Mandatory vs Directory Provisions
I. Introduction
In the realm of statutory interpretation in India, the words “shall” and “may” serve as critical indicators for distinguishing between mandatory and directory provisions. The Supreme Court of India has consistently held that “shall” is presumptively mandatory, implying an obligation, while “may” is generally directory, suggesting discretion.
However, this distinction is neither rigid nor mechanical; it hinges on the legislative intent, the context of the provision, the object of the statute, and the consequences of non-compliance — rather than the literal wording alone. This approach ensures that interpretation aligns with the purpose of the enactment, preventing undue hardship or absurdity.
Key Principles Governing Interpretation
- Legislative Intent: The true intention of the legislature is the primary factor in determining whether a provision is mandatory or directory.
- Context of the Provision: The placement and surrounding provisions of the statute influence interpretation.
- Object of the Statute: Courts consider the broader purpose the legislation seeks to achieve.
- Consequences of Non-Compliance: The effect of failing to follow the provision is carefully evaluated.
- Prevention of Absurdity: Courts avoid interpretations that lead to unreasonable or unjust outcomes.
The Supreme Court, in a catena of cases, has emphasised that no universal rule exists for this determination, and each case must be examined on its own facts. Even if “shall” is used, it may be construed as directory if strict compliance does not advance the statute’s objective, or if no prejudice results from non-compliance.
Conversely, “may” can be interpreted as mandatory in certain contexts where the provision’s purpose demands it. This nuanced interpretive framework shapes the application of statutes across various domains — including criminal procedure, land acquisition, and taxation — influencing how laws are enforced and rights are protected.
Conceptual Overview
| Term Used in Statute | General Interpretation | Meaning in Practice |
|---|---|---|
| Shall | Presumptively Mandatory | Creates a legal obligation; compliance is usually required. |
| May | Generally Directory | Indicates discretion; compliance may depend on circumstances. |
| Judicial Approach | Context-Based | Courts examine legislative intent, purpose of the statute, and consequences of non-compliance. |
II. Core Principles Laid Down by the Supreme Court
The Supreme Court has laid down foundational principles for interpreting “shall” and “may,” consistently underscoring that the language employed is not conclusive. The following leading decisions illuminate the evolution of this doctrine:
1. Hari Vishnu Kamath v. Syed Ahmad Ishaque
| Citation | Decision Date |
|---|---|
| AIR 1955 SC 233 = 1955 SCR (1) 1104 | 9 December 1954 |
The Supreme Court, examining Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 — which was framed under Article 329(b) of the Constitution — ruled that a provision may appear mandatory in form yet be directory in substance. The Court held that the true intention of the legislature is the determining factor, and that “shall” is not conclusive. It further clarified that a mandatory provision requires strict compliance, whereas a directory provision is satisfied by substantial compliance. This case remains a foundational authority on the subject. It would be trite to reproduce the observation of the Apex Court in the said case, which reads thus:
“It is well-established that an enactment in form mandatory might in substance be directory, and that the use of the word “shall” does not conclude the matter. The question was examined at length in Julius v. Bishop of Oxford [1880] 5 A.C. 214 and various rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well-known, and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context. What we have to see is whether in Rule 47 the word “shall” could be construed as meaning “may”…. “
2. State of U.P. v. Manbodhan Lal Srivastava
| Citation | Court |
|---|---|
| AIR 1957 SC 912 | Supreme Court Of India |
The Supreme Court held that Article 320(3)(c) of the Constitution — which mandates consultation with the Public Service Commission in disciplinary matters — is directory and not mandatory. The Court reasoned that the advice of the Public Service Commission was not binding on the Government, and no provision of the Constitution expressly rendered non-compliance fatal to the final order. Legislative intent, ascertained from the provision’s phraseology, nature, design, and the consequences of alternative constructions, was held to be the governing criterion. The Apex Court observed thus:
“An examination of the terms of Art. 320 shows that the word ” shall ” appears in almost every paragraph and every clause or sub-clause of that article. If it were held that the provisions of Art. 320(3)(c) are mandatory in terms. the other clauses or sub-clauses of that article will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly the terms of these sub- clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a -public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution.
