Jigya Yadav (Minor) (Through Guardian/Father Hari Singh) vs C.B.S.E. (Central Board of Secondary Education) & Ors.

Education/Educational Institutions: Central Board of Secondary Education (CBSE) – Correction/change in certificates issued by the Board – Scope of permissible corrections/ changes – The CBSE Examination Byelaws restrict, both qualitatively and quantitatively, the corrections/changes that can be carried out in the certificates issued by the Board – Test of rationality – Whether Examination Byelaws of CBSE / Board impose reasonable restrictions – Held: The identity of an individual is one of the most closely guarded areas of the constitutional scheme in India – Name can be regarded as one of the foremost indicators of identity – 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 – On facts, the Byelaws permit change of name only if permission from the Court has been obtained prior to the publication of result – The provision is problematic on certain counts – 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 – 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 – CBSE maintains its official records in respect of candidates on the basis of foundational documents being the school records – Therefore, 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 – Central Board of Secondary Education (CBSE) Examination Byelaws of 2007 – Constitution of India – Art.19.

Education/Educational Institutions: Central Board of Secondary Education (CBSE) – Correction/change in certificates issued by the Board – Whether the CBSE / Board is obliged to carry out corrections/changes in the certificates issued by it owing to correction/updation of public records/ documents which have statutory presumption of genuineness – Held: There is no reason for the CBSE Board to not take notice of the public documents relied upon by the candidate and to record change on that basis in the certificate issued by it, for being consistent with the relied upon public documents – It matters not if the information furnished in the public documents is not entirely consistent with the school records of the incumbent – CBSE while accepting those documents as foundational documents for effecting changes consistent therewith may insist for additional conditions and at the same time while retaining the original entry make note in the form of caption/annotation in the fresh certificate to be issued by it while calling upon the incumbent to surrender the original certificate issued by it to avoid any misuse thereof at a later point of time – It would be permissible for the CBSE to insist for a sworn affidavit to be given by the incumbent making necessary declaration and also to indemnify the CBSE – The fresh certificate to be issued by the CBSE may also contain disclaimer of the Board clearly mentioning that change has been effected at the behest of the incumbent in light of the public documents relied upon by him – In addition, the incumbent can be called upon to notify about the change in the Official Gazette and by giving public notice as precondition for recording the change by way of abundant precaution – When a student applies to a Court of law for prior permission and/or declaration and produces public document(s), the Court would enter upon an inquiry wherein the legal presumption would operate in favour of the public document(s) and burden would shift on the party opposing the change to rebut the presumption or oppose the claim on any other ground – The question of genuineness of the document including its contents would be adjudicated in the same inquiry and the Court of law would permit the desired change only upon verifying the official records and upon being satisfied of its genuineness – At the same time, the question of justiciability of the requested changes would be considered and only upon being satisfied with the need demonstrated by the student, the Court would grant its permission – The said permission can then be placed before the Board along with copy of publication in the official gazette and requisite (prescribed) fee (if any) – The Board would then have no locus to make further enquiry nor would be required to enter upon any further verification exercise – While considering requests for changes in certificates, CBSE cannot act as a court and it cannot effectively consider any request over and above those requests that merely require bringing the certificates in conformity with the school records or public documents, as the case may be – Central Board of Secondary Education (CBSE) Examination Byelaws of 2007.

Education/Educational Institutions: Central Board of Secondary Education (CBSE) – Examination Byelaws of the Board – Corrections/changes in certificates issued by the Board – Period of limitation for correction of the certificates – Whether the Examination Byelaws in force on the date of examination conducted by CBSE or the date of consideration of the application for recording correction/change would be relevant – And, whether the effect of correction or change, as the case may be, will have retrospective effect from the date of issue of the original certificate – Held: The Byelaws existing on the date of declaration/publication of result and issue of certificate would be relevant for the purpose of effecting changes in the certificates – If the limitation of applicability of Byelaws was to be reckoned from the date of application for correction/change and not the date of result of the examination conducted by CBSE, that would be leaving things to a state of uncertainty – Once changes are permitted in the documents of CBSE, it does not ipso facto mean that the changes are given a retrospective effect – The changes are indeed prospective and to signify that a remedial measure is provided in the Byelaws, as existing presently – They provide for the requirement of adding a caption/annotation with the date of such change along with the changed particulars so as to indicate within the certificate that the changes have been made on a date subsequent to the date of publishing the certificates – The requirement of caption/annotation is indeed a sufficient safeguard to prevent the usage of subsequently altered documents as unchanged original records – Central Board of Secondary Education (CBSE) Examination Byelaws of 2007.

