03 Jun 2121

An individual must be in complete control of their name and law should also enable them to retain as well as to exercise it freely - Supreme Court of India

Case : Jigya Yadav (Minor) (Through Guardian/Father Hari Singh) v. CBSE (Central Board of Secondary Education) & Ors. Civil Appeal No. 3905 of 2011 (Clubbed with 22 Petitions)

Court :

Bench : Justice A. M. Khanwilkar, B. R. Gavai and Justice Krishna Murari

Decided on : 03 Jun 2121

Relevant Statutes

Articles of the Constitution of India

Bye-law 69.1 of CBSE Examination bye-laws.

Brief Facts and Procedural History

1. Appellant Ms. Jigya Yadav had filed a petition before the High Court of Delhi asking to issue an order to the CBSE board for correcting the name of the appellant’s parents which was incorrectly recorded and CBSE is refusing to do the desired changes in accordance with the CBSE Examination Byelaws, 2007.

2. The Delhi High Court while relying upon the Byelaw 69.1 of CBSE Examinations Byelaws, 2007 upheld the decision of the board and relied upon the nursery application form, admission form and stream allotment form for class 11th filled by the parents of the appellant and noted down that the parents of the appellant have consciously chosen and retained the names despite having opportunity to rectify before 10th standard.

3. The Delhi High Court also noted down that in a country like ours with caste-based reservations, change in name cannot be permitted very easily and also noted down that court must refrain itself from interfering with the academic matters and giving a wide interpretation to statutory rules or bye-laws as it may render the system unworkable.

4. Against which appellant preferred an appeal before the Supreme Court of India

Issues of the Case

Whether the CBSE Examination Byelaws are constitutionally valid?

Whether the CBSC examination bylaws have the force of law? 

Whether the Examination Byelaws impose reasonable restrictions under Article 19 of the Constitution and it fails the test of reasonability for reasonable restrictions of permissible connections or changes?

Where the board is organized to carry out corrections which have a statutory presumption of genuineness?

The Observations of the Court

1. The Honourable Supreme Court clubbed various civil petitions in which appeals were preferred against the order of High Courts, wherein the main issue was the correction of the name of the appellant and which was denied by CBSE by citing bylaw 69.1 of 2007 and was also denied by high courts of the respective states and Supreme Court after listening the elaborate set of submissions and document on record of the respective matter started with the observation.

2. The Honourable Supreme Court started with the establishment of the CBSE board and also looked into the objective for setting up this board which is, to enable it to play a useful role in the field of secondary education. Court after referring to various articles of the constitution of the board which makes it clear that the bylaws must be framed inconsistency with the regulations and resolutions which establish the board noted down that it is a clear misnomer to characterize bye-laws framed by the board as statutory but the main question is whether the bylaws framed by CBSE board have the force of law so, for that court noted down that for having “the force of law it”, must qualify the test of article 13 and just because the board can be treated as a state under article 12 of the constitution it doesn’t mean that the bylaws framed would necessarily have the force of law but only law as mentioned under article 19 can be considered as a restriction in respect of rights guaranteed under article 19 of the constitution.

3. The Honourable Supreme Court while examining the expression “having in the territory of India the force of law” noted down that law made by state refers to a body of rule which shapes the right and liabilities of persons in a universal sense as opposed to private transactions within parties and that law must have the ability to bind the people for all their conduct as the subject of law and one most distinct feature is the enforceability in the court of law.

4. The Honourable Supreme Court refers to be a judgment of Binny limited and Ors. V. Sadashiv and Ors., (2005) 6 SCC 657, and observed that it is difficult to draw a line between private function and public functions purely. The Honourable Supreme Court also referred to a book by Smith, Woolf and Jowell, Judicial Review of Administrative Action wherein it was mentioned that a body is considered to be performing a public function when it tries to achieve some collective benefit for the public and public also accepts it as having authority to do so.

5. The CBSE is the only central body that is responsible for conducting examinations in the country and is created by a resolution of the central government. So it performing the social function as mentioned under article 41 of the constitution and further court referred to Article 1 of the constitution of the board which clearly states that “functions of the Board will be subject to the approval of controlling authority that is Government of India, Ministry of Education”. And similarly, CBSE Examination Bylaws are in the form of a code that binds the parties and are enforceable in the court of law and therefore bylaws of the board have the force of law and must be regarded for all legal purposes.

6. While moving on to the question of imposing reasonable restriction on the exercise of right under Article 19, The Honourable Supreme Court emphasized the point that the core existence of an individual is not about its outer existence but inner self-identification and the significance of acquired and identity in the form of the name as was recognized by this court in the catena of judgments including National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438, Navtej Singh Johar v. Union of India through Secretary, Ministry of Law, (2018) 10 SCC 1, and Justice KS Puttaswami and others v. Union of India, (2017) 10 SCC 1, wherein the court has noted down that destruction of individual identity would tantamount to destroying the intrinsic dignity that includes the value of privacy, choice, freedom of speech and other expression and thus an individual must be in complete control of their name and law should also enable them to retain as well as to exercise it freely. The question becomes important because identity being an amalgamation of various elements and here court is dealing with the name which can also be termed as ‘acquired identity’.

7. The Honourable Supreme Court observed that to change once identity you have to go through multiple steps and it cannot be regarded as complete without fulfilling those steps and it would not be considered as legally complete until and unless the state and its agencies take note of it and therefore, came to the observation that the right to get changed name recorded in records of government cannot be termed as an absolute right.

