"School Register Not Primary Proof Of Birth Date" : Kapil Sibal To Supreme Court In Plea Of Azam Khan's Son Against Setting Aside Of Election

A Division Bench of the Supreme Court of India on Tuesday began to hear the challenge against a decision of the Allahabad High Court to disqualify Mohd. Abdullah Azam Khan, son of SP leader Azam Khan, for allegedly not having attained the age of 25 years on the date of the election as prescribed in Article 173(b) of the Constitution. In 2019, the Allahabad High Court struck a major blow to Khan's electoral aspirations when the petitioner, one Nawab Kazam Ali Khan, moved the Court claiming that the young politician from the Samajwadi Party had falsely represented himself to be older for the purpose of contesting the 2017 assembly elections.

The Bench comprised Justices Ajay Rastogi and B.V. Nagarathna. Senior advocate Kapil Sibal, appearing on behalf of the disqualified MLA, argued at great length about the failure of the High Court to take into account "basic principles of the law of evidence". The crux of his contention was that the appellant had satisfactorily established the factum of his birth by placing reliance on hospital records and corroborating such records with primary and documentary evidence in terms of Sections 60 and 61 of the Indian Evidence Act, 1872. However, the petitioner had not successfully discharged his burden of rejecting or displacing this evidence because he had relied only on the date provided in a school register, unsupported by either primary or documentary evidence.

The matter is listed for hearing again on September 14. Justice Ajay Rastogi told the petitioner (respondent in the present appeal) that he would need to explain the reasons that compelled the High Court to record a finding that the documents produced by the appellant were forged and fabricated. Justice Rastogi queried –

"How can it be said to be forged? You may rely, or you may not rely. That's a different question. But how can you record a finding that these documents are forged, that is the question."

Background

The appellant, Mohd. Abdullah Azam Khan is the son of senior Samajwadi Party leader and Member of Parliament (Rampur) Azam Khan. Khan had contested the 2017 Uttar Pradesh Assembly Elections from Swar constituency in Rampur on a Samajwadi Party ticket and won. However, in December 2019, a single-Judge Bench of the Allahabad High Court invalidated his membership of the State Legislature on the ground that he was below 25 years of age at the time of filing the nomination, on the date of scrutiny of the nomination paper, and on the date of declaration of results. Holding that Khan was not qualified to be chosen to fill the seat in the legislature of the State in terms of Article 173(b) of the Constitution, Justice Surya Prakash Kesarwani allowed the election petition. In the 49-page long judgement, the Single Judge elaborately discussed the contentions raised by both sides and the relevant statutory principles and provisions:

• While noting that Section 103 of the Evidence Act placed the burden of proof to show that a candidate was disqualified as on the date of the nomination on the petitioner, the Court had observed that the initial burden of proof with regard to Khan's age was adequately discharged by the petitioner.
• The court took note of several instances where Khan and his parents had overtly disclosed his birth year to be 1993. The Court was unwilling to believe that a highly educated family would take years to realise that the date of birth had been incorrectly recorded in a document as important as the mark-sheet of Class X.
• The Court concluded that the fresh birth certificate and the order of cancellation of the old certificate were false and fabricated.
• It also observed that the entry made in the birth register of Nagar Nigam, Lucknow (the place of birth of the appellant) was a clear case of manipulation, holding that the entry could not have been made on 30.09.1990.
• The court also noted that Khan's father was the Cabinet Minister of the Department of Urban Development and Local Bodies and both Nagar Nigam, Lucknow as well as Nagar Palika Parishad, Rampur were under his Ministry when the fresh certificate was issued and the order of cancellation of the old birth certificate was passed.
• The court also noted that despite the delay in registering the birth, no order of a First-Class Magistrate or a Presidency Magistrate verifying the correctness of birth had been obtained in accordance with Section 13 of the Registration of Births and Deaths Act, 1969 and Rule 9 of the Uttar Pradesh Registration of Birth and Death Rules, 2002. The Nagar Nigam, Lucknow, did not possess the requisite jurisdiction to register Khan's birth or to issue a birth certificate to him without such an order.
• Finally, the court refused to accept the medical report issued by the Chief Medical Officer, Rampur, which had been produced by Khan to contend that his average age was 26 years as on the date of the election. The Court held that age determination based on an ossification test might be useful as a "guiding factor" but was not conclusive and had to be considered with other cogent reasons.

