Malice in law is different from malice in fact

Mens rea not necessary to prove malice of law:

Rule of law:

The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.

[Source A.K. Kaipak vs. Union of India, A. 1. R. 1970 SC 150]
Malice in fact and in law.

Between malice in fact and malice, in law there is a broad distinction which is not peculiar to, any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently.

[Source Shearer & Anr. v. Shields, [1914] A.C. 508 (HL)]

Absence of bona fides in this context does not mean proof of malice, for an order can be malafide although the officer is innocent. The important point is that the satisfaction of the public functionary, though subjective, must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects.

[Source: Bhut Nath Mete v. State of West Bengal, AIR 1974 SC 806, 1974 SCR (3) 315]
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s