Qudsiya v. CBSE & Anr.

15. The CBSE rejected Jigya’s application for correction of the names of her parents in the marksheets issued by it on the ground that the school records had not been corrected and that Bye-Laws 69.[1] of the CBSE examination Bye Laws did not permit correction of the CBSE mark-sheet until the school record was corrected in the first place.

16. This stand of the CBSE was accepted by this Court, which, accordingly, dismissed Jigya’s writ petition. For this purpose, this Court relied on the nursery application form, school admission form and Class XI stream allotment form which had been filed by Jigya’s parents, and in which their names had been entered as “Hari Singh Yadav” and “Mamta Yadav”.

17. In these circumstances, the CBSE contended that Jigya was not entitled to relief though, in her birth certificate, the names of her parents had been entered as “Hari Singh” and “Mamta” respectively.

18. It was noted that Bye-Law 69.[1] allowed the CBSE only to effect corrections to bring the record up to date and in line with the school record. Jigya, therefore, assailed Bye Law 69.[1] itself as being unreasonable and arbitrary and violative of Article 14 of the Constitution of India. It was sought to be contended that the Bye Law did not address the possibility of an error occurring in the school record itself.

19. The discussion on merits by the Supreme Court commences from para 106 of the report, in which it was observed: “The real question is: whether bye-laws so framed have the force of law?”. The Supreme Court thereafter went to examine what constituted “law” as envisaged by Article 13 of the Constitution of India.

20. In para 118 of the report, the Supreme Court held that the byelaws of the CBSE did have the force of law.

21. Thereafter, however, the Supreme Court examined whether the bye-laws were constitutional or unconstitutional. The question, as framed in para 123 of the report, was “whether bye-laws under consideration impose reasonable restrictions on the exercise of right under Article 19 of the Constitution of India”.

22. Paras 129, 131 and 134 to 140, 142 to 144 and 150 and 151 of the decision addressed this issue and read thus: “129. 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. *****

131. 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. If it restricts, it must restrict on the basis of reason and if it permits, it must permit on the basis of reason. Similarly, if a law draws a classification, it must classify intelligently i.e. backed by reason. Reason is the foundation of all laws and their validity is immensely dependent on the availability of sound reason. Equally crucial is the availability of a legitimate object. 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. *****

134. As noted above, the Bye-laws permit change of name only if permission from the Court has been obtained prior to the publication of result. It puts a clear embargo on any change of name sans prior permission before the publication. The provision is problematic on certain counts. Firstly, it is not a mere restriction on the right, it is a complete embargo on the right post publication of result of the candidate. It fails to take into account the possibility of need for change of name after the publication of result including the uncertainty of timeline required to obtain such declaration from the court of law due to law's delay and upon which the candidate has no control whatsoever. Whereas, while amending the Bye-laws in 2007, the CBSE itself had noted that children are not of mature age while passing school examinations and they may not be in a position to decide conclusively on issues concerning their identity. The Bye-laws completely overlook this possibility when it ordains seeking declaration from the court prior to the publication of results of the examination concerned conducted by it.

135. The overriding State interest, as per the Board, to retain this stringency is nothing but efficiency of administration. Administrative efficiency, despite being a crucial concern, has not been and cannot be elevated to a standard that it is used to justify non-performance of essential functions by an instrumentality of the State. To use administrative efficiency to make it practically impossible for a student to alter her identity in the Board certificates, no matter how urgent and important it is, would be highly disproportionate and can in no manner be termed as a reasonable restriction. Reasonableness would demand a proper balance between a student's right to be identified in the official (public) records in manner of her choice and the Board's argument of administrative efficiency. To sustain this balance, it would be open to the Board to limit the number of times such alterations could be permitted including subject to availability of the old records preserved by it as per the extant regulations. But to say that post the publication of examination results and issuance of certificates, there can be no way to alter the record would be a case of total prohibition and not a reasonable restraint.

136. The limitation as regards maximum period up to which changes can be permitted also requires a different approach. Upon receiving the certificates, the student would naturally be put to notice of the particulars of certificates. Due to young age and inadvertence including being casual and indolent, a student may fail to identify the errors or to understand the probable impact of those errors and accordingly, may not apply for rectification immediately. It is also possible that a student may not have to use the certificates immediately after passing out and by the time she uses them, the limitation period for correction may elapse. Therefore, a realistic time for permitting corrections is very important. Indeed, it can be commensurate with the statutory or mandatory period up to which CBSE is obliged to preserve its old record.

