# Kabeer Jaiswal v. Union of India & Ors

- **Citation:** (2021) 1 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-02
- **Case number:** Writ C No. 19287 of 2020
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kabeer-jaiswal-v-union-of-india-ors-46002
- **Pages:** 11

## Headnote

(A) Civil Law - Constitution of India -
Article 19(1) (a) - freedom of speech
and expression , Article 21 - right to
liberty - to have a name and to express
the same in the manner, a person
wishes, is a part of the right of the
freedom of speech and expression
under Article 19(1)(a) as well as right
to liberty under Article 21 of the
Constitution of India - The right
enshrined under Article 19(1) (a) of
the
Constitution
of
India
are
fundamental rights and can be taken
away or restricted only in accordance
with the procedure prescribed under
Article 19(2) of the Constitution of
India .(Para -11,20)

Petitioner with an intent to change his
name from Rishu Jaiswal to Kabir Jaiswal
got a notice published in the notification
in the Gazette of India - Petitioner moved
an
application
through
the
school
concerned for change of name in the
certificates, granted by the CBSE - school
in question forwarded the request to the
Board - Board rejected the application for
change of name - ground - particulars of
the school records do not show the
change
of
name
as
sought
by
the
petitioner. (Para - 2,3)

HELD:- The Rules as framed by the
CBSE do not have any statutory flavour .
It is clear that the CBSE Regulations
relied upon by the respondents cannot be
considered to be a ''law' as required
under
Article
19(2)
through
which
reasonable restrictions can be imposed on
the freedom of expression guaranteed
under Article 19 (1) (a). The right of
freedom of expression guaranteed to the
petitioner under Article 19 (1) (a), in the
present
case
freedom
of
expression
through change of name, cannot be
denied to the petitioner and he is entitled
to change his name. (Para - 25,27)

Writ Petition allowed. (E-6)

List of Cases cited :-

## Text

290 INDIAN LAW REPORTS ALLAHABAD SERIES
A direction to the authority to consider the
application
cannot
be
given
without
considering relevant provisions of the law.
We have recorded our finding that the
application under Section 28A is not
maintainable in this case having been filed
after lapse of three years of the judgment.
Accordingly, the directions sought by the
petitioners cannot be given.

29. The writ petition is, accordingly,
dismissed.
----------
(2021)01ILR A290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 19287 of 2020

Kabeer Jaiswal ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Sagar Yadav

Counsel for the Respondents:
A.S.G.I., Sri Hridai Narain Pandey

(A) Civil Law - Constitution of India -
Article 19(1) (a) - freedom of speech
and expression , Article 21 - right to
liberty - to have a name and to express
the same in the manner, a person
wishes, is a part of the right of the
freedom of speech and expression
under Article 19(1)(a) as well as right
to liberty under Article 21 of the
Constitution of India - The right
enshrined under Article 19(1) (a) of
the
Constitution
of
India
are
fundamental rights and can be taken
away or restricted only in accordance
with the procedure prescribed under
Article 19(2) of the Constitution of
India .(Para -11,20)

Petitioner with an intent to change his
name from Rishu Jaiswal to Kabir Jaiswal
got a notice published in the notification
in the Gazette of India - Petitioner moved
an
application
through
the
school
concerned for change of name in the
certificates, granted by the CBSE - school
in question forwarded the request to the
Board - Board rejected the application for
change of name - ground - particulars of
the school records do not show the
change
of
name
as
sought
by
the
petitioner. (Para - 2,3)

HELD:- The Rules as framed by the
CBSE do not have any statutory flavour .
It is clear that the CBSE Regulations
relied upon by the respondents cannot be
considered to be a ''law' as required
under
Article
19(2)
through
which
reasonable restrictions can be imposed on
the freedom of expression guaranteed
under Article 19 (1) (a). The right of
freedom of expression guaranteed to the
petitioner under Article 19 (1) (a), in the
present
case
freedom
of
expression
through change of name, cannot be
denied to the petitioner and he is entitled
to change his name. (Para - 25,27)

Writ Petition allowed. (E-6)

