Challenge Against Disqualification of Azam Khan's Son: 'Why Was the DOB in the Documents Suddenly Changed in 2015'? Asks SC

The Bench comprised Justices Ajay Rastogi and B.V. Nagarathna. Senior advocate Kapil Sibal, appearing on behalf of the disqualified MLA, strenuously argued that the "basic rules of evidence" had been discarded by the High Court. His contention was that the petitioner had not discharged their burden of proving his allegation, and instead had relied on the date of birth given in various documents such as the school register, Khan's Class X marksheet, and his old passport, which were later corrected at the behest of the appellant. Relying on Section 35 of the Indian Evidence Act, 1872, Sibal explained that the documents alone would not be proof of the facts contained in them. The date indicated in any of the documents did not amount to an admission as understood in the context of the Evidence Act, and as such, these documents, unsupported by oral and documentary evidence, would not help the petitioner's case, Sibal claimed.

Per contra, the petitioner (respondent in this appeal) was represented by Advocate Aadil Singh Boparai, who highlighted several discrepancies and inconsistencies in the evidence on record. He argued that in light of such anomalies, the evidence adduced by the appellant did not inspire confidence and would not justify a move to set aside the decision given by the High Court. He also asserted that the petitioner was not required to prove his allegation beyond reasonable doubt, and that he had successfully discharged his initial burden.

The matter is listed for hearing again on September 15. The Bench, while appreciating the arguments made by Boparai, sounded a note of caution –

"We have to keep in mind the law of evidence. Suspicion cannot be converted into a fact. Even if there is suspicion, the suspicion will not take away the right of the parties to establish the truth on the basis of documentary evidence."

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. 

Appellant's Contentions

Senior Advocate Kapil Sibal, picking up where he left off on Tuesday, continued to mount attacks on the impugned decision of the High Court, alleging that it had accepted contentions which the petitioner had failed to substantiate, and at times, had travelled beyond the evidence before it, to record findings that were wholly unsustainable. In particular, Sibal noted 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. The person who provided the service records was also not cross-examined, Sibal claimed. However, Boparai clarified –

"This was part of the service book. The record which was requisitioned from Allahabad was translated and sent to Your Lordships. In fact, this document and its original copies are part of Mr. Sibal's appeal."

Sibal promptly countered –

"That's correct. I am myself saying that. All I am saying is that no cross-examination happened with respect to this group insurance document. The judge cannot look at a document without cross-examination and give a finding, that's all."

On the issue of primary evidence, Sibal claimed to have proved that Khan was born in 1990 with the help of primary and documentary evidence in terms of Sections 60 and 61 of the Evidence Act. He contended –

"Through the primary evidence I have brought on record given by the doctor, and the mother, and through the documentary evidence, I have proved that the appellant was born in 1990. This primary evidence is also corroborated through primary evidence, that Khan's mother took maternity leave for that purpose. Now, the question that arises is if this primary evidence is to be believed, no other document is relevant, no certificate, no nothing is relevant… The documents that are being shown to you become irrelevant unless you say that these documents are not believable and you discard the evidence."

Justice Nagarathna quizzed the Senior Advocate about the reliability of the evidence adduced by the appellant –

"If the child was born in 1990, what was the need for a birth certificate from Rampur three years later? That is the date of birth showed in the old birth certificate, Class X marksheet, and the old passport."

Sibal responded, vehemently asserting that the petitioner had successfully discharged the burden placed on him –

"I don't have the answer for that. But Your Ladyship is talking about documents that stands cancelled. There is a new passport, for instance. There is a presumption raised by the new passport…I will assume everything against me. But the facts are, a child was born, and I have shown that it's a male child and the mother has said that it is this child. I have discharged my burden. Now the respondent has to prove his allegation. He relies on the school register, which has subsequently been changed, and other documents that have been subsequently corrected."

Justice Nagarathna pressed further –

"The application for grant of passport contains the same date as the school leaving certificate. Whatever date is given by the applicant is reflected in the passport. What you are now saying is that the document contained the wrong date of birth, when the date of birth was given by you to the authority."

Sibal answered by asking a series of questions that should have been posed to the appellant during his cross-examination. The crux of the submission can be distilled as follows –

"That's a previous statement. That previous statement has to be put to me. First of all, you have to prove the document…The fact is that the appellant was born in 1990, and then he corrected it later. There was no need at any point to correct it earlier. This had been carrying on right from school, so the appellant had felt no need. He felt the need to correct he statement in 2015 since he was about to enter public life. Therefore, he filed an application."

