'To Have A Name And To Express It In The Manner One Wishes Is A Part Of Right To Freedom Of Speech And Expression': Kerala HC [Read Judgment]

In a significant ruling, the Kerala High Court has held that expression of one's name in the manner one wishes is a Fundamental Right enshrined under Article 19(1)(a) of the Indian Constitution.

"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," the High Court has held.

The observation has been made by Justice Bechu Kurian Thomas, in a writ petition preferred by a young girl, seeking a direction to the CBSE to allow her application for change in name.

Background

In the backdrop, the State of Kerala had accepted the Petitioner's wish to change her name and effected a Gazette notification to that effect in 2017, pursuant to which change of name was carried out in the birth certificate, and other Government issued documents of the Petitioner.

However, by the time the aforesaid processes were completed, the Petitioner had written her All India Secondary School Examination in 2018 and a certificate was issued to her by the CBSE in her former name, based on the records available with the school.

Subsequently, her application for change in name, moved through the Principal of the School, was rejected by the CBSE, citing Rule 69.1 (i) of the Examination Bye Laws.

The said provision stipulates that "Applications regarding changes in name or surnames 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."

Thus, stating that the application for change in name was made after publication of the result, the same could not be entertained.

Findings

The court observed that the 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 based on a "hyper-technicality" 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," it held.

On the aspect of stipulations made under Rule 69.1 (i), the court said that the same contemplates two situations. First, where the change of name arises before publication of the result of the candidate and the second is where the Court directs.

"The word "and" in the sentence 'Court of Law and notified in the Government Gazette before the publication of the results of the candidate' if used as a conjunctive does not make any sense. If the word "and" in the above referred sentence is used as a conjunctive it will convey a meaning that even after a Court of Law accepts a change of name, the same to attain validity, must be notified in the Government Gazette. That will be an absurdity," it observed while holding that only one of the two conditions have to be complied with before publication of result.

It added,

"There is no prescription under any law for the time being in force that once a Court of law accepts a name, the same to attain validity must be published in the Government Gazette. Admission by a Court of law as regards a change of name is undoubtedly an order in rem declaring to the world that the name of a person has been changed. Notification of change of name by publication in the Government Gazette is another method to convey to the world that there is a change of name. Both are different methods and not supplementary to each other."

The court went on to place reliance on the Supreme Court's ruling in Pentiah v. Mudalla Veeramallappa, (AIR 1961 SC 1107) and it stated,

"Normally the word "and" is to be given its literal meaning as a conjunctive. However, if the use of the word "and" conjunctively, produces an unintelligible or absurd result, then the court has the power to read the word "and" as "or" or vice versa, so as to give effect to the intention of the framers of the rule."

In the present case, the Gazette notification intimating the change in name of the Petitioner had been published in the year 2017, before the publication of the examination result by the CBSE in the year 2018. The court thus held that the condition prescribed under Rule 69.1 (i) had been complied with inasmuch as the Gazette notification was published, and thus the Board was obligated to allow the Petitioner's request.

"In the instant case, it is evident that publication of change of name of the petitioner in the Government Gazette was on 12- 12-2017, as can be seen from Ext. P1 while publication of the result of the petitioner for her All India Secondary School Examination was on 29-5-2018. Thus, on account of the publication of change of name of the petitioner in the Government Gazette as per Ext. P1 having been carried out prior to publication of her results, CBSE was liable to correct the change of name in Ext.P4, immediately on receipt of application from the school," the court held.

The court remarked that the Petitioner could not be deprived of her Fundamental Right to a name of her own choice based on a "hyper- technicality".

It also took note of Rule 69.1 (ii) of the bylaws as per which application for correction of name of the candidate will be considered within 5 years of the date of declaration of results, provided the application is forwarded by the Head of the institution.

In the present case the court said, "it can be seen from Ext. P6 that the Head of the institution had forwarded the application for change of name of the petitioner within a period of 16 months from the date of publication of the results. In such a view of the matter also, the 2nd respondent was bound to carry out the change of name of the petitioner in the records maintained with the CBSE."

Case Details:

Case Title: Kashish Gupta (M) v. CBSE & Ors.

Case No.: WP (C) No. 7489/2020

Quorum: Justice Bechu Kurian Thomas

Appearance: Advocate KR Vinod (for Petitioner); Advocate S Nirmal (for Respondents)

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