Hence, 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. On the other hand, it is not always correct to say that where the word “may ” has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on ‘Statutory Construction’-art. 261 at p. 516, is pertinent:
” 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. Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur
| Citation | Bench | Decision Date |
|---|---|---|
| AIR 1965 SC 895 = 1965 SCR (1) 970 | Constitution Bench | 30 October 1964 |
A five-Judge Constitution Bench, comprising Gajendragadkar C.J., Wanchoo, Hidayatullah, Raghubar Dayal and Mudholkar JJ., held that whether a provision in a statute is mandatory or directory cannot be resolved by laying down any general rule — it depends upon the facts of each case, including the statute’s purpose and potential prejudice to affected parties. The Court divided Section 131(3) of the U.P. Municipalities Act, 1916 into two parts: the first part (publication of proposals) was held mandatory as it directly affected taxpayers’ right to object, while the second part (manner of publication) was held directory since substantial compliance was achieved. This ruling is one of the most frequently cited authorities on the mandatory/directory distinction. The Court summed up thus:
” I find it difficult to construe sub-s. (3) of s.131 as partly directory and partly mandatory; that is to say, that the requirement of publication is mandatory but the requirement of the manner of publication is not mandatory but only directory. To construe the section that way would be giving two different meanings to the verb “shall” occurring in the provision which governs both publication as well as the manner of publication. “Shall” can, according to the authorities, no doubt be construed literally and, therefore, as being mandatory or, liberally and thus being only directory depending upon the object of the provision in which it occurs, the connected provisions and other similar matters. But it seems to me on principle that when a verb used in a provision governs two different matters it cannot be given one meaning in so far as it relates to one matter and another meaning insofar as it relates to another matter.
The provisions of s. 94(3) are clearly directory inasmuch as a deviation from the mode of publication prescribed therein–that is publication in a local newspaper in the Hindi language is contemplated by it. The requirement of s. 131(3) is publication in the manner provided for in S. 94- which is actually provided in sub-s. (3) of S. 94. Since the latter provision is directory it is immaterial to consider whether S. 131(3) is directory or mandatory or to read it as partly one and partly the other and depart from the normal rule of construction which discountenances reading a word in a provision in two different senses.
While a mandatory provision must be strictly complied with, substantial compliance is sufficient with respect to a directory provision. There has been substantial compliance with the provisions of s. 94(3) since the proposals were in fact published in the Hindi language in a local newspaper. The only departure from the letter of the law was not obtaining the permission of the State Government for publishing the proposals in an Urdu newspaper. In my view the essential requirement of s. 94(3) is publication in a local newspaper. Where this requirement is satisfied, the omission to obtain a direction from the State Government permitting publication in a newspaper other than one in the Hindi language is not of much consequence.”
4. Sharif-ud-Din v. Abdul Gani Lone
| Citation | Court |
|---|---|
| AIR 1980 SC 303 | Supreme Court Of India |
The Supreme Court, while examining the Jammu & Kashmir Representation of the People Act, 1957, distinguished mandatory rules — which require strict observance, non-compliance with which renders an act void — from directory rules, where substantial compliance suffices and non-compliance does not invalidate the act. The Court confirmed that “shall” and “must” are ordinarily indicative of a mandatory provision, while “may” is generally directory, but this presumption is capable of being rebutted by the context. The Court observed thus:
“The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus:
The fact that the statute uses the word ‘shall’ while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one.
Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one.
A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.”
5. Ramachandra Keshav Adke v. Govind Joti Chavare
| Citation | Court |
|---|---|
| (1975) 1 SCC 559 | Supreme Court Of India |
The Court stressed the duty to ascertain the legislature’s real intention by examining the entire scope and scheme of the statute. Isolating a single word from its context was held to be a flawed approach. The provision must be read harmoniously with the rest of the enactment to discern whether strict compliance is intended. The Court observed thus:
“Thus, the first point to be considered is, whether the requirements, of these provisions are mandatory or directory. “No universal rule”, said Lord Campell” (Liver-pool Borough Bank v. Tunneer (1861) 30 L. J. Ch. 37 9at p. 380; Craies on Statute Law, 7th Edn., p. 262) 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.” Such intention of the legislature is therefore to be ascertained upon a review of the language, subject matter and importance of the provision in relation’ to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act, Prior to the enactment of the Bombay Tenancy Act, 1939, the laws governing the, relations between landlords and tenants in the State did not ensure equal status of contract or agreement to the contracting parties inasmuch as the tenants were in a much inferior position. The tenants had no security of tenure. nor any protection against eviction or rack-renting. Bombay Act 29 of 1939 was the first measure enacted to remedy these evils and to improve the condition of tenants of agricultural lands in the Province.”