List of Cases cited :-

1. Anand Singh Vs U.P. Board of
Secondary Education & ors. , 2014 (3)
ADJ, 443

2. Ankit Singh Vs U.O.I. & ors. , 2019(9)
ADJ, 664

3. Kailash Gupta Vs CBSE , 2020 SCC Online
Ker 1590

4. Rayaan Chawla Vs University of Delhi &
anr., vide Judgment dated 06.11.2020
passed in W.P. (C) No. 6813 of 2020
1 All. Kabeer Jaiswal Vs. Union of India & Ors.
291
5. Abhishek Kumar Vs U.O.I. & ors.. , 2014 SCC
Online Del 3459

6. Jigya Yadav Vs CBSE , MANU/DE/3700/2010

7. Minor Raana Chariappa Kalianda Vs CBSE &
anr. , vide judgment dated 2.8.2019 passed in
W.P. No. 20171 of 2019

8. St. of M.P. & anr. Vs Thakur Bharat Singh ,
AIR 1967 SC 1170

9. Bijoe Emmanuel & ors. Vs St. of Kerala & ors.
, (1986) 3 SCC 615

10. U.O.I. Vs Naveen Jindal & anr. , (2004) 2
SCC 510

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard counsel for the petitioner
and Sri Hriday Narain Pandey, Advocate
appearing on behalf of respondent nos. 2
to 4, the Board.

2. The present petition has been
filed by the petitioner saying that the
petitioner had appeared in the Secondary
School Examination in the academic year
2011-13, i.e. Class-X bearing Roll No.
5118987 and Senior School Certificate
Examination in the year 2015 i.e. ClassXII bearing Roll No. 5653747, conducted
by the Central Board of Secondary
Education, Delhi in the name of Rishu
Jaiswal son of Santosh Kumar Jaiswal
and had passed the said examinations
also. The petitioner later on, with an
intent to change his name from Rishu
Jaiswal to Kabir Jaiswal got a notice
published in the notification in the
Gazette of India baring Gazette No. 44]
New Delhi, Saturday, November 2-
November 8, 2019 (Kartika 11, 1941)
Part-IV, page No. 2060 and moved an
application for correction of the name
from Rishu Jaiswal to Kabir Jaiwal.

3. The petitioner claims that the name
was changed in the Aadhar Card and the
PAN Card also in pursuance to the Gazette
Notification, however, when the petitioner
moved an application through the school
concerned for change of name in the
certificates, granted by the CBSE, the
school in question forwarded the request to
the Board and the Board vide order dated
27.5.2020 has rejected the application for
change of name on the ground that the
particulars of the school records do not
show the change of name as sought by the
petitioner.
The
said
order
is
under
challenge in the present writ petition.

4. The counsel for the petitioner has
argued that once a Gazette Notification has
been issued and no objections have been
filed, it has been announced to the world in
''rem' that the petitioner intends to change
his name and no plausible cause exists for
the Board to reject the same. He further
states that once the petitioner had made a
request for change of name through the
school concerned and there was no
opposition to the same, the Board should
have no objection in change of name as
sought by the petitioner.

5. The petitioner has placed reliance
on the judgment of this Court in the case of
Anand Singh Vs. U.P. Board of Secondary
Education and Others; 2014 (3) ADJ, 443
and the judgment of this Court in the case
of Ankit Singh Vs. Union of India and
Others; 2019(9) ADJ, 664. He thus argues
that the Board is adopting a hyper technical
approach in rejecting the request whereas
the petitioner has taken all steps to
announce to the world through the Gazette
Notification. The petitioner also states that
he shall not take any benefit only on
account of change of name other than the
rights to which the petitioner is entitled. He
292 INDIAN LAW REPORTS ALLAHABAD SERIES
further argues that the identity of the person
remains the same, only the petitioner
intends to change the first name and,
therefore, the writ petition deserves to be
allowed.

6. Sri H.N. Pandey appearing on
behalf of respondent nos. 2 to 4, the Board,
has brought before me the copy of the
examination bye-laws to argue that the
request cannot be considered as the
requirement is as under amended Rules
69.1 (i) and 69.1 (ii), which are quoted
hereinbelow:-

"69.1(i)-

(Change in Candidate name,
Mother Name & Father Name)

Applications regarding changes
in name of surname 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____

69.1(ii)

(Correction in candidate name,
Mother Name & Father Name)

Correction in name to the extent
of correction in spelling errors, factual
typographical errors in the Candidate's
name/Surname, Father's name/ Mother's
name or Guardian's name to make it
consistent with what is given in the school
record or list of candidate (LOC) submitted
by the school may be made.