Education/Educational Institutions: Central Board of Secondary Education (CBSE) – Correction/change in certificates issued by the Board – Whether writ of mandamus issued for effecting corrections in CBSE certificates can be in the teeth of explicit provisions in the examination byelaws, without examining validity of the byelaws – Held: The High Courts, being constitutional Courts, are duly vested with the power to review any law in light of Part-III – 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 – The Courts need to be extra cautious and alive to the immediate factual position before permitting changes – No two requests for change of name or change in date of birth can be viewed with the same judicial eye – Sometimes, change of name could be a necessity, sometimes it could be a pure exercise of freewill without any need – As long as Byelaws or the applicable rules permit so, there is no occasion for any court to deny such relief – But when Byelaws do not permit for the same, the Court must be circumspect before issuing directions, that too without commenting upon the validity of the Byelaws and without demonstrating the rights which are at stake – constitutional or legal – Central Board of Secondary Education (CBSE) Examination Byelaws of 2007 – Constitution of India – Part III.

Education/Educational Institutions: Central Board of Secondary Education (CBSE) – Correction/change in certificates issued by the Board – 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 – Held: Broadly, two situations would arise – The first 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 – 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 – CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results – Such a condition would be unreasonable and excessive – However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE – 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 – 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 – That change need not be backed by public documents pertaining to the candidate – Reverting to the first category, there is a legal presumption in relation to the public documents as envisaged in the 1872 Act – Such public documents, therefore, cannot be ignored by the CBSE – Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it – This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE – The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof – 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 – Evidence Act, 1872 – ss.76 r/w ss.79,

80 and 81.

Disposing of the cases with directions to the CBSE, the Court

HELD:

Whether the Central Board of Secondary Education (CBSE) Examination Byelaws of 2007 have the force of law.

1.1. For the nature of activities undertaken by the CBSE/Board including the powers and functions of the Board, it can be safely assumed that the Board is a State within the meaning of Article 12 of the Constitution of India and as a corollary thereof, its actions would be amenable to Part-III of the Constitution of India. The fact that the Board can be treated as a State within the meaning of Article 12 of the Constitution does not mean that the byelaws framed by it would necessarily become law within the meaning of Article 13 of the Constitution of India. Only a “law” under Article 13 can be reckoned as a restriction in respect of rights guaranteed under Article 19 of the Constitution. [Para 101][1155-C-E]

1.2. The underlying purpose of defining “law” under Article

13 is to encompass a practical administrative reality that there can be laws other than ordinary statutory laws. It, therefore, takes within its sweep those matters (declaration in the form of Byelaws in this case) as having the “force of law” albeit not enacted by the legislature as such. For, it defines “law” to include ordinances, orders, byelaws, rule, regulation or notification issued/made by the State. The precise meanings of these terms cannot be confined in the rigidity of language and the same is neither desirable nor required in the present case. [Paras 103, 104][1156-E-G]

1.3 Law made by State refers to a body of rules which shapes the rights and liabilities of persons in a universal sense as opposed to a private transaction between parties. Such law has the ability to bind people by providing for all prominent aspects of their conduct as the subjects of law. Therefore, any rule/notification/order/byelaw issued/made by the State or its instrumentalities would have the force of law and bind all entities subjected to it and operates as a code of conduct to regulate their functioning. Yet another crucial characteristic would be enforceability in a court of law. [Para 105][1157-A-B]

1.4 CBSE, despite being packaged as a registered society, is performing an essential public function for the government since its establishment in 1929. The principles associated with a public function can be illustratively culled out as follows: a. Extension of collective benefit to public by a public authority; b. Participation in social or economic affairs including health, education, social services etc.; c. Private bodies or charitable institutions performing public functions could also be regulated in the same manner as a public authority. In the school education structure as we have it, there are state government boards limited to respective states. There are central boards having its area of operation throughout India, namely, Council for the Indian School Certificate Examinations (ICSE), a private board; International Baccalaureate (IB), formerly known as International Baccalaureate Organization (IBO) a non-profit foundation/organization having headquarter in Geneva, Switzerland; and CBSE. [Para 106][1157-D; 1158-E-H]

Binny Ltd. & Anr. v. V. Sadasivan & Ors. (2005) 6 SCC

657 – relied on.

