Various High Courts in India till date have taken the same position that the right to change a person’s name is a of the Fundamental Rights granted to the citizens under Part III of the Indian Constitution. On 18th December, 2020, the Single Judge Bench of Allahabad High Court consisting of Justice Pankaj Bhatia, held that the change of name is an expression guaranteed under Article 19(1)(a) and Article 21 of the Constitution of India. A petition was filed before the Court since the petitioner pleaded to change his name from Rishu Jaiswal to Kabir Jaiswal in the school documents however, the CBSE (Central Board of Secondary Education) refused to change the petitioner’s name on his certificates. The Court strongly relied upon the Kerala High Court judgment, Kailash Gupta v. CBSE, where it has been held that to have a name and to express the same in the manner that a person wishes is a part of the right to freedom of speech and expression granted under Article 19(1)(a) as well as the right to liberty under Article 21 of the Constitution of India. In the said judgment, the Kerala High Court was dealing with the scope of Rule 69.1(i) of the CBSE Rules and the Court had permitted the change of name prior to the declaration of the result by CBSE by holding the same to be a right under Article 19(1) (a) and Article 21 of the Constitution of India. The Court also observed that “Name is something very personal to an individual. Name is an expression of one’s individuality, one’s identity and one’s uniqueness. Name is the manner in which an individual expresses himself to the world at large. It is the foundation on which he moves around in a civil society. In a democracy, free expression of one’s name in the manner he prefers is a facet of individual right.” The Allahabad High Court also relied upon the recent Delhi High Court Judgement in the case of Rayaan Chawla v. University of Delhi & Anr, wherein Delhi University, based on a notification dated 1st August, 2015 refused to permit the petitioner to have his name changed on the ground that the student is firstly required to get the name changed in the records of the CBSE. The Court held that it was impossible to get the name changed in the CBSE records as the regulations in question does not permit the same, however, it directed the University of Delhi to permit the petitioner to change the name.The Allahabad High Court opined that the CBSE is a Society registered under the Societies Registration Act, and is governed by the bye-laws and the CBSE rules “do not have any statutory flavor”. The Court further stated that “The freedom of expression as guaranteed under Article 19(1) (a) includes within its sweep all forms of expressions and names in the present world is clearly a strong expression”. Further, the rights enshrined in Article 19(1)(a) are fundamental and thus can only be taken away in accordance with the procedure under Article 19(2) of the Constitution of India.
Recently, the Supreme Court passed a stay order against operation of the Socially and Educationally Backward Classes (SEBC) Act, passed by the State of Maharashtra in 2018. The Act provides a 16% quota to the Maratha community in both- education and government employment. Subsequently, this increased the aggregate quota of all reservations allowed in Maharashtra; hence crossing the 50% limit. This is in contravention to the landmark judgement of the SC in Indira Sawhney v. UOI in 1993 that had put a 50% ceiling on reservation by individual states and stated that the same could be exceeded only in “exceptional and extraordinary circumstances”.
Subsequently, a plea was filed against this in the Bombay High Court. A three judge bench upheld the validity of the reservation to the Maratha community but capped the same at 12% for education and 13% for employment. This too exceeded the 50% cap. The same was challenged in the Apex Court through an appeal in case of Jaishri Laxmanrao Patil v. The Chief Minister. A three judge bench of the Supreme Court along with passing of the stay order and referring the issue to a Constitution Bench of five or more judges for final adjudication observed the following:
1. There is a need for reconsideration of the Judgement of the Court in Indira Sawhney v. UOI and whether exceeding the 50% cap is constitutionally valid.
2. The said issue required an interpretation of the Constitution (102nd Amendment) Act, 2018 as this helps determine the competence of the State Legislature to declare a particular caste to be socially and educationally backward.
3. The court clarified that the said stay order was not to affect those that had already availed the benefits of the SEBC Act.
The case is to be placed before CJI SA Bobde, who shall decide on the constitution of the larger bench.