Application for correction in
name
of
Candidate/Father's/Mother's/Guardian's
name will be considered only within Five
years of the date of declaration of result
provided the application of the candidate is
forwarded by the Head of institution with
the following attested documents.

a. True Copy of Admission
form(s) filled in by the parents at the time
of admission duly attested by the Head of
the concerned Institution.

b. True Copy of the School Leaving
Certificates of the previous school submitted
by the parents of the candidate at the time of
admission duly attested by the Head of the
concerned institution.

c. True Copy of the portion of the
page of admission and withdrawal register of
the school where the entry has been made in
respect of the candidate, duly attested by the
Head of the concerned institution.

d. The Board may effect necessary
corrections after verification of the original
records of the school and on payment of the
prescribed fee.

This rule will be applicable to all
cases after Class X/XII 2015 examination
onwards."

7. He has further prayed that the said
Rule is applicable, however, he argues that he
may be permitted time to file a counter
affidavit to oppose the request so made by the
petitioner.

8. After hearing the parties, I am not
inclined to grant any time for counter
affidavit as on the basis of the Rules
produced by counsel for the respondents, the
matter can be decided only on the grounds of
reading of the bye-laws as the matter is to be
decided only on interpretation of the Rules
applicable.

9. A perusal of the Rules cited by the
counsel for the respondents make it clear
1 All. Kabeer Jaiswal Vs. Union of India & Ors.
293
that Rule 69.1(i) pertains to the permission
for change in the candidate name/mother's
name/father's name in a case where the
request is so made prior to the publication
of the result of the candidate and Rule
69.1(ii) permits the correction in the
candidate name, mother's name and father's
name subsequent to the declaration of the
results only if it is at variance with the
names so recorded in the School records.
Thus in sum and substance, either of the
two Rules do not permit the change of
name of the candidate or the father's name
or mother's name subsequent to the
declaration of result.

10. The question with regard to the
change of name was considered by the
Kerala High Court the case of Kailash
Gupta v. CBSE, 2020 SCC Online Ker
1590, wherein the Court recorded as
under:-

"1. Four centuries ago, when
William Shakespeare wrote the Classic
"Romeo and Juliet", he felt that name did
not matter much. In the present times, if
one is asked the same question "What's in a
name"?, the answer would be:

"Its everything".

1.1 In this writ petition, this
Court is confronted with an instance where
a young girl, who wished for a change of
name, stumbled upon an obstacle in the
form of CBSE who turned down her request
for incorporating the change of name on a
hyper technicality.
xxxxx

8. 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. In Our
Country, to have a name and to express the
same in the manner he 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. 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. Subject
to the limited grounds of control and
regulation
of
fraudulent
or
criminal
activities or other valid causes, a bonafide
claim for change of name in the records
maintained by the Authorities ought to be
allowed without hesitation.
xxxxx

12.
Power
of
interpretation
available to this Court to correct errors
committed by the draftsman is quite wide.
When the language of a statute in its
ordinary
meaning
and
grammatical
construction
leads
to
a
manifest
contradiction of the apparent purpose of
the enactment or to some inconvenience or
absurdity,
hardship
or
injustice,
presumably not intended, a construction
may be put upon it which modifies the
meaning of the words and even the
structure of the sentence. The above
mentioned principle has been restated in
the decisions in Pentiah v. Mudalla
Veeramallappa, (AIR 1961 SC 1107), Eera
v. State (Govt. of NCT of Delhi), (2017) 15
SCC 133), and also by a Full Bench of this
Court in Viswambaran P.N. v. T.P. Sanu,
((2018) 2 KLT 947)."

11. The aforesaid judgment clearly
stated that to have a name and to express
294 INDIAN LAW REPORTS ALLAHABAD SERIES
the same in the manner, a person wishes, is
a part of the right of the freedom of speech
and expression under Article 19(1)(a) as
well as 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 Rules of the CBSE and the Court
permitted the change of name prior to the
declaration of result by CBSE by holding
the same to be a right flowing under Article
19(1) (a) and Article 21 of the Constitution
of India.

