Counsel Disagree On Whom The Onus Of Proof Rests, SC Says, 'We Can't Leave a Man In Limbo Without a Date Of Birth' In Abdullah Azam Khan's Case

A Division Bench of the Supreme Court of India on Thursday 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. The petitioner (respondent in this appeal) was represented by Advocate Aadil Singh Boparai, who contended that he had successfully discharged the initial burden placed on him, and hence, the onus has shifted onto the opposite party. He took the Court through transcripts from the cross-examination of key witnesses and strenuously argued that even if the evidence adduced by the appellant to repel the allegation against Khan were considered relevant under Section 35, such evidence did not inspire confidence and would not justify setting aside the order of the High Court. In response, Senior Advocate Kapil Sibal resolutely maintained that the burden had not shifted since the appellant had not denied the entire existence of the documents relied on by the other side but had merely disputed the date of birth indicated in them.Entrusted with the difficult task of arriving at a finding as to the correct date of birth of the disqualified MLA, and effectively ascertaining which among the "two realities", as Justice Nagarathna pithily described, was favourable, the Bench allowed the counsels to deviate from the timeline it had given earlier. Therefore, even though this matter was listed for final hearing on Thursday, the Bench decided to allow Sibal to conclude his submissions on Tuesday, September 20. Justice Rastogi said to the senior counsel – "There is something that troubles us, and we find no difficulty in giving you an opportunity to rule out our troubles. We are dealing with a matter involving public documents, which anyone can obtain on an application. There is an authenticity attached to it. Now, our question to you is, is merely making an assertion in the written statement to the extent of admitting the authenticity of the document but disputing the correctness of the date of birth therein, adequate. See, these documents reflect details that a person himself discloses. If we find from records that no credibility can be attached to the cancellation of these documents, which is a development in 2015 or later, what will be the implication?"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 ContentionsAdvocate Aadil Singh Boparai resumed his effort to gradually tear down the appellant's defence by taking the Court through the transcripts from cross-examination of key witnesses and other documentary evidence. He quipped – "In a hotly contested election petitioner, I cannot expect their witness to say, "Yes, this is all forged and the date of birth is 01.01.1993 as you are saying". Your Lordships would not have issued a notice on this election petition if I had just gotten the appellant or the other witnesses to admit that all this is forged. But unfortunately, that has not happened, and therefore, I must create chinks in their armour."Earlier, Sibal accused the High Court of having travelled beyond the scope of the evidence placed before it, noting, for instance, 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 of Khan's mother. The person who provided the service records had also not ...

Counsel Disagree On Whom The Onus Of Proof Rests, SC Says, 'We Can't Leave a Man In Limbo Without a Date Of Birth' In Abdullah Azam Khan's Case

Awstika Das

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