137. However, we need not explore upon the question as to whether the exercise of a fundamental right can be foreclosed by prescribing a rigid period of limitation. In case of any ordinary civil rights, it is important that the action for enforcement of such rights is initiated in prescribed time and consistency is maintained, but is it permissible to say the same about fundamental rights? 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. We wonder whether after the lapse of prescribed time, let us say 3 years, there could be no reasonable and legitimate circumstances to warrant change of name.

138. At the same time, there is merit in CBSE's argument that frequent changes cannot be permitted as there is scope of abuse and misuse, apart from administrative burden. This argument cannot be lightly brushed aside. We deem it fit to observe that same concerns could apply to other bodies as well, like Unique Identification Authority of India “UIDAI” and Passport Authority.

139. As regards the argument of misuse, no doubt, there are instances of misuse of provisions that permit change of identity in criminal matters. However, mere possibility of abuse cannot deter the Board from fulfilling their essential functions. A possibility of abuse cannot be used to deny legitimate rights to citizens. The balance simply does not tilt in favour of such a proposition. The course of law cannot choose to change its stream merely because there are apprehensions of abuse on the way. The Board's concern is only to regulate and maintain efficient educational standards. It is not a penal authority. If any of the provisions of bye-laws are subjected to misuse or abuse by anyone, the Board would be well within its rights to approach the appropriate body for necessary penal or civil action. As a nodal agency made for a specific public purpose, CBSE can only use its means and resources to put proper safeguards in place while performing its functions. More so, when it is not even the job of the Board to verify anything, as changes are made after grant of permission by a court of law. There is involvement of judicial application of mind. The Board only has to give effect to the court order granting permission, as and when it is so pronounced irrespective of publication of examination results in earlier point of time.

140. Administrative efficiency, we must note, cannot be the sole concern of CBSE. Every institution desires efficiency in their functioning. But it does not mean that efficiency is achieved by curbing their basic functions. Article 9 of CBSE's Constitution, in Point (xvi), instructively states that CBSE is a body constituted for “regulating and maintaining” the standard of secondary education. The same is reproduced again for ready reference: “9. The Board shall have the following powers: ***

(xvi) To do all such or other things as may be necessary in order to further the objectives of the Board as a body constituted for regulating and maintaining the standard of secondary education.” (emphasis supplied) The terms “regulation” and “maintenance” are terms of very wide import and signify that the functioning of the Board is not narrowed down in any manner whatsoever. Regulation of standard of education would empower the Board to take all necessary steps, as permissible under the Resolution and Regulations, to control all possible aspects of school education that may have a bearing on its standard. Quality of curriculum, services extended to the students, effective grievance redressal mechanism, oversight over affiliated schools, etc. are some of the essential elements touching upon the standard of education. Maintenance of those standards would demand constant upgradation of rules and services of the Board in tune with changing needs of the students and the ultimate goal of education. *****

142. The bye-law concerned has been framed on the assumption that there can be no situation wherein a legitimate need for change of name could arise for a student after publication of results. It is presumed that only typographical/factual errors could come in the certificates and they can be corrected using the provision for corrections. The presumption, we must note, is erroneous, absurd and distances itself from the social realities. There can be numerous circumstances wherein change of name could be a legitimate requirement and keeping the ultimate goal of preserving the standard of education in mind, the Board must provide for a reasonable opportunity to effect such changes.

143. It would not be out of place to note that the two parties here — the Board and students — are not in an equal position of impact. In other words, the balance of convenience would tilt in favour of students. For, they stand to lose more due to inaccuracies in their certificates than the Board whose sole worry is increasing administrative burden. 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. 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. 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. We are compelled to wonder how it would not be a grave and sustained violation of fundamental rights of the student. In such circumstances, the avowed public interest in securing rehabilitation of affected persons would overwhelm the Board's interest in securing administrative efficiency. In fact, it would be against the human dignity of the student, the protection whereof is the highest duty of all concerned. A Board dealing with maintenance of educational standards cannot arrogate to itself the power to impact identity of students who enrol with it. The right to control one's identity must remain with the individual, subject, of course, to reasonable restrictions as observed above and as further discussed later.

144. The utility of certificates issued by the Board is not confined to educational purposes anymore. They serve a social purpose today and are often used to cross verify particulars like name and date of birth while applying for other government identity documents. They assume immense relevance while applying for various jobs, both public and private. Interestingly, CBSE itself has argued at length on the importance and authoritative value of their certificates. In such circumstances, an inaccuracy or denial of change could be fatal to a student's future prospects and all these concerns cannot be brushed aside in the name of administrative exigencies. *****

150. 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. In fact, the CBSE itself has conceded to this fact that their certificates are relied for all official purposes, as noted above. The date of birth in matriculation certificate, in particular, is relied upon as primary evidence of date of birth of a citizen. Therefore, 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. 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. More so, 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. Therefore, this approach would serve twin purposes — enabling free exercise of rights and preservance of accuracy.

