Power To Pass Order Of Disqualification Rests With President & Not High Court: Supreme Court Sets Aside Kerala HC’s Direction Disqualifying Ex-MLA KM Shaji
The civil appeal before the Supreme Court arose out of the impugned order of the Kerala High Court passed in an Election Petition.
The Supreme Court has set aside a direction of the Kerala High Court passed in 2018, disqualifying former MLA KM Shaji from contesting any election for a period of six years. The Apex Court held that the power to pass an order of disqualification rests with the President of India and not with the High Court.
The civil appeal before the Apex Court arose out of the impugned order of the Kerala High Court passed in an Election Petition.
The Division Bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan held, “On a consideration of the respective submissions, we find that having regard to the specific provisions of the RP Act, 1951, the power to pass an order of disqualification rests with the President of India and not with the High Court which has set aside the election of a successful candidate.”
Senior Advocate Nikhil Goel represented the Appellant, while AOR Pallavi Pratap represented the Respondent.
Factual Background
The appellant was the successful candidate in the elections to the Kerala Legislative Assembly from the (10) Azheekode Assembly Constituency, held on May 16, 2016. The Respondent challenged the election before the Kerala High Court through an Election Petition alleging commission of corrupt practices under Sections 123(2)(a)(ii), 123(3) and 123(4) of the Representation of the People Act, 1951 (RP Act, 1951). By the impugned order dated November 9, 2018, the High Court partly allowed the Election Petition, declaring the election of the appellant void, and setting it aside under Sections 100(1)(b) and 100(1)(d)(ii) of the RP Act, 1951, for the commission of corrupt practices under Sections 123(3) and 123(4). Further, the High Court disqualified the appellant from contesting in any election for a period of six years. It was in such circumstances that the appeal came to be filed before the Apex Court.
Reasoning
On a perusal of the facts of the case, the Bench noted that the election of the appellant to the (10) Azheekode Assembly Constituency was declared void and set aside by the High Court. The tenure of office of the appellant as a Member of the Legislative Assembly was for the period 2016 to 2021. The said period had lapsed.
It was further noticed that the appellant, however, continued to participate in the proceedings of the Legislative Assembly by virtue of the interim order dated November 27, 2018, granted by the Apex Court, whereas the impugned order was passed by the High Court on November 9, 2018.
Holding that the power to pass an order of disqualification rests only with the President, the Bench set aside the operative portion of the impugned judgment disqualifying the appellant from contesting in any election for 6 years.
The Bench thus held, “We have also noted that if the said portion of the impugned order is set aside, 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 from 2016-2021 has lapsed and the impugned order setting aside the election of the appellant would not come in the way of the appellant contesting elections in accordance with law.”
The Bench thus allowed the appeal in part in the aforesaid terms.
Cause Title: K.M. Shaji v. M. V. Nikesh Kumar (Neutral Citation: 2026 INSC 111)
Appellant: Senior Advocate Nikhil Goel, P. V. Dinesh, Advocates Haris Beeran, Azhar Asees, Anand Menon, Rizwana Raj, AOR Pallavi Pratap, Advocate Anna Oommen, AOR Anne Mathew
Respondent: AOR Pallavi Pratap