SC Partially Stays Disqualification Of Kerala MLA K M Shaji [Read Order]

The Court has made it clear that though Shaji can attend the assembly, he cannot cast vote in the proceedings and draw remuneration

The Supreme Court today granted conditional stay of the judgment of the High Court of Kerala which had invalidated the election of K M Shaji from Azhikode constituency and disqualified him for six years on the ground that he made communal remarks in the run-up to the assembly polls in the state in 2016.

The three judges bench comprising Justices A K Sikri, Ashok Bhushan and M R Shah admitted his appeal and fixed a time in the last week of January 2019 for hearing. The Court however made it clear that though he can attend the assembly, he cannot cast vote in the proceedings and draw remuneration.

This means that Shaji will be able to attend the assembly proceedings, which will commence from tomorrow.

Senior Advocate Kapil Sibal appeared for Shaji.  Nikesh Kumar, who had filed the election petition in High Court challenging Shaji's election, had filed caveat in SC and was represented by Senior Advocate V Giri.

The High Court on November 9 disqualified Shaji for six years and directed the Kerala Assembly speaker and the Election Commission to take appropriate action.

The High Court had delivered the judgement on a plea filed by LDF candidate M V Nikesh Kumar, who contested the election against Shaji.

The IUML is a partner of the opposition United Democratic Front that is led by the Congress party in the state.

In his petition, Nikesh Kumar had alleged that Shaji secured a win by a margin of 2,287 votes using corrupt practices and violated norms prescribed under various sections of the Representation of the People Act to win the elections.

Nikesh had alleged that an appeal was made to voters by Shaji, who belongs to the Muslim community, his agents and other persons to vote for the UDF candidate on grounds of his religion.

He had also charged that pamphlets were circulated in the constituency urging people not to vote for a candidate who is not a believer of the Islamic faith.

The Court held that he had indulged in corrupt practices under Section 123(3) and 123(4) of the Representation of Peoples Act by appealing for votes in the name of religion and also by spreading false statements in relation of personal conduct of the opponent candidate with the intent to prejudice his winning prospects. Therefore, election was declared void on the ground under Section 100(d)(ii) of the Act in exercise of powers under Section 98.

The judgment was delivered by Justice P D Rajan  acting on an election petition filed by M V Nikesh Kumar, the defeated candidate belonging to CPI(M). The Court however rejected the prayer of Nikesh Kumar to declare him as the elected candidate. The Court also ordered the payment of Rs.50,000 as costs to Nikesh Kumar.

Re-election has been ordered in Azhikode constitutency. K M Shaji has also incurred disqualification for contesting elections for six years from today.

Nikesh Kumar alleged that various pamphlets were distributed during campaigning which appealed to the voters to refrain from casting votes to a non-Muslim candidate. The pamphlets also urged voters to cast their votes in favour of a devout practising Muslim like K M Shaji.

The Court held that Shaji could not prove that the communal pamphlets were issued without his knowledge and consent.

After the judgment was delivered in the morning, Shaji moved an application under Section 116B of the Representation of Peoples Act seeking its stay until appeal is filed in the Supreme Court. He prayed that the judgment will render the constituency without a representative with immediate effect, which will affect public interest. Considering the application in the afternoon, Justice P D Rajan stayed the operation of the judgment for a period of two weeks on condition of depositing an amount of Rs.50,000 within a week.

The High Court has summarized it's findings as follows;

(1) The election of K.M.Shaji to the Azheekode Assembly Constituency is declared void and set aside under Section 100(1)(b) and under Section 100(1)(d)(ii) of the R P Act 1951 for having committed corrupt practice under Section 123(3) and 123(4) of the R P Act 1951.

(2) He is also disqualified from contesting in any election for a period of six years from today. This finding of the corrupt practice of the first respondent shall be forwarded to the President of India for appropriate action under Section 8A of the R P Act, 1951.

(3) To declare the election of the first respondent as void for the corrupt practice under Section 123(2)(a)(ii) of the R P Act 1951 is hereby dismissed.

(4) The grant of further relief to declare M.V.Nikesh Kumar to have been duly elected is hereby rejected.

(5) The first respondent K.M.Shaji shall pay a cost of Rs.50,000/- to the petitioner, M.V.Nikesh Kumar.

 Read the Order