151. We must, however, note that the justiciability of the requested changes can of course be gone into. Every agency has its own method of verification while accepting or rejecting changes in their records. For instance, some agencies use sworn affidavits for carrying out changes, some agencies require prior permission by a court of law. The CBSE itself uses the same mechanism — prior permission by court of law and publication in Official Gazette. We may discuss the relevance of prior permission by court in deciding the questions of justiciability and genuineness of requested changes at a later stage.”

23. Following the aforesaid discussion, the question before it has been answered, by the Supreme Court, in paras 154 and 155 of the report.

(Emphasis supplied)

24. Thus, the Supreme Court held that the provision in the bye-laws which prohibited correction of the name post publication of the examination results was unconstitutional and violative of Article 14.

25. The Supreme Court thereafter, went on to examine the validity of the bye-laws.

26. Paras 159 and 160 and 162 to 165 of the report may be reproduced in this regard:

164. Suffice it to observe that frequent amendments in the Byelaws have been made providing for different dispensations for the relevant period. For the nature of final directions that we propose to issue, it may not be necessary to dilate on the validity of the Bye-law concerned as amended from time to time. Broadly, it can be noted that the Bye-law recognises two different dispensations. First is to carry out modifications in the original certificate on request for making it consistent with the school records of the incumbent. The second is to incorporate particulars in the original certificate which are different from the school records.

165. Indisputably, the candidate would pursue further education and explore future career opportunities on the basis of school records including the CBSE Board. The CBSE maintains its official records in respect of candidate on the basis of foundational documents being the school records. Therefore, the CBSE is obliged to carry out all necessary corrections to ensure that CBSE certificate is consistent with the relevant information furnished in the school records as it existed at the relevant time and future changes thereto including after the publication of results by the CBSE. However, when it comes to recording any information in the original certificate issued by the CBSE which is not consistent with the school records, it is essential that the CBSE must insist for supporting public document which has presumptive value and in the given case declaration by a court of law to incorporate such a change. In that regard, the CBSE can insist for additional conditions to reassure itself and safeguard its interest against any claim by a third party/body because of changes incorporated by it pursuant to application made by the candidate.”

27. Thereafter, the Supreme Court addressed the issue of whether, de hors the school documents, the CBSE was obliged to effect changes in the name of the candidate or his/her parents in the certificates issued by it on production of public documents by the petitioner. This issue was addressed in paras 167, 168, 170 and 172 of the report, thus:

28. Certain other issues were also addressed in the judgment, with which the present case is not concerned.

29. Following the aforesaid discussions, the final conclusion and directions to the CBSE as issued by the Supreme Court are contained in paras 192 to 194.[2] of the decision which reads as under: “Conclusion and directions to CBSE

192. Although we have discussed the broad issues canvassed before us, in the ultimate analysis the real dispute requiring resolution is about the nature of correction or change, as the case may be, permissible to be carried by the CBSE at the instance of the student including past student. As noted earlier, broadly, two situations would arise. *****

194.2. However, 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. The fresh certificate as in other situations referred to above, retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE. This is so because the CBSE is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant.”

30. Though I have deemed it appropriate to reproduce the aforesaid passages from Jigya Yadav only to highlight the fact that the legal position now stands crystallized by the Supreme Court, the facts of the present case do not require us to embark on such a lengthy exercise. The KVS has itself corrected the name of the petitioner’s father in its records as “Sualeheen” instead of “Sauleheen”. The petitioner has also annexed her Aadhar Card which reflects the name of the petitioner’s father as “Sualeheen”.

31. The KVS has also written to the CBSE requesting the CBSE to effect correction of the petitioner’s father’s name in its Class XII Certificate.

32. Moreover, the present case is not strictly one in which the petitioner wants A change of the name of her father in the certificate but merely correction of the spelling, to which she is entitled to a much more liberal approach.

33. There is no justifiable reason why the petitioner should not be granted the relief sought in this petition.

34. Accordingly, the CBSE is directed to issue to the petitioner a revised Class xii All India Senior School Secondary Certificate Examination Marksheet of the petitioner reflecting the name of her father as “Mohd. Sualeheen” instead of “Mohd. Sauleheen” within a period of four weeks from today.

35. Ms. Aleena, learned counsel for the petitioner, undertakes to deposit the earlier certificate issued by the CBSE as well as the requisite fee for correction with the CBSE within a week from today.

36. The writ petition stands allowed accordingly, with no order as to costs.

C. HARI SHANKAR, J