6. P.T. Rajan v. T.P.M. Sahir
| Citation | Court |
|---|---|
| (2003) 8 SCC 498 | Supreme Court Of India |
The Supreme Court outlined that the context, purport, and object of the statute are decisive in determining whether a provision is mandatory or directory. Procedural provisions using “shall” may be held directory if no prejudice results from non-compliance, and if invalidating proceedings on account of such non-compliance would defeat rather than advance the object of the legislation. The Court observed thus:
“PRINCIPLES AS TO WHETHER A STATUTE IS MANDATORY OR DIRECTORY : A statute as is well-known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependent on the user of the words “shall” or “may”. Such a question must be posed and answered having regard to the purpose and object it seeks to achieve. ……..It is well-settled pinciple of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. (See Shiveshwar Prasad Sinha v. The District Magistrate of Monghyr & Anr.,AIR(1966) Patna 144,Nomita Chowdhury v. The State of West Bengal & Ors., (1999) CLJ 21 and Garbari Union Co-operative Agricultural Credit Society Limited & Anr. v. Swapan Kumar Jana & Ors., (1997) 1 CHN 189. ……..Furthermore, a provision in a statute which is procedural in nature although employs the word “shall” may not be held to be mandatory if thereby no prejudice is caused.”
7. Lifestyle Equities C.V. v. Amazon Technologies Inc.
| Citation | Court |
|---|---|
| 2025 LiveLaw (SC) 974 | Supreme Court Of India |
Reaffirming well-settled doctrine, the Supreme Court held that although Order XLI Rule 5 of the CPC uses the word “shall,” its true character — read with Rules 1(3) and 5(5) — is directory in substance. The Court reiterated that the use of “shall” is not conclusive, and that a provision may appear mandatory in form while being directory in substance. Legislative intent, not linguistic form, governs the classification. The Court summed up thus:
“56. The well-settled principles required to be followed by a court while interpreting a provision of a statute is that the intention of the legislature is primarily to be gathered from the language used, and consequently, a construction which results in rejection of words as meaningless, has to be avoided. It is not a sound principle of construction to brush aside words or phrase in a statute as being inapposite surplusage if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In interpretation of statutes, the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The legislature is deemed not to waste its words, or to say anything in vain.
8. Jamboo Bhandari v. Madhya Pradesh State Industrial Development Corporation Ltd.
| Citation | Court |
|---|---|
| (2023) 10 SCC 446 | Supreme Court Of India |
This case is the primary authority for the principle that the deposit of 20% under Section 148 of the Negotiable Instruments Act is not an absolute rule and allows for exceptions in cases of hardship.
- Interpretation Of “May”: The Court clarified that while the word “may” in Section 148 should generally be interpreted as “shall” (making the 20% deposit the norm), it is not a blind mandate.
- Discretionary Power: The Appellate Court has the discretion to waive or reduce the 20% deposit if it finds that such a condition would be unjust or would effectively deprive the appellant of their right to appeal due to extreme financial hardship.
- Mandatory Reasoning: If the court decides to deviate from the 20% rule, it must record specific reasons for doing so.
- Correction Of Precedent: The Court corrected a common misunderstanding of the earlier Surinder Singh Deswal (2019) judgment, clarifying that Deswal did not mean the 20% deposit was an absolute rule without exceptions.
