Election Petition Can't Be Rejected Summarily For Curable Defects : Supreme Court

The Supreme Court has held that the verifying affidavit in support of election petition need not be thrown out merely because it is not in Form 25 as prescribed under Rule 94A of Conduct of Election Rules, 1961. A bench of Justice Sanjay Kaul and Justice M.M.Sundresh was presiding on a matter regarding lack of attachment of affidavit in support of claims made in an election petition, where the appellant had later attached the affidavit, and observed, "Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25." Appreciating that the petition was at the threshold stage, the bench further added that, "It's not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of respondent no.1" In this case, the appellant A Manju and respondent Prajwal Revanna both were candidates in the 16 Hassan Parliamentary Constituency, sponsored by BJP and Janatha Dal (Secular) respectively during the 2019 elections. The respondent secured more votes than the appellant and the appellant filed an election petition in High Court under S.81 of Representation of People Act, 1951 (henceforth RP Act) challenging the election of the respondent while seeking a declaration that respondent's election was liable to be declared void on account of him having filed a false affidavit and consequently argued that the appellant is declared duly elected since he secured second highest votes. The respondent resisted this petition at the threshold by applying Order VII Rule 11 read with S.151 of the CPC and S.86(1) of the RP Act, seeking dismissal of the election petition on account of non-compliance of S.81(3) and proviso to S.83(1) of RP Act. A single-judge bench of High Court took observations made in H.D. Revanna v. G. Puttaswamy Gowda & Ors. and T. Phungzathang v. Hangkhanlian & Ors., into consideration and it was opined that "substantial compliance of S.81(3) of the RP Act saves an election petition from dismissal. The only issue here was about the index and synopsis not being signed by the appellant and the appellant had attested the election petition with his endorsement that it was a correct copy of the election petition and hence, substantially complied with requirements." But HC further stated that Form 25 was an integral part of the election petition and its complete absence would mean that there was total non-compliance of S.83 of the RP Act and thus, the High Court held that the election petition was not maintainable. Hence, the appellant filed this appeal in Supreme Court. Before this bench, the appellant's counsel argued that the grounds in the election petition were specific to S.100(1)(d)(i) and (iv) of the RP Act and dealt with improper acceptance of nomination and non-compliance with statutory provisions and since the allegations of corrupt practice are contained in S.123 and S.100(1)(d)(ii) of the RP Act, the election petition does not even relate to these provisions and thus the submission of form 25 was not necessary. It was further argued that the signing and verification of pleadings in terms of S.83(1)( c ) of the RP Act, if not complied with, could not be fatal and the circumstances in which a petition could be thrown out at the threshold in terms of S.86(1) of the RP Act were only non-compliance of Sections 81, 82 and 117 of the RP Act. It was also contended by the appellant's counsel that non-filing of an affidavit was a technical defect that was curable and HC should have allowed them to cure that defect and dismissal of the election petition was not warranted. On the other hand, the respondent's submission before the Court was that there could not be any waiver of the non-compliance of the mandatory affidavit in form 25 under S.83(1), more so in the light of the fact that grave charges of corrupt practices had been made. Besides, the respondent's counsel argued, "the plea of the appellant in the election petition was also based on the submission of a false affidavit vide form 26 by respondent no.1 at the stage of filing of nomination papers, amounting to non-disclosure of assets, which in turn constituted corrupt practice under S.123 of RP Act. Now, since no such affidavit had been filed by the appellant, the defect could not be cured at a later stage. And even permitting that an affidavit be filed at a later stage would provide an opportunity for the embellishment of the case and defeat the statutory requirement of an affidavit." The bench, after considering arguments from both sides, began by stating that, "intrinsically, election law is technical. However, while the requirements to be met in the election petition may be technical in nature, they are not hyper-technical, as observed in the Ponnala...

Election Petition Can't Be Rejected Summarily For Curable Defects : Supreme Court

Rashmi Bagri

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