Statutory Interpretation: Distinguishing Mandatory From Directory Provisions

In Lifestyle Equities C.V. & Anr. v. Amazon Technologies Inc., 2025 LiveLaw (SC) 974, the Supreme Court held that although Order XLI Rule 5 CPC uses the word “shall,” read with Rules 1(3) and 5(5), it does not make depositing the disputed amount mandatory for a stay of execution. These provisions are directory, giving the appellate court discretion to impose such a condition. Non-compliance may usually lead to rejection of a stay, but a stay can still be granted in “exceptional cases,” and failure to deposit cannot dismiss the appeal. The Court stressed that unconditional stays must be granted sparingly and must not be granted arbitrarily, based on sufficient cause, and only where the order is egregiously perverse, patently illegal, manifestly untenable, or in other exceptional circumstances.

In this context, the insightful counsel of Justices Holmes and Frankfurter assumes particular relevance, as they emphasize the need for a comprehensive and holistic reading of statutes to discern their intent, purpose, object, and overall scheme.

Distinction between the two terms as defined in Black's law dictionary can be summarised as follows:

- *Mandatory*: This term describes provisions in statutes or regulations that must be strictly adhered to. Non-compliance with a mandatory provision typically invalidates the act or decision made under that provision. These provisions are considered imperative and leave no room for discretion.

- *Directory*: This term refers to provisions in statutes or regulations intended to guide or instruct without binding force. Non-compliance with a directory provision does not invalidate the act or decision. These provisions are advisory and often pertain to the manner or form of performing an act rather than its substance.

How is a statutory provision distinguished as being mandatory or directory?

Whether a statutory provision is mandatory or directory depends on several factors. The mere use of the word “shall” is not conclusive. Although “shall” generally indicates a mandatory intent, courts have, in certain contexts, interpreted it as directory. To determine the nature of a statutory provision, the court must consider the object, purpose, and scheme of the Act, as well as the context in which the provision appears. If non-compliance would defeat the very object of the Act, the provision must be regarded as mandatory. Conversely, where a provision prescribes that a certain act be done in a particular manner for the acquisition of a right, and another provision confers a corresponding right on another person if that act is not performed accordingly, the provision must also be treated as mandatory.

Procedural law can also be mandatory in nature. Section 69 of the Indian Partnership Act, 1932 is one such instance that has been held to be mandatory by the Supreme Court in Seth Loonkaran Sethiya & Ors. v. Mr. Ivan E. John & Ors., (1977) 1 SCC 379. Similarly, the time limit for filing a written statement, as introduced by the amendments to the procedural provisions of the Code of Civil Procedure, 1908 under the Act of 2015, has been held to be mandatory in SCG Contracts (India) Private Ltd. v. K.S. Chamankar Infrastructure Private Ltd. & Ors., (2019) 12 SCC 210.

Section 80 of the Code of Civil Procedure, 1908, though procedural in nature, has also been interpreted as mandatory by the Supreme Court in State of Maharashtra v. Chanderkant, (1977) 1 SCC 257. Further, in State of Kerala v. Sudhir Kumar, (2013) 10 SCC 178, the Court held that a suit filed without complying with Section 80(1) of the Code cannot be regularised by subsequently filing an application under Section 80(2).

In Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors. (AIR 1955 SC 233), the Supreme Court examined Article 329(b) of the Constitution. The Court observed that a provision may appear mandatory in form but be directory in substance. The use of the word “shall” is not conclusive; the true intention of the legislature is the determining factor. Whether a provision is mandatory or directory depends on the context. The Court explained that a mandatory provision must be strictly followed, whereas a directory provision is satisfied if it is substantially complied with.

In Sharif-ud-Din v. Abdul Gani Lone, (1980) AIR (SC) 303, the Supreme Court examined the Jammu & Kashmir Representation of People Act, 1957, and considered how to determine whether a legislative provision is mandatory or directory. The Court held that the true character of a law must be ascertained by its object, purpose, and context. If non-compliance would defeat the law's object, the provision is mandatory. Conversely, if a provision relates to the performance of a public duty and invalidating an act done in disregard of it would cause serious prejudice to those for whose benefit it is enacted—who have no control over the duty—then it is directory. The Court further held that a provision is mandatory where a law prescribes that an act must be performed in a specific manner to acquire a right, particularly when coupled with another provision conferring immunity if the act is not done accordingly. Procedural rules are generally not mandatory if defects can be rectified later, provided such rectification does not contravene another rule. Finally, whenever a statute specifies both the manner in which an act must be done and the consequence of non-compliance, the requirement should be treated as mandatory.

In Ajit Kumar Sen & Anr. v. State of West Bengal & Ors., AIR 1954 Cal 49, while considering Section 45(3) of the Calcutta Municipal Act, 1923, the Calcutta High Court observed that determining whether a particular provision is imperative or directory is a complex question. There can be no hard and fast rule of universal application. However, there are three fundamental tests that are often applied in making such a determination.

Three fundamental tests to determine whether a provision is mandatory or directory:

The three fundamental tests often applied by the High Courts and Supreme Court to distinguish whether a statutory provision is mandatory or directory can be explained as follows:

1. The use of language: If the statute uses words like "shall," it generally implies that the provision is mandatory. However, this is not always conclusive and must be interpreted in context.
2. The legislative intent: The court must consider the purpose of the statute and the legislative intent behind the provision.
3. The consequences of non-compliance: The court must evaluate whether non-compliance with the provision would result in serious consequences or invalidate the action taken under the statute. If non-compliance leads to significant consequences, the provision is likely mandatory.

Some canons of interpretation to distinguish between mandatory and directory provisions:

The following excerpt from Crawford's On the Construction of Statutes (p. 516) is relevant in this context:

"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......"

Furthermore, in the 5th edition of Craies on Statute Law, there is a passage on page 242 that sheds light on whether a statutory provision is mandatory or directory. It states as follows:

"No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."

A valuable guide for ascertaining whether a statutory provision is mandatory or directory can be found in Maxwell on "The Interpretation of Statutes", 10th edition, at p. 381 and it is:

"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them."

In conclusion, a statutory provision is directory if non-fulfilment of a condition does not invalidate it, allowing substantial compliance. Conversely, it is mandatory if non-compliance renders the provision ineffective or nugatory, requiring strict adherence.

Author is Advocate. Views Are Personal.