“Mandatory” and “Directory”
The distinction between a provision which is mandatory and one which is 'directory' is that when it 'mandatory', it must be strictly complied with, when it is 'directory', it would be sufficient that it substantially complied with. Non-observance of mandatory provisions involves the consequences invalidating. But non-observance of directory provision does not entail the consequence of invalidating, whatever other consequences may occur.
No general rule can be laid down for deciding whether any particular provision on a statue is mandatory or directory. In each case the court has to consider not only the actual word used, but has to decide the legislatures intent. For ascertaining the real intention of the legislature, the court may consider, amongst other things, the following
1. The nature and design of the statute.
2. The consequence, which would flow from construing one-way
or the other.
3. The impact of other provisions by resorting to which the
necessity of complying with the provision in question can
be avoided.
4. Whether or not the statute provides any penalty if the provision
in question is not complied with
5. If the provision in question is not complied with, whether the
consequences would be trivial or serious.
6. Most important of all, whether the object of the legislation will
be defeated or furthered.
Where a specific penalty is provided in a statute itself for non-compliance with the particular provision of the Act no discretion is left to the court to determine whether such provision is directory or mandatory - it has to be taken as mandatory.
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