Placing heavy reliance on Section 35 of the Evidence Act, Sibal also negatived the contention that the date of birth mentioned in the document amounted to an admission. He explained that while it would be a relevant fact, it would not be proof of the date of birth itself. In support of the contention that a school register would not be proof of the date of birth, Sibal referred to the judgement of the Supreme Court in Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], and an excerpt therein quoted from Birad Mal Singhvi v. Anand Purohit [1988 Supp. SCC 604]. Sibal also relied on the proviso of Section 58 of the Evidence Act, claiming that for anything to amount to an admission, it would have to either be said in Court or the pleadings. Since these conditions were not fulfilled, the petitioner could not rely on the application or any other document with the incorrect date of birth. He would have to prove that the appellant was born in 1993, Sibal argued.

However, Justice Nagarathna retaliated –

"If there is an error in a document, anyone can file an application to change it. The only problem is, till 2015, the appellant had one date of birth. In 2015, it suddenly changed…"

Sibal gave a speedy rejoinder, reminding the Bench that he had provided primary evidence which went a long way to prove his case –

"There was an error, it was changed. If I had not produced primary evidence, Your Ladyship may have said that she does not believe it merely because I changed the documents. Then it's a question of appreciation of evidence, preponderance of probabilities, conduct. But I have produced primary evidence in the form of the hospital record, even the doctor who delivered the baby. In order to decide against me, you will have to give a finding of fact that these are not accurate."

Sibal also categorically traversed the reasoning provided in the High Court judgement, recording his objections and disputing purportedly incorrect findings. Notably, he claimed that 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 would not apply since in the first place, it was not a case of delayed registration, and secondly, the 2002 Rules did not exist at the time of registration of birth.

Respondent's Contentions

The petitioner was represented by Advocate Aadil Singh Boparai, who decided to tackle the contentions relating to the burden of proof head-on. This, he claimed, was the "chief anchor of the appellant's argument." Relying on Section 106 of the Evidence Act and the same judgement that was cited by Sibal to support his contention, viz., Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], he argued that while the initial burden to prove the allegations lay with the petitioner, the burden for proving the facts which were within the special knowledge of the respondent was upon the respondent himself. He quoted from the judgement –

"It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic… Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established."

He also referred to Narbada Devi Gupta v. Birendra Kumar Jaiswal [(2003) 8 SCC 745], drawing an analogy with the present case where certain documents that indicated Khan's date of birth as 01.01.1993 (and not 30.09.1990 as claimed by the appellant) had been admitted into evidence without any objections. He quoted –

"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'…The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court."

Justice Rastogi interjected –

"The question is slightly different…The appellant now cannot disown the documents that existed, but the person who is making the complaint, the burden is on him to show that the contents of the document is correct. What is the evidence led by you to show that the contents in each of the documents is correct?"

Boparai explained that the process of changing the date of birth had started only because the appellant wished to contest in the 2017 Uttar Pradesh Assembly Elections. He claimed –

"The appellant took steps in 2015 because he had to contest an election in 2017. The passport remained in existence till the filing of the election petition, till the filing of his written statement. When he saw the noose is tightening, he initiated the process. You have to look at the circumstances, they are attendant circumstances."

Boparai argued at great length about the lack of credibility of the evidence adduced by the appellants, alleging that it was marked by many "discrepancies, contradictions, and blanks". He also claimed that there was a noticeable lack of chronology, and key pieces of evidence, such as the testimony of the clerk who made the entry in the hospital record, were missing. It was also suspect that the fresh birth certificate was issued within 48 hours of submitting an application for it, Boparai urged. He also argued that the birth certificate was a nullity because it had not been prescribed in terms of Section 13(g) of the UP Registration of Births and Deaths Act, 1969. He asked –

"The question arises as to whether the evidence adduced by Mr. Sibal, whether the birth certificate in Lucknow, whether the EOT and the MLR, do these documents inspire confidence? These are relevant facts in terms of Section 35 even if Your Lordships had to record a finding. Do they inspire trustworthiness?"

Justices Rastogi and Nagarathna, while praising Boparai for the vigour of his submissions and likening him to a "trial court lawyer", reminded him that mere suspicions could not be converted into facts.

The Court will continue the hearing today.