The Supreme Court on Monday rejected a plea challenging the 2019 order of the Allahabad high court that set aside the election of Mohammad Abdullah Azam Khan, son of Samajwadi Party leader Azam Khan, to the Uttar Pradesh Assembly in 2017.
The litigation in the present case relates to the existence of two birth certificates of Abdullah Azam who allegedly gave the wrong date of birth while filing his nomination papers for the 2017 poll.
The high court order had ruled that he was not qualified to contest the election as he was below 25 years of age when he filed his nomination papers as the SP candidate from the Suar constituency in 2017.
Abdullah Azam was disqualified from the Uttar Pradesh assembly with effect from December 16, 2019, but was re-elected from the same seat in the 2022 assembly polls.
A two-judge bench headed by Justice Ajay Rastogi on Monday said there was “no manifest error” in the high court decision.
The top court, which had reserved its order on the appeal on September 20, said that the high court order was passed after considering the documentary and oral evidence and called for no interference.
In a separate concurring opinion to affirm the high court decision, Justice B V Nagarathna set aside the appellant's election and opined that the acceptance of his nomination was “improper”.
The appellant had contended that he duly attained the age of 25 years in terms of Article 173(b) of the Constitution for contesting the 2017 election and certain documents “incorrectly and inadvertently” registered 1993 as his birth year, which was later rectified to 1990.
Rejecting the submission, the court observed that 1993 was consistently the appellant's birth year in records and it was only when he became keen on politics that a contrary claim was made.
Meanwhile, Azam Khan too has moved the apex court against his disqualification from the state assembly after his conviction and three-year jail sentence in a hate speech case.
A bench of Justices DY Chandrachud and Hima Kohli on Monday sought the response from the Uttar Pradesh government and the Election Commission of India on a plea of the Samajwadi Party leader.
"What was the tearing hurry to disqualify him? At least you should have given some breathing space to him", the bench told Additional Advocate General Garima Prashad, appearing for Uttar Pradesh, after she said that disqualification was in accordance with the direction given by the top court in one of its judgements.
The matter will be now heard on November 13.
In the Abdullah Azam case, Justice Nagarathna on Monday said that she was “not inclined to place any weight on the result of the ossification test” when the other documents such as the matriculation certificate proved otherwise.
She also said that the Aadhar card, driver's licence and voter ID of the appellant are not proof of his age.
“In the instant case, the date of birth of the appellant throughout in his records is 1st January 1993.
"Only in the year 2015 when the appellant became keen to enter into active politics, the mother of the appellant submitted an application for the first time on 17th January 2015, claiming that the appellant was born on 30th September 1990, and birth certificate may be immediately issued to her.
"Within three days, a birth certificate was issued by the Nagar Nigam, Lucknow on 21st January 2015,” noted Justice Rastogi.
“The high court, in our considered view, has examined the documentary and the oral evidence available on record in extenso, we find that no manifest error was committed by the high court in passing the impugned judgment, which may call for our interference. Consequently, the appeal fails and is accordingly dismissed,” he held.
“I find that the acceptance of the nomination of the appellant-successful candidate was improper. The findings of the High Court in this regard do not require any interference,” Justice Nagarathna said.
In December 2019, the Allahabad High Court, while dealing with an election petition by Nawab Kazim Ali Khan, had ruled that Abdullah Azam was not qualified to contest the election as he was below 25 years of age when he filed his nomination papers as the SP candidate from Suar constituency in 2017.
Rampur Bharatiya Janata Party leader Akash Saxena had lodged an FIR at Ganj police station on January 3, 2019 alleging fraud in securing two birth certificates with different dates. In April, the police had filed the charge sheet in the case.
Azam Khan and his wife were sent to jail by a Rampur court in Uttar Pradesh for their alleged role in securing the fake birth certificate for Abdullah Azam on the basis of which he had contested the election.
According to the charge sheet, in one birth certificate, issued by the Rampur municipality, Abdullah Azam's date of birth was mentioned as January 1, 1993. The other certificate said he was born in Lucknow on September 30, 1990.
