It is said that as a general rule “constitutional provisions are mandatory unless by express provisions or by necessary implication, a different intention is manifest. Some cases even go so far as to hold that all constitutional provisions are mandatory”. (Bindra - interpretation of Statutes Edn 5 p. 860). But this proposition is too widely stated. No doubt a Constitution is paramount law, to the authority of which all subordinate laws are, and indeed must be, referable. As such there is a bias towards command but over the years this rigid interpretation has given way to a broad and liberal approach. A Constitution is a “living and organic thing[1]”
It embodies “the working principles for practical Government” and its “provisions cannot be interpreted and crippled by narrow technicalities” per Mukharji, J. in Ramhari vs. Nilmoni Das’ The principles of interpretation that govern ordinary law are equally applicable to the provisions of a Constitute. For the purpose of deciding whether a provision in a constitution is mandatory one must have regard also to the aims, scope and object of the provision. The mere use of the word "shall" does not necessarily make the provision mandatory. Subba Rao,J. in the case of State of U.P. vs. Babu Ram stated the position thus-
"When a statute used the word 'shall’, prima facie , it is mandatory , but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
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