8. Moving on to the issue of bylaws being just and reasonable in the light of part 3 of the Constitution, The Honourable Supreme Court noted that it must fulfil the test of reasonableness means it must be crafted in such a way that it is able to justify the impact of law on the subject and if it restricts someone it must restrict on the basis of reason and if it permits then also. Court referred to the judgment of Om Prakash and others v. State of UP, (2004) 3 SCC 402 and The State of Madras v. VG Row, AIR 1952 SC 196, wherein the court pointed out that, “no general pattern can be followed while deciding the reasonableness and certain factors must be kept in mind which is the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be reminded thereby, the disperse version of the imposition, the prevailing conditions at the time”.

9. The Honourable Supreme Court while looking into the bylaws noted down that the provision is problematic due to the reason that it not only restricts the right but it puts a complete ban on the right, post-publication of the result of the candidate and reasonableness demands a proper balance in a way that it would be open to the board to limit the number of times such alteration can be permitted and this way of prohibiting any alteration post-publication of result will be a clear cut case of total prohibition and not a reasonable restriction.

10. The Honourable Supreme Court appreciated the argument made by CBSE that frequent changes cannot be permitted as there is a scope of abuse and misuse court replied that just because of the mere possibility of abuse cannot be used to deny legitimate rights of citizens. The Honourable Supreme Court while looking at this dilemma before the board referred to the Aadhar Act, wherein section 31 of the act allows for changes in Aadhar card upon fulfilling the required conditions and similarly, section 24 of the Passport Act,1967 read with Passport Rules also permit the change of name and date of birth on the basis of certain documents and noted down that the government is very much aware of its duty to upgrade the identity records with reference to changing requirements of citizens And while referring to the orbiter dicta in National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438, Justice KS Puttaswami and others v. Union of India, (2017) 10 SCC 1, that all the state instrumentality are duty-bound to play the role of enabler including a correction in their records which owes to personal choices of citizens.

11. The Honourable Supreme Court referred to its various judgments like Indian   Aluminium   Company v.   Kerala   State Electricity Board, 1975 (2) SCC 414, J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. & Ors., 1991 (2) SCC 283 and Dhruva Parate vs. CBSE  &   Anr, ILR 2009 V Delhi 371 it is well settled that a body interested with essential public function cannot unduly put a fetter on its powers and CBSE has created a self-imposed restriction by permitting no change of names and also noted down that there is no restriction on the power of CBSE to permit change of name and board should not put a fetter on its duty as it will cause grave injustice to those students who have legitimate calls for changing their names on their certificates and finally hold that the provision regarding change of name post-publication of examination results is excessively restrictive and imposes an unreasonable restriction on the exercise of rights under article 19 of the constitution.

12. The Honourable Supreme Court finally moved on to examining the validity of the by-law and while considering the provision for the change of name noted down that it is way more stringent as it requires two pre-requisites, prior permission of the court of law and publication of proposed changes in official gadget and both these conditions must co-exist with another condition that is the publication must be done before the publication of result which simply means that after publication of result any change will be impermissible even if it is published by court of law or published in official Gazette and since candidate would pursue further education therefore CBSE obliged to carry out all the necessary corrections to ensure that the certificate issued is consistent with the relevant information furnished in the school record and when it comes to recording, any information which is not consistent with the school record it is essential that CBSE must ask for public documents which has presumptive value and also declaration by a court of law to incorporate such change.

13. Moving on to the next issue that whether CBSE is obliged to carry out changes in this certificate issued by the board, The Honourable Supreme Court referred to the judgment in CIDCO v. Vasudha Gorakhnath Mandevlekar, (2009) 7 SCC 283, wherein the court has observed that records which are maintained by statutory authority as a presumptive value of correctness and they would prevail over any entry made in the school register Thus difficulty does not arise when CBSE has to correct the record to bring it in conformity with the school record but it arises when it is not in conformity with the school records. And further court referred to the Kerala High court judgment in Subin Mohammad v. UOI, 2016 (1) KLT 340, wherein it was directed to the CBSE that it shall correct the entries where the reference to the corresponding birth certificate issued by the statutory authority if the request is found to be genuine and therefore the task of determining genuineness was left to CBSE and those request that requires merely bringing conformity between school records and public document must be followed.

14. The Honourable Supreme Court finally came to the following conclusions,

a. Correction in this certificate issued by the CBSE must be made consistent with the particular mentioned in the school records And CBSE cannot impose a pre-requisite condition for correction that is before the publication of results.

b. The change required and certificate issued by CBSE it is a precondition that the particulars in the CBSE certificate should not be inconsistent with the school records and such a request can be made into situations, first, on the basis of public documents and second when they request for changes due to acquired name that changes need not be backed by public document and for this latter condition, the request must be entertained upon insisting for the prior declaration by the court of law and publication in Official Gazette including the surrender of original certificate issued by CBSE.

Decision Held by the Court

1. The Honourable Supreme Court dispose of the cases before us with directions to the CBSE.

2. The Honourable Supreme Court directed the CBSE to process the application for changes in the certificate issued by the Board.

3. The Honourable Supreme Court directed the CBSE to take immediate steps to amend its bylaws for incorporating change or correction mechanisms as stated by the court.

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