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

A Division Bench of the Supreme Court of India on Wednesday 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. 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."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. Appellant's ContentionsSenior 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...

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

Awstika Das

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