1.5 CBSE is the only central body for conducting examinations in the country created by a resolution of the Central Government. All the bodies constituted at various levels are working in the direction of just educational governance. Article

41 of the Constitution, couched as a directive, is the source behind the basic functioning of the CBSE Board as it secures nothing but right to education. It is participating in educational affairs which form an intrinsic part of social affairs. The CBSE Board is a public authority functioning in public interest for the performance of a public function. [Para 107][1159-A-B]

1.6 The constitution of the CBSE/Board reaffirms the public character of the Board as the ultimate control over the functioning of the Board is exercised by the Ministry of Education (now Ministry of Education & Social Welfare). Reverting to the CBSE Examination Byelaws, the same are couched in the form of a code. They provide for all essential aspects relating to formal education of a student including admission, examination, migration, transfer, curriculum, fee for various services, issuance of verified certificates, modifications in certificates etc. This Byelaws, therefore, bind the parties and are duly enforceable in a court of law, even by way of writ remedies. To put it differently, the Byelaws of the Board have the force of law and must be regarded as such for all legal purposes. It would serve no meaningful purpose to hold these authoritative set of rules originating from an instrumentality of the State as mere contractual terms despite there being overwhelming public interest in their just application. [Paras 108, 109, 110][1159-C; 1159-F-G; 1160-A]

1.7 The argument that Byelaws 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. [Para 111][1160-B-C]

1.8 As in the ultimate analysis, the Byelaws operate as law, the scrutiny of this Court cannot be undermined by giving them an artificial colour. 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. By now it is an established tenet that even body corporates, co-operative 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. The Court ought to intervene with circumspection even when the public body derives its authority from a government resolution. [Para 112][1160-DF]

1.9 One says so because there is an evolving body of jurisprudence enunciating that the principle of presumption of constitutionality attached with statutes ought not to be extended to subordinate legislations with the same vigour. For, the legislature enjoys the sacred backing of people’s will and naturally, every act of legislature is presumed to be constitutional. In other words, the Courts generally do not look upon duly enacted laws with suspicion at the first glance as they enjoy legal presumption of its validity. Nevertheless, circumspect intervention on the part of the Court is to advance constitutional protection for guarantees under Part-III of the Constitution. Arguendo, the Examination Byelaws are not “law” under Article 13, it would not affect the power of the Court to scrutinize them in reference to Part-III of the Constitution of India as CBSE is “State” within the meaning of Article 12 and all its actions are consequently subject to PartIII. [Paras 113, 114][1160-F-H; 1161-A]

Whether examination byelaws of CBSE / Board impose reasonable restrictions on the exercise of rights under Article

19 of the Constitution including fail the test of rationality for excessively restricting the scope of permissible corrections/changes?

2.1 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. The identity of an individual is one of the most closely guarded areas of the constitutional scheme in India. The sanctity of identity has been recognized by this Court in a plethora of cases. The core existence of an individual is not exemplified by her outer characteristics but by her inner self-identification. [Para 115][1161-B-D]

National Legal Services Authority v. Union of India & Ors. (2014) 5 SCC 438 : [2014] 5 SCR 119; Navtej Singh Johar & Ors. v. Union of India through Secretary, Ministry of Law and Justice (2018) 10 SCC 1 : [2018]

7 SCR 379; K.S. Puttaswamy and Anr. v. Union of India & Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569 – relied on.

2.2 Identity 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, 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”. Such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause. Article 19(1)(a) of the Constitution provides for a guaranteed right to freedom of speech and expression. This freedom would include the freedom to lawfully express one’s identity in the manner of their liking. In other words, expression of identity is a protected element of freedom of expression under the Constitution. [Para 116][1162-B-D]

2.3 Any change in identity of an individual has to go through multiple steps and it cannot be regarded as complete without proper fulfilment of those steps. An individual may self-identify oneself with any title or epithet at any point of time. But the change of identity would not be regarded as formally or legally complete until and unless the State and its agencies take note thereof in their records. After all, in social sphere, an individual is not only recognized by how an individual identifies oneself but also by how his/her official records identify him/her. For, in every public transaction of an individual, official records introduce the person by his/her name and other relevant particulars. [Para 118][1162F-G]

2.4 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. 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. Reasonableness is adjudged in the specific context of the case and is not confined to the words of a definition. [Paras 120, 122][1163-B, D-E] Om Prakash & Ors. v. State of U.P. & Ors. (2004) 3 SCC 402 : [2004] 2 SCR 900; State of Madras v. V. G. Row, AIR 1952 SC 196 – relied on.