12. In the present case at hand, a
perusal of the Rules, as already recorded
above, makes it clear that the case of the
petitioner falls neither under Rule 69.1 (i)
nor under Rule 69.1(ii) and thus this Court
has to consider whether the request of the
petitioner made for change of name in the
certificate, issued by the CBSE, can be
permitted at this stage or not.

13. The High Court of Delhi also
considered the same issue in the case of
Rayaan Chawla vs. University of Delhi &
Anr., vide Judgment dated 06.11.2020
passed in W.P. (C) No. 6813 of 2020,
wherein the Court was considering the
request of the petitioner for permitting the
change in the name in the records of the
University of Delhi and the University of
Delhi on the basis of a notification dated
1.7.2015 refused to permit the name change
on the ground that in terms of the
notification, 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 do not permit the same, however,
it directed the University of Delhi to permit
the petitioner to change the name. The
Court also considered that the publication
for change of name itself provided that the
change of name shall be prospective from
the date of publication and thus it
reconciled the difficulties that may arise on
account of different names in the CBSE
records and the University record by
directing the University of Delhi to
incorporate the changed name by recording
the "changed name alias/nee earlier name"
in the records of the University. The High
Court passed the said order based upon the
earlier Division Bench judgment of the
Delhi High Court in the case of Abhishek
Kumar v. Union of India & Ors., 2014
SCC Online Del 3459, wherein the
Division Bench was dealing with a case of
change of name and in respect to the
petitioner therein who had sought to change
his name after he had passed out of CBSE
School. In the context of the said case, the
Division Bench had held as under:-

"10. Else, we are of the opinion
that the issuance of revised certificates with
changed name as sought by the petitioner
would create a discrepancy and reflect a
status which did not exist at the time of
issuance thereof. The petitioner though has
changed his name, but after the date of
issuance
of
the
said
certificates.
Axiomatically the certificates cannot bear
the changed name. If anyone were to make
a deeper inquiry, they will wonder that if
the name was changed only in 2011, how
the changed name appears on certificates
issued on a prior date. Rather the
procedure of having a Gazette Notification
for changed name is intended to obviate the
said difficulties and to give sanctity to the
change in name. The said view was taken
by one of us (Rajiv Sahai Endlaw, J.) in
Pallavi @ Pallavi Chandra v. C.B.S.E.
MANU/DE/2842/2010 and in order dated
9th November, 2010 in W.P.(C) No.
4044/2010 titled Ashik Gurung v. CBSE
1 All. Kabeer Jaiswal Vs. Union of India & Ors.
295
and which matters are not found to have
beenagitated further. We see no reason to
take a different view."

14. The High Court of Delhi in the
case of Rayaan Chawla vs. University of
Delhi (Supra) also referred to the judgment
of the Delhi High Court in the case of Jigya
Yadav v. CBSE, MANU/DE/3700/2010,
wherein a challenge was made to the
constitutional validity of bye-law 69.1 (i) of
the CBSE Education Examination ByeLaws and had held as under:-

"20. The test laid down in Kruse
Vs. Johnson (supra) has been adopted by
the Indian Supreme Court in the case of
H.C. Suman & Anr. Vs. Rehabilitation
Ministry Employees' Cooperative House
Building Society Ltd., New Delhi & Ors,.
(1991) 4 SCC 485 at page 499 wherein it
has been held as under:-

"In Kruse v. Johnson it was held
that in determining the validity of bye-laws
made by public representative bodies, such
as country councils, the court ought to be
slow to hold that a bye-law is void for
unreasonableness. A bye-law so made
ought to be supported unless it is manifestly
partial and unequal in its operation
between different classes, or unjust, or
made in bad faith, or clearly involving an
unjustifiable interference with the liberty of
those subject to it. In view of this legal
position the Notification dated October 27,
1987 deserves to be upheld as, in our
opinion, it does not fall within any of the
exceptions referred to in the case of Kruse
v. Johnson."(emphasis supplied)"
xxxx

22. Moreover, we are of the view
that the Court should be extremely
reluctant to substitute its own views as to
what is wise, prudent and proper in
relation to academic matters in preference
to those formulated by professional men
possessing technical expertise and rich
experience of actual day-to-day working of
educational
institutions
and
the
departments controlling them. It will be
wholly wrong for the Court to take a
pedantic and purely idealistic approach to
the problems of this nature, isolated from
the actual realities and grass root problems
involved in the working of the system and
unmindful of the consequences which
would emanate if a purely idealistic view as
opposed to a pragmatic one were to be
propounded. It is equally important that the
Court should also, as far as possible, avoid
any decision or interpretation of a statutory
provision, rule or bye-law which would
bring about the result of rendering the
system unworkable in practice - as
contended by the respondent no. 1 in its
counter affidavit."

