Counsel Disagree On Whom The Onus Of Proof Rests, SC Says, 'We Can't Leave a Man In Limbo Without a Date Of Birth' In Abdullah Azam Khan's Case

A Division Bench of the Supreme Court of India on Thursday continued to hear the challenge against a decision of the Allahabad High Court to disqualify Rampur MLA Mohd. Abdullah 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 assembly elections.

The Bench comprised Justices Ajay Rastogi and B.V. Nagarathna.

The petitioner (respondent in this appeal) was represented by Advocate Aadil Singh Boparai, who contended that he had successfully discharged the initial burden placed on him, and hence, the onus has shifted onto the opposite party. He took the Court through transcripts from the cross-examination of key witnesses and strenuously argued that even if the evidence adduced by the appellant to repel the allegation against Khan were considered relevant under Section 35, such evidence did not inspire confidence and would not justify setting aside the order of the High Court. In response, Senior Advocate Kapil Sibal resolutely maintained that the burden had not shifted since the appellant had not denied the entire existence of the documents relied on by the other side but had merely disputed the date of birth indicated in them.

Entrusted with the difficult task of arriving at a finding as to the correct date of birth of the disqualified MLA, and effectively ascertaining which among the "two realities", as Justice Nagarathna pithily described, was favourable, the Bench allowed the counsels to deviate from the timeline it had given earlier. Therefore, even though this matter was listed for final hearing on Thursday, the Bench decided to allow Sibal to conclude his submissions on Tuesday, September 20.

Justice Rastogi said to the senior counsel –

"There is something that troubles us, and we find no difficulty in giving you an opportunity to rule out our troubles. We are dealing with a matter involving public documents, which anyone can obtain on an application. There is an authenticity attached to it. Now, our question to you is, is merely making an assertion in the written statement to the extent of admitting the authenticity of the document but disputing the correctness of the date of birth therein, adequate. See, these documents reflect details that a person himself discloses. If we find from records that no credibility can be attached to the cancellation of these documents, which is a development in 2015 or later, what will be the implication?"
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.

Khan, along with his father, Azam Khan, and his mother, Tazeen Fatma, were also arrested in February 2020 on several charges, including cheating, for allegedly fabricating his birth certificate. In December of the same year, Fatma 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.

Respondent's Contentions

Advocate Aadil Singh Boparai resumed his effort to gradually tear down the appellant's defence by taking the Court through the transcripts from cross-examination of key witnesses and other documentary evidence. He quipped –

"In a hotly contested election petitioner, I cannot expect their witness to say, "Yes, this is all forged and the date of birth is 01.01.1993 as you are saying". Your Lordships would not have issued a notice on this election petition if I had just gotten the appellant or the other witnesses to admit that all this is forged. But unfortunately, that has not happened, and therefore, I must create chinks in their armour."

Earlier, Sibal accused the High Court of having travelled beyond the scope of the evidence placed before it, noting, for instance, that the original copy of a group health insurance policy document had not been referred to in any pleadings, or mentioned in the course of the cross-examination of Khan's mother. The person who provided the service records had also not been cross-examined. Boparai began his submissions on Thursday by clarifying –

"It is true that I have not cross-examined the witness who tendered the original service records. In other words, I have accepted the evidence in toto. There are two cases in which I would cross-examine a witness – first, where I want to impeach the witness, or second, where I want to elicit some information…Insofar as the nomination letter is concerned, it was not objected to by the appellant when the evidence was introduced in the record. In fact, they were the ones who brought this on record. Further, this was a piece of evidence that was available and known to them and it contradicted and impeached the mother's case. The onus was on the mother to provide an explanation. If there is an admission by a witness, why would I stir up the hornet's nest by questioning her? It would only weaken my own case."

Boparai proceeded to draw the attention of the Court to Bishwanath Prasad v. Dwarka Prasad (Dead) [(1974) 1 SCC 78], where Justice Krishna Iyer had distinguished between a party who was the author of a prior statement and a witness who was examined and was sought to be discredited by use of his prior statement. The Supreme Court had held that it was not necessary to put the statement containing the admission to the party because it fulfilled the conditions of Section 21 and was substantive evidence. Boparai claimed that the petitioner in the present case was on an even better footing because Khan's mother had referred to the service records during her cross-examination and had knowledge of the testimony of the witness who had been called to exhibit the original document.

The arguments made on behalf of the petitioner had seven major thrusts. First, in the birth register maintained by the Lucknow Municipal Corporation – "ostensible birth register", Boparai was quick to remind the Court – Abdullah Azam Khan was shown as a Hindu ladka (boy). Boparai refused to accept that this was an innocuous error and called into question the "trustworthiness" of the evidence.

