: Statutory Construction, P.516; approved in State of UP v Baburam, Upadhya, AIR 1957 SC 912, p. 918 : 1958 SCR 533. [4] Woodward v Sarsons (1875)LR 10 CP 733. [5] Kavanaugh v. Flash, 74 Fed. (2435). [6] Crawford, Statutory Construction, 3rd edn, vol III, p 104. [7] Rao & Dhanda, p 988 [8] AIR 1957 SC Art. 320(3) [9] AIR 1965 SC [10] Laxmi Narain v UOI AIR 1976 SC 714 [11] Rao & Dhanda, p 989 [12] AIR 1955 SC 233 [13] Rao & Dhanda, p 991 [14] GP Singh 402 [15] GP Singh 402 [16] Vepa Sarathi 582 [17] Dhanda, 1005 [18] AIR 1955 All 86, p 91. [19] AIR 1963 SC 1417 [20] Dhanda, 1007

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