In a fresh, favourable and fine development, the Allahabad High Court has just recently on 2 December 2020 in a latest, learned, laudable and landmark judgment titled Kabir Jaiswal vs Union of India and 4 Others in Writ – C No. – 19287 of 2020 has recently held that change of name is an expression guaranteed under Article 19 (1) (a) of the Constitution of India. So no one can take away this right. We all always ought to bear this in mind.
To start with, Justice Pankaj Bhatia of Allahabad High Court who authored this extremely commendable judgment sets the ball rolling by observing first and foremost that, “Heard counsel for the petitioner and Sri Hriday Narain Pandey, Advocate appearing on behalf of respondent nos. 2 to 4, the Board. The present petition has been filed by the petitioner saying that the petitioner had appeared in the Secondary School Examination in the academic year 2011-13, i.e. Class-X bearing Roll No. 5118987 and Senior School Certificate Examination in the year 2015 i.e. Class-XII bearing Roll No. 5653747, conducted by the Central Board of Secondary Education, Delhi in the name of Rishu Jaiswal son of Santosh Kumar Jaiswal and had passed the said examinations also. The petitioner later on, with an intent to change his name from Rishu Jaiswal to Kabir Jaiswal got a notice published in the notification in the Gazette of India baring Gazette No. 44] New Delhi, Saturday, November 2- November 8, 2019 (Kartika 11, 1941) Part-IV, page No. 2060 and moved an application for correction of the name from Rishu Jaiswal to Kabir Jaiwal.”
To put things in perspective, it is then stated in simple and straight language that, “The petitioner claims that the name was changed in the Aadhar Card and the PAN Card also in pursuance to the Gazette Notification, however, when the petitioner moved an application through the school concerned for change of name in the certificates, granted by the CBSE, the school in question forwarded the request to the Board and the Board vide order dated 27.5.2020 has rejected the application for change of name on the ground that the particulars of the school records do not show the change of name as sought by the petitioner. The said order is under challenge in the present writ petition.”
As it turned out, it is then put forth that, “The counsel for the petitioner has argued that once a Gazette Notification has been issued and no objections have been filed, it has been announced to the world in ‘rem’ that the petitioner intends to change his name and no plausible cause exists for the Board to reject the same. He further states that once the petitioner had made a request for change of name through the school concerned and there was no opposition to the same, the Board should have no objection in change of name as sought by the petitioner.”
Furthermore, it is then brought out that, “The petitioner has placed reliance on the judgment of this Court in the case of Anand Singh Vs. U.P. Board of Secondary Education and Others; 2014 (3) ADJ, 443 and the judgment of this Court in the case of Ankit Singh Vs. Union of India and Others; 2019(9) ADJ, 664. He thus argues that the Board is adopting a hyper technical approach in rejecting the request whereas the petitioner has taken all steps to announce to the world through the Gazette Notification. The petitioner also states that he shall not take any benefit only on account of change of name other than the rights to which the petitioner is entitled. He further argues that the identity of the person remains the same, only the petitioner intends to change the first name and, therefore, the writ petition deserves to be allowed.”
As against this, it is then pointed out that, “Sri H.N. Pandey appearing on behalf of respondent nos. 2 to 4, the Board, has brought before me the copy of the examination bye-laws to argue that the request cannot be considered as the requirement is as under amended Rules 69.1 (i) and 69.1 (ii), which are quoted hereinbelow:-
(Change in Candidate name, Mother Name & Father Name)
Applications regarding changes in name of surname of candidates will be considered provided the changes have been admitted by the Court of law and notified in the Government Gazette before the publication of the result of the candidate in cases of change in documents after the court orders caption will be mentioned on the document “CHANGE ALLOWED IN NAME/FATHER’S NAME/MOTHER’S NAME/GUARDIAN’S NAME FROM _____TO _____ ON (DATED) ____ AS PER COURT ORDER NO.____ DATED____
(Correction in candidate name, Mother Name & Father Name)
Correction in name to the extent of correction in spelling errors, factual typographical errors in the Candidate’s name/Surname, Father’s name/ Mother’s name or Guardian’s name to make it consistent with what is given in the school record or list of candidate (LOC) submitted by the school may be made.
