Substantial Compliance with Form 25 Is Enough, But Lip Service Will Not Do: Supreme Court on Election Petition Defects

“Mere Gazette Notification Is Not Enough—High Court Must Examine Whether Defects Are Curable Within Limitation”, Supreme Court of India grappled with a familiar yet critical question in election law—whether a defective affidavit in Form 25, required under the Representation of the People Act, 1951, is a fatal flaw or a curable defect. A Bench of Justice Surya Kant and Justice Joymalya Bagchi remanded the matter to the Orissa High Court, holding that while courts must adopt a liberal approach towards “substantial compliance,” the High Court had failed to scrutinise whether the defect was truly curable and whether rectification beyond the limitation period was permissible.

The ruling continues the Court’s trajectory of balancing procedural rigour with substantive justice in election disputes, especially where allegations of corrupt practices are raised.

The case arose out of the 2024 Odisha Assembly elections for the Jharsuguda constituency. Tankadhar Tripathy was declared elected by a slim margin of 1,333 votes, defeating Dipali Das, who then filed an election petition before the Orissa High Court. She alleged that Tripathy failed to disclose his full criminal antecedents and assets, amounting to corrupt practices, and pointed to alleged discrepancies in EVM data that could have altered the result.

Tripathy objected at the threshold, invoking Order VII Rule 11 CPC, arguing that the petition was fatally defective for want of a proper Form 25 affidavit, as mandated under the proviso to Section 83(1)(c) RP Act. The High Court rejected his objection, allowed the petitioner three weeks to cure the defect, and ruled that triable issues existed. Tripathy carried the matter to the Supreme Court.

The Supreme Court began by recalling its own precedents. In Ravinder Singh v. Janmeja Singh, it had held that absence of a Form 25 affidavit was a fatal defect, rendering the petition non-maintainable. But in later rulings such as G.M. Siddeshwar v. Prasanna Kumar, the Court softened its stance, emphasising that “non-compliance with Section 83 is curable, so long as there is substantial compliance with the law.”

This liberal approach was carried forward in A. Manju v. Prajwal Revanna and Thangjam Arunkumar v. Yumkham Erabot Singh, where the Court held that a defective affidavit should not kill a petition at birth. Instead, the court must allow time to rectify it.

Yet, the Bench warned against tokenism:

“Substantial compliance in ordinary terms means, almost, actual compliance with the essence of the enactment. It cannot be inferred to mean mere lip service to the requirements of law.”

High Court’s Failure of Scrutiny

The Supreme Court was troubled by the High Court’s handling of the matter. It noted that Rules 7 and 21 of Chapter XXXIII of the Orissa High Court Rules require every election petition to be scrutinised at filing, with defects identified and notified.

The Bench observed: “The Impugned Order neither sheds light on the nature of defects recognised nor clarifies whether the opportunity to rectify such defects was accorded before or after the expiry of the period of limitation.”

It was also unclear whether the High Court had examined if the affidavit filed amounted to substantial compliance at all, or merely presumed so.

The Core Question: Curable Beyond Limitation?

One unresolved issue was placed squarely back before the High Court: whether a defective affidavit must be cured within the statutory limitation or can be rectified later.

“If defects in Form 25 exist, must they be cured within the period of limitation, or can they be rectified even after expiry? This question cannot be brushed aside—it bears directly upon fairness to the returned candidate.”

The Court emphasised that while technicalities should not frustrate the trial of genuine electoral disputes, the returned candidate must not be ambushed at trial with fresh affidavits filed belatedly.

The Supreme Court thus remitted the matter to the Orissa High Court, directing it to: identify defects in the affidavit; determine whether they were curable; assess whether substantial compliance existed; and decide whether curative steps could be taken beyond limitation.

In closing, the Court struck a careful balance: “Technical defects should not derail substantive justice. Yet, the law does not permit courts to treat substantial compliance as a mere formality. Compliance must be real, not illusory.”

The appeal was disposed of with directions to the High Court to proceed afresh after scrutiny, while also striking out pleadings mutually agreed by the parties.