Name change part of individual's right of expression under Article 19(1)(a), Article 21

Name change part of individual's right of expression under Article 19(1)(a), Article 21

Kabir Jaiswal Vs Union of India and Ors

Allahabad HC

02/12/2020

WRIT - C No. - 19287 of 2020

About/from the judgment:

The High Court recently opined that the individual 'name' of a person is a facet of the right of expression, which was guaranteed under Article 19(1) a) read with Article 21 of the Constitution of India.

The Court held,

"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."

The Court was hearing a petition filed by one, Kabir Jaiswal who appeared in the class X and XII exams conducted by the Central Board of Secondary Education (CBSE), Delhi with the name of Rishu Jaiswal. Later on, he got a notice published in the Gazette of India intimating his intent to change his name to Kabir Jaiswal.

It was claimed by the petitioner that his name was changed in the Aadhar Card and the PAN Card in pursuance to the Gazette Notification. However, when he moved an application for a change of name in his school certificates, granted by the CBSE, his application was rejected on the ground that the particulars of the school records did not show the same.

Petitioner, argued that once a Gazette Notification was issued and no objections were filed, it was announced to the world in 'rem' that the petitioner intended to change his name. No plausible cause exists for the CBSE to reject the same, it was argued.

Advocate appearing on behalf of the CBSE, relied on examination bye-laws to argue that the request could not be considered as per the requirement under amended Rules 69.1 (i) and 69.1 (ii).

A perusal of the aforesaid rules made it clear that they pertain to permission for a change in the candidate name/mother's name/father's name where the request was made either prior or subsequent to the publication of the result of the candidate if it is at variance with the names recorded in the school records.

The High Court, thus, rejected the CBSE's arguments that the two Rules cited did not permit a change of name in the present case.

"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."

The next question was whether the CBSE regulations could be used to deny the rights enshrined under Article 19 (1)(a) of the Constitution of India.

Noting that the CBSE is a society registered under the Societies Registration Act, the Court clarified that a notification issued by the Examination Committee on February 1, 2018 with regard to the change of name did not have any statutory flavour.

Furthermore, the Court remarked that the right enshrined under Article 19(1) (a) of the Constitution of India, being fundamental rights, could be taken away or restricted only in accordance with the procedure prescribed under Article 19(2).

In view of the judgments of the Supreme Court, it was held that the CBSE Rules could not be considered to be 'law' for restricting the rights enshrined under Article 19(1)(a) of the Constitution of India.

"In any event, even for restricting the scope of Article 19 (1) (a) by means of any law, it is clear that the operation of such law by the State imposing reasonable restrictions should be in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with the Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence", the Court added.

Considering that a different name in different records would lead to undue hardship to both the petitioner and the respondents, the CBSE was directed to record the name of the petitioner as "Kabir Jaiswal alisa/nee Rishu Jaiswal" and issue a fresh certificate.

The said exercise has to be carried out within two months from the date a copy of the order was produced before the concerned authority, the Court said.

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