Is ‘Malice’ a Ground to Challenge a Law Made by the Legislature?

Is ‘Malice’ a ground to challenge a law made by legislature?

‘Malice’ is not a ground to challenge a law made by the legislature, observed the Apex Court while upholding the constitutional validity of Sections 3, 4 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act 2020.

The petitioners argued that the amendment ‘was created by way of pandering to the real estate lobby and succumbing to their pressure or by way of placating their vested interests’.

The Bench held that, such an argument is ‘a thinly disguised attempt at questioning the law of the Legislature based on malice’.

“A law is made by a body of elected representatives of the people. When they act in their legislative capacity, what is being rolled out is ordinary law. Should the same legislators sit to amend the Constitution, they would be acting as members of the Constituent Assembly. Whether it is ordinary legislation or an amendment to the Constitution, the activity is one of making the law. While malice may furnish a ground in an appropriate case to veto administrative action it is trite that malice does not furnish a ground to attack a plenary law [See in this regard K. Nagaraj and others v. State of Andhra Pradesh and another and State of Himachal Pradesh v. Narain Singh],” the Judgment said.

The Court noted that, it acts as a sovereign body. The theory of promissory estoppel, on the one hand, has witnessed an incredible trajectory of growth but it is incontestable that it serves as an effective deterrent to prevent injustice from a Government or its agencies which seek to resile from a representation made by them, without just cause. A supreme legislature cannot be cribbed, cabined or confined by the doctrine of promissory estoppel or estoppel.


The Court stated that, plenary law can be challenged, on the following grounds

A law can be successfully challenged if contrary to the division of powers, either the Parliament or the State Legislature usurps power that does not fall within its 57 domain thus, rendering it incompetent to make such law. Secondly, a law made contravening Fundamental Rights guaranteed under Part III of the Constitution of India would be visited with unconstitutionality and declared void to the extent of its contravention. Needless to say, a law within the meaning of Article 19 of the Constitution would remain valid qua a non-citizen. Thirdly, apart from Fundamental Rights, the supremacy of the Constitution vis-a-vis the ordinary legislation, even when the law is plenary legislation, is preserved with a view that legislation must be in conformity with the other provisions of the Constitution.

The court also added that a plenary law if it is found to be manifestly arbitrary is vulnerable to challenge. Yet another ground recognized by this Court is that a law, be it the offspring of a Legislature, it falls foul of Article 14 if it is found to be vague, the bench said referring to Shreya Singhal v. Union of India.

Case name: Manish Kumar v Union of India and others and connected cases

Citation: WRIT PETITION(C) NO.26 OF 2020

Coram: Justices RF Nariman, Navin Sinha and KM Josehp

Is ‘Malice’ a ground to challenge a law made by legislature?

Also Read: Whether A Consensual Affair Can Be A Defence Against The Charge Of Kidnapping A Minor?

Leave a Reply

Your email address will not be published. Required fields are marked *