Application for correction in name of Candidate/Father’s/Mother’s/Guardian’s name will be considered only within Five years of the date of declaration of result provided the application of the candidate is forwarded by the Head of institution with the following attested documents.
a. True Copy of Admission form(s) filled in by the parents at the time of admission duly attested by the Head of the concerned Institution.
b. True Copy of the School Leaving Certificates of the previous school submitted by the parents of the candidate at the time of admission duly attested by the Head of the concerned institution.
c. True Copy of the portion of the page of admission and withdrawal register of the school where the entry has been made in respect of the candidate, duly attested by the Head of the concerned institution.
d. The Board may effect necessary corrections after verification of the original records of the school and on payment of the prescribed fee.
This rule will be applicable to all cases after Class X/XII 2015 examination onwards.”
Also, it is then added that, “He has further prayed that the said Rule is applicable, however, he argues that he may be permitted time to file a counter affidavit to oppose the request so made by the petitioner.”
To put it succinctly, it is then observed that, “After hearing the parties, I am not inclined to grant any time for counter affidavit as on the basis of the Rules produced by counsel for the respondents, the matter can be decided only on the grounds of reading of the bye-laws as the matter is to be decided only on interpretation of the Rules applicable.”
Of course, it is then pointed out that, “A perusal of the Rules cited by the counsel for the respondents make it clear that Rule 69.1(i) pertains to the permission for change in the candidate name/mother’s name/father’s name in a case where the request is so made prior to the publication of the result of the candidate and Rule 69.1(ii) permits the correction in the candidate name, mother’s name and father’s name subsequent to the declaration of the results only if it is at variance with the names so recorded in the School records. Thus in sum and substance, either of the two Rules do not permit the change of name of the candidate or the father’s name or mother’s name subsequent to the declaration of result.”
More significantly, it is then pointed out that, “The question with regard to the change of name was considered by the Kerala High Court the case of Kailash Gupta v. CBSE, 2020 SCC Online Ker 1590, wherein the Court recorded as under:-
“1. Four centuries ago, when William Shakespeare wrote the Classic “Romeo and Juliet”, he felt that name did not matter much. In the present times, if one is asked the same question “What’s in a name”?, the answer would be:
1.1 In this writ petition, this Court is confronted with an instance where a young girl, who wished for a change of name, stumbled upon an obstacle in the form of CBSE who turned down her request for incorporating the change of name on a hyper technicality.
8. Name is something very personal to an individual. Name is an expression of one’s individuality, one’s identity and one’s uniqueness. Name is the manner in which an individual expresses himself to the world at large. It is the foundation on which he moves around in a civil society. In a democracy, free expression of one’s name in the manner he prefers is a facet of individual right. In Our Country, to have a name and to express the same in the manner he wishes, is certainly a part of right to freedom of speech and expression under Article 19 (1) (a) as well as a part of the right to liberty under Article 21 of the Constitution of India. State or its instrumentalities cannot stand in the way of use of any name preferred by an individual or for any change of name into one of his choice except to the extent prescribed under Article 19(2) or by a law which is just, fair and reasonable. Subject to the limited grounds of control and regulation of fraudulent or criminal activities or other valid causes, a bonafide claim for change of name in the records maintained by the Authorities ought to be allowed without hesitation.
12. Power of interpretation available to this Court to correct errors committed by the draftsman is quite wide. When the language of a statute in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. The above mentioned principle has been restated in the decisions in Pentiah v. Mudalla Veeramallappa, (AIR 1961 SC 1107), Eera v. State (Govt. of NCT of Delhi), (2017) 15 SCC 133), and also by a Full Bench of this Court in Viswambaran P.N. v. T.P. Sanu, ((2018) 2 KLT 947).””
It is worth noting that it is rightly pointed out that, “The aforesaid judgment clearly stated that to have a name and to express the same in the manner, a person wishes, is a part of the right of the freedom of speech and expression under Article 19(1)(a) as well as right to liberty under Article 21 of the Constitution of India. In the said judgment, the Kerala High Court was dealing with the scope of Rule 69.1(i) of the Rules of the CBSE and the Court permitted the change of name prior to the declaration of result by CBSE by holding the same to be a right flowing under Article 19(1) (a) and Article 21 of the Constitution of India.”