2.5 The Byelaws 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 Byelaws 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 Byelaws completely overlook this possibility when it ordains seeking declaration from the Court prior to the publication of results of the concerned examination conducted by it. [Para 123][1164-F-H; 1165-A]

2.6 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. [Para 124][1165-B-D]

2.7 The limitation as regards maximum period upto 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 upto which CBSE is obliged to preserve its old record. [Para 125][1165-E-G]

2.8 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. One wonders 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. 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. The same concerns could apply to other bodies as well, like Unique Identification Authority of India and Passport Authority. [Paras 126, 127][1165-G-H; 1166A-B]

2.9 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 Byelaws 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. [Para 128][1166-C-F]

2.10 Administrative efficiency 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. 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. [Para 129][1166-G; 1167-CD]

2.11 One of the primary functions of the Board is to grant certificates to its students. Effective maintenance and regulation of standard of education would include complete accountability of the Board in grant of such certificates and its duty does not get extinguished after publication of examination results and issue of certificates. Rather, it extends to taking care of post-publication concerns of students as and when they emerge, as students seek to use their certificates for purposes of higher education and career opportunities. A narrow reading of the functions of the Board would leave glaring gaps in the field of school education and may jeopardize the welfare of students with legitimate concerns. [Para 130][1167-E-F]

2.12 The concerned Byelaw 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 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. [Para 131][1167-G-H; 1168-A]

2.13 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. 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. [Para 132][1168-B-C, E-F]

2.14 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. [Para 133][1168-G-H]

2.15 Pertinently, the Parliament is also alive to the social realities having bearing on identity documents. There are various statutory enactments wherein detailed provisions are made for change of identity. The government(s) is cognizant of its duty to upgrade its identity records in tune with changing requirements of the citizens. From reasons purely personal to reasons flowing from life events such as marriage, death or migration, the authorities are responsive to the changing needs of citizens. As per the nature of identity, changes are permissible. It is bounden duty of all state instrumentalities to play the role of enablers in the exercise of rights by the citizens, including to correct their records owing to purely personal choices of the citizens. Though, in an ultimate analysis, this exercise of examining the reasons has to be left to the court of law empowered to permit changes in a specific factual scenario. [Paras 134, 136][1169-A-B; 1172-EG; 1173-A]

2.16 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. However, the justiciability of the requested changes can of course be gone into. Law gives no recognition to an act of shunning essential duties by an entity of the State. A body entrusted with essential public functions cannot unduly put fetters on its powers. [Paras 137, 138, 139][1173-BE; G] Indian Aluminium Company v. Kerala State Electricity Board (1975) 2 SCC 414 : [1976] 1 SCR 70; J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. & Ors. (1991) 2 SCC 283 : [1990] 3 Suppl. SCR

13 – relied on.

2.17 There are no restrictions on the power of CBSE to permit change of name. The Constitution, Resolution and Regulations are functional documents of the Board and none of these documents provide for any such fetters. Therefore, in the exercise of its discretion, the Board cannot put fetters on its duties so as to cause grave prejudice to the students with legitimate causes for changing their certificates. The exercise of discretion in this negative manner would be arbitrary and unreasonable, at best. [Para 139][1175-C]

2.18 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. [Para 140][1175-D]

2.19 On perusal of the examination byelaws from 1995 to 2018, as they sailed through multiple amendments over the course of time, it is seen that there is hardly any consistency in the Examination Byelaws operating during the relevant period, either in the scope of permissible changes or in the timelines provided for effecting such changes. Presumably, drawing upon experiences and judicial pronouncements, the Board had to carry out frequent amendments in the Byelaws, sometimes to do a somersault and go back to the earlier position. By and large, the impression gathered from the analysis is that the Board has been groping in the dark without having an all-purpose long term objective policy in place as regards permissible changes. [Paras 141, 143][1175E-F; 1177-A-B]

3. 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. [Para 150][1179-E-H]

Whether the CBSE / Board is obliged to carry out corrections/changes in the certificates issued by it owing to correction/updation of public records/ documents which have statutory presumption of genuineness?

