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"What's in a name? that which we call a rose by any other name would smell as sweet”- poetic statement does not go in tune with the significance of a name in law in marking the identity of an individual in society: Supreme Court

The SC on June 03, 2021 {JIGYA YADAV (MINOR) vs. C.B.S.E. & ORS.} held that the core existence of an individual is not exemplified by her outer characteristics but by her inner self identification   and   also   about   the   significance   of   the   acquired identity in the form of name. It was held that the identity of an individual is one of the most closely guarded areas of the constitutional scheme in India.

It was also held by the Bench, comprising of Justice A.M. KHANWILKAR, Justice B.R. GAVAI and Justice KRISHNA MURARI that identity, therefore, is an amalgam of various internal and external including acquired   characteristics   of   an   individual   and name can be regarded as one of the foremost indicators of identity. And therefore, it was held that an individual must be in complete control of her name and law must enable her to retain as well as to exercise such control freely “for all times”. It was held that such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause. It was held that Article 19(1)(a) of the Constitution provides for a guaranteed right to freedom of speech and expression. It was observed that in light of Navtej   Singh   Johar &   Ors.   vs. Union   of   India   through   Secretary,   Ministry   of   Law   and Justice (2018) 10 SCC 1, this freedom would include the freedom to lawfully express one’s identity in the manner of their liking. In other words, it was held that expression of identity is a protected element of freedom of expression under the Constitution.

The SC held that   argument   that   Bye laws   of   the   Board   are   contractual elements as CBSE is a registered society unbacked by a statute cannot be accepted for at least four reasons – first, CBSE is not a private corporate body. It is a juristic person and a “State” within the meaning of Article 12, which in itself warrants its amenability to the   courts   including   constitutional   writ   courts; second,   the functions performed by the CBSE Board are public functions and not private functions; third, the test of “force of law” takes within its sweep the nature of rule, its authoritative impact on the subjects, nature of function performed by the rule making body, the origin of the body, the binding value of the rules, existence of any competing set of rules and fourth, absence of statute does not automatically render the rules to be contractual terms.

The seminal issue in these cases/appeals before the Supreme Court was: whether an individual’s control over such cardinal element of identity could be denied to him/her   by   the   Central   Board   of   Secondary   Education on   the specious   ground   that   its   Examination   Byelaws   of   2007 must prevail over the claim of the candidate, which are merely intended to   regulate   such   a   claim   and   to   delineate   the   procedure   for correction/change   in   the   contents   of   certificate(s)   issued   by it including regarding maintenance of its office records? 

The SC started by referring to the literature and referred most famous quote, that is, “What's in a name? that which we call a rose by any other name would smell as sweet”, said Juliet. It was observed that this quote from William Shakespeare’s “Romeo and Juliet” is unarguably one of the most iconic dialogues in classical literature. It was observed that it conveys that the natural characteristics of an individual are more important than his/her artificial/acquired characteristics. It was held that a poetic statement as it certainly is, it does not go in tune with the significance of a name in marking the identity of an individual in his/her societal transactions. To put it differently, it was held that name is an intrinsic element of identity.

However, deprecating the reasoning of the High Court while allowing the petitions it was held by the SC that the impugned judgments categorically note that the request for changes could not be permitted as per the Byelaws. Thus, it was held that there was no demonstration or inquiry to determine the existence of any legal right in favour of students.   It was held that even if the Supreme Court assumes that High Courts issued directions purely on the basis of fundamental rights, there is no   discussion   or   inquiry   in   this   regard. It was held that more so,  there   is   no attempt to examine the vires of the Byelaws in light of the breach of fundamental   rights by the HC. It was held that absent any such adverse determination on the validity of the applicable rules, the fundamental principle of rule of law demands that such rules be given their intended effect. It was held that even if a constitutional Court feels that the case at hand is deserving of an extraordinary remedy, it may do so using its wide powers under Article 226 but only upon specific appraisal of the facts of the case and after duly demonstrating the extraordinary character of the case.

It was held that once a Court of law notes that the applicable rules do not permit it to grant a particular relief and it still goes on to grant the relief on sympathetic grounds, such decisions can in no way be treated as precedents.   It was held that following such decision as precedent will be in utter disregard of the well established principle of “equity acts in personam” and, thus, courts cannot   deploy   equity   in “rem” by   replicating   the   same   order, disregarding the personal characteristics of the case at hand.

The SC further held that High Courts, being constitutional Courts, are duly vested with the power to review any law in light of Part ­III. It was held that despite being called upon to do so, if they choose not to do it, the same cannot be countenanced. It was held that there cannot be mechanical directions by way of mandamus to a public authority without going into the veracity of the   claims   and   without   sufficiently   explaining   why   the   case demands extraordinary treatment.

