Azam Khan's Son Disqualification Challenge:Supreme Court Reserves Judgement

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

The appellant was represented by Senior Advocate Kapil Sibal, who argued that the petitioner (respondent in this appeal) had not discharged his initial burden of proving his allegation, which according to Sibal, could have only been done by adducing oral or documentary evidence. In his rebuttal on Tuesday, Sibal traversed the many contentions raised by the counsel for the petitioner, Advocate Aadil Singh Boparai, resolutely maintaining that the burden of proof had not shifted as claimed by the opposing counsel.

Having heard the extensive arguments made over the course of four days, the Bench proceeded to reserve the judgement.

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

Senior Advocate Kapil Sibal began his submissions by contrasting private documents with public documents, inasmuch as the former would not be admissible till such time as the maker of the document authenticated it in Court, unless the other side admits it explicitly, while the latter is admissible as a general rule. The admissibility of a public document, Sibal urged, cannot be challenged because it emanated from public record. Otherwise, private and public documents are treated at par under the Indian Evidence Act, 1872. Having made this distinction, he argued that the petitioner had not relied on any document other than the cancelled birth certificate of the appellant and had not made any effort to prove the date of birth indicated in it by supplying oral or documentary evidence. Sibal explained –

"Even if you have a public document, you still have to prove the facts stated in it. It may be admissible, but you still have to prove the fact. This is settled law."

Next, he argued that it was incumbent upon the person making an accusation to "put his case" to the witnesses during cross-examination. Taking the Court through the transcripts of the cross-examination of key witnesses, Sibal enquired –

"Where is the cross-examination? He has not questioned anything. The only case of the petitioner is that the appellant has a birth certificate that indicated his date of birth as 01.01.1993. Even though this was later cancelled. That is his only case…"

On this issue, Sibal relied on an observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 The Reports 67] which was excerpted by Justice Quadri in State of Uttar Pradesh v. Nahar Singh [(1998) 3 SCC 561]. He quoted from this judgement –

"…My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."

Sibal also parried the onslaught of attacks from Boparai by asserting that certain claims made by the opposing counsel were inaccurate or exaggerated. Sibal argued –

"My learned friend has said the birth register is not in the prescribed format, but the format was given by rules made in 2002. He said the hospital register is not paginated. That is factually incorrect. It is a paginated register. So is the labour room register. Both are public documents of a government hospital…He also said that we did not produce the clerk who filled the registers, but the registers were filled by the resident doctors, and not the clerks. Quite apart from that, it would not be feasible to produce the person who maintained this register in 1990…Then he has claimed that the registers are not attested. When the Head of the Department has produced the document, and it is primary evidence, what is the need to authenticate it, unless he rejects the document entirely? This is not required under Section 74."

Justice Nagarathna interjected –

"This is not authentication for the purpose of production in evidence. The question asked is, whenever there is an entry in the usual course of business, is there an initial of the person who entered it, or something to that effect."

Sibal countered –

"That is also not required under law. However, when the entries are filled, the resident doctors sign it."

Then, he continued, referring to the contention raised by Boparai that the Additional Municipal Commissioner had not been able to produce the birth list on the basis of which the birth register of the Corporation was prepared, –

"The list is not the record. The register is the record. They may not keep the list for whatever reason. The list is also not required to be maintained under the law. The petitioner also did not ask her how long birth lists are maintained for, during cross-examination. The fact that the list is not available does not mean that the entry in the register was not made in 1990…It is also not a case of delayed registration under Section 13 of The Registration of Births and Deaths Act, 1969 because the entry was made within the prescribed 30 days."

Sibal then relied on a host of documents where the "correct" date of birth was indicated. However, Justice Rastogi reminded the senior counsel that what needed to be judicially examined was the impugned birth certificate issued in 2015, and not the documents registered after the issuance of the new birth certificate. He said –

"These are all documents that were prepared after the filing of the election petition. We have to keep in mind the evidentiary value of these documents. Once you got your birth certificate cancelled and another issued afresh, all the consequential actions followed. These documents have taken the most recent birth certificate as a basis…We have to go back to the birth certificate issued in 2015, judicially examine it, and record a finding as to its veracity. Later developments are neither going to support you, nor will they go against you."

Disagreeing, Sibal asserted that since the documents that were issued after 2015 had been duly issued by public authorities, they could not altogether be discarded from consideration. He explained –

"An application is not just accepted. There is a police verification. These are public documents that are a part of public record, duly certified by a public authority. How do you then argue that this document should be disbelieved…The old birth certificate was cancelled following proper procedure. A proper and rigorous procedure was also followed when the appellant applied for a new passport."

Justice Rastogi expressed his reservations –

"According to you, under the scheme of obtaining a birth certificate, anyone can get a birth certificate without your authorisation? We are dealing with a family that is well-educated. You yourself, or someone on your behalf get a birth certificate explicitly mentioning that you were born in Rampur on 01.01.1993. We presume that all formalities under the law must have been complied with. The same mechanism must have been followed as was followed for the cancellation or issuance of a birth certificate in 2015. The question is, if those formalities were complied with, when the old birth certificate was issued, or when you got your passport in 2012, will these circumstances not have any evidentiary value?"

Sibal supplied a rejoinder –

"Is this an admission in law? It only says what is recorded here. I deny this. I can see that this is wrong. It was issued at the instance of someone known to the family…I am not saying that I did not obtain the birth certificate. I am just saying that I was not born on that day. The issue before the Court is when I was born."

Justice Nagarathna exclaimed –

"There is no sanctity to any date of birth then."

In the course of his submissions, Sibal relied on the decisions of the Supreme Court in Narender Singh v. Mala Ram [(1999) 8 SCC 198], Brij Mohan Singh v. Priya Brat Narain Sinha [AIR 1965 SC 282] and Kalpana Mehta v. Union of India [(2018) 7 SCC 1].

He also referred to Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], on which Boparai had placed considerable reliance. Sibal explained that although the Supreme Court was not inclined to believe the returned candidate who had used a school register as evidence to establish his date of birth, the initial burden had to be discharged by the petitioner by relying on primary evidence. Relying on Joshna Gouda v. Brundabun Gouda [(2012) 5 SCC 634], Sibal explained that even where the returned candidates were disbelieved, the Supreme Court has not automatically believed the claim of the election petitioner. The election petitioner must independently discharge his burden of proving his allegation, Sibal urged.

Observations of the Court

Having heard the arguments from both parties, the Bench decided to reserve the judgement. Justice Rastogi orally pronounced the order –

"Arguments heard. Judgement reserved. Counsel for the respondent has made available his written submissions. Counsel for the appellant wants time to file their written submissions. They are given four days."

Mohd Abdullah Azam Khan Vs Nawab Ali Khan