To be sure, the Judge then remarks that, “In the present case at hand, a perusal of the Rules, as already recorded above, makes it clear that the case of the petitioner falls neither under Rule 69.1 (i) nor under Rule 69.1(ii) and thus this Court has to consider whether the request of the petitioner made for change of name in the certificate, issued by the CBSE, can be permitted at this stage or not.”
While further citing the relevant case law, it is then stated that, “The High Court of Delhi also considered the same issue in the case of Rayaan Chawla vs. University of Delhi & Anr., vide Judgment dated 06.11.2020 passed in W.P. (C) No. 6813 of 2020, wherein the Court was considering the request of the petitioner for permitting the change in the name in the records of the University of Delhi and the University of Delhi on the basis of a notification dated 1.7.2015 refused to permit the name change on the ground that in terms of the notification, the student is firstly required to get the name changed in the records of the CBSE. The Court held that it was impossible to get the name changed in the CBSE records as the Regulations in question do not permit the same, however, it directed the University of Delhi to permit the petitioner to change the name. The Court also considered that the publication for change of name itself provided that the change of name shall be prospective from the date of publication and thus it reconciled the difficulties that may arise on account of different names in the CBSE records and the University record by directing the University of Delhi to incorporate the changed name by recording the “changed name alias/nee earlier name” in the records of the University. The High Court passed the said order based upon the earlier Division Bench judgment of the Delhi High Court in the case of Abhishek Kumar v. Union of India & Ors., 2014 SCC Online Del 3459, wherein the Division Bench was dealing with a case of change of name and in respect to the petitioner therein who had sought to change his name after he had passed out of CBSE School. In the context of the said case, the Division Bench had held as under:-
“10. Else, we are of the opinion that the issuance of revised certificates with changed name as sought by the petitioner would create a discrepancy and reflect a status which did not exist at the time of issuance thereof. The petitioner though has changed his name, but after the date of issuance of the said certificates. Axiomatically the certificates cannot bear the changed name. If anyone were to make a deeper inquiry, they will wonder that if the name was changed only in 2011, how the changed name appears on certificates issued on a prior date. Rather the procedure of having a Gazette Notification for changed name is intended to obviate the said difficulties and to give sanctity to the change in name. The said view was taken by one of us (Rajiv Sahai Endlaw, J.) in Pallavi @ Pallavi Chandra v. C.B.S.E. MANU/DE/2842/2010 and in order dated 9th November, 2010 in W.P.(C) No. 4044/2010 titled Ashik Gurung v. CBSE and which matters are not found to have been agitated further. We see no reason to take a different view.””
In this context, it is then further pointed out that, “The High Court of Delhi in the case of Rayaan Chawla vs. University of Delhi (Supra) also referred to the judgment of the Delhi High Court in the case of Jigya Yadav v. CBSE, MANU/DE/3700/2010, wherein a challenge was made to the constitutional validity of bye-law 69.1 (i) of the CBSE Education Examination Bye-Laws and had held as under:-
“20. The test laid down in Kruse Vs. Johnson (supra) has been adopted by the Indian Supreme Court in the case of H.C. Suman & Anr. Vs. Rehabilitation Ministry Employees’ Cooperative House Building Society Ltd., New Delhi & Ors,. (1991) 4 SCC 485 at page 499 wherein it has been held as under:-
“In Kruse v. Johnson it was held that in determining the validity of bye-laws made by public representative bodies, such as country councils, the court ought to be slow to hold that a bye-law is void for unreasonableness. A bye-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes, or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it. In view of this legal position the Notification dated October 27, 1987 deserves to be upheld as, in our opinion, it does not fall within any of the exceptions referred to in the case of Kruse v. Johnson.”(emphasis supplied)”
22. Moreover, we are of the view that the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to take a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice – as contended by the respondent no. 1 in its counter affidavit.””
