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

A Division Bench of the Supreme Court of India on Tuesday reserved the judgement in a 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 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. BackgroundThe 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 ContentionsSenior 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...

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

Awstika Das

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