“Substantial Compliance Is Not Enough Where the Law Requires Strict Compliance”: Gauhati High Court Dismisses Election Petition Over Defective Attestation and Missing Affidavit Requirements
Isabella Mariam
The Gauhati High Court, Single Bench of Justice Sanjay Kumar Medhi, has dismissed an election petition filed against the election of a Member of Parliament from the Karimganj Parliamentary Constituency. The dismissal was based on procedural lapses under Section 81(3) of the Representation of the People Act, 1951, concerning attestation and verification requirements.
The Court found that the petition failed to comply with mandatory procedural rules under the ROP Act, rendering it liable to dismissal under Section 86(1). The judgment, pronounced on April 4, 2025, followed multiple hearings held in March 2025.
The application for dismissal was filed by the returned candidate, Kripanath Mallah, who had contested and won the 2024 Lok Sabha election from the Karimganj Parliamentary Constituency in Assam. The election petition was initiated by Hafiz Rashid Ahmed Choudhury, alleging corrupt practices and other grounds under Sections 80, 80A, and 81 of the Representation of the People Act, 1951.
The core contention raised by the applicant was that the petition served on him did not comply with Section 81(3), which mandates that every copy of the petition served must be attested by the petitioner as a true copy under his own signature. It was further alleged that four pages were missing from the served copy and that multiple pages lacked proper attestation or notarization.
Appearing for the applicant, Senior Counsel D. Saikia, supported by P. Nayak, submitted that "substantial compliance is not sufficient" under Section 86, and strict compliance with Sections 81, 82, and 117 is necessary for the maintainability of an election petition. The absence of notarization in the Form-25 affidavit, required under Rule 94A of the Conduct of Election Rules, 1961, was also cited as a ground for dismissal.
The applicant pointed to specific pages—119, 125, 139, and several others—arguing that attestation was absent and only certification was present, which did not meet the statutory requirements. It was also argued that the affidavit did not bear the signature of any Notary or Oath Commissioner.
The respondent, through Senior Counsel K.P. Pathak and Advocate M. Dutta, argued that the claims about missing pages were an afterthought and lacked evidentiary backing. It was submitted that the election petition was served via registered post, and no objection about missing pages was raised until months later. The respondent also noted that during earlier appearances and applications, the applicant made no mention of any procedural defects.
Regarding the certification versus attestation debate, the respondent submitted that "the words attested and certified are synonymous," relying on Black's Law Dictionary and asserting that no prejudice was caused due to the terminology used. Further, it was argued that the burden of proof lies with the applicant, who failed to produce the served copy to support the missing pages claim.
Multiple judgments were cited by both parties. The applicant relied on Dr. (Smti.) Shipra vs. Shantilal Khoiwal, (1996) 5 SCC 181, and Satya Narain vs. Dhuja Ram, (1974) 4 SCC 237, to state the mandatory nature of compliance. The respondent relied on Kimneo Haokip Hangshing vs. Kenn Raikhan, 2024 SCC OnLine SC 2548, and Jibontara Ghatowar vs. Sunil Rajkonwar, 2012 (3) GLT 758, to support the argument for substantial compliance.
The Court examined Section 81(3), which states:
"Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
Justice Medhi observed that from pages 1 to 84 of the served copy, the petitioner used the stamp "attested to be true copy of the petition," but from pages 85 to 185, the endorsement changed to "certified to be true copy." The Court stated:
"Even if the argument made on behalf of the opposite party that there is no substantial difference between the aforesaid terms is considered, it is seen that so far as the endorsement 'certified to be true copy' is concerned, it has not been stated that such certification is pertaining to true copy of the petition which is the requirement of Section 81(3)."
Additionally, the Court found that several verification pages and affidavits lacked proper attestation. On the affidavit required under Form-25, the Court noted:
"Such affidavit is required to be sworn before any of the three authorities, namely, a Magistrate of the 1st Class, a Notary, or an Oath Commissioner."
The Court cited Dr. (Smti.) Shipra and held: "Substantial compliance would not be sufficient and the argument that no prejudice was caused or the defect was curable in nature has been rejected."
Rejecting the argument that prejudice needed to be shown, the Court stated: "When the requirement of law is mandatory in nature, the question as to whether any prejudice has been sustained will not be material at all."
On the issue of alleged missing pages, the Court found that the claim was not substantiated by evidence and appeared to be an afterthought, noting that no such complaint was made when the applicant first appeared in court or in prior applications.
The Court concluded:
"In view of the aforesaid facts and circumstances, while this Court is not inclined to accept the contention made on behalf of the applicant regarding missing of 4 nos. of pages in the copy served, the other ground on which the IA has been presented under Section 86(1), namely, lack of attestation/proper attestation has substance."
Accordingly, the Court ordered:
"The IA stands allowed for the reasons indicated above. The Election Petition accordingly stands dismissed."
Advocates Representing the Parties
For the Applicant: D. Saikia, Senior Advocate, P. Nayak, Advocate
For the Respondent: K.P. Pathak, Senior Advocate, M. Dutta, Advocate
Case Title: Kripanath Mallah vs. Hafiz Rashid Ahmed Choudhury
Neutral Citation: GAHC010227202024
Case Number: El. Pet./1/2024 with I.A.(Civil)/3340/2024
Bench: Justice Sanjay Kumar Medhi
[Read/Download order]
