"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."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. 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...

"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

Awstika Das

Tags