Kiran Raj

The Supreme Court of India Division Bench of Justice Surya Kant and Justice Joymalya Bagchi disposed of an appeal by remitting the matter back to the High Court. The Court directed the High Court to examine afresh the nature of defects in the Form 25 affidavit filed along with the election petition and to decide whether such defects were curable. The Bench further requested the High Court to consider whether the affidavit filed amounted to substantial compliance with the statutory requirements and to clarify the process by which such defects could be rectified. The Supreme Court concluded the appeal with directions that the High Court should strike out certain mutually agreed pleadings and then proceed to frame issues for consideration on merits.

The dispute arose out of elections conducted for the State Assembly of Odisha. A notification was issued on 26 April 2024 for the conduct of general elections. Both the returned candidate and the election petitioner contested from the Jharsuguda Assembly Constituency. Polling was conducted on 20 May 2024 and counting was held on 4 June 2024. The returned candidate was declared elected by a margin of 1,333 votes.

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Following the declaration of results, an election petition was filed before the High Court of Orissa at Cuttack. The election petition challenged the validity of the returned candidate’s election on two grounds. First, it was alleged that the candidate failed to disclose a truthful account of assets, liabilities, and criminal antecedents, and further did not publish particulars of criminal cases in newspapers with wide circulation. It was contended that such acts amounted to corrupt practices within the meaning of Section 123 of the Representation of the People Act, 1951. Second, it was alleged that there were discrepancies in the Control Unit Identification Numbers of Electronic Voting Machines. According to the petitioner, these discrepancies rendered 6,313 votes void. Since this number exceeded the margin of victory, it was asserted that the result of the election stood materially affected.

The returned candidate objected to the maintainability of the election petition, filing an application under Order VII Rule 11 of the Code of Civil Procedure, 1908. The objections were that the petition suffered from non-joinder of necessary parties, vague and vexatious averments, and non-compliance with the mandatory requirement of filing an affidavit in Form 25 in support of allegations of corrupt practices. It was further contended that the allegations were incomplete and lacking particulars, and that such pleadings ought to have been struck out under Order VI Rule 16 of the Code of Civil Procedure. It was also argued that the respondent had not raised objections at the stage of nomination scrutiny and was therefore precluded from doing so later. Another objection was raised on the ground that each page of the petition was not duly signed and verified as required under Section 83(1)(c) of the Representation of the People Act, read with Order VI Rule 15 of the Code.

The High Court of Orissa, by its order dated 21 March 2025, dismissed the applications filed by the returned candidate and permitted the election petitioner to file a fresh affidavit in the prescribed Form 25. The High Court opined that the requirement of filing a separate affidavit was not mandatory. It held that the solitary affidavit already filed substantially complied with the requirements of the Representation of the People Act and that any deficiencies could be cured by allowing time for filing another affidavit. It also concluded that the petition contained specific allegations supported by requisite particulars and that triable issues were raised.

The returned candidate filed an appeal before the Supreme Court against the High Court order. Arguments were advanced by both sides. Senior counsel for the appellant argued that the election petition contained vague and frivolous allegations and disclosed no cause of action. It was contended that there was substantial non-compliance with Section 83 of the Representation of the People Act as the allegations lacked particulars and documents. Regarding corrupt practices, it was urged that the pleadings were incomplete, vague, and not supported by a proper affidavit in Form 25. The appellant further asserted that he had disclosed details in accordance with a communication issued by the Superintendent of Police and that no suppression had taken place.

On the other hand, senior counsel for the respondent contended that under Section 86 of the Representation of the People Act, dismissal of an election petition was permissible only for non-compliance with Sections 81, 82, or 117, not Section 83. It was urged that the petition contained specific allegations supported by material particulars and that the question of their veracity was a matter for trial. It was further argued that the High Court rules did not mandate annexure of documents at the stage of filing and that such defects in verification or affidavit format were curable.

When the appeal came up before the Supreme Court, the Bench suggested that both parties propose deletion of certain pleadings. The parties agreed to delete portions relating to a third candidate. This agreement was noted by the Court.

