Delve into the legal nuances of interpreting ‘may’ in statutory provisions. Understand its mandatory or discretionary nature through purposive construction, ensuring justice and clarity in legal frameworks. Unravel the complexities with real-world examples and court decisions.
The drafts men, in drafting the statutory provisions, generally uses the phrase ‘may’ or ‘shall’ therein. The mandatory or discretionary/directory force of the statutory provision, in general legal parlance, is to be ascertained on the basis of phraseology i.e. ‘may’ or ‘shall’ used therein. The provision using the phrase ‘may’ is generally construed as discretionary/directory in nature. It is apt to state that there is no hard and fast rule to construe the phrase ‘may’ used in the provision as discretionary/directory or mandatory.
The plain construction of phrase ‘may’ when creates doubts or difficulties or when frustrate the object and purpose of the statute as well as of the provision then the question to construe the phrase ‘may’ arises. The Courts, in order to remove the difficulties & doubts and to achieve the object & purpose of the statute as well as of the provision has construed the phrase ‘may’ by applying the Rule of Purposive interpretation. The Rule of purposive interpretation has its application when the plain meaning of the word leads into absurdity, injustice or anomaly. The Rule of Purposive interpretation, thus, has application:
i) when there is uncertainty in the words; and
ii) to employ such a meaning that the respective words of the statute would be reasonably capable of bearing.
The Rule of Purposive Interpretation, in case of uncertainty in the interpretation, gives primacy to the interpretation which serves better in accomplishing the objects and purposes for which the respective statute of provisions are enacted.
The phrase ‘may’ sometimes is used in the provision as a matter of pure conventional courtesy, however, intention behind is to give mandatory force to the provision. The plain interpretation of ‘may’ in such cases leads uncertainty, injustice and frustration of the object of the provision. The purposive constructive of phrase ‘may’, thus, is very necessary and important to remove the uncertainty, to give justice and to achieve the object of the provision as well as of the statute.
It is well established that every provision in the statute has its own purpose and object which is in conformity with and in aid to achieve the object and purpose of the statute. The words used in the statutory provisions, therefore, are to be construed in order to achieve the object and purpose of the provision, where it is used, as well as of the statute. Every plain construction frustrating the object and purpose of the statutory provision or the statute is to be avoided.
Before applying the Rule of Purposive Interpretation to interpret phrase ‘may’, one has to consider:
i) the object and purpose of the provision where the phrase ‘may’ is used;
ii) the object and purpose of the statute;
iii) plain interpretation of phrase ‘may’;
After considering the above factors, One has to consider whether the plain construction of ‘may’
i) leads any uncertainty; or
ii) frustrate the object of the statute as well as of the provision; or
iii) causes absurdity, injustice or anomaly
If answer to any of the above question is positive then phrase ‘may’ is to be construed by applying the Rule of Purposive Interpretation. To apply the Rule of Purposive Interpretation, one has to make efforts to construe ‘may’ in order to achieve the object and purpose of the provision in conformity with the object and purpose of the statute. Every effort is made to achieve the object and purpose of the provision which is in conformity with object and purpose of the statute.
The provision using the phrase ‘may’ confers obligation upon the authority or providing benefit to the subject is to be construed purposively to give mandatory force to the provision. There is plethora of judgments where the Courts have construed the phrase ‘may’ purposively to achieve the object and purpose of the provision, to make justice to remove uncertainty.
Conclusion
There is neither any hard and fast rule nor any short cut method to construe ‘may’ as discretionary/directory. The phrase ‘may’ is to be construed purposively in order to achieve the object and purpose of the provision as well as of the statute.
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