Defining the word "Directory", "Black's Law Dictionary" provides: "Under a general classification, statutes are either "mandatory" or "directory," and, if mandatory, they prescribe, in addition to requiring the doing of the things specified, the result that will follow if they are not done, whereas, if directory, their terms are limited to what is required to be done."
Essence of a legal order is normally firmed by its conclusion. Effect of an order flows through its words. As a general classification, statutes or orders are mandatory or directory. In terms of statutory provisions or a court's order, the effect or force carried by a legal dispensation makes it obligatory or otherwise. Observance of a directory provision is not legally mandating.
When mandatory, laid down is the result that will follow when not acted upon. Desired result may be provided when it is directory.
Required in an adjudication is distinction between mandatory, directory and discretionary provisions. Mandatory provision gives no discretion. It is intended to be followed. However, when in a directory situation, failure to obey does not render into nullity an act done in disobedience.
A discretionary power leaves the donee (totally) free, at his discretion, to act or not to act in relation to a proposition. Non- compliance of a mandatory requirement lends to nullification of the consequential act.
P. Ramanatha Aiyar defines the word "Mandatory", in the following terms:
"A "mandatory" provision in a statute is one which must be observed, as distinguished from a "directory" provision, which is one which leaves it optional with the department or officer to which it is addressed to obey it or not, as he may see fit. The directions in a statute which are not of the essence of the thing to be done, but which are given with a view to the orderly and prompt conduct of the business, any by a failure to do which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory.
With reference to mandatory provision, he is of the view:
A provision is said to be mandatory where the procedure prescribed by it, if not followed, has the effect of invalidating any action taken contrary to it."
The Oxford Dictionary of Law describes "mandatory order": "A prerogative order from the High Court instructing an inferior tribunal, public official, corporation, etc., to perform a specified public duty relating to its responsibilities (see also JUDICIAL REVIEW); for example, an instruction to a statutory tribunal to hear a particular dispute". Crawford says: "Prohibitive or negative words can rarely, if ever, be directory. And this is so even through the statute provides no penalty for disobedience."
Mandate is a contract by which one gives authority to the other to act on his behalf, for him and in his name. A standing order is a mandate. Mandate has to be obeyed exactly. It is cancelled on death of the mandator, on his bankruptcy or when certified insane. A direction with no obligatory force is 'directory'. A directory provision leaves the decree holder free to use or not his discretion.
At the time of its making, an enactment may be mandatory or directory with reference to doings in relation to the same. Directory enactment is to observe substantially, not exactly. The law contains line, travel around which it is desirable - not essential. Abidance of such law is discretionary. Depending on situation, directory or mandatory provisions may change colours. If object of the enactment is defeated by holding a statute directory, the statute will be taken as mandatory. Breach of a mandatory law provision is invalid. However, the act may be valid in case the law position is directory, although relevant observance may give rise to a penalty, provided by the statute.
When directory, compliance is a matter of convenience. Compliance is not essence of the act desired or course directed. Such order is optional to act on the part of the authority to which the order is addressed. However, compliance directed cannot be avoided when order is mandatory. When the statute is directory, omission to act in keeping with the order does not void proceedings which follow.
There should be reasons for making an order. Reasons for making the order need to be communicated to the affected parties. The rule of non-arbitrariness is the guide. The duty to record reasons may be impliedly, inferred. In the event of a statute providing consequences of nullification or failure to comply with a prescribed requirement, there can be no question on 'mandatory' status of the order. This has to be read and understood as such.
When a law directs an act or acts to be done, prescribing also the way for doing the same it may be an absolute enactment or mandatory. To be followed substantially, is a directory enactment. Thus a law or order which provides 'a way advisable but not essential' is directory, as against a law mandating the act absolutely essential.
To distinguish between the two, "Black's Law Dictionary", traces efficacy of "Directory", as follows:
"Under a general classification, statutes are either "mandatory" or "directory," and, if mandatory, they prescribe, in addition to requiring the doing of the things specified, the result that will follow if they are not done, whereas, if directory, their terms are limited to what is required to be done. A statute is mandatory when the provision of the statute is the essence of the thing required to be done; otherwise, when it relates to form and manner, and where an act is incident, or after jurisdiction acquired, it is directory merely".
P. Ramanatha Aiyar brings fore the distinctive in the following terms:
"When a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either an absolute enactment or a directory enactment. The difference between the two is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."
Intent of the law is ascertained not only from the language in which it is clothed. To be looked at is form, design, consequences and following identified by the law. The words 'may', 'shall' and 'must' are clueful. However, these may not be decisive.
Justice G.P. Singh in his 'Principle of Statutory Interpretation', says:
"For ascertaining the real intention of the Legislature", points out SUBBARO, J. "the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered".
An act done in breach of mandatory provision is invalid. But if directory:
(i). should be substantially complied with to make the act valid.
(ii). the ones which even if not complied with have no effect on legality.
Non-compliance of directory provisions may or may not give rise to a penalty. When the statute imposes a penalty but does not expressly provide nullification as a consequence of non-compliance of the statutory injunction, it would be a question of construction whether the legislature's intention is to lay down an absolute prohibition or just to make the offender liable for the penalty.