15. In the context of the facts, as
argued before the learned Single Judge of
the Delhi High Court, the High Court
permitted
the
name
change
in
the
University records by directing to record
the "changed name alias/nee earlier name"

16. The question of change of name
was also considered by the High Court of
Madras in the case of Minor Raana
Chariappa Kalianda Vs. CBSE and Anr,
vide judgment dated 2.8.2019 passed in
W.P. No. 20171 of 2019, wherein the High
Court observed as under:-

"4. The above reasoning of the
1st respondent/Central Board of Secondary
Education, is not in consonance with the
intention of the petitioner as well as the
law. The birth name of the petitioner herein
has been now changed and wide publicity
has been given both in the Government
Gazette as well as Local daily as required
296 INDIAN LAW REPORTS ALLAHABAD SERIES
under the law. Pursuant to that, the name
of the petitioner has been changed in the
Aadhar Card and other records. Unless
and until, the petitioner Educational
certificate also carries the present name,
there will be confusion in the identity of the
person and it will be misleading. Once a
person opts to change his name and carries
out the necessary change by publication in
the Government Gazette as required under
law, the said change should be uniformly
carried out in all the documents to retain
the uniqueness of the identity. If the
contention of the 1st respondent, accepted,
that the name change will only have
prospective effect and not retrospective
effect, then a person will be having more
than two names on record and the identify
of the person will be misleading. Therefore,
the reasoning given by the 1st respondent
for refusing to carry out the correction in
the mark sheet is untenable and against the
spirit of law.

5. In the said circumstances, the
Writ
Petition
is
Allowed.
The
1st
respondent is hereby directed to reconsider the request of the petitioner herein
and pass appropriate order, within a
period of four weeks from today. No order
as to costs."

17. In view of the judgments as
recorded above, this Court finds that the
Kerala High Court as well as the Delhi
High Court have held that the individual
''name' is a facet of right of expression,
which is guaranteed under Article 19(1) (a)
read with Article 21 of the Constitution of
India. The freedom of expression as
guaranteed under Article 19(1) (a) includes
within its sweep all forms of expressions
and name in the present world is clearly a
strong expression. Thus, I agree with the
judgments of the Kerala High Court as well
as the Delhi High Court to hold that change
of name is an expression guaranteed under
Article 19(1) (a) of the Constitution of
India.

18. The next question, which is more
important in the present case, is as to the
Regulations of the CBSE, which prohibit
the change of name except in the scenario
as emphasized under Regulation 69.1 (i)
and 69.1 (ii) can be used to deny the rights
enshrined under Article 19 (1) (a) of the
Constitution of India.

19. The Central Board of Secondary
Education is a Society registered under the
Societies Registration Act, and is governed
by the Bye-Laws although the Central
Board of Secondary Education Draft Bill2012 was issued by the Legislative
Department on 7th August, 2012, however,
the said Act was never enacted and the
CBSE continues to be a Society registered
under the Societies Registration Act. The
notification issued by the Examination
Committee on 1.2.2018 itself records that
the Rules with regard to the change of
name were based upon the recommendation
of the Examination Committee made at its
meeting held on 15.12.2017. A bare perusal
of the said notification read with the fact
that the CBSE is a Society, the said Rules
do not have any statutory flavour.

20. The right enshrined under Article
19(1) (a) of the Constitution of India are
fundamental rights and can be taken away
or restricted only in accordance with the
procedure prescribed under Article 19(2) of
the Constitution of India.

