Critical Analysis of Rules of Interpretation of Directory Provisions: Constitutionality, Law and Society.
- There are some rules of interpretation of Mandatory and Directory statutory obligation.
- [i] Mandatory Provision creates an obligation which has to be followed – and which obligation is said to be mandatory if penal consequence is provided for failure of the obligation. [ii] Directory provision is pseudo (false) obligation, failure of which obligation causes no penal or any consequence.
- Lets unravel the sham rules of interpretation of directory obligation, which is just a shield of evasion.
- To comprehend the fabrication/ruse/myth, lets see following definitions
Indian Penal Code
23. "Wrongful gain".- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss".- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully.- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
24. "Dishonestly". - Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"
33. "Act", "Omission".- The word "act" denotes as well a series of acts as a single act: the word "omission" denotes as well a series of omissions as a single omission
43. "Illegal", "Legally bound to do".- The word "illegal" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to OMIT.
52. "Good faith".- Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
General Clauses Act 1897
Section 3(22) - a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not.
Blacks Law Dictionary
FRAUDULENT ACT - fraudulent act. Conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude. - Also termed dishonest act; fraudulent or dishonest act
- Having gone through the above provisions of IPC & GCA we have to understand what is the meaning of Honesty. The word Honesty is derived from the basic character of the person of being Honourable. So the word honestly represent the act of a Honourable person. This means a person is loyal and trustworthy & does what he means, means what he does. It is in this context the word "honour the bill of exchange/promissory note" etc have to be viewed and applied.
- Thus honesty requires that the person acts without causing wrongful loss to others or wrongful gain to himself, with due care and attention, in good faith. You are right – you will rarely see people following standards of Honesty and we are on slippery slope by each passing day.
- Lets see one more definition
HONESTY. That principle which requires us to give every one his due. Nul ne doit slenrichir auxde ens du droit d'autrui. 2. The very object of social order is to promote honesty, and to restrain dishonesty; to do justice and to prevent injustice. It is no less a maxim of law than of religion, do unto others as you wish to be done by (- Emphasis supplied)
- Socially a Law is a cloth consisting of interwoven fabric running in x-y axis. It cannot be considered as single stranded threads or a lump. The cloth of law has to serve purpose to dress-up a society. The interweaving shows the systematic, tightfit and most effect use of the thread for the purpose of societal upbringing and uniformity. No part of the weaving of thread can be considered mere directory, which would lead to the conclusion that thread is not woven. This would imply removing such threads from the woven cloth and reducing the strength and integrity of the cloth making the cloth weak/tearable.
- As per the practise - when a provision is claimed to be directory, it implies an interpretation that the obligation is optional. This raises questions on "value of law", and as a necessary consequence the "effect on society" and standards.
- First sets of questions: Does the law permit an obligation is optional? If so, with what options? Is the option to do or not to do? Does law say - comply with the obligation or not - I don’t care?
- Second set of questions: Is law written to create uncertainty? If there is directory obligation without any consequence, what was the need of making such obligation, which cannot complied with? Wouldn’t this be toothless law?
- Essentially when we try to reconcile a provision as directory, it means that the act of the direction cannot cause any effect/influence on the actor or any other actee /co-actee/sub-actee and everything around the act, whether living or nonliving. So essentially whether or not the act is done, it doesn’t affect the homeostasis of anyone or anything. If the omission of directory obligation has no consequence, the 'act' of performing the directory obligation also has no consequence.
- Thus when we say a provision is directory, we imply that the compliance therewith is not mandatory/required. This is equal to say that the directory provision doesn’t exist. As a necessary corollary if the obligation is directory and of no consequence, it cannot create a reciprocal obligation or consequence or disturb the homeostasis. Thus in chain of events, it implies that even if the directory obligation is complied by an obligor, it cannot create chain of events, or create a right in obligor and a corresponding duty on obligee. This is so because, if a directory obligation has no consequence and should not affect the homeostasis, it has no consequence on right-duty in all dimensions of time, and cant compel others to base their obligation on such directory performance/nonperformance.
- Thus put, all directory provisions are non-working parts in a Statute and are superfluous and surplusage.
- This shows how absurd principles of interpretation have been applied and followed for centuries, worldwide. It is example of naive shortsightedness and failure of understanding of social and physical construct and universal working of things.
- Historically, laws were made by rulers to impose their rules on the citizenry and they were changed at rulers whims. The citizenry were always slaves. These rulers rarely had any societal concern, and were only bothered with their own luxury comfort and wealth by imposing taxes. They never paid attention to perfection, accuracy in coding of their rules and laws, least their society. If there were breach of their orders/directions mandatory or directory, these rulers as judges, would whip the citizens to death, and the citizens properties wives, daughters chattels, livestock confiscated. Thereafter in british regime, which was oriented towards trade and oppression of indians; laws were made to be interpreted in their favour which british judges followed suit.
- With advent of democratic setups, the powers started falling in hand of politicians and their parties. This became second form of rulership. These party rulers started making laws with specific agendas some selfish some beneficial to society. Thanks to the Constituent Assembly of India, and their painstaking work there is some degree of right granted to citizens and which checks on these party rulership.
- However none of the law-handlers ever cared/bothered to be cautious of standard of drafting and coding, or were negligent or intentionally used and allowed use of faulty directory obligations to protect ulterior officers/executive.
- As usual, law-handlers being proud slaves of precedence, use cut-paste methods without any originality. They are so used to this process that they can't see through the fallacy and absurd concepts of directory interpretations, which has now lead to a heap of new precedence confirming the absurd "no consequence" directory interpretation, without understanding the fabric of society, thus making laws uncertain for society & citizens; with ammunition in hands of the delinquent obligor.
- For the aforesaid reasons you needn't discount those cases where, notwithstanding that the obligation is directory without consequence, courts have held that there has to be substantial compliance, so that the law creating and obligation is not rendered nullity. It would be worth noting that these cases admit that law cannot be presumed to create an obligation with nullity.
- Needless to say anything to the contrary to above, has been [i] waste of time [ii] oppressive on Societies, [iii] fallacious method of interpretations - at cost of certainty for citizens/society, [iv] proof of incapable draftsmen, [v] 'don’t care' policy of the Political Rulers.
- One cant expect that the parents of the society the Legislature/Executive/Judiciary, would remove each fabric of honesty and strip naked the Society of any standard norm.
- This sham interpretation has perpetuated fraud on society and citizen who are mislead.
- In conclusions the directory rules of interpretation, is fallacious and anti social and also Unconstitutional.