Second, while being cross-examined, the Additional Municipal Commissioner stated on oath that entries in the birth register were made on the basis of the birth lists provided by the hospital. She also disclosed that the relevant list containing Khan's name was also not available. Boparai queried –

"The substratum is gone. But they are saying we have the birth register. This is the chink in the armour. Were there any extraneous circumstances that motivated them to bypass the statutory regime and provide a birth certificate (referring to the birth certificate that was issued by the Lucknow Municipal Corporation to Khan in 2015) in less than 48 hours?"

It had also come to light during the cross-examination of the Additional Municipal Commissioner that the birth register exhibited in Court was not in the prescribed format, despite there being a requirement to conform with the guidelines, Boparai pointed out. He also claimed that the register so submitted was not paginated. The Bench sought the original records to verify this assertion.

Third, Boparai noted that one of the defence witnesses, a doctor at Queen Mary's Hospital, had allegedly admitted to having no personal knowledge of the records relied on by the appellant to show that he was born in 1990. Boparai claimed that she was, at best, a "public witness" since the entries in the hospital records were made by a clerk and supervised by the Head of the Department. He also explained that having delivered thousands of babies in the course of her long career as a gynaecologist, it would not be possible for her to retain any "personal knowledge" that she had delivered Khan as a baby. Justice Rastogi interjected –

"How can you have personal knowledge after so long? Personal knowledge would be someone asking you one year down the line…She is making the statement on the basis of the records. She is neither the author nor the custodian."

In this connection, it was highlighted by Boparai that quite apart from the errors in the EOT register itself, there were discrepancies between it and the labour room register of the hospital. He also pointed out that neither register had been authenticated or attested by any officer of Queen Mary's Hospital or King George's Medical University. The doctor also admitted, during her cross-examination, that she was not responsible for signing or providing any birth list to the Municipal Corporation, and this was the exclusive jurisdiction of the Chief Medical Superintendent.

Fourth, Boparai explained that in response of an application filed by Khan's mother under the Right to Information Act, 2005, the Head of the Department of Obstetrics and Gynaecology at the Queen Mary's Hospital had revealed that they only maintained records of the past 10 years. Boparai then asked how the Lucknow Municipal Corporation could have issued a birth certificate in 2015 based on hospital records from more than 10 years ago. On this point, Justice Nagarathna observed –

"There may be no hospital records, but unless there is a corresponding municipal entry of a person's birth, the birth certificate cannot be issued. The question is whether there is a true and correct entry in the birth register. The certificate may be issued at any time. You have to clarify on this aspect."

Boparai promptly responded –

"The substratum is not available, this is bolstered by the testimony of the gynaecologist who said that neither did she send the birth list nor did she know if the birth list was sent…In addition to this, the hospital has no record of the birth list, all it has are two registers, EOT and the MLR."

Justice Nagarathna pressed further –

"A duplicate birth certificate can be issued only when there is an original birth certificate"

Boparai answered –

"There is no original birth certificate, Your Ladyship."

Fifth, Boparai referred to the cross-examination of Khan and his mother, notably, pointing out that the appellant had become active in politics at a time that coincided with the beginning of the "course correction", and that both Khan and his mother had testified that it was Khan who found out his "original" date of birth and subsequently, told his mother. Justice Rastogi exclaimed –

"How can he say that to his mother? He has no access to the records; it is only the parents can say that you were born on so and so date and now we are filing an application to get it changed."

Boparai added, accusing the appellant of being evasive –

"Exactly. The appellant also said that he did not inspect his documents at the time of filling out his college application. Which college gives you admission without records? His responses are nothing but stonewalling…Further, he has travelled all over the world. You have to fill out an immigration form when travelling abroad, at the port of embarkment, and the port of disembarkment. For 25 long years, he has been putting 01.01.1993 everywhere. He says he is not aware. There is a presumption against him because he is not an uneducated person from the hinterlands of UP, he is a highly educated person from a highly educated family."

Sixth, on the issue of presumption, Boparai drew an analogy with Section 94(2) of the Juvenile Justice Act, 2015 which provided that in cases of doubt regarding age, the date of birth in the school certificate or the likes would be relied upon first, followed by the birth certificate given by a corporation or a municipal authority or a panchayat.

Finally, with respect to the burden of proof, Boparai reiterated that he had successfully discharged the initial burden placed on him, and hence, the onus has shifted onto the opposite party. Relying on Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], he also asserted that where both parties had led evidence, determination of the burden of proof became an academic exercise. The core issue was, Boparai explained, even if the evidence adduced by the appellant was accepted as relevant within the meaning of Section 37, whether such evidence inspired confidence.

