Change Of Name Is A Part of Right To Expression Under Article 19 & Article 21 of Constitution of India: Allahabad High Court

A Single Bench of Justice Pankaj Bhatia observed,

"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."

Background

The observation was made while hearing a writ petition filed by one Kabir Jaiswal, who had appeared for the class XI and XII CBSE exams as Rishu Jaiswal.

The petitioner got a notice published in the Gazette of India for changing his name from Rishu Jaiswal to Kabir Jaiswal. He claimed that he had got his name changed in his Aadhar Card, PAN card and even got the official Gazette notification. But when he tried to get the name changed in his CBSE certificates, the Board rejected this request on the grounds that the name change had not been reflected in the school records.

The Petitioner's counsel, Ram Sagar Yadav, contended that once a Gazette Notification has been issued without any objections, it has been announced to the world in rem that the petitioner intends to change his name. So, the Board has no plausible cause to reject his application for name change in the CBSE certificates.

He also argued that since the Gazette Notification had been published and presented before the CBSE, the Board had rejected his application on "hyper technical" bases.

The Counsel appearing for CBSE, Advocate HN Pandey argued that the request for the name change cannot be made as per Rule Nos. 69.1 (i) and 69.1 (ii) of the examination byelaws. To summarise, the rules are related to obtaining permission to make a change in the candidate's/ mother's/ father's name. To get the name change application approved, the request has to be submitted before the Board either prior or following the publication of the result. The request can only be approved if it "is at variance with the names so recorded in the School records."

Findings

The Court rejected this argument as "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."

It referred to a similar dealt with by the Delhi High Court in Rayaan Chawla v. University of Delhi & Anr., wherein the Delhi University on the basis of a notification dated 1.7.2015 refused to permit the petitioner to have his name changed 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 Delhi High 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 to permit the petitioner to change the name. The Court noted that difficulties may arise on account of different names in the CBSE records and the University record. So, directions were issued to the University to incorporate the changed name by recording the "changed name alias/nee earlier name" in the records of the University.

Delhi High Court Holds "To Have A Name And Express The Same" Is Protected Under Articles 19 & 21, Allows DU Student's Plea

The Allahabad High Court then proceeded to examine whether CBSE byelaws can be used to take away or restrict the rights enshrined under Article 19 (1)(a) of the Indian Constitution.

It noted that CBSE is a Society, registered under the Societies Registration Act, and is governed by the Bye-Laws. The Court said that when the notification issued by the Examination Committee on 01.02.2018 is combined with the fact that CBSE is a society, it is clear that CBSE rules "do not have any statutory flavour."

The Court further acknowledged, "The right enshrined under Article 19(1) (a) of the Constitution of India are fundamental rights and can be taken away or restricted only in accordance with the procedure prescribed under Article 19(2) of the Constitution of India."

The Bench, after reading several judgements laid down by the Supreme Court, came to the conclusion that CBSE Regulations cannot be considered to be the 'law' as required for placing a reasonable restrictions on the rights enshrined under Article 19(1)(a), in terms of Article 19(2) of the Constitution of India.

The order stated,

"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."

The Judge also noted that having different names on different documents will cause undue hardship to both the Petitioner and the Respondent.

The Court, taking a cue from the judgment in the case of Rayaan Chawla, directed CBSE to change the name of the petitioner in their records as "Kabir Jaiswal alias/nee Rishu Jaiswal" and to issue a fresh certificate to the petitioner, recording the name as directed above, within 2 months.

Case Title: Kabir Jaiswal v. Union of India & Ors.

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