Election petition presented by counsel instead of the candidate must be dismissed at the threshold

A Division Bench of Justices Prashant Kumar Mishra and Shree Chandrashekhar held that presentation in person under Section 81 is mandatory, and the defect is not curable under Section 86(1).

The Supreme Court has refused to disturb the dismissal of a challenge to the election of S. Regupathy from the 181-Thirumayam Assembly constituency, holding that an election petition must be presented by the petitioner himself and that presentation through counsel is a defect which cannot be cured. A Division Bench of Justice Prashant Kumar Mishra and Justice Shree Chandrashekhar found that Section 81(1) of the Representation of the People Act, 1951 carries five distinct and specific requirements, one of them being that the petition be presented by the candidate or elector, and that Section 86(1) obliges the High Court to dismiss a petition falling short of any of them. The Madras High Court had thrown out V. Pon. Paneerselvam's petition on 22 July 2026 on exactly that ground. The Supreme Court agreed with it, and dismissed the special leave petition.

A Thirumayam result, a Form 26 affidavit and a petition handed over by counsel

Paneerselvam's election petition, ELP No. 36 of 2026 before the Madras High Court, attacked the result of the 2026 Tamil Nadu Legislative Assembly elections for 181-Thirumayam, declared on 4 May 2026. He invoked Sections 80, 80A, 81, 83, 100(1)(b) and 100(1)(d)(i) and (iv) read with Section 123(2) of the Representation of the People Act, along with Rule 2 of the Rules of the Madras High Court Election Petitions, 1967 and Order II Rule 3 of the Madras High Court Original Side Rules, 1994.

The reliefs were three. He asked for the election of Regupathy to be declared null and void. He asked for a finding that the returned candidate had committed the corrupt practice of undue influence under Section 123(2), through what the petition described as deliberate suppression and false declaration of his spouse's assets, and income anomalies, in the statutory Form 26 affidavit. And he asked for exemplary costs.

None of it was examined. On 22 July 2026 the High Court dismissed the petition as not maintainable, because the petition had been presented by Paneerselvam's counsel. It pointed to Rule 7 of the Madras High Court Election Petitions Rules, 1967, which requires every election petition to be presented by the petitioner in person before the II Assistant Registrar, Original Side, or, in that officer's absence, before such officer as the Registrar of the High Court may direct. Paneerselvam then came to the Supreme Court.

Five requirements in one sub-section, and a provision that says the court shall dismiss

The Bench began with the text. Section 81(1) permits an election petition to be presented, on the grounds specified in Section 100(1) and Section 101, to the High Court by any candidate at the election or any elector, within forty-five days of the election of the returned candidate. Section 86(1) then provides that the High Court shall dismiss an election petition which does not comply with Section 81, Section 82 or Section 117.

In G.V. Sreerama Reddy and Another v. Returning Officer and Others, (2009) 8 SCC 736, the Court had broken Section 81(1) into five components: the qualification of the petitioner, who must be a candidate at the election or an elector; that “the petition must be presented ‘by’ the petitioner”; that it rest on one or more of the grounds in Section 100(1) and Section 101; that it be presented in the High Court; and that it be presented within the forty-five day window. All five, that judgment said, are extremely specific and clear, an inference strengthened by the mandatory language of Section 86(1).

Two textual details sharpen the point. An Explanation to Section 81(1) defines an elector, for the purposes of that sub-section, as a person who was entitled to vote at the election to which the petition relates, whether he voted or not. And Section 81(3), which survives alongside sub-section (1), requires every election petition to be accompanied by as many copies as there are respondents, each copy attested by the petitioner under his own signature as a true copy. The structure Sreerama Reddy identified is therefore that sub-section (1) sets out the necessary requirements of any petition challenging an election, while sub-section (3) adds requirements as to the petition once presented — two distinct but interrelated sets of conditions, both written in the petitioner's own hand.

