Substantial Compliance with Section 83 Is Sufficient—Election Petition Not to Be Dismissed on Hypertechnical Grounds: Orissa High Court

"Defect of Form, Not Substance", In a significant ruling on the procedural rigour in election disputes, the Orissa High Court on 6 February 2026 held that absence of an affidavit strictly in Form 25 format accompanying an election petition containing allegations of corrupt practices is a curable defect, not a fatal one, and thus cannot justify dismissal at the threshold.

Justice Sashikanta Mishra held that substantial compliance with Section 83(1)(c) of the Representation of the People Act, 1951, read with Rule 94-A of the Conduct of Election Rules, 1961, is sufficient, and that procedural defects in the affidavit format can be remedied, even after the limitation period, through supplementary filings.

The decision came after the Supreme Court, in a remand order dated 22 August 2025, asked the High Court to determine whether the affidavit defect in the election petition—filed by Dipali Das challenging the election of BJP MLA Tankadhar Tripathy from Jharsuguda—was curable, and whether the curative steps taken post-limitation were permissible.

“Even Where Affidavit Is Not in Form 25, It Cannot Be Treated as Non-Existent If It Reflects Substantial Compliance”: Court Cautions Against Hypertechnical Interpretation

Addressing the pivotal issue of defective affidavits, the Court made it clear:

“The affidavit accompanying the Election Petition, though not in the prescribed format of Form-25 and therefore defective, cannot be said to be non-est in law. The defects pertain to the manner of specification and segregation of allegations based on personal knowledge and information and are, therefore, defects of form and not of substance.” [Para 36(i)]

The affidavit in question, although not verbatim in the format of Form 25, referred to Paragraphs 14-A to 14-L of the petition, which contained allegations of nondisclosure of criminal cases, assets, liabilities, and immovable properties by the returned candidate—allegations which the Court had earlier held prima facie amounted to corrupt practices.

While acknowledging that the affidavit did not strictly segregate allegations based on the petitioner’s own knowledge and those based on information, the Court held:

“The Petitioner, having generally stated, albeit without specification, that the allegations made in the relevant paragraphs are true to her own knowledge and true to her information received from different sources, substantially complies with the requirement of Form 25.” [Para 25]

Citing precedents such as G.M. Siddeshwar v. Prasanna Kumar (2013), A. Manju v. Prajwal Revanna (2022), and Thangjam Arunkumar v. Yumkham Erabot Singh (2023), the Court reinforced that filing of an affidavit under the proviso to Section 83(1)(c) is not mandatory in its strictest sense, and that defects in verification or affidavit are curable.

“Filing of Supplementary Affidavit After Limitation Is Permissible Where Defect Is Procedural”: No Extension of Limitation Required for Curative Steps

Addressing the crucial issue of limitation raised by the Respondent’s counsel, who argued that the Form 25 affidavit filed belatedly (on 24 April 2025) was beyond the Court’s deadline and thus time-barred, the Court held:

“Had it been a defect of substance, it would have rendered the defect incurable… But the defect being of form and therefore curable, the question of limitation would not apply as otherwise, the very doctrine of curability would be redundant.” [Para 33]

Reiterating the doctrine of relation back, the Court concluded that the supplementary affidavit would relate back to the date of presentation of the Election Petition, which had been filed within the 45-day limitation window under Section 81 of the RP Act.

The Court drew strength from the Supreme Court’s ruling in Vidyawati Gupta v. Bhakti Hari Nayak, (2006) 2 SCC 777, which held:

“Rules of procedure are made to further the cause of justice and not to prove a hindrance thereto… procedural enactments ought not to be construed in a manner which would prevent the Court from meeting the ends of justice.” [Quoted in Para 33]

“Section 86(1) Does Not Empower Dismissal for Defect in Affidavit Under Section 83”—Jurisdiction to Allow Rectification Upheld

The Court underscored that Section 86(1) of the RP Act, which provides for dismissal of election petitions for non-compliance with Sections 81, 82, or 117, does not include Section 83, and therefore non-compliance with affidavit requirements under Section 83 cannot be the basis for summary rejection.

“This Court possesses the jurisdiction to permit rectification of such procedural defects which shall relate back to the date of presentation of the Election Petition.” [Para 36(iv)]

Further, under Section 86(5), the Court retains the authority to allow furnishing of further particulars relating to corrupt practices, thereby endorsing the validity of supplementary affidavits that clarify or correct earlier lapses.

“Allegations of Corrupt Practices, Even if Not Labelled as Such, Attract Form 25 Requirement”: Court Applies Substantive View on Pleadings

The Court held that even if the petitioner (Dipali Das) did not expressly label her allegations as “corrupt practices”, the nature of the allegations—non-disclosure of criminal antecedents, assets, and liabilities—sufficed to invoke the requirement of Form 25 affidavit.

“Despite pleading as above, the Election Petitioner has nowhere specified the same as corrupt practice. This Court, in its earlier order, held that non-disclosure of criminal cases by the Respondent, prima facie, amounts to corrupt practices.” [Para 23]

Quoting the Supreme Court’s judgment in Lok Prahari v. Union of India, (2018) 4 SCC 699, the Court reaffirmed that non-disclosure of material information by a candidate is indeed a species of corrupt practice under Section 123 of the Act.

Court Rejects Attempt to Dismiss Petition at Threshold Under Order VII Rule 11 CPC

Relying on Kimneo Haokip Hangshing v. Kenn Raikhan, 2024 SCC OnLine SC 2548, the Court held that an election petition disclosing material facts and triable issues cannot be dismissed under Order VII Rule 11 CPC, merely on technical grounds:

“An Election Petition should not be rejected at the very threshold where there is a ‘substantial compliance’ of the provisions.” [Para 27, quoting Kimneo Haokip]

Final Directions: Pleadings to Be Amended, Election Petition to Proceed

In line with the Supreme Court’s remand, and in view of the mutual consensus between parties, the Court directed that agreed portions of the pleadings be struck off, and granted both parties time to file amended pleadings.

“Consequently, the Election Petition is not liable to be dismissed in limine under Section 86(1) of the Act.” [Para 36(ii)]

Conclusion: Procedural Rigidity Yielded to Substantive Justice

The Court’s ruling stands as a measured reaffirmation of the principle that technicalities should not override substantive justice, especially in electoral litigation, where public interest and democratic legitimacy are paramount.

The I.A. seeking dismissal of the Election Petition was accordingly disposed of, and the Election Petition is set to proceed further.

Date of Decision: 06 February 2026