Question-22 परिनियम के आज्ञात्मक तथा निर्देशात्मक प्रावधान से आप क्या समझते हैं? वर्णन कीजिये।

 What do you mean by mandatory and directory provision in statutes? Explain.

Answer-23

In the context of Interpretation of Statutes, the terms mandatory provision and directory provision refer to the nature of compliance with the provisions of a statute. Here's a point-wise explanation:

Mandatory Provision:

1.            Definition: A provision in a statute that must be complied with in a strict and obligatory manner.

2.            Effect of Non-Compliance: If not followed, it may lead to legal consequences, such as invalidity or penalty.

3.            Language: Usually uses words like “shall”, “must”, or “will” to indicate that the provision is imperative.

4.            Judicial Interpretation: Courts generally interpret mandatory provisions as those that are essential for the validity of the action or process prescribed.

5.            Example: Provisions regarding the filing of an appeal within a prescribed time limit, which if not adhered to, results in the dismissal of the appeal.

Directory Provision:

1.            Definition: A provision in a statute that is intended as a guideline or instruction, but its non-compliance does not invalidate the action taken.

2.            Effect of Non-Compliance: Non-compliance does not have the same strict legal consequences as with mandatory provisions. The action or procedure may still be valid, though it might affect the procedure's correctness.

3.            Language: Often uses words like “may”, “should”, or “could”, which imply discretion or flexibility in compliance.

4.            Judicial Interpretation: Courts interpret directory provisions as those that are not essential to the validity of the process, but serve more as a framework.

5.            Example: The procedure to issue a notice in a public tender, where failure to follow the exact steps may not invalidate the contract if the essential requirements are met.

Difference Between Mandatory and Directory Provisions:

1.            Impact of Breach: Breach of a mandatory provision may invalidate an action, while breach of a directory provision may not.

2.            Enforcement: Mandatory provisions are often enforced strictly, whereas directory provisions are more flexible.

3.            Purpose: Mandatory provisions aim at securing the effectiveness of the law; directory provisions provide procedural guidance without strict enforcement.

Courts determine whether a provision is mandatory or directory by analyzing the statute’s language, intent, and the consequences of non-compliance.