SC on Election Petitions: Remands Case to Orissa HC to Re-Examine Defects in Affidavit Alleging Corrupt Practices

The Supreme Court of India on Friday remitted an election petition back to the High Court of Orissa, directing it to re-examine whether defects in an affidavit alleging ‘corrupt practices’ were curable and if the principle of ‘substantial compliance’ under the Representation of the People Act, 1951, had been met. The bench, comprising Justice Surya Kant and Justice Joymalya Bagchi, set aside the High Court’s order that had allowed the election petitioner to cure the defects and directed a fresh determination on several preliminary issues concerning procedural requirements for election petitions.

The case involves a challenge to the election of Tankadhar Tripathy from the 07-Jharsuguda Assembly Constituency in Odisha.

Background of the Case

Following the Odisha State Assembly elections held on May 20, 2024, the appellant, Tankadhar Tripathy, was declared the returned candidate by a margin of 1,333 votes. The respondent, Dipali Das, who secured the second-highest number of votes, filed an election petition (ELPET No. 7 of 2024) before the High Court of Orissa.

The respondent sought to have the appellant’s election declared void on two primary grounds:

1. Corrupt Practices: It was alleged that the appellant failed to completely and truthfully disclose his assets, liabilities, and criminal antecedents, and did not publish particulars of these antecedents in a newspaper with wide circulation, constituting ‘corrupt practices’ under Section 123 of the Representation of the People Act, 1951 (RP Act).
2. EVM Discrepancies: The petition claimed there were discrepancies in the Control Unit Identification Numbers of Electronic Voting Machines (EVMs), which allegedly rendered 6,313 votes void. It was argued that since this number exceeded the victory margin, the election result was materially affected.

The appellant filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), seeking the rejection of the election petition at the threshold. He argued non-compliance with the mandatory requirement of filing an affidavit in the prescribed Form 25, as required by the proviso to Section 83(1)(c) of the RP Act for petitions alleging corrupt practices.

The High Court, in its order dated March 21, 2025, dismissed the appellant’s application. It held that the solitary affidavit filed by the respondent substantially fulfilled the legal requirement and that any deficiency was curable. The High Court granted the respondent three weeks to file a fresh affidavit in the prescribed Form 25. Aggrieved by this decision, the appellant approached the Supreme Court.

Arguments Before the Supreme Court

Appellant’s Contentions: Mr. Maninder Singh, Senior Counsel for the appellant, argued that the election petition was liable to be rejected in limine due to several fatal defects. Key submissions included:

• The allegations of corrupt practices were vague and lacked necessary particulars.
• The petition was not accompanied by a separate affidavit in Form 25, which is a mandatory requirement under the proviso to Section 83(1)(c) of the RP Act when corrupt practices are alleged. This omission, he contended, warranted the petition’s dismissal at the outset.
• Each page of the petition was not signed and verified as required, constituting another defect detrimental to the case.

Respondent’s Contentions: Dr. Abhishekh Manu Singhvi and Mr. Gaurav Agrawal, Senior Counsel for the respondent, countered that:

• An election petition could only be dismissed for non-compliance with Sections 81, 82, or 171 of the RP Act, as mandated by Section 86. Non-compliance with Section 83 was not a ground for dismissal.
• Any defect in the verification of the petition or in the format of the affidavit was curable, and the High Court correctly provided an opportunity to rectify it.
• The pleadings contained specific allegations with sufficient particulars to enable the appellant to prepare his defence, and their veracity could only be determined during a trial.

Supreme Court’s Analysis

The Supreme Court identified the central issue as: “Whether non-compliance with the proviso to Section 83(1)(c) of the RP Act is a fatal defect, rendering the Election Petition non-maintainable at the threshold?”

The bench reviewed the evolution of jurisprudence on this issue. It noted the strict view taken in Ravinder Singh v. Janmeja Singh and Others, which held that the absence of a proper affidavit was a fatal defect. However, the Court emphasized the more liberal approach adopted by a larger 3-Judge Bench in G. M. Siddeshwar v. Prasanna Kumar and followed in subsequent cases like A. Manju v. Prajwal Revanna. These later judgments established that the requirement is not strictly mandatory and that “substantial compliance” is sufficient. If an affidavit is on record, though not in the prescribed format, the petitioner should be given an opportunity to file a corrected one.

The Court observed that while the law is well-settled on the principle of ‘substantial compliance’, the High Court’s impugned order was deficient. The judgment stated, “although the High Court has concluded that the affidavit ‘substantially complied’ with the proviso to Section 83(1)(c), it has not detailed the examination conducted in order to reach such a conclusion. As a result, the necessary facts-based analysis appears to have escaped attention.”

The Supreme Court defined substantial compliance as, “almost, actual compliance with the essence of the enactment, or perhaps, in simpler terms, to do all that is reasonably expected, which satisfies the substance of the Statute. It, however, cannot be inferred to mean mere lip service to the requirements of the law.”

The Court found that the High Court’s order failed to:

1. Specify the extent of compliance with the High Court Rules regarding the scrutiny of petitions.
2. Enumerate the specific defects that required rectification.
3. Examine whether the principles of substantial compliance were followed.
4. Clarify whether the opportunity to rectify was granted before or after the expiry of the period of limitation for filing the election petition.

Decision and Directions

In light of these deficiencies, the Supreme Court remitted the matter to the High Court for a fresh determination. The Court issued the following directions:

1. The High Court is to identify and enumerate the defects in the Form 25 affidavit and assess whether they were curable. It must consider as preliminary issues:
   • Whether the affidavit alleging ‘corrupt practices’ is defective and fails to satisfy the requirement under Form 25.
   • If defective, whether it substantially satisfies the requirements of Form 25.
   • If the defect could be cured, whether it was mandatory to file a supplementary affidavit within the period of limitation.
   • Whether the High Court possesses the power to condone the delay and permit the filing of the affidavit beyond the limitation period.
2. The Court also allowed the proposals submitted by both parties to strike out certain portions of the pleadings they had mutually agreed to expunge.
3. Following the amendments, the High Court is directed to frame issues on the merits of the matter and proceed with the trial.

The appeal was disposed of with these directions.