Mala Fide Subordinate Legislation

In one line

A rule made in bad faith is void in theory and almost never struck down in practice, because a legislative act is not examined for motive.

In the wording a student can write in an exam: subordinate legislation may in principle be challenged on the ground of mala fides, but the challenge rarely succeeds, because a rule is legislative in character and the motive of a legislating body is not ordinarily examinable; what succeeds instead is the objection that the rule is outside the parent Act, that it is manifestly arbitrary, or that it was made for a purpose the Act does not authorise.

Why motive is not ordinarily examined

Because of the rule stated in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, on the question of colourable legislation: the question is in substance one of legislative competence; a legislature cannot overstep the field of its competency directly or indirectly, but if it has the power to make the law, its motive in making it is irrelevant.

A rule-making body is exercising a legislative function, so the same reasoning applies to it by extension. A court asks what the rule does and whether it was within the power, not why it was made.

Where mala fides still has work to do

As colourable exercise. A rule which in form does one thing and in substance another is bad, and the enquiry is into what it does rather than into anybody's motive.

As improper purpose. Where the Act confers a rule-making power for stated purposes and the rule pursues a different one, the rule is outside the Act, which is a question of vires and not of motive.

As arbitrariness. A rule with no rational relation to any object of the Act is arbitrary under Article 14, and the material that would have shown bad faith usually shows arbitrariness too.

Against a subordinate body more readily than against a Government. The English bye-law rule expressly includes bad faith as a ground for striking down a bye-law of a local authority, and Indian courts have been readier to examine the conduct of a municipal or corporate rule-maker than that of a State Government.

Why the ground almost never succeeds

The evidence is unavailable. A petitioner has no access to the file on which a rule was made.

The rule-making body is usually plural. The motive of a committee is a fiction.

The presumption of validity. State of Tamil Nadu v. P. Krishnamurthy, AIR 2006 SC 1622, puts the burden on the challenger.

And the alternatives are easier. Ultra vires and arbitrariness produce the same result without any imputation.