The Court referred to the precedent in Ravinder Singh v. Janmeja Singh, where it was held that an election petition alleging corrupt practices must be accompanied by an affidavit in the prescribed form, and absence of such an affidavit was a fatal defect. The Bench also considered G. M. Siddeshwar v. Prasanna Kumar, where a three-Judge Bench had held that while defects in the affidavit may be curable, there must be substantial compliance with Section 83. It was recorded that “although a defective affidavit may not, by itself, render an Election Petition non-maintainable, the High Court must ensure that the defect was cured prior to the commencement of trial so as to enable the returned candidate to effectively meet the allegations and not be taken by surprise at that stage.”

The Court noted further that subsequent decisions in A. Manju v. Prajwal Revanna and Thangjam Arunkumar v. Yumkham Erabot Singh held that substantial compliance with Form 25 was sufficient and that an opportunity should be given to file a corrected affidavit if required. It recorded that “the requirement of filing an affidavit under the proviso to Section 83(1)(c) of the RP Act is not of a mandatory character, and that ‘substantial compliance’ therewith would suffice.”

The Bench observed that the legal position was well settled, but what required examination in the instant case was whether the defect in the affidavit could be cured by filing a supplementary affidavit beyond the limitation period. It noted the rules under Chapter XXXIII of the Orissa High Court Rules, which required scrutiny of petitions and accompanying documents at the stage of presentation. The Court observed that the impugned order did not indicate whether such scrutiny was done or whether time was granted to cure defects at the admission stage. It recorded: “The Impugned Order thus neither sheds any light on the nature of the defects so recognized, nor clarifies whether the opportunity to rectify such defects was accorded before or after the expiry of the period of limitation.”

The Court further observed that substantial compliance must be assessed by comparing the allegations of corrupt practices with the affidavit. It stated: “Substantial compliance in ordinary terms means, 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.”

It was noted that the High Court had not detailed its analysis to justify the conclusion that there was substantial compliance. The Supreme Court found this a deficiency in the impugned order.

In conclusion, the Supreme Court remitted the matter to the High Court with specific directions:

The High Court is requested to identify and enumerate the defects in the Form 25 affidavit and assess whether such defects, if any, were curable. To this end, the High Court may consider the following as preliminary issues:

1. Whether the affidavit in the instant case, alleging ‘corrupt practices,’ is defective and does not satisfy the requirement under Form 25?

2. If defective, does it substantially satisfy the requirements of Form 25, and can it be so construed in accordance with the decisions of this Court cited in earlier paragraphs?

3. If the defect in the Form 25 affidavit could be cured, would it be mandatory to file a supplementary affidavit within the period of limitation?

4. Whether the High Court-cum-Election Tribunal possesses the power to condone the delay and permit the Election Petitioner to file the affidavit, in the prescribed format of Form 25, beyond the period of limitation?

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The Court also allowed the proposals of both parties to delete certain pleadings from the record and requested the High Court to strike out those pleadings.

The High Court shall then afford the parties reasonable time to carry out consequential amendments to the Election Petition and the Written Statement(s). Thereafter, the High Court may proceed to frame issues on the merits of the matter.

Finally, the Court disposed of the appeal in these terms and directed that pending applications, if any, be disposed of accordingly.

Advocates Representing the Parties

For the Petitioners: Mr. Maninder Singh, Sr. Adv.; Mr. Gopal Agarwal, Sr. Adv.; Ms. Mithu Jain, AOR; Mr. Sanchit Garga, Adv.; Mr. Kunal Rana, Adv.; Mr. Shashwat Jaiswal, Adv.; Ms. Bhanu Pratap Singh, Adv.; Mr. Milind Rai, Adv.; Mr. Amarpal Singh Dua, Adv.; Ms. Diksha Arora, Adv.

For the Respondents: Dr. Abhishek Manu Singhvi, Sr. Adv.; Mr. Gaurav Agrawal, Sr. Adv.; Mr. K Parameshwar, Sr. Adv.; Mr. Tarani Kanta Biswal, Adv.; Mr. C. George Thomas, AOR; Mr. Uday Bhatia, Adv.; Mr. Ansh Mittal, Adv.; Mr. Gurkaranbir Singh, Adv.

Case Title: Tankadhar Tripathy v. Dipali Das

Neutral Citation: 2025 INSC 1017

Case Number: Civil Appeal No. _______ / 2025 (Arising out of Special Leave to Appeal (C) No. 12491 / 2025)

Bench: Justice Surya Kant, Justice Joymalya Bagchi