It was held that as in the ultimate analysis, the Byelaws operate as law, the scrutiny of this Court cannot be undermined by giving them an artificial colour. It was held that for a student enrolled with the CBSE, there is no other body of rules but the subject Byelaws for dealing with all significant aspects of her education.  It was held that by now it is an established tenet that even body corporates, co­operative societies, registered societies etc. can be declared as instrumentalities of the State, for the only reason that the outer form of organization must not be allowed to defeat the ultimate constitutional goal of protection of fundamental rights as and when they suffer at the hands of the State, directly or indirectly. It was held that the Court ought to intervene with circumspection even when the public body derives its authority from a government resolution.

It was held that going by the very nature of rights under Article 19, the right to get changed name recorded in the official (public) records cannot be an absolute right and as a matter of public policy and larger public interest calls for certain reasonable restrictions to observe consistency and obviate confusion and deceptive attempt. It was held that the rights which are recognised as fundamental under the Constitution are “preferred or chosen freedoms” and a very sensitive and realistic approach has to be taken in such matters.

It was held that the test of reasonableness requires that the impugned law is intelligently crafted in such a manner that it is able to justify the ultimate impact of the law on its subjects. It was held that if it restricts, it must restrict on the basis of reason and if it permits, it must permit on the basis of reason.   Similarly, it was held that if a law draws a classification, it must classify intelligently i.e., backed by reason. It was held that reason is the foundation of all laws and their validity is immensely dependent on the availability of sound reason. It was held that equally crucial is the availability of a legitimate object. It was also held that it is important to note that reasonableness is adjudged in the specific context of the case and is not confined to the words of a definition.

It was further held by the SC that it would not be out of place to note that the two parties in this case –the Board and students – are not in an equal position of impact. It was held that the balance of convenience would tilt in favour of students. It was held that for, they stand to lose more due to inaccuracies in their certificates   than   the   Board   whose   sole   worry   is   increasing administrative burden. It was held that the obligation of Board to take additional administrative burden is no doubt onerous but the propensity of a student losing career opportunities due to inaccurate certificate is unparalleled.

The SC observed that illustratively, a juvenile accused of being in conflict with   the   law   or   a   victim   of   sexual   abuse   whose   identity   gets compromised due to lapses by media or the investigative body, despite there being complete legal protection for the same, may consider changing the name to seek rehabilitation in the society in exercise of her right to be forgotten. It was held that if the Board, in such a case, refuses to change the name, the student would be compelled to live with the scars of the past.   It was observed by the SC that it is compelled to wonder how it would not be a grave and sustained violation of fundamental rights of the student. It was held that in such circumstances, the avowed public interest in securing rehabilitation of affected persons would overwhelm the Board’s interest in securing administrative efficiency. It was held that in fact, it would be against the human dignity of the student, the protection whereof is the highest duty of all concerned. It was held that a Board dealing with maintenance of educational standards cannot arrogate to itself the power to impact identity of students who enrol with it.

It was held that no doubt, it is true that CBSE certificates are not strictly meant to be considered as identity documents, however, the same are being relied upon for corroborative purposes in all academic and career related transactions as foundational document. It was held that the date of birth in matriculation certificate, in particular, is relied upon as primary evidence of date of birth of a citizen.   Therefore, it was held that as regards the information contained in a CBSE certificate, the Board must afford opportunity to the students to modify it subject to complying with requisite formalities which are reasonable in nature. It was held that if all other State agencies could allow it for the preservance of consistency and accuracy, alongside being enablers in free exercise of rights by the citizens, there is no reason for the CBSE to not uphold that right of the students. It was held more so that it would be in the interest of CBSE’s own credibility that their records are regarded as accurate and latest records   of   a   student   worthy   of   being   relied   upon   for   official purposes.

The SC, thus, held that the provision regarding change of name “post publication of examination results” is excessively restrictive and imposes unreasonable restrictions on the exercise of rights under Article 19. It was however held by the SC that the provision for change of name is clearly severable from those for corrections in name/date of birth and therefore, its determination shall not affect them except as   regards   the   condition   of   limitation   period.

The SC held that the first category of the eventuality that may arise is where the incumbent wants “correction” in the certificate   issued   by the CBSE to   be made   consistent   with   the particulars mentioned in the school records. It was held that there is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations. While doing so, it was held that it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction.

Further held that as regards request for “change” of particulars in the certificate issued by the CBSE, it presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records.  Such a request could be made in two different situations. It was held that the first is on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith.   The second possibility is when the request for change is due to the acquired name by choice at a later point of time.  It was held that change need not be backed by public documents pertaining to the candidate.

Reverting to the first category, the SC held that there is a legal presumption in relation to the public documents as envisaged in the 1872 Act. It was held that such public documents, therefore, cannot be ignored by the CBSE. It was held that taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. However, it was held that in the latter   situation where the change is to be effected on the basis of new acquired name without any supporting school record or public document, that request may be entertained upon insisting for prior permission/declaration by a Court of law in that   regard   and   publication   in   the Official   Gazette   including surrender/return   of   original   certificate   (or   duplicate   original certificate, as the case may be) issued by CBSE and upon payment of   prescribed   fees.

Axiomatically, the appeals were disposed of in aforesaid terms and directions by the SC.

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