Supreme Court holds only President can impose post-election disqualification; Kerala High Court’s disqualification direction set aside

A bench of Justices B.V. Nagarathna and Ujjal Bhuyan heard appeals arising out of two Kerala High Court orders that had set aside the election of a legislator and imposed disqualification for corrupt practices under the Representation of the People Act, 1951. The appeals challenged the High Court’s operative directions, including a six‑year disqualification, and sought clarification of the forum and authority competent to impose post‑election disqualification.

The Supreme Court allowed the appeals in part and struck down the High Court’s direction disqualifying the appellant for six years. The Court held that the power to pass an order of disqualification under the RP Act, 1951 vested with the President of India and not with a High Court that set aside an election. The Court noted that, given the lapse of the appellant’s legislative term, the question of setting aside the election had ceased to be a live controversy. The Court, in its reasoning, observed: “we find that having regard to the specific provisions of the R.P. 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.” The Supreme Court therefore set aside Clause (2) of the High Court’s operative order and disposed of the connected appeals in the same terms.

Background The appellant, K.M. Shaji, had been the successful candidate from Azheekode Assembly Constituency in the 2016 Kerala Legislative Assembly elections. Two election petitions in the Kerala High Court (Election Petns. No.11 and No.12 of 2016) alleged corrupt practices under Sections 123(2)(a)(ii), 123(3) and 123(4) of the RP Act, 1951. By impugned orders the High Court partly allowed one petition and declared the appellant’s election void under Sections 100(1)(b) and 100(1)(d)(ii), and also disqualified him from contesting elections for six years while directing that the finding of corrupt practice be forwarded to the President under Section 8A.

The Supreme Court recorded that an interim order of this Court had permitted the appellant to “participate in the proceedings in the Legislative Assembly and sign the Register but not allowed to Vote as well as financial benefits.” It noted that the statutory scheme — particularly Sections 98, 99 and 8A — prescribed that a person found guilty of corrupt practice by an order under Section 99 would be the subject of a submission to the President for determination of disqualification, and that the President must obtain the Election Commission’s opinion before acting. On that basis the Supreme Court concluded that the High Court had exceeded its jurisdiction in directing direct disqualification and therefore set aside the disqualification direction. The Court observed that because the legislative term (2016–2021) had already expired and the appellant had been unsuccessful in subsequent polls, the question of setting aside the election no longer remained live; accordingly the appeal was allowed in part. Connected appeals arising from the same High Court orders were disposed of in the same terms. No precedent was overruled; the Court proceeded on construction of the statutory scheme.

The Supreme Court therefore modified the High Court’s operative order by removing the disqualification clause, while leaving intact the High Court’s findings to the extent they affected records, and directed that matters relating to disqualification be processed under Section 8A before the President as provided by law.

Case No.: 2026 INSC 111 (Civil Appeal Nos. 11183 of 2018, 249 of 2019 & 1230 of 2019) Case Title: K.M. Shaji v. M. V. Nikesh Kumar & Ors. Appearances: For the Petitioner(s): Not indicated in the judgment For the Respondent(s): Not indicated in the judgment