9. Muskan Enterprises vs The State Of Punjab
| Citation | Decision Date |
|---|---|
| 2024 LiveLaw (SC) 1041; (2024) SCC OnLine SC 4107; Criminal Appeal No. 5491 Of 2024 | 19 December 2024 |
In this case, the Apex Court reaffirmed that “may” and “shall” are not sure indices of a provision’s character. Notably, it held that “may” in Section 148 of the Negotiable Instruments Act, 1881 — dealing with the court’s power to direct deposit of compensation by the appellant — can be interpreted as mandatory where the context so demands, particularly when the provision is intended to protect the complainant’s right to receive compensation during appellate proceedings. The Court observed thus:
“24. Law is well-settled that user of the verbs ‘may’ and ‘shall’ in a statute is not a sure index for determining whether such statute is mandatory or directory in character. The legislative intent has to be gathered looking into other provisions of the enactment, which can throw light to guide one towards a proper determination. Although the legislature is often found to use ‘may’, ‘shall’ or ‘must’ interchangeably, ordinarily ‘may’, having an element of discretion, is directory whereas ‘shall’ and ‘must’ are used in the sense of a mandatory provision. Also, while the general impression is that ‘may’ and ‘shall’ are intended to have their natural meaning, it is the duty of the court to gather the real intention of the legislature by carefully analysing the entire statute, the section and the phrase/expression under consideration. A provision appearing to be directory in form could be mandatory in substance. The substance, rather than the form, being relevant, ultimately it is a matter of construction of the statute in question that is decisive.
Collective Principles Emerging From These Decisions
- The words “shall” and “may” are not conclusive indicators of whether a provision is mandatory or directory.
- The legislative intent is the most decisive factor in statutory interpretation.
- The context, object, design, and consequences of interpretation must be examined.
- A provision may be mandatory in form but directory in substance.
- Substantial compliance may satisfy directory provisions, whereas mandatory provisions require strict compliance.
These principles collectively illustrate that courts assess whether strict compliance furthers the statute’s object, ensuring that interpretations promote justice without elevating form over substance.
III. Factors Considered by Courts in Determination
The Supreme Court evaluates several factors holistically to classify provisions as mandatory or directory:
Legislative Intent
The primary guide, derived from the statute’s language, scheme, and purpose. In Ganesh Prasad v. Lakshmi Narain [(1985) 3 SCC 53], the Court contrasted “may” and “shall” appearing in the same provision, deeming one directory and the other mandatory based on legislative intent. The Court observed thus:
“Obviously where the legislature uses two words ‘may’ and ‘shall’ in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another mandatory. But that by itself is not decisive. The power of the court still to ascertain the real intention of the Legislature by care fully examining the scope of the statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provision.”
Context and Subject Matter
Provisions in procedural laws are often directory where substantial compliance meets the end. In Rubber House v. Excelsior Needle Industries Pvt. Ltd. [(1989) 2 SCC 413], “shall” was interpreted differently depending on the provision’s procedural or substantive character. The Court observed thus:
“The word “shall” in its ordinary import is obligatory. Nevertheless, the word “shall” need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the concerned provisions, regard must be had to the context, subject matter and object of the statute in question. On a close scrutiny of the relevant rules referred supra in the light of the above principles of statutory interpretation, we are of the view that the non-compliance of rule 4(c) i.e. the non-mentioning of the quantum of arrears of rent, does involve no invalidating consequence and also does not visit any penalty.”
Object of the Statute
If the provision advances public interest or protects a fundamental right, it is more likely mandatory. In Mohan Singh v. International Airport Authority of India [(1997) 9 SCC 132], conditions under Section 4(1) of the Land Acquisition Act, 1894 were assessed on this touchstone. The Apex Court after due deliberations summed up thus:
“The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose Andy in effect. The distinction reflected in the use of the word “shall” or “may” depends on conferment of power. In the present context, “may” does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty.”
Summary of Factors Considered by Courts
| Factor | Explanation | Key Case Reference |
|---|---|---|
| Legislative Intent | Determined from the language, scheme, and purpose of the statute. | Ganesh Prasad v. Lakshmi Narain (1985) |
| Context and Subject Matter | Procedural provisions may be treated as directory where substantial compliance is sufficient. | Rubber House v. Excelsior Needle Industries Pvt. Ltd. (1989) |
| Object of the Statute | Where provisions protect public interest or fundamental rights, courts tend to treat them as mandatory. | Mohan Singh v. International Airport Authority of India (1997) |
IV. Applications In Specific Statutory Contexts
A. Land Acquisition
In land acquisition laws, “shall” often mandates procedural safeguards to protect the landowner from arbitrary state action. The following decisions are instructive:
Narain Das Jain (Since Deceased By L.Rs.) v. Agra Nagar Mahapalika, Agra
| Citation | Bench | Decided On |
|---|---|---|
| (1991) 4 SCC 212 = 1991 SCR (1) 389 | K.N. Saikia And M.M. Punchhi JJ. | 14 February 1991 |
The appellant’s land was acquired by the Agra Town Improvement Trust under the U.P. Town Improvement Act, 1919. No solatium was awarded, since the acquiring Act contained no explicit provision for it. The Supreme Court held that Section 23(2) of the Land Acquisition Act, 1894 — which uses the expression “in every case” — mandatorily and compulsorily requires payment of solatium as part of compensation, irrespective of whether the acquiring statute explicitly provides for it.
