1. Election petition challenging a returned candidate's eligibility due to failure to meet the minimum age requirement under Article 173(b) of the Constitution and Representation of People Act, 1951. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 )
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2022 Supreme(SC) 1134
SUPREME COURT OF INDIA
AJAY RASTOGI, B.V. NAGARATHNA, JJ.
Mohd. Abdullah Azam Khan – Appellant
Versus
Nawab Kazim Ali Khan – Respondent
Civil Appeal No. 104 of 2020
Decided On : 07-11-2022
Important Points
In determining age eligibility under Article 173(b) of the Constitution, public documents created ante litem motam (e.g., school records, passports) hold higher probative value than later-issued certificates or ossification tests, especially if the latter show signs of manipulation or interpolation.
Subject
Election Law - Disqualification due to Age
Act Referred
BIRTHS AND DEATHS REGISTRATION ACT: S.13
CONSTITUTION OF INDIA: Art.173(b)
EVIDENCE ACT: S.35, S.145, S.21, S.103, S.106, S.59, S.60, S.61, S.62, S.63, S.64, S.65, S.91, S.74, S.102, S.104, S.105, S.101, S.58
REGISTRATION OF BIRTHS AND DEATHS ACT: S.13
REPRESENTATION OF THE PEOPLE ACT: S.116, S.36, S.15
Uttar Pradesh Registration of Birth and Death Rule: R.9
Uttar Pradesh Registration of the Birth and Death Rules: R.9, R.9(3)
CONSTITUTION OF INDIA: Art.173(b)
EVIDENCE ACT: S.35, S.145, S.21, S.103, S.106, S.59, S.60, S.61, S.62, S.63, S.64, S.65, S.91, S.74, S.102, S.104, S.105, S.101, S.58
REGISTRATION OF BIRTHS AND DEATHS ACT: S.13
REPRESENTATION OF THE PEOPLE ACT: S.116, S.36, S.15
Uttar Pradesh Registration of Birth and Death Rule: R.9
Uttar Pradesh Registration of the Birth and Death Rules: R.9, R.9(3)
Headnote
(A) Representation of People Act, 1951 - Section 116A - Constitution of India - Article 173(b) - Election petition - Candidate's age - Election of successful candidate declared void by High Court as he was underage at the time of filing nomination as per documented evidence - Evidence of birth certificate and school records considered - Appellant's claim of being above age challenged and deemed not credible based upon inconsistencies in documentation. (Paras 1, 4, 51-52).
(B) Burden of proof - Burden lies on the party asserting a fact - Appellant failed to prove he was over 25 years, as evidence supported the age limit disqualification. (Paras 20.1-20.2).
Facts of the case:
The appellant contested from 34, Suar Assembly Constituency, declaration of election results on 11th March 2017 and the objection raised on age during nomination scrutiny on 28th January 2017. The respondent argued appellant was born on 01.01.1993 and underage to contest.
Findings of Court:
High Court found that the evidence established the appellant's age was less than 25 years at relevant times and declared his election void.
Issues: Whether the appellant met the age requirement qualifying to contest the election; whether the documentation provided credible evidence for date of birth.
Ratio Decidendi: The court upheld sufficient evidence indicating the appellant's incorrect claim regarding his birth date, affirming that a candidate’s age must align with constitutional requirements for election eligibility, thus validating the lower court's decision.
Result: Appeal dismissed, election declared void.
(B) Burden of proof - Burden lies on the party asserting a fact - Appellant failed to prove he was over 25 years, as evidence supported the age limit disqualification. (Paras 20.1-20.2).
Facts of the case:
The appellant contested from 34, Suar Assembly Constituency, declaration of election results on 11th March 2017 and the objection raised on age during nomination scrutiny on 28th January 2017. The respondent argued appellant was born on 01.01.1993 and underage to contest.
Findings of Court:
High Court found that the evidence established the appellant's age was less than 25 years at relevant times and declared his election void.
Issues: Whether the appellant met the age requirement qualifying to contest the election; whether the documentation provided credible evidence for date of birth.
Ratio Decidendi: The court upheld sufficient evidence indicating the appellant's incorrect claim regarding his birth date, affirming that a candidate’s age must align with constitutional requirements for election eligibility, thus validating the lower court's decision.
Result: Appeal dismissed, election declared void.
Legal Category Hierarchy
- constitutional law
- practice and procedure
-
administrative law
-
registration of births and deaths
- delayed registration (Para 48)
-
registration of births and deaths
Advocates appeared:
For the Appellant(s) : Mr. Kamal Mohan Gupta, AOR Mr. Amber Shehbaz, Adv. Mr. Gorakh Nath Yadav, Adv. Mohd. Aslam Khan, Adv.
For the Respondent(s): Mr. Aadil Singh Boparai, Adv. Mr. Sumeer Singh Boparai, Adv. Mr. Harsh Andani, Adv. Mr. Amarjeet Singh, AOR Mr. Robin Khokhar, AOR Mr. Ashok K. Mahajan, AOR
For the Appellant(s) : Mr. Kamal Mohan Gupta, AOR Mr. Amber Shehbaz, Adv. Mr. Gorakh Nath Yadav, Adv. Mohd. Aslam Khan, Adv.