4.1. The Byelaws provide for a two-tier mechanism for recording change of name or other details. One of them is prior permission or declaration by a Court of law to be obtained. As regards public documents like Birth Certificate, Official Gazette, Aadhaar Card, Election Card, etc., the same enjoy legal presumption of its correctness in terms of explicit provisions contained in Chapter V of the 1872 Act. The 1872 Act extends such presumption in terms of Section 76 read with Sections 79 and 80 of the 1872 Act and as in the case of Official Gazette under Section 81 of the same Act. Even other legislations concerning public documents attach equal importance to the authenticity of such documents including while making changes in their certificates to which we have alluded to in this judgment. Understood thus, there is no reason for the CBSE Board to not take notice of the public documents relied upon by the candidate and to record change on that basis in the certificate issued by it, for being consistent with the relied upon public documents. It matters not if the information furnished in the public documents is not entirely consistent with the school records of the incumbent. The CBSE while accepting those documents as foundational documents for effecting changes consistent therewith may insist for additional conditions and at the same time while retaining the original entry make note in the form of caption/annotation in the fresh certificate to be issued by it while calling upon the incumbent to surrender the original certificate issued by it to avoid any misuse thereof at a later point of time. It would be permissible for the CBSE to insist for a sworn affidavit to be given by the incumbent making necessary declaration and also to indemnify the CBSE. The fresh certificate to be issued by the CBSE may also contain disclaimer of the Board clearly mentioning that change has been effected at the behest of the incumbent in light of the public documents relied upon by him. In addition, the incumbent can be called upon to notify about the change in the Official Gazette and by giving public notice as precondition for recording the change by way of abundant precaution. [Para 152][1180-D-H; 1181-A-B]

CIDCO v. Vasudha Gorakhnath Mandevlekar (2009)

7 SCC 283 : [2009] 9 SCR 427 – relied on.

4.2. When a student applies to a Court of law for prior permission and/or declaration and produces public document(s), the Court would enter upon an inquiry wherein the legal presumption would operate in favour of the public document(s) and burden would shift on the party opposing the change to rebut the presumption or oppose the claim on any other ground. The question of genuineness of the document including its contents would be adjudicated in the same inquiry and the Court of law would permit the desired change only upon verifying the official records and upon being satisfied of its genuineness. At the same time, the question of justiciability of the requested changes would be considered and only upon being satisfied with the need demonstrated by the student, the Court w ould grant its permission. The said permission can then be placed before the Board along with copy of publication in the official gazette and requisite (prescribed) fee (if any). The Board would then have no locus to make further enquiry nor would be required to enter upon any further verification exercise. While considering requests for changes in certificates, CBSE cannot act as a court and it cannot effectively consider any request over and above those requests that merely require bringing the certificates in conformity with the school records or public documents, as the case may be. [Paras 156, 157][1183-B-D; 1184-B-C]

Subin Mohammed v. Union of India 2016 (1) KLT 340 – referred to.

Whether the examination byelaws in force on the date of examination conducted by CBSE or the date of consideration of the application for recording correction/change would be relevant? And, whether the effect of correction or change, as the case may be, will have retrospective effect from the date of issue of the original certificate?

5.1. Considered in the context of the Byelaws, the controversy is actually simple in nature. The Byelaws consistently provide that the period of limitation is to be calculated from the date of declaration of the result and issue of certificate. It means that the period of limitation begins to run against the student after declaration of result and publication of certificates as the student is put to notice of the contents of the document, upon its issue. The student can now be said to be in a position to verify the correctness of the certificate(s). The irresistible outcome of this legal position is that the Byelaws existing on the date of such declaration/publication of result and issue of certificate would be relevant for the purpose of effecting changes in the certificates. The express language of the Byelaws would be defeated if one says that the law existing on the date of application for recording change would be relevant. That would negate the very importance of having a period of limitation for correction of the certificates. [Para 159][1185-F-H; 1186-A]

Kalpana Thakur & Anr. v. Central Board of Secondary Education & Anr. (2015) SCC OnLine Del 12156 and Vyshnav @ Vishnu Viswam V. v. Central Board of Secondary Education & Ors. (2017) SCC OnLine Ker 39806 – referred to.

5.2. If the limitation of applicability of Byelaws was to be reckoned from the date of application for correction/change and not the date of result of the examination conducted by CBSE, that would be leaving things to a state of uncertainty. [Para 160][1186-B]

5.3. Once changes are permitted in the documents of CBSE, it does not ipso facto mean that the changes are given a retrospective effect. The changes are indeed prospective and to signify that a remedial measure is provided in the Byelaws, as existing presently. They provide for the requirement of adding a caption/annotation with the date of such change along with the changed particulars so as to indicate within the certificate that the changes have been made on a date subsequent to the date of publishing the certificates. The requirement of caption/annotation is indeed a sufficient safeguard to prevent the usage of subsequently altered documents as unchanged original records. [Para 161][1187-A-C]

Rayaan Chawla v. University of Delhi & Anr. 275 (2020) DLT 314 – referred to.