Khan, along with his father, Azam Khan, and his mother, Tazeem Fatima, were arrested in February 2020 on several charges, including cheating, for allegedly fabricating his birth certificate. In December of the same year, Fatima obtained bail. However, it was not until January 2022, that Khan was released from Sitapur Jail in Uttar Pradesh. His father was released later in May after 27 months of incarceration.

Appellant's Contentions

Khan was represented by Senior Advocate Kapil Sibal who took the Court through various exhibits and records to demonstrate that the single-Judge Bench of the Allahabad High Court, while adjudicating the matter, had "failed to take into account the basic principles of the law of evidence". He submitted that the onus was on the election petitioner to adduce evidence in support of an allegation that the appellant had misrepresented his age by fabricating public documents. The burden had not been successfully discharged by the petitioner, Sibal claimed –

"They have sought to prove two things – that the documents are fake, forged, and fabricated, and in the second place, that they have not been issued by the competent authority. And to prove this, they have shown the school register."

A school register, Sibal vehemently argued, could not stand on its own as proof of the date of birth of the appellant. He claimed that such a document would have probative value and could be used to corroborate other evidence when the fact in question is first proved with the help of primary and documentary evidence in terms of Sections 60 and 61 of the Evidence Act. This is the only way in which the petitioner could have displaced the factum of birth which had already been established by Khan, Sibal urged. Justice Nagarathna interjected –

"That is his burden, once he discharges his burden, the onus shifts to you to prove that it is an erroneous fact."

Sibal responded with a quick rejoinder, highlighting that the evidence placed on record by the petitioner, albeit relevant and admissible, was grossly insufficient to discharge the initial burden placed on him –

"If I do not file any written statement, and have no defence, would the petition be allowed? The burden will shift only when the witness comes to court and says I was at the hospital, I was with the mother, I saw the baby being delivered by Dr Uma, and thereafter I went to the school and registered the child. Then the initial burden on the petitioner is discharged and the onus shifts onto me….I don't have to prove anything, unless your Lordships say the school register is proof of my date of birth, which it is not. It is only proof that the date of birth is stated in the register, not of the date of birth itself."

Sibal also accused the High Court of travelling beyond the evidence placed before it and recording a finding that the birth certificate and the cancellation certificate were forged and fabricated –

"No question was put regarding the maternity leave. No suggestion was put to her that she got a forged and fabricated birth certificate. No suggestion was put to him that Azam was not born in 1990 but born in 1993. Your Lordships, if you do not cross-examine, how do you prove that fact? At least you put that fact in dispute. He is only saying that these records are forged and fabricated. Then, the High Court also finds that these are forged and fabricated. That is even more surprising. "

There was a momentary confusion with respect to the place of birth of the appellant since his birth was originally registered at Rampur, and then at Lucknow. Justice Nagarathna pointed out –

"Why was the certificate issued in Rampur, if he was born in Lucknow?"

Sibal promptly responded –

"There is no explanation as such apart from the fact that the mother said that someone known to them got a certificate registered at Rampur. The fact remains that there cannot be two births in two separate hospitals."

When Justice Nagarathna insisted on being provided with an explanation for this anomaly, Sibal retorted –

"Assuming for a moment that there is no explanation, it certainly does not help the petitioner"

In support of his submissions, Sibal relied upon the judgments of the apex Court in, inter alia, Brij Mohan Singh v. Priya Brat Narain Sinha, [AIR 1965 SC 282] and Joshna Gouda v. Brundabun Gouda (2012) 5 SCC 634, both of which dealt with the insufficiency of a school register as primary evidence on which the outcome of the case could turn. There were several Supreme Court judgements that could be relied on to substantiate this point, Sibal urged. Apart from that, he placed reliance on several documents, such as the operation theatre records, labour room records, discharge certificates attested by the concerned doctor, and the testimony of the Head of the Department of the hospital. The discharge ticket was rejected by the High Court because the appellants had been unable to produce the original. Sibal claimed –

"The photocopy of the discharge ticket was also rejected by the Judge, why? Because we didn't have the original? Now we have it, we found it thankfully."

Respondent's Contentions

The petitioner (respondent in the present appeal) will make his submissions on Wednesday.

Court's Observations

Having heard the arguments at some length, the Bench decided to list the matter for hearing on September 14 at 10:30 AM.