A bench of the Kerala High Court on Thursday in a significant judgement has held that to have a name and to express the same in the manner one wishes, is certainly a part of right to freedom of speech and expression under Article 19 (1) (a) as well as a part of the right to liberty under Article 21 of the Constitution of India.
The bench headed by Justice Bechu Kurian Joseph was hearing a petition in which the petitioner who wished for a change of name applied for the same and the State of Kerala affected a Gazette Notification in 2017 to the same effect. By the time the process of change of name was completed, the petitioner had written her All India Secondary School Examination in 2018, however the School Authorities based on the certificates produced changed her name.
When the School Authorities applied to the CBSE for a change of name of the petitioner, it refused on the ground that as per rule No. 69.1 (i) Examination Bye-Laws, the change of name could not be effected because the petitioner had already written her exams.
Rule No. 69.1 (i) of Examination Bye-Laws reads as:
“Applications regarding changes in name or surnames of candidates will be considered, provided the changes have been admitted by the court of law and notified in the Government Gazette before the publication of the result of the candidate. In cases of change in documents after the court orders caption will be mentioned on the document “change allowed in name/father’s name/mother’s name/guardian’s name from …….. to ………… on (dated) as per court order No….. dated……..”.”
The High Court however observed that “State or its instrumentalities cannot stand in the way of use of any name preferred by an individual or for any change of name into one of his choice except to the extent prescribed under Article 19(2) or by a law which is just, fair and reasonable.”
The bench further observed that clause 69 (1) (i) of the CBSE bye laws contemplates two situations. First situation is where the change of name arises before publication of the result of the candidate and the second is where the Court directs.
The bench further explained that “The word “and” in the sentence ‘Court of Law and notified in the Government Gazette before the publication of the results of the candidate; if used as a conjunctive does not make any sense. If the word “and” in the above referred sentence is used as a conjunctive it will convey a meaning that even after a Court of Law accepts a change of name, the same to attain validity, must be notified in the Government Gazette. That will be an absurdity. There is no prescription under any law for the time being in force that once a Court of law accepts a name, the same to attain validity must be published in the Government Gazette. Admission by a Court of law as regards a change of name is undoubtedly an order in rem declaring to the world that the name of a person has been changed. Notification of change of name by publication in the Government Gazette is another method to convey to the world that there is a change of name. Both are different methods and not supplementary to each other.”
Further the bench emphasizing on the power of interpretation available to the Court to correct errors committed by the draftsmen observed that the word “and” is to be given its literal meaning as a conjunctive. However, if the use of the word “and” conjunctively, produces an unintelligible or absurd result, then the court has the power to read the word “and” as “or” or vice versa, so as to give effect to the intention of the framers of the rule as held in the case of Pentiah vs Mudalla Veeramallappa and Eera Vs. State (Govt. of NCT of Delhi) and Another.
The bench thus held that in the present case, it is evident that publication of change of name of the petitioner in the Government Gazette was on 12- 12-2017, while publication of the result of the petitioner for her All India Secondary School Examination was on 29-5-2018. “Thus, on account of the publication of change of name of the petitioner in the Government Gazette having been carried out prior to publication of her results, CBSE was liable to correct the change of name , immediately on receipt of application from the school.”
The bench further directed the Regional Officer, CBSE, Thiruvananthapuram to correct the name of the petitioner from Dinky Gupta to Kashish Gupta in the CBSE certificate within a period of six weeks.
-India Legal Bureau