Mandatory and Directory Provisions

Question 1

What is a mandatory Provision

Answer 1

Mandatory provisions in statutes must be followed strictly without any deviation or discretion. Failure to comply with the same will result in severe consequences.

Question 2

What are directory provisions

Answer 2

These are intended to guide the performance of a duty. Non-Compliance with the same may not necessarily result in the nullification of an act or order, but may still have consequences such as imposition of penalties.

Question 3

How to determine the nature of provisions?

Answer 3

There is no such clear rule for determining whether mandatory or directory. Court cannot just look at language but also context.
2. Generally, when the violation or omission of something is to render the invalidation of the statute then it is a mandatory provision.
3. Where provisions can be disregarded without nullification they are usually directory.
4. Mere use of shall does not make it mandatory.
5. The prime object must be to look at legislative intent (object, nature, scope)

Question 4

Case regarding Ordinances

Answer 4

Krishna Kumar Singh v. State of Bihar (2017)

Question 5

What was the Majority Judgement (DY Chandrachud) in Krishna Kumar Singh v. State of Bihar

Answer 5

• Repromulgation of ordinance goes against basic spirit.
• Not placing ordinance before legislature is a blatant misuse of power
• Power to issue an ordinance is a conditional power, only to be used when Parliament is not in session.
• It is not a parallel law making mechanism

Question 6

According to Krishna Kumar Singh v. State of Bihar, why must an ordinance be placed before the legislature

Answer 6

To determine
1. The need, validity and expediency to issue an ordinance
2. Whether the ordinance should be approved
3. Whether a statute must be enacted in furtherance of an ordinance

Question 7

When will the rights, privileges or liability provided by an ordinance survive its lifespan?

Answer 7

1. If the effect of the ordinance is irreversible
2. If the reversing of the consequences of the ordinance is impractical
3. If there exists compelling public reasons to continue the effect of the ordinance

Question 8

Amardeep Singh v. Harveen Kaur

Answer 8

The question before the court was whether Section 13(B) of the Hindu Marriage Act, 1955 which deals with divorce by mutual consent, cooling off period of 6 months is mandatory or directory.

The court ruled that it can waive off the statutory provision after consideration of some factors.

Question 9

What are the factors to consider under Section 13(B) HMA

Answer 9

1. Statutory period of 6 months is additional to statutory period of one year of separation under 13B(1) is already over when the motion is filed
2. No likelihood of reconciliation
3. Parties have already settled differences like alimony, custody
4. Whether waiting period would prolong agony

Question 10

Significance of public interest when determining mandatory or directory

Answer 10

Sometimes when constructing, the court must look at larger public interest and attribute compulsory value.
Person arrested MUST be produced before judicial magistrate within 24 hours of arrest

Question 11

Significance of legislative history

Answer 11

According to Sutherland, the Previous statute dealing with the same subject matter may be looked to determine the mandatory or directory import of a provision.

1. If the Later Statute re-adopts the term of the earlier statute, then the new statute will be construed the same as the old.
2. If the later statute amends a Previous act and changes the verb permissive to imperative, vice a versa, the meaning is opposite in the amendment.