The Court interpreted the words “in every case” as leaving no discretion: solatium automatically follows market value determination, like a shadow follows a man, and cannot be denied on procedural grounds or by reason of the landowner’s failure to specifically plead for it.
⚖ Personal Note By The Author
The appellant in this matter was my grandfather, Narain Das Jain. The appeal was argued before the Supreme Court by my younger brother, Advocate K.C. Jain, and I had the privilege of being present in Court before the Bench of Justice K.N. Saikia and Justice M.M. Punchhi. The Court’s exposition of “in every case” as carrying a compulsory and mandatory character holds continuing significance for all land acquisition matters.
Section 4(1) of the Land Acquisition Act, 1894, which employs “shall” in relation to publication of the preliminary notification, has been consistently held mandatory by the Supreme Court. Non-compliance invalidates the acquisition proceedings, since proper public notice is integral to the legislative scheme of affording landowners an opportunity to object.
In Mohan Singh v. International Airport Authority of India [(1997) 9 SCC 132], the Court examined whether conditions such as publication were mandatory, holding that non-compliance causing injustice renders them so. The Apex Court deliberated on the said issue in details and observed thus:
“The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word “shall” or “may” depends on conferment of power. In the present context, “may” does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with power, it becomes duty to exercise.
Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. In “Craies On Statute Law” (7th Edn.), it is stated that the Court will, as a general rule, presume that the appropriate remedy by common law or mandamus for action was intended to apply.
General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that legislature did not intend a remedy (generality) to be exclusive.
Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word “shall” is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory.
No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the Court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under Consideration.
As stated earlier, the question as to whether the statute is mandatory or directory depends upon the language in which the intent is couched. The meaning and purpose the Act seeks to achieve.
In “Suhtherland Statutory Construction” (3rd Edn.) Volume 1 at page 81 in paragraph 316, it is stated that although the problem of mandatory and directory legislation is a hazard to all governmental activity, it is peculiarly hazardous to administrative agencies because the validity of their action depends upon exercise of authority in accordance with their charter of existence the statute.
If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative action. But if the language of the statute is directory only, then variation from its direction does not invalidate the administrative action.
Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the delegation.
In “Crawford On The Construction Of Statutes” at page 516, it is stated that :
“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 ….”
In “Maxwell On The Interpretation Of Statutes”, 10th Edition, at page 381, it is stated thus :
“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 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.”
Principles On Mandatory And Directory Provisions
The two quotations were approved by this Court in Babu Ram Upadaya’s case and law was down thus :
“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 t the whole scope of the statute.
For ascertaining the real intention of the Legislature the Court may consider, inter alia:
- The nature and statute
- 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 and contingency of the non-compliance
- Whether the non-compliance is visited by some penalty
- The serious or trivial consequences that flow therefrom
- Whether the object of the legislation will be defeated or furthered
Illustrative Judicial Decisions
- K. Narasimhiah v. H.C. Singri Gowda & Ors. [(1965) 3 SCR 618] — Giving of three days’ notice to the councillor of a municipality in convening the no confidence Motion under Section 27(3) of the Mysore Town Municipalities Act, 1951 was held to be directory.
- The Remington Rand Of India Ltd. v. The Workmen [(1968) 1 SCR 154] — The question was whether publication of the award beyond fixed time was invalid. Considering the provisions of Section 17(1) of the Industrial Disputes Act, 1947, this Court had held that it was only directory and not mandatory.
- Hiralal Agrawal Etc. v. Rampadarath Singh & Ors. [(1969) 1 SCR 328] — The right of reconveyance under Section 16 of the Bihar Land Reforms Act, 1962 and giving of notice was held to be directory.
