The Allahabad High Court has overturned the order of a single bench which declared changing name as per one’s wish as a fundamental right. The court said that changing the name is not a fundamental right. Making a law on this is a policy matter of the Centre and the state.
The Division Bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra heard the Special Appeal filed by the State of UP and 2 others.
State of UP, UP Board of High School and Intermediate Education and its Regional Secretary are in intra court appeal under Chapter VIII Rule 5 of the High Court Rules, 1952 assailing the validity of the order dated 25.05.2023 whereby the Single Judge, while allowing Writ, has set aside the order dated 24.12.2020 passed by the Regional Secretary of the Board and has also issued a writ of mandamus commanding the respondents of the writ petition to allow the application of the writ petitioner to change his name from “Shahnawaz” to “Md Sameer Rao” and, accordingly, issue fresh High School and Intermediate Certificates incorporating the said change.
The Single Judge has also issued various other directions like surrender of public documents of identity like Adhar card, Ration card, Driving Licence, Passport, Voter I.D card etc to the competent authorities with a direction to them to register the change of name, dispose of or destroy the earlier identity documents as per law and issue fresh documents consistent with his changed name.
The Single Judge has also issued a direction to the Secretary, Ministry of Home, Government of India and the Chief Secretary, Government of U.P, Lucknow to create appropriate legal and administrative framework to ensure that both Governments work in concert to achieve the end of making identity related identity documents removing anomalies therein.
The facts of the case are that the writ petitioner Md Sameer Rao was earlier known as Shahnawaz. He appeared in and cleared the High School and Intermediate Examinations conducted by the Board, respectively in the year 2013 and 2015 by the same name. He had all identity cards issued in his name as Shahnawaz. Copies of Adhar card and PAN card were brought on record of the proceedings.
In 2020, based upon some newly issued Adhar card and PAN card in the name of Md Sameer Rao and also a gazette notification published in Gazette of India New Delhi, Saturday, September 26 – October 2, 2020 (Asvina 4, 1942) Part-IV, Page 1091, he approached the Board to incorporate his new name in the High School and Intermediate Certificates and issue new certificates having his name printed as “Md Sameer Rao”.
The said application was rejected by the Regional Secretary of the Board by order dated 24.12.2020 on the ground that as the case fell with the category of “time barred matter” and, as per Regulation 7 of Chapter III of the Regulations framed under U.P Intermediate Education Act, 1921, request for change cannot be considered after a period of three years. It is this order which was challenged by the writ petitioner and has been set aside by the Single Judge and is impugned in the appeal.
The Single Judge has, with reference to some traditional and literary books and dealing with Articles 19 and 21 of the Constitution of India, held that intimacy of human life and person’s name is undeniable, the right to keep a name of choice or change the name according to personal preferences comes within the mighty sweep of the right to life guaranteed under Article 21 and restrictions contained in Regulation 40 of Chapter XII of the Regulations framed under the Act, 1921 are disproportionate and fail the test of reasonable restrictions on fundamental rights under Article 19 (1)(a) and Articles 14 and 21 of the Constitution and the same are arbitrary and infringe the fundamental rights to choose and change owner’s name.
The Court observed that,
The issue involved in the case is of quite significance and wider implications. Interestingly, both sides have placed reliance upon judgment of the Supreme Court in Jigya Yadav (supra). The case of Jigya Yadav (supra) had arisen from a situation where the concerned candidate had applied before the Central Board of Secondary Education to carry out correction of her parent’s name in the mark-sheet. According to that petitioner, the name of her father Hari Singh was incorrectly recorded as Hari Singh Yadav and mother as Mamta Yadav instead of Mamta. The claim was based upon certain documents of the identity of her parents. CBSE rejected the prayer and writ petition filed against the said rejection was dismissed by Delhi High Court.
The case is not the one falling in the first category, i.e., changing name from Shahnawaz to Md. Sameer Rao, which, in fact, amounts to altogether acquiring a new name. The petitioner did not approach the Board to correct his name based upon documents of identity like Adhar Card/ Birth Certificate/ Voter I.D Card etc preexisting in his new name, i.e Shahnawaz.
The case falls in second category where the change is to be effected on the basis of new acquired name by choice without any supporting school record or public document. Dealing with that category, the Supreme Court has clearly observed that such a request may be entertained upon insisting 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) and upon payment of prescribed fees. The Supreme Court has also observed that fresh certificates would retain the original entry and a caption/ annotation inserted indicating the date on which it has been recorded and other details because the Board is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant.
The Court further observed that the writ petition contained two prayers, one challenging the order dated 24.12.2020 passed by the officer of the Board and the other in the nature of mandamus commanding the Board to change the name of the petitioner from Shahnawaz to Md Sameer Rao in High School and Intermediate records pertaining to years 2013 and 2015, respectively. There was no initial challenge to any of the Regulations, however, later on, an order was passed on 01.05.2023, permitting the amicus curiae to amend the writ petition. Whether the petition was amended or not, is not clear as the appeal is accompanied by a copy of the petition that does not contain a challenge to any regulation.
Even if we assume that the writ petition was amended, the Single Judge was not justified in declaring the Regulation 40(c) as unconstitutional or arbitrary by reading down the provision. So long as the Regulations framed under U.P Intermediate Education Act, 1921 exist in the Statute book, the same would be read as they exist and cannot be brushed aside while examining a challenge based upon applicability of a Board Regulation.
“The Single Judge has held Regulation 40(c) as arbitrary, unconstitutional and violative of fundamental right guaranteed by the Constitution of India. Further, various other directions have also been issued like surrender of public documents of identity like Adhar card, Ration card, Driving Licence, Passport, Voter I.D card etc to the competent authorities with a direction to them to register the change of name, dispose off or destroy the earlier identity documents as per law and issue fresh documents consistent with his changed name.
The Single Judge has also issued a direction to the Secretary, Ministry of Home, Government of India and the Chief Secretary, Government of UP, Lucknow to create appropriate legal and administrative framework to ensure that both Governments work in concert to achieve the end of making identity related identity documents removing anomalies therein. In fact, these are policy matters exclusively in the legislative/ executive domain.
In view of specific administrative order, the jurisdiction to read down or hold any regulation as arbitrary, unconstitutional and/ or violative of fundamental right guaranteed by the Constitution only vests with the Division Bench in appropriate cases. Even otherwise, as observed hereinbefore on factual matrix of the matter, the writ petitioner had no case on merits. For all the aforesaid reasons, we are satisfied that the judgment of the single judge cannot be sustained,” the Court also observed.
The Court allowed the special appeal. The order dated 25.05.2023 of the Single Judge passed in Writ-C (Md Sameer Rao Vs State of UP and 2 others) is set aside by the High Court.