Reading the two provisions together, the Bench held that presentation under Section 81 cannot be treated as a procedural formality standing apart from the statutory scheme. Compliance with it bears a direct nexus with the maintainability of the petition, and a defect in it is not curable. That is the practical heart of the judgment: the consequence of getting presentation wrong is not an opportunity to re-present, but dismissal.

The Explanation to Section 86(1) adds a further consequence that is easy to miss. An order of the High Court dismissing an election petition under that sub-section is deemed to be an order made under clause (a) of Section 98 — that is, an order dismissing the election petition itself, not a refusal to entertain it. A threshold dismissal for defective presentation is, in statutory terms, a disposal of the challenge.

The Court placed this against the character of the statute itself. The Representation of the People Act is a special and self-contained code for election disputes. In K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi and Ors., (1969) 1 SCR 679, the Court had refused to enlarge the Section 81(1) period by recourse to the Limitation Act, holding the Act to be a complete code which did not admit the introduction of provisions or principles from outside it. Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133, took the same approach, stressing the special character of the Act and the need for strict adherence to what it prescribes.

What the 1966 amendment removed from the statute book

The most concrete part of the reasoning is historical. As originally enacted, Section 81(2) set out expressly how an election petition could be presented, and it was generous about it. A petition was deemed presented to the Election Commission when delivered to the Secretary to the Commission or an officer appointed for the purpose, either by the person making the petition or by a person authorised in writing by that person, and also when sent by registered post and delivered to that Secretary or officer.

Sub-section (2) was omitted by the Representation of the People (Amendment) Act, 1966. The same amendment replaced the words “Election Commission” in sub-section (1) with “High Court”. The result, as the Bench put it, is that the scheme now in force is materially different from the one that preceded it: presentation through a person authorised in writing, and presentation by registered post, were both recognised modes under the old provision, and neither finds any recognition in the provision as it now stands.

The Court also explained why the legislature insisted on the word “by”. Drawing again on G.V. Sreerama Reddy, it said an election petition is a serious proceeding capable of vitiating an electoral process, so the procedure prescribed by an election statute must be strictly followed. Requiring the petitioner to present the petition himself allows the High Court, at the moment of presentation, to carry out a preliminary verification and satisfy itself that the proceeding is not frivolous or vexatious.

Can a High Court lay down how an election petition is to be received?

That left a second question, and it is the one with the wider reach: if the Act itself no longer specifies the manner of presentation, can a High Court prescribe it by rule without stepping outside the statute?

The answer came from Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Another, (2003) 4 SCC 257. There the competence of the Gauhati High Court to frame Chapter VIII-A, Rule 1, permitting an election petition under Section 80-A to be presented before the Stamp Reporter, had been attacked on the footing that Section 169 of the Act vests rule-making power in the Central Government. The challenge was also argued through Articles 214, 216 and 329(b) of the Constitution. The Court rejected it.

Its reasoning rested on two propositions. The first is that the conferment of a statutory power carries with it, by necessary implication, the authority to employ all reasonable means to make that power effective, so that an express grant of jurisdiction brings with it such incidental and ancillary powers as are fairly and reasonably consequential to its exercise. That implied power remains subject to legislative intent, and cannot be used to supplement a procedure in a way that would frustrate the purpose of the enactment, but where a statute confers jurisdiction without providing some detail necessary for its proper exercise, the power to regulate that incidental matter may be inferred.

The second is the distinction between judicial functions and administrative or ministerial ones. The judicial function is inalienable. Administrative and ministerial functions, absent any rule of law to the contrary, may be entrusted to or performed through officers of the High Court. Receiving a document presented to the court, scrutinising it preliminarily and taking the steps needed to place it before the Judge were all held to be ministerial in character. Entrusting them to the Registry is not a delegation of judicial power; it is an incident of administering the jurisdiction the court holds.

