Mandatory and directory provisions; enabling, codifying and consolidating statutes

1. Mandatory and directory provisions

The question is what happens when a statutory requirement is not complied with. If the provision is mandatory, non-compliance makes the act or proceeding invalid. If it is directory, substantial compliance is enough, and failure may attract some other consequence but does not nullify what was done.

There is no single test. The court looks at the whole scope and object of the statute. The factors usually weighed are:

• The language. “Shall” suggests mandatory and “may” directory, but neither is conclusive. Negative or prohibitory words (“no … shall”, “shall not”) are usually mandatory.
• The consequence provided. If the statute itself says what follows on non-compliance (nullity, a penalty), that is strong evidence.
• The object. Is the requirement there to protect a right of the person affected, or as a matter of convenient administration?
• The effect of holding it mandatory. Where a duty is cast on a public body and treating it as mandatory would invalidate acts and harm people who have no control over the officials, the provision is generally directory (Montreal Street Railway Co. v. Normandin, Privy Council, 1917).
• Time limits for official action are usually directory; time limits for a party to exercise a right (limitation, appeal) are usually mandatory.

Cases to cite:

• State of U.P. v. Manbodhan Lal Srivastava, 1957 INSC 75, AIR 1957 SC 912. Article 320(3)(c) says the Public Service Commission “shall be consulted” on disciplinary matters. The Court held it directory: failure to consult does not invalidate the order, and does not give the servant a cause of action.
• Remington Rand of India Ltd. v. Workmen, 1967 INSC 172, AIR 1968 SC 224. Section 17(1) of the Industrial Disputes Act, 1947 required an award to be published within thirty days. Publication after thirty days did not render the award invalid; the time limit was directory.
• Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, 1964 INSC 238, AIR 1965 SC 895. A provision may be mandatory in part and directory in part: the requirement to publish proposals for a tax was mandatory, while the manner of publication was directory.
• Kailash v. Nanhku, 2005 INSC 186, (2005) 4 SCC 480. Order VIII Rule 1 of the Code of Civil Procedure, 1908, which limits the time for a written statement to ninety days, is mandatory in form but directory, being a provision of procedural law.
• State of U.P. v. Jogendra Singh, 1963 INSC 48, AIR 1963 SC 1618. The reverse case: “may” read as “shall”. A rule said the Governor “may” refer a gazetted officer's case to the Administrative Tribunal if he so requested. Because the power was conferred for the officer's benefit, it was held to carry a duty to act on the request.

2. Substantive and adjunctival (procedural) statutes

A substantive law defines rights and duties: what a person may do, must do or is liable for. An adjunctival or adjectival law provides the machinery for enforcing them: procedure, evidence, limitation, forum. The distinction affects interpretation in two ways. Procedural law is read so as to advance justice, not to defeat it; procedure is the handmaid of justice (Sangram Singh v. Election Tribunal, Kotah, 1955 INSC 15, AIR 1955 SC 425), which is why procedural time limits are often directory. And procedural law presumptively applies to pending proceedings, while substantive law is presumed prospective; see the note on retrospective operation.

3. Enabling statutes

An enabling statute permits what was previously unlawful or beyond power: it enlarges the capacity of a person or authority (a statute allowing a company or local body to do something new, or an Act authorising a class of contracts). It is construed so as to achieve the purpose for which the power was given, but only to the extent the words go. Enabling words are permissive in form, yet where the power is given for the benefit of others and the conditions for its exercise are met, there may be a duty to exercise it (Julius v. Lord Bishop of Oxford, House of Lords, 1880; Jogendra Singh, above).

4. Codifying statutes

A codifying statute states the whole of the law on a subject, both earlier statute and case law, in one Act. Indian examples are the Indian Contract Act, 1872, the Sale of Goods Act, 1930 and the Transfer of Property Act, 1882; the Bharatiya Nyaya Sanhita, 2023 now codifies substantive criminal law in place of the Indian Penal Code.

The rule comes from Lord Herschell in Bank of England v. Vagliano Brothers (House of Lords, 1891), on the Bills of Exchange Act, 1882: the proper course is to examine the language of the statute and ask what is its natural meaning, uninfluenced by considerations derived from the previous state of the law. Resort to the earlier law is permitted only where the provision is of doubtful import or uses words that had acquired a technical meaning. Otherwise the purpose of codification, a single accessible text, would be defeated.

5. Consolidating statutes

A consolidating statute brings together the provisions of several existing statutes on a subject, usually with minor amendments. The Labour Codes consolidate twenty-nine central labour laws. The presumption is that a pure consolidation does not change the law, so decisions on the earlier Acts remain good authority, and the earlier Acts may be looked at to resolve ambiguity. Where the Act “consolidates and amends”, that presumption is weaker. Sections 8 and 24 of the General Clauses Act carry forward references to, and orders under, the repealed Acts.

6. Statutes conferring rights

A statute that confers a right is construed so that the right is effective, not illusory. Where a statute creates a new right and also provides a special remedy or forum for it, that remedy must ordinarily be pursued and the civil court's jurisdiction is excluded: Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, 1975 INSC 180, (1976) 1 SCC 496, on rights created by the Industrial Disputes Act. Where the right exists at common law and the statute only adds a remedy, the old remedy survives.

7. Statutes conferring powers

• Strict limits. A power must be exercised by the authority named, for the purpose for which it was conferred, within its conditions and in the prescribed manner (Babu Verghese). Delegation is not permitted unless authorised (delegatus non potest delegare).
• Implied incidental powers. A grant of power carries with it whatever is reasonably necessary for its exercise.
• Repeated exercise. Under section 14 of the General Clauses Act, a power may be exercised from time to time as occasion requires; under section 21, a power to make rules or orders includes a power to amend, vary or rescind them.
• Discretion coupled with duty. “May” can mean “shall” where the power is conferred for the benefit of others (Julius; Jogendra Singh).
• Reasonableness. Even an unqualified power must be exercised reasonably, in good faith and on relevant considerations; Article 14 forbids arbitrary exercise.

How this is examined

The 10-mark question is on mandatory and directory provisions: definition, consequence, the factors, then Manbodhan Lal, Remington Rand, Raza Buland, Kailash and Jogendra Singh. The 6-mark notes are answered from sections 3 to 7: definition, example, rule, one authority. For codifying statutes, Vagliano is the case the examiner expects.