This judgment addresses a crucial procedural question concerning election petitions and the mandatory filing of affidavits. The case originated from the General Elections for the Odisha State Assembly in 2024, where Tankadhar Tripathy (Appellant) was declared elected from the 07-Jharsuguda Assembly Constituency by a margin of 1,333 votes. Dipali Das (Respondent), who secured the second-highest votes, filed an Election Petition (ELPET No. 7 of 2024) before the High Court of Orissa.
The Respondent’s petition challenged the Appellant’s election on two grounds:
Corrupt practices: Alleging incomplete and untruthful disclosure of assets, liabilities, and criminal antecedents, and failure to publish criminal antecedents in newspapers.
EVM discrepancies: Claiming 6,313 void votes due to discrepancies in Electronic Voting Machine (EVM) Control Unit Identification Numbers, exceeding the victory margin.
The Appellant objected to the maintainability of the Election Petition under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), citing:
Non-joinder of necessary parties (a third candidate).
Vague, evasive, and vexatious averments.
Non-compliance with the mandatory requirement of filing the affidavit in Form 25, as prescribed by the proviso to Section 83(1)(c) of the Representation of the People Act, 1951 (RP Act). The Appellant argued these defects were fatal or, alternatively, sought to strike out allegations of corrupt practices under Order VI Rule 16 of the CPC.
The High Court dismissed the Appellant’s application, ruling that:
A separate affidavit for corrupt practices was not mandatory.
The solitary affidavit filed substantially fulfilled the requirement of Section 83(1)(c), so the petition couldn’t be rejected on this ground.
Any deficiency in the Form 25 affidavit was curable, and the Election Petitioner should be given time to rectify it.
The petition disclosed specific allegations with material facts and particulars, raising triable issues. The High Court granted the Respondent three weeks to file an affidavit in the prescribed Form 25.
Aggrieved by this, the Appellant approached the Supreme Court.
Law Involved The core of the appeal revolves around:
Section 83 of the RP Act: Pertains to the contents of an election petition and its procedural requisites.
Proviso to Section 83(1)(c) of the RP Act read with Rule 94-A of the Conduct of Elections Rules, 1961: Mandates the filing of an affidavit in Form 25, especially when allegations of corrupt practices are made.
Section 123 of the RP Act: Defines ‘corrupt practices’.
Section 100 of the RP Act: Enumerates grounds for declaring an election void.
Section 86 of the RP Act: Specifies grounds for dismissal of an election petition, which does not explicitly list non-compliance with Section 83.
Order VII Rule 11 of the CPC: Used by the Appellant to seek rejection of the petition at the threshold.
Order VI Rule 16 of the CPC: Used by the Appellant to seek striking out of pleadings.
Order VI Rule 15 of the CPC: Referenced by the Appellant regarding signing and verification of the petition.
Chapter XXXIII of the High Court Rules of Orissa, 1948, particularly Rule 10, Rule 7, and Rule 21: Pertain to the scrutiny of election petitions, production of documents, and application of CPC provisions.
Chapter VI Part II of the Orissa High Court Rules Vol. I: Describes the contents and format of affidavits.
Reasoning
The Supreme Court examined the legal position regarding non-compliance with the proviso to Section 83(1)(c).
Evolution of Legal View: The Court noted a shift from a stricter view (e.g., Ravinder Singh v. Janmeja Singh and Others), which held Section 83 mandatory and the absence of a proper affidavit a fatal defect warranting immediate dismissal.
Liberal Approach: A 3-Judge Bench in G. M. Siddeshwar v. Prasanna Kumar adopted a more liberal approach, clarifying that while non-compliance with Section 83 is curable, there must be ‘substantial compliance’. Total non-compliance, however, could still lead to rejection at the outset. Subsequent judgments (A. Manju v. Prajwal Revanna and Thangjam Arunkumar v. Yumkham Erabot Singh) have reinforced that the Form 25 affidavit requirement is not mandatory in character and ‘substantial compliance’ suffices. If an affidavit is on record but not in the prescribed form, the Election Petitioner should be given an opportunity to file a corrected one.
The Unresolved Question: The Court recognized that while the curability of defective affidavits is settled, a key question remains: whether such defects must be cured within the stipulated period of limitation or can be rectified at any point during proceedings, even after limitation expires.
Deficiencies in High Court Order: The Supreme Court found several “apparent deficiencies” in the High Court’s Impugned Order:
It did not clarify whether the prescribed scrutiny process under the High Court Rules (Rules 7 and 21 of Chapter XXXIII) was followed at the time of petition presentation.
It did not specify the nature of the defects noticed or if time was granted to cure them at the first instance.
Crucially, it did not clarify whether the opportunity to rectify defects was accorded before or after the expiry of the period of limitation.
The High Court concluded ‘substantial compliance’ but failed to detail the examination conducted to reach this conclusion, which requires juxtaposing allegations of corrupt practices with the affidavit’s contents. The Supreme Court defined “substantial compliance” as almost actual compliance with the essence of the enactment, or doing what is reasonably expected to satisfy the statute’s substance, not mere lip service.
Mutual Agreement: The parties had mutually agreed to delete certain portions of their pleadings pertaining to a third candidate, which the Supreme Court allowed.
Holding:
The Supreme Court, finding the High Court’s order deficient in providing a detailed analysis regarding compliance and curability, remitted the matter back to the High Court for re-determination.
The High Court is requested to consider the following as preliminary issues:
Whether the affidavit alleging ‘corrupt practices’ is defective and fails to satisfy Form 25 requirements.
If defective, whether it substantially satisfies Form 25 according to the principles established in G. M. Siddeshwar and subsequent cases.
If curable, whether filing a supplementary affidavit within the period of limitation is mandatory.
Whether the High Court-cum-Election Tribunal has the power to condone delay and permit filing of the affidavit in Form 25 beyond the period of limitation.
Additionally, the High Court is directed to:
Strike out the mutually agreed-upon portions of the pleadings.
Afford parties reasonable time for consequential amendments.
Thereafter, frame issues on the merits of the matter.
The appeal was disposed of in these terms.
Tankadhar Tripathy V. Dipali Das
Supreme Court: 2025 INSC 1017 (DoJ 22-08-2025)
