Supreme Court Sets Aside Kerala HC Order Disqualifying Ex-MLA KM Shaji From Elections For 6 Years

The Supreme Court today set aside the Kerala High Court's 2018 direction disqualifying former MLA KM Shaji from contesting elections for six years, holding that the power to impose such disqualification rests with the President of India and not with the High Court.

“On a consideration of the respective submissions, we find that, having regard to the specific provisions of the Representation of the People Act, 1951 the power to pass an order of disqualification, rests with the President and not with the High Court, which has set aside the election of a successful candidate. On that short ground alone, Clause 2 of the operative portion of the order is set aside”, the Court observed.

A bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan partly allowed Shaji's appeal against the judgment of the High Court that had declared his election from the Azhikode Assembly Constituency in the 2016 Kerala Assembly elections void on the ground of corrupt practices and disqualified him for six years.

While the Court did not disturb the High Court order setting aside Shaji's election, it stated that the order would not prevent Shaji from contesting elections in the future.

“The consideration of the question as to whether the High Court was justified in setting aside the election of the appellant would not remain a live issue as of now. Having regard to the fact that the tenure of office between 2016 and 2021 has lapsed, the impugned order setting aside the election of the appellant would not come in the way of the appellant contesting in accordance with law”, the Court stated.

The High Court, while partly allowing the election petition filed by CPI(M) candidate M.V. Nikesh Kumar, had held that Shaji had committed corrupt practices by appealing for votes in the name of religion and by making false statements relating to the personal conduct of his opponent, attracting Sections 100(1)(b) and 100(1)(d)(ii) of the Representation of the People Act, 1951.

Before the Supreme Court, the main grievance of the appellant was directed against paragraph two of the operative portion of the High Court judgment, by which the High Court itself imposed a six-year disqualification.

It was Shaji's contention that under Sections 98 and 99 read with Section 8A of the Act, the power to decide disqualification vests exclusively with the President of India and the High Court had usurped the President's jurisdiction by directly disqualifying the appellant.

The Court accepted the appellant's contention and held that the power to pass an order of disqualification under Section 8A lies with the President of India and not with the High Court.

Although the High Court judgment was delivered on November 9, 2018, Shaji had continued to participate in the proceedings of the Kerala Legislative Assembly due to an interim order of the Supreme Court on November 27, 2018 granting a conditional stay on the judgment. While permitting Shaji to attend Assembly proceedings, the Court had restrained him from voting in the House and from drawing salary or other monetary benefits.

Today, the Court noted that Shaji's tenure as a Member of the Legislative Assembly was from 2016 to 2021 and that the said period had already lapsed. Further, after the completion of the 2016–2021 term, Shaji was unsuccessful in the subsequent election.

The Court observed that the question of examining the validity of the High Court's decision setting aside the election did not survive as a live issue at present.

Case no. – C.A. No. 11183/2018

Case Title – KM Shaji v. MV Nikesh Kumar