Generally, statutory provisions which do not relate to essence of thing to be done and compliance of which is a matter of convenience, rather than substance, are "directory". While mandatory are provisions which relate to essence of thing to be done, i.e., matters of substance. So goes the dissertation of Black's Law Dictionary. However, the narrative does not help through the haze surrounding. What is a matter of substance? Who will decide whether a particular issue is of substance? Respective parties will be within their forts to have contentious postures. Given a real life situation, there may be conflicting responses. To one what may be substantial, may not be so to the other. The controversy may have to be set at rest by a state functionary or by a court, which in real life situation it is.
P. Ramanatha Aiyar defines the word "Mandate rule", as follows:
"The doctrine that, after an appellate Court has remanded a case to a lower Court, the lower Court must follow the decision that the appellate Court has made in the case, unless new evidence or an intervening change in the law dictates a different result."
The general rule is that an absolute enactment must be obeyed in its entirety. But it is sufficient if a directory enactment be obeyed or fulfilled substantially. There can be no universal principle, as to the use of words, which may indicate as to what is a mandatory or directory. "Shall" in certain legislature has given imperative commands. That is how the thinking of law gurus is. A typical example of directory provision can be traced in a law which does not prescribe a specific period for completion of tax assessment which has to be completed within a reasonable time. This will be a directory law.
Does not exist there even a thin line to demarcate between directory and mandatory provisions, a jurist has remarked. Lord Campbell holds that there can be no universal divisions with reference to directory and mandatory provisions. Maxwell says: 'it is impossible to lay down any general rule for determining whether a provision is mandatory or directory'. Summed-up, there can not be a generalized answer to the proposition. In case of directory enactments or orders there has to be substantial qualification satisfying. Compliance is to be word by word in case of mandatory provisions.
The Supreme Court of Pakistan, in Zia Haider Rizvi and others vs. DCWT, Lahore, 103Tax121 & 2011PTD610, decided on 05-01-2011, ruled:
"20. There is no absolute test by which, it may be determined whether a statute is mandatory or directory, the primary rule is to ascertain the legislative intent as revealed by an examination of the whole Act."
The words "think necessary" or "consider necessary" denote a discretion but not an unfettered discretion. The discretion is not to be arbitrary, vague and fanciful, but legal and regular. Within the limits, the individual who exercise discretion is quite free. If he ventures outside the frontiers he is not. If he takes into consideration fantastic matters which are foreign to subject matter, his power to decide the matter according to his will ends.
Exercise of power has to be by the designated person on whom it is conferred. In the absence of law provision permitting exercise of the powers by a delegate, vesting powers in the person named by the law would be mandatory. Such powers cannot be exercised by a person other than the one mandated. If a public duty is required to be performed within a specified time, it is a right given to the affected. It does not mean an application made in this behalf shall be deemed to have been granted after expiry of the stated period.
The enabling words are construed as compulsory, i.e., mandatory whenever the object of power is to effectuate a legal right. When a tax law provides that 'the authorities may rectify any mistake on face of the record', the court would readily infer a duty to exercise the power which is invested in aid of enforcement of a citizen's right. Words in a statute: 'the magistrate may take cognizance of a cognizable offence' are construed to be "must take cognizance", mandatory.
In Sainik Motors vs. State of Rajasthan, AIR 1961 SC 1480, Justice Hidayatullah observed: "The word "shall" is ordinarily mandatory but not so interpreted if the context or the intention otherwise demand". He continued: "The essence of the rule is that where consultation has to be made during the performance of a public duty and an omission to do so occurs, the action cannot be regarded as altogether void, and the direction for consultation may be treated as directory and its neglect, as of no consequence to the result".
Exceptions to advice on mandatory words may be: (a) when performance in keeping with the direction is impossible and (b) when conditions or mandatory requirements in a statute, in the interest of a particular person are waived by that person - if no public interests are involved.
Statutory ability is mandatory for enforcement of a right. While considering the non-compliance with a procedural requirement to a claim, it has to be kept in view that such a requirement is designed to facilitate justice and further its ends. If the consequence of non-compliance is not provided by the law, the requirement may be held to be directory. For example section 3 of the Limitation Act provides that subject to certain provisions of the Act, every suit instituted, appeal preferred and application made, after the limitation period prescribed therefor by First Schedule in the Act, shall be dismissed although limitation had not been se-up as a defence. This has turned otherwise a directory into a mandatory provision.
As consequence of a law provision, the court is enjoined to dismiss a legal proceeding instituted after expiry of the prescribed period.
Nature and design of the relevant statute as also consequential effects of travel, one way or the other - compliance and non-compliance, together with other provisions will have to be gone over. By reference to treatment of a provision directory or mandatory, to be studied would be whether compliance with requirement of similar provisions in other laws the question is avoided and whether object of the legislation will be defeated or furthered. Serious or the trivial consequences that follow therefrom, may also have to be gone over.
A power to be exercised 'after approval' of a named authority is not mandatory without such approval. When the requirement is only 'approval' not 'prior approach' the action will be valid. However, if disapproved, it looses force.
Mandatory rights of a citizen, including implied conditions and procedural requirements to deprive his liberty, have to be strictly followed. "Numerous cases dealing with arrest and preventive detention emphasize this principle", so asserts Justice G. P. Singh, former Chief Justice Madhya Pradesh (India) High Court. A statutory power can be exercised by the person who has been given these powers by the law. This is mandatory. The powers may also be exercised by the delegate, if delegation is made in terms of the statute. When an action can be taken 'for reasons to be recorded', recording of reasons is mandatory. Action cannot be taken without recording the reasons as such whether the order in question is executive or in the nature of subordinate legislation.
(The writer is Advocate & Corporate Counsel. E-mail: [email protected])