Needless to say, it is then pointed out that, “In the context of the facts, as argued before the learned Single Judge of the Delhi High Court, the High Court permitted the name change in the University records by directing to record the “changed name alias/nee earlier name.”
Going ahead, it is then pointed out that, “The question of change of name was also considered by the High Court of Madras in the case of Minor Raana Chariappa Kalianda Vs. CBSE and Anr, vide judgment dated 2.8.2019 passed in W.P. No. 20171 of 2019, wherein the High Court observed as under:-
“4. The above reasoning of the 1st respondent/Central Board of Secondary Education, is not in consonance with the intention of the petitioner as well as the law. The birth name of the petitioner herein has been now changed and wide publicity has been given both in the Government Gazette as well as Local daily as required under the law. Pursuant to that, the name of the petitioner has been changed in the Aadhar Card and other records. Unless and until, the petitioner Educational certificate also carries the present name, there will be confusion in the identity of the person and it will be misleading. Once a person opts to change his name and carries out the necessary change by publication in the Government Gazette as required under law, the said change should be uniformly carried out in all the documents to retain the uniqueness of the identity. If the contention of the 1st respondent, accepted, that the name change will only have prospective effect and not retrospective effect, then a person will be having more than two names on record and the identify of the person will be misleading. Therefore, the reasoning given by the 1st respondent for refusing to carry out the correction in the mark sheet is untenable and against the spirit of law.
5. In the said circumstances, the Writ Petition is Allowed. The 1st respondent is hereby directed to re-consider the request of the petitioner herein and pass appropriate order, within a period of four weeks from today. No order as to costs.””
Most significantly, the Judge then finds no difficulty in concluding that, “In view of the judgments as recorded above, this Court finds that the Kerala High Court as well as the Delhi High Court have held that the individual ‘name’ is a facet of right of expression, which is guaranteed under Article 19(1) (a) read with Article 21 of the Constitution of India. The freedom of expression as guaranteed under Article 19(1) (a) includes within its sweep all forms of expressions and name in the present world is clearly a strong expression. Thus, I agree with the judgments of the Kerala High Court as well as the Delhi High Court to hold that change of name is an expression guaranteed under Article 19(1) (a) of the Constitution of India.”
No less significant is what is then finally stated in this judgment that, “In view of the law as pronounced by the Supreme Court, it is clear that the CBSE Regulations relied upon by the respondents cannot be considered to be a ‘law’ as required under Article 19(2) through which reasonable restrictions can be imposed on the freedom of expression guaranteed under Article 19 (1) (a). Thus, I have no hesitation in holding that the right of freedom of expression guaranteed to the petitioner under Article 19 (1) (a), in the present case freedom of expression through change of name, cannot be denied to the petitioner and he is entitled to change his name. It is further to be considered that different name in different records will lead to undue hardship to both the petitioner and the respondents, as such to reconcile the issue and the hardships that may be faced by the CBSE in changing the name, as the certificate issued by the earlier name has already been issued to the petitioner, taking a cue from the judgment in the case of Rayaan Chawla (Supra), I direct that the CBSE shall record in their records the name of the petitioner as “Kabir Jaiswal alisa/nee Rishu Jaiswal” in the records of the CBSE and shall issue a fresh certificate recording the name as directed above in respect of the Secondary School Examination of the academic sessions 2011-2013 Class-X bearing Roll No. 5118987 and the Senior School Certificate Examination of the year 2015 i.e. Class-XII bearing Roll No. 5653747. The said exercise shall be carried out by the respondents within a period of two months from the date a copy of the order is produced before the respondent no. 2. The writ petition is allowed in terms of the said order.”
No doubt, the picture is now entirely clear before us as the curtain is lifted and the judgment has been discussed threadbare as stated above. Justice Pankaj Bhatia of Allahabad High Court has thus ably summed up the situation by citing the relevant case laws. He has also stated his own valid reasons for arriving at this learned, logical, laudable and landmark judgment. It is thus now ostensibly clear that change of name is a part of the right to expression that is guaranteed under Article 19 and Article 21 of the Constitution of India. Rightly so!