Legal Malice II

It is well settled, actions of the State with oblique or indirect object will be attributed to ‘malice in law’. Kalabharati Advertising v. Hemant Vimalnath Narichania,(2010) 9 SCC 437 has summarized as follows:

Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts.”

Hon’ble Justice R.F. Nariman, State of Goa v. Fouziya Imtiaz Shaikh, [Civil Appeal No. 881 of 2021].

Between ‘malice in fact’ and ‘malice in law’, as observed by Viscount Haldane L.C. in Shearer v. Shields, [1914] A.C. 808 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. An actual malicious intention on the part of the person who has done the wrongful act is a ‘malice in fact’.