For the Respondent(s): Mr. Aadil Singh Boparai, Adv. Mr. Sumeer Singh Boparai, Adv. Mr. Harsh Andani, Adv. Mr. Amarjeet Singh, AOR Mr. Robin Khokhar, AOR Mr. Ashok K. Mahajan, AOR
Table of Contents
2. Dispute over the candidate's actual date of birth — reliance on school and passport records versus later-issued birth certificates and hospital records to establish age eligibility. (Para 12 , 13 , 14 , 15 , 8 , 9 )
3. Public documents created before the dispute carry higher probative value; later-issued certificates lacking statutory procedure and showing manipulation are unreliable for determining age. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 13 , 14 , 15 )
4. Determination of age in election petitions relies on the preponderance of probabilities, giving preeminence to consistent public documents over manipulated or procedurally flawed later records. (Para 20 , 42 , 46 , 48 )
5. Appeal dismissed and the election of the returned candidate declared void for failure to meet the constitutional age requirement. (Para 51 , 21 )
6. Who bears the burden of proof regarding the age of a candidate in an election petition?
The initial burden lies on the election petitioner. However, facts especially within the special knowledge of the respondent, such as their own date of birth, must be proved by the respondent under Section 106 of the Evidence Act. (Para 20 )
7. What is the evidentiary value of public documents like school certificates and passports in determining age?
Registers and records maintained by statutory authorities in the regular course of business are relevant facts under Section 35 of the Evidence Act. Consistent public documents created before the dispute carry significant probative value. (Para 21 , 25 , 29 , 42 )
8. What is the legal requirement for registering a birth after one year of occurrence?
Under Section 13(3) of the Registration of Births and Deaths Act, 1969, delayed registration requires an order from a Magistrate of the First Class after verifying the correctness of the birth. (Para 48 )
9. Can a bone ossification test serve as conclusive proof of age?
No, an ossification test is not conclusive proof as results can vary by plus or minus two years. It can only be used to corroborate other relevant oral or documentary evidence. (Para 17 )
10. How does a party's prior admission of age in official documents affect their subsequent claims?
Admissions made in official documents (like passports or service books) are substantive evidence. A party cannot resile from such admissions without a satisfactory explanation, especially when the documents were used to obtain government benefits. (Para 29 , 30 )
JUDGMENT :
AJAY RASTOGI, J.
1. Instant appeal has been filed under Section 116A of the Representation of People Act, 1951 assailing the judgment and order dated 16th December, 2019 passed by the High Court of Judicature at Allahabad, holding the election of the returned candidate (appellant) from 34, Suar Assembly Constituency of District Rampur, as void and consequently came to be set aside.
Factual background of the case
2. The notification under the Representation of the People Act, 1951 (hereinafter referred to as “the Act 1951”) was notified for holding election of U.P. State Legislative Assembly from 34, Suar, District Rampur constituency. Public notice was issued by the Returning Officer fixing the election programme for holding election for the aforestated constituency. According to the schedule of programme, the appellant and the first respondent along with others filed their nomination papers. The scrutiny of the nomination took place on 28th January, 2017.
3. After scrutiny and withdrawal of nomination papers, the appellant and six others including the election petitioner were the candidates who remained in the field for election. It may be noted that before the Returning Officer, the respondent (election petitioner) filed an objection against the appellant alleging that he is less than 25 years of age and, therefore, is not qualified to contest the election in view of Article 173(b) of the Constitution. The objection was overruled by the Returning Officer and accordingly the election took place as per the schedule, in which the appellant and the respondent (election petitioner) contested along with others. The result of the election was declared on 11th March, 2017 in which the appellant secured highest votes and was declared elected.
4. The respondent filed the election petition before the High Court of Judicature at Allahabad on the solitary ground that the appellant was not qualified to contest the election for member of Legislative Assembly in view of Article 173(b) of the Constitution as he was less than 25 years of age when he filed his nomination papers and also on the day on which he contested the election from 34, Suar Assembly Constituency of District Rampur.
5. In the election petition, the respondent (election petitioner), inter-alia, contended that objection as regards the age of the appellant was raised by him in the first instance before the Returning Officer, but the same was rejected without appreciating the bare documentary evidence on record and despite the date of birth of the appellant being 1st January, 1993, which was recorded throughout in his academic records, including his Secondary School Examination Certificate in 2007 from the Central Board of Secondary Education and Intermediate Examination in 2009 from St. Paul’s School, Rampur affiliated to Central Board of Secondary Education, Delhi, the Returning Officer failed to consider the same and arbitrarily overruled the objection raised by him.
6. In the election petition, the following objections were raised and for better appreciation the same are reproduced as under:
(i) That the appellant was born on 01.01.1993 and, therefore, as on the date of the nomination of scrutiny, the appellant (Mohd. Abdullah Azam Khan) was below 25 years of age.
(ii) That the appellant (Mohd. Abdullah Azam Khan) appeared in Secondary School (Class-X) Examination in the year 2007. When he appeared for Secondary School examination, his roll number was 5260139. He appeared from St. Paul’s School, Rampur, which was affiliated with the Central Board of Secondary Education, New Delhi.
(iii) That the appellant (Mohd. Abdulla Azam Khan) himself filledup the admission form and examination form, and in his own handwriting, mentioned his date of birth as 01.01.1993. The record of the appearance and examination of the appellant (Mohd. Abdullah Azam Khan) are available with the Central Board of Secondary Education, New Delhi.
(iv) That the Central Board for Secondary Education has