Whether writ of mandamus issued for effecting corrections in CBSE certificates can be in the teeth of explicit provisions in the examination byelaws, without examining validity of the byelaws?

6.1. The High Courts, being constitutional Courts, are duly vested with the power to review any law in light of Part-III. Despite being called upon to do so, if they choose not to do it, the same cannot be countenanced. 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. [Para 165][1190D]

6.2. The Courts need to be extra cautious and alive to the immediate factual position before permitting changes. No two requests for change of name or change in date of birth can be viewed with the same judicial eye. Sometimes, change of name could be a necessity, sometimes it could be a pure exercise of freewill without any need. As long as Byelaws or the applicable rules permit so, there is no occasion for any court to deny such relief. But when Byelaws do not permit for the same, the Court must be circumspect before issuing directions, that too without commenting upon the validity of the Byelaws and without demonstrating the rights which are at stake – constitutional or legal. [Para 166][1191-A-B]

DIRECTIONS TO CBSE

7.1. 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. Broadly, two situations would arise. [Para 169][1194-E-F]

7.2. The first 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. 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 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. The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate original certificate, as the case may be) issued by it for replacing it with the fresh certificate to be issued after carrying out necessary corrections with caption/annotation against the changes carried out and the date of such correction. It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten. The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate. The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing fresh certificate. At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition would be unreasonable and excessive. If the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which the application for recording correction in certificate issued by it may be entertained by it. However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance. If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time. Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record of the candidate concerned is traceable or can be reconstructed. In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE. [Para 170][1194-F-H; 1195-A-H]

7.3. 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. 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. That change need not be backed by public documents pertaining to the candidate. [Para 171][1196-A-B]

7.4. Reverting to the first category, there is a legal presumption in relation to the public documents as envisaged in the 1872 Act. Such public documents, therefore, cannot be ignored by the CBSE. Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses. The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant. The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof. In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten). [Para 171][1196-C-F]

7.5. 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. [Para 171][1196-G-H; 1197-A-B]

8. In light of the above, in exercise of plenary jurisdiction, the CBSE is directed to process the applications for correction or change, as the case may be, in the certificate issued by it in the respective cases under consideration. Even other pending applications and future applications for such request be processed on the same lines and in particular the conclusion and directions recorded hitherto in paragraphs 170 and 171, as may be applicable, until amendment of relevant Byelaws. Additionally, the CBSE shall take immediate steps to amend its relevant Byelaws so as to incorporate the stated mechanism for recording correction or change, as the case may be, in the certificates already issued or to be issued by it. [Para 172][1197-B-C] Board of Secondary Education of Assam v. Md. Sarifuz Zaman & Ors. (2003) 12 SCC 408 : [2003] 6 Suppl. SCR 1273 – distinguished.

State of NCT of Delhi & Anr. v. Sanjeev @ Bittoo (2005)

5 SCC 181 : [2005] 3 SCR 151; Sanjeev Kumar Gupta v. State of Uttar Pradesh & Anr. (2019) 12 SCC 370 : [2019] 9 SCR 735; Somdev Kapoor v. State of West Bengal & Ors. (2014) 14 SCC 486 : [2013] 10 SCR 452; and State of Kerala & Ors. v. Palakkad Heritage Hotels (2017) 13 SCC 672 : [2017] 3 SCR 239 –

referred to.

Dhruva Parate v. CBSE & Anr. ILR 2009 V Delhi 371; Mazhar Saleem Chandroth (Minor) Thr. Saleem

Chandroth (father and natural guardian) v. Central Board of Secondary Education [Decision of Delhi High Court in LPA 315/2017]; Abhishek Kumar @ Bal Kishan v. Union of India & Ors. (2014) SCC OnLine Del 3459; Kabir Jaiswal v. Union of India & Ors. (2020) SCC OnLine All 1488 – referred to.

York Corporation v. Henry Leetham & Sons Ltd., (1924)

1 Ch 557; Ayr Harbour’s case, (1883) 8 App 623; Straffordshire and Worcestershire Canal Navigation v. Birmingham Canal Navigation, 1866 LR 1 HL 254; and Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd., 1961 2 All ER 46 – referred to.