- Municipal Corporation Of Greater Bombay v. The B.E.S.T. Workers’ Union [(1973) 3 SCR 285] — Six months’ time under Section 78(1) of the Bombay Industrial Relations Act, 1946 for imposition of punishment was held to be directory.
- Raza Buland Sugar Co. Ltd. vs. Municipal Board, Rampur [(1965) 1 SCR 970] — Publication of requisition was held mandatory, but the manner of publication was held directory.
Election Law Compliance
The compliance of the requirements in the matter of filing nomination papers for election to the Legislative Assembly or election petitions has consistently been held to be mandatory.
- Virji Ram Sutaria vs. Nathalal Premji Bhanvadia & Ors. [(1969) 2 SCR 627] — Strict compliance of nomination particulars held mandatory.
- Satya Narain vs. Dhuja Ram & Ors. [(1974) 3 SCR 20] — Furnishing particulars in election petitions held mandatory.
Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory.
The word “shall”, though prima facie gives impression of being mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature ad design and the consequences that would flow from the construction thereof one way or the other.
Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice.
B. The Code Of Criminal Procedure, 1973 (CrPC) / BNSS, 2023
CrPC provisions blend “may” and “shall” with deliberate contextual intent.
- Section 41 CrPC — “may” confers discretion upon police officers to arrest without warrant but is bounded by statutory safeguards — as reinforced by the Supreme Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273].
- Narayan Rao v. State of Andhra Pradesh [1957 SCR 851] — Non-compliance with Sections 173(4) and 207A(3) of the CrPC relating to supply of witness statements was held to be directory.
- Section 173(2) CrPC — The word “shall” regarding completeness of a charge sheet has been treated as directory where substantial compliance is achieved.
- Section 46(4) CrPC / Section 43(5) BNSS, 2023 — Prohibition of arrest of women after sunset has been treated as directory by some High Courts, though the better view is that it should be mandatory considering its protective purpose.
- Saiyed Hussain Abbas Rizwi v. Bihar Public Service Commission [(2012) 13 SCC 61] — Statutory timelines prescribed by “shall” in procedural contexts are directory where no consequence of invalidity is provided.
C. Tax Statutes
Tax laws present a fertile ground for the mandatory/directory debate, as legislative precision and taxpayer rights are both at stake.
| Case | Principle |
|---|---|
| Section 41(1), Income Tax Act, 1961 | “Shall” requires the assessing officer to bring to tax remission or cessation of trading liability once conditions are satisfied. |
| Ganesh Prasad v. Lakshmi Narain [(1985) 3 SCC 53] | “Shall” relating to assessment obligations held mandatory, while “may” relating to procedure held directory. |
| Commissioner Of Income Tax v. Nagpur Hotel Owners Association [(2001) 3 SCC 468] | Filing requirements treated as directory where no prejudice is caused to revenue. |
| G.M. Knitting Industries Pvt. Ltd. v. Deputy Commissioner Of Income Tax [(2015) 376 ITR 456 (SC)] | Late filing of prescribed forms treated as directory considering beneficial purpose. |
| Section 17(5)(d), CGST Act, 2017 | Restriction on input tax credit framed in mandatory language and treated as an absolute bar where applicable. |
| Wipro Enterprises (P) Ltd. v. State Of Karnataka [(2022) SCC] | Substantive exemption conditions mandatory; procedural conditions directory. |
V. Conclusion
The Supreme Court’s jurisprudence on “may” and “shall” exemplifies a purposive approach to statutory interpretation, consistently prioritising substance over form to achieve the legislative goals of each enactment.
The classical distinction — “shall” is mandatory, “may” is directory — serves only as a starting point; it yields to the larger considerations of legislative intent, the scheme of the statute, the nature of the right or obligation affected, the consequences of non-compliance, and the possibility of prejudice.
By analysing all relevant factors holistically, the Court ensures that statutes are applied equitably across diverse factual contexts. This framework not only resolves textual ambiguities but also adapts the law to evolving needs, reinforcing the rule of law.
As statutory language continues to be tested before the courts, the principles surveyed in this article remain indispensable tools for practitioners, policymakers, and the judiciary alike.