The omission of the old Section 81(2) did not change this. Unlike the Election Commission under the unamended provision, the High Court was a pre-existing constitutional institution, a court of record with plenary jurisdiction and with its own rules, directions and practice for receiving documents. The absence of an express statutory provision naming the officer competent to receive an election petition therefore did not make such receipt impermissible. Invoking the maxim cursus curiae est lex curiae — “the practice of the Court is the law of the Court” — that judgment observed that even without Chapter VIII-A, there would have been nothing impermissible in the High Court or the Chief Justice authorising an officer to receive an election petition.

That judgment went one step further than the rule before it. The High Court and the Chief Justice, it held, possess the power to frame rules and issue directions regulating the affairs and conduct of business of the High Court; and even where no express rule exists, a prevailing practice concerning an administrative or ministerial function may be sustained where it is incidental and essential to the performance of the court's judicial functions, unless there is something inherently objectionable or impermissible in it. Where such a rule or practice runs counter to no rule of law, the High Court is competent to regulate the ministerial and procedural incidents attending a jurisdiction conferred on it by statute.

Applying that lens, the Bench held that Rule 7 of the Madras High Court Election Petitions Rules, 1967 does not travel beyond the statutory scheme of Section 81. It regulates the manner in which an election petition is to be presented and received before the High Court, and in doing so operates as an incident of the jurisdiction the Act confers on that court. By its terms it does not trench upon or contradict anything Section 81 expressly prescribes.

An entry pass, CCTV footage, and a deposit receipt in counsel's name

On the facts, Paneerselvam asserted that he had personally presented the election petition before the Registry on 16 June 2026. The Court found the assertion unsupported by any contemporaneous record of the act of presentation itself.

He relied on a CISF entry pass. That, the Bench held, established his entry into the premises of the High Court on 16 June 2026 and nothing remotely suggesting that he personally presented the petition. He relied on CCTV footage, saying it captured the presentation and his personal verification; the footage, the Court said, could at highest establish his presence in the premises. Pulling against him was the receipt for the security deposit under Section 117 of the Act, which had been issued in the name of his counsel.

Why two earlier judgments did not rescue the petition

Paneerselvam leaned on Dr. Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247. The Bench held the reliance misplaced, and the distinction it drew is worth following. In that case Rule 2(b) of the Madhya Pradesh High Court Rules required an election petition to be presented in English, a requirement with no counterpart in Section 81. It was in that setting that the Court held non-compliance with a requirement originating solely in High Court rules could not attract Section 86(1).

That judgment also separated Section 81 from Section 83. Considering the consequence of non-compliance with Section 83(1), which requires an affidavit in support of allegations of corrupt practice, it held that such a defect could not entail dismissal under Section 86(1), because Section 83 is not among the provisions Section 86(1) names. In the same breath it affirmed that a petition not complying with Section 81 is liable to dismissal in limine. The observation Paneerselvam cited had to be read in that context: it concerned a Section 83 defect. His case concerned a requirement expressly contained in Section 81(1).

What that judgment left open is as telling as what it decided. A defective affidavit under Section 83(1) does not disappear without consequence; the consequences, whatever they may be, fall to be judged at the trial of the election petition, because Section 86(1) simply cannot be attracted to such a case. The architecture is deliberate. Defects in the three provisions Section 86(1) names end the petition at the door. Defects elsewhere in the Act are for the trial judge.

The second was Sheo Sadan Singh v. Mohan Lal Gautam, (1969) 1 SCC 408, where an election petition had been presented by an advocate's clerk in the immediate presence of the petitioner, and the Court affirmed a finding that presentation by the petitioner stood satisfied in substance though not in form. That door was open, and Paneerselvam did not walk through it. It was not his case that he had been present alongside his counsel at the moment of presentation, so substantial compliance was not available to him.

Order

The Bench concurred with the view taken by the Madras High Court. The special leave petition was held to be without merit and was dismissed. The challenge to the Thirumayam result, including the allegation under Section 123(2) about the Form 26 affidavit, was never tested on its merits by any court.