Analysis
1. Statutory Framework
Section 81(3) requires an election petitioner to supply as many copies of the petition as there are respondents and to attest each copy under the petitioner’s signature as a true copy. Section 83 prescribes the contents and verification of an election petition. Where corrupt practice is alleged, its proviso requires an affidavit in the prescribed form—Form-25 read with Rule 94A of the Conduct of Elections Rules, 1961.
Section 86 mandates dismissal only for non-compliance with Sections 81, 82 or 117. A defect falling solely under Section 83 therefore does not, by itself, authorize peremptory dismissal of the entire election petition.
2. Attestation of Copies Under Section 81(3)
The High Court treated the use of two differently worded rubber stamps as improper attestation. The Supreme Court rejected this formalistic approach. Both stamps communicated that the pages were true copies, and the petitioner had signed them. Section 81(3) requires authentication and acceptance of responsibility; it does not prescribe a particular set of words, stamp or format.
The relevant inquiry is therefore one of substance: did the petitioner personally authenticate the copy as true? Minor verbal variations in the attestation do not invalidate the petition where that responsibility is clear.
3. Form-25 and the Missing Notarial Endorsement
Form-25 must be signed by the election petitioner and solemnly affirmed before a Magistrate of the First Class, Notary or Commissioner of Oaths. In the present case, the served copy contained no visible indication of such affirmation—not even the printed affirmation clause or space for the prescribed authority’s signature.
Although this defect was serious, the Court held that it did not attract automatic dismissal of the entire petition. The decisive questions were whether the original affidavit filed in court was duly affirmed and whether the omission in the served copy misled or materially prejudiced the returned candidate.
4. Precedents Cited
F.A. Sapa v. Singora
This decision established that Section 81(3) imposes two requirements: the correct number of copies and attestation by the election petitioner under the petitioner’s own signature. No particular form of attestation is prescribed. A signature at the foot of each page, demonstrating that the petitioner accepts responsibility for its correctness, is sufficient.
Relying on this authority, the Court held that the two rubber stamps used in the present case conveyed the same essential meaning. The High Court’s contrary conclusion was therefore reversed.
Dr Shipra (Smt) and Others v. Shanti Lal Khoiwal and Others
In this case, the copy supplied to the returned candidate gave no indication that the affidavit supporting allegations of corrupt practice had been duly sworn and verified before a Notary. The judgment emphasized strict compliance because an allegation of corrupt practice may lead to grave consequences, including disqualification.
The present Court clarified that Dr Shipra (Smt) was not overruled by later cases. At the same time, its concluding reasoning showed that a defect in Form-25 does not necessarily destroy the whole election petition. The appropriate consequence is to strike out or disregard the corrupt-practice allegations while allowing independent grounds to proceed.
T.M. Jacob v. C. Poulose and Others
In T.M. Jacob, the served copy stated that the affidavit had been affirmed and verified before a Notary and contained the words “sd/- Notary”. Only the Notary’s name, address, seal and stamp were absent. The Constitution Bench held that this omission did not create an apprehension of misrepresentation or show substantive non-compliance.
The Court distinguished that situation from the present case because the copy here contained no indication at all of notarisation. It also explained that T.M. Jacob distinguished rather than overruled Dr Shipra (Smt).
T. Phungzathang v. Hangkhanlian and Others
This three-Judge Bench had treated Dr Shipra (Smt) as no longer good law after T.M. Jacob. The present Court found that understanding incorrect. It held that T. Phungzathang had proceeded on the mistaken premise that the defect in Dr Shipra (Smt) concerned the original affidavit rather than the copy served on the respondent.
The Court therefore declined to adopt that interpretation, particularly in light of the governing Constitution Bench authorities.
This Constitution Bench decision supplied the controlling principle. It held that a defect in verification under Section 83 is not necessarily fatal to the maintainability of an election petition. It also explained that a “true copy” under Section 81(3) need not be an absolutely exact reproduction.
The governing test is whether the copy is sufficiently accurate to avoid misunderstanding and whether the variation from the original is calculated to mislead an ordinary person. Applying that principle, the Supreme Court held that the absence of the attestation endorsement on the served copy could be addressed by verifying the original affidavit filed in court.
National Insurance Co. Ltd. v. Pranay Sethi and Others
This authority was invoked for the doctrine of precedent: a decision of a larger Bench binds smaller Benches. Consequently, the Constitution Bench ruling in Murarka Radhey Shyam Ram Kumar prevailed over inconsistent reasoning in later three-Judge Bench decisions.
5. Legal Reasoning
The Court’s reasoning rests on four connected principles:
-
Substance over prescribed wording: Section 81(3) requires personal authentication by the petitioner but does not prescribe ritualistic language.
-
Functional meaning of “true copy”: A copy need not be mechanically identical. The material inquiry is whether any variation can mislead an ordinary recipient.
-
Different consequences for different statutory defects: Section 86 expressly mandates dismissal only for breaches of Sections 81, 82 and 117. A Section 83 defect cannot automatically be converted into a Section 81 violation.
-
Severability of corrupt-practice allegations: If Form-25 is defective, the consequence ordinarily attaches to the allegations requiring that affidavit, not to unrelated and independently maintainable grounds.
The Court balanced the need for strictness in corrupt-practice cases against the principle that elections should not be insulated from judicial scrutiny through inconsequential procedural objections. Strict proof of corrupt practice remains necessary, but procedural strictness cannot be used to create a ground of dismissal not authorized by Section 86.
6. Treatment of the Missing Pages
The Court did not interfere with the High Court’s finding that the allegation concerning pages 11, 16, 21 and 22 was an afterthought. The respondent had appeared on several occasions after service without raising that objection. This part of the appellant’s challenge therefore failed.
7. Final Directions
The High Court was directed to examine the original Form-25 affidavit:
- If the original contains due affirmation and attestation, the election petition must proceed on its merits, including the corrupt-practice allegations.
- If the original is not duly attested, the corrupt-practice allegations cannot be pursued, but any other properly pleaded grounds must still be adjudicated.