Appellant's Rebuttal

Senior Advocate began his rebuttal by admitting that the appellant could not have disputed the documents that the respondent had relied on, even if he wanted to. However, it was within the appellant's rights to set the record straight with respect to the veracity of the date of birth indicated in the aforesaid documents, he claimed. According to Sibal, once the appellant had denied that the date mentioned therein was accurate, the respondent could not rely on the same documents to substantiate his allegation. He explained –

"Supposing I denied the document, then he would have discharged his burden, and I would have had to substantiate my denial. If I deny the date of birth, however, what is in issue is not the document itself, but the date of birth. There is a distinction between the two."

Playing devil's advocate, Sibal noted –

"If I were the petitioner, I would have to prove by documentary and oral evidence that this is my date of birth."

Justice Nagarathna queried –

"According to you, a statement of fact by you must be proved by the person making the statement. That is, the petitioner has to independently prove that the appellant was born in 1993."

Sibal responded with a quick rejoinder –

"The election petitioner wants to prove that I was born in 1993, and he seeks to prove that by relying on certain documents that show that as my date of birth. But he cannot rely on these documents when I have already stated that my date of birth in those documents is not correct. If Your Lordships do not first reject the primary and documentary evidence I have adduced, the burden of proof does not shift from the petitioner."

Sibal also argued that for anything to amount to an admission, it would have to either be said in Court or in the pleadings. An admission must also be clear and unambiguous in order that such an admission can relieve the opponent of the burden of proof of the fact said to have been admitted. Since these conditions were not fulfilled, the petitioner could not rely on any document with the incorrect date of birth, Sibal claimed. He clarified –

"Ask him, where have I admitted that I was born on 01.01.1993, he cannot give the answer. There is no admission…I am not denying these documents. He is considering, like in a writ petition, that these documents are proof of fact, whereas in an election petition, we are in a trial. What he is saying is, this is your document, this is your evidence, this is your admission, therefore, your date of birth is 01.01.1993. This is not a writ petition, Your Lordships."

Contesting Boparai's argument that the requirement of putting the statement containing the admission had been dispensed with since it was evidence proprio vigore, Sibal submitted that the service records in question had been exhibited not by the party but by a witness. He explained that an admission under the Evidence Act had to be made by a party, relying on the same judgement cited by Boparai, viz., Bishwanath Prasad v. Dwarka Prasad (Dead) [(1974) 1 SCC 78].

Next, relying on Joshna Gouda v. Brundabun Gouda [(2012) 5 SCC 634], Sibal reiterated that mere proof of documents did not mean that the content of the documents had also been proved. Proving that Khan was born in 1993 was the burden of the election petitioner, he explained. He also cited Sections 101 and 103 of the Evidence Act in this connection. It is also self-evident that a person has been born, he continued, referring to Robin v. National Trust and Co. Ltd. [1927 AC 515]. He quoted from the judgement –

"But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion."

Justice Rastogi mulled over the outcome of the case –

"We are troubled by what we should record as the date of birth – Is it 1990 or 1993?"

Sibal answered that no recording as to the correct date of birth had to be recorded by the Bench, and it would be sufficient to just dismiss the election petition. Justice Rastogi did not agree. He said –

"A child is born on a particular date, whatever it be. Now if 1993 cannot be the year of birth because of your dispute, and 1990 cannot be relied upon by the Court, we cannot leave the man in a vacuum."

Justice Nagarathna added –

"He was born only once. He cannot have two dates of birth. We will have to record a finding as to the correct date of birth."

Sibal supplied –

"Your Ladyship is correct that there has to be one date of birth. If I can't prove mine, and he can't prove his, then where do we stand? The Court has to come to a firm conclusion…As a matter of law, Your Lordships will have to be convinced judicially on the basis of evidence on record, despite the fact that the mother denies, the doctor who delivered the baby who says that I delivered a baby on such and such date, the maternity leave, EOT and MLR register, and all other pieces of evidence, Your Lordships will have to come to the conclusion that the appellant was actually born on 01.01.1993"

Sibal is scheduled to continue his closing submissions on Tuesday. Justice Rastogi, while allowing him the additional time, sought a clarification. If the Court found from the records that the cancellation of the documents, on which the appellant had placed heavy reliance, was not credible, what would be the implication of such a situation, Justice Rastogi asked.

Next Hearing

Having heard the arguments from both parties at some length, the Bench decided to list the matter for a final hearing on September 20.