21. Thus, what is to be considered is
whether the Rules framed by the CBSE
would fall within the scope of Article
19(2). Article 19(2) of the Constitution of
India is reproduced hereinunder:-
1 All. Kabeer Jaiswal Vs. Union of India & Ors.
297

"[(2) Nothing in sub clause (a) of
clause (1) shall affect the operation of any
existing law, or prevent the State from
making any law, in so far as such law
imposes reasonable restrictions on the
exercise of the right conferred by the said
sub
clause
in
the
interests
of
the
[sovereignty and integrity of India,] the
security of the State, friendly relations with
foreign States, public order, decency or
morality or in relation to contempt of court,
defamation or incitement to an offence.]"

22. Constitution Bench of Supreme
Court considered the scope of ''law' as laid
down under Article 19(2) and in the context
of freedom enshrined under Article 19(1)(d),
the Supreme Court considered as to how the
restrictions can be placed under Article 19(2).
The Supreme Court in the case of State of
M.P. and another v. Thakur Bharat Singh;
AIR 1967 SC 1170 recorded, as under:-

"In our judgment, this argument
involves a grave fallacy. All executive action
which operates to the prejudice of any person
must have the authority of law to support it,
and the terms of Article 358 do not detract
from that rule. Article 358 expressly
authorises the State to take legislative or
executive action provided such action was
competent for the State to make or take, but
for the provisions contained in Part III of the
Constitution. Article 358 does not purport to
invest the State with arbitrary authority to
take action to the prejudice of citizens and
others: it merely provides that so long as the
proclamation of emergency subsists laws may
be enacted, and exclusive action may be
taken in pursuance of lawful authority, which
if the provisions of Article 19 were operative
would have been invalid."

23. The Supreme Court was again
confronted with the circulars issued by the
Kerala Education Authorities providing a
code of conduct for teachers and pupils and
it was considered as to whether the said
code qualifies the test as laid down under
Article 19(2) and can have the effect of
restricting the freedoms guaranteed under
Article 19(1)(a). The Supreme Court in the
case of Bijoe Emmanuel and Others Vs.
State of Kerala and Others; (1986) 3 SCC
615 held as under:-

"16. We have referred to Article
19(1)(a) which guarantees to all citizens
freedom of speech and expression and to
Article 19(2) which provides that nothing
in Article 19(1)(a) shall prevent a State
from making any law, insofar as such law
imposes reasonable restrictions on the
exercise of the right conferred by Article
19(1)(a) in the interests of the sovereignty
and integrity of India, the security of the
State, friendly relations with foreign States,
public order, decency or morality, or in
relation to contempt of court, defamation
or incitement to an offence. The law is now
well settled that any law which be made
under clauses (2) to (6) of Article 19 to
regulate the exercise of the right to the
freedoms guaranteed by Article 19(1)(a) to
(e) and (g) must be "a law" having
statutory force and not a mere executive
or departmental instruction. In Kharak
Singh v. State of U.P. [AIR 1963 SC 1295,
1299 : (1964) 1 SCR 332] the question
arose whether a police regulation which
was a mere departmental instruction,
having no statutory basis could be said to
be a law for the purpose of Article 19(2) to
(6). The Constitution Bench answered the
question in the negative and said :

"Though learned counsel for the
respondent started by attempting such a
justification by invoking Section 12 of the
Indian Police Act he gave this up and
conceded that the regulations contained in
298 INDIAN LAW REPORTS ALLAHABAD SERIES
Chapter XX had no such statutory basis but
were merely executive or departmental
instructions framed for the guidance of the
police officers. They would not therefore be
'a law' which the State is entitled to make
under the relevant clauses (2) to (6) of
Article 19 in order to regulate or curtail
fundamental rights guaranteed by the
several sub-clauses of Article 19(1), nor
would the same be 'a procedure established
by law' within Article 21. The position
therefore is that if the action of the police
which is the arm of the executive of the
State is found to infringe any of the
freedoms guaranteed to the petitioner the
petitioner would be entitled to the relief of
mandamus which he seeks, to restrain the
State from taking action under
the
regulations."

17. The two circulars on which
the department has placed reliance in
the present case have no statutory basis
and are mere departmental instructions.
They
cannot,
therefore,
form
the
foundation of any action aimed at
denying a citizen's fundamental right
under Article 19(1)(a). Further it is not
possible to hold that the two circulars
were issued "in the interest of the
sovereignty and integrity of India, the
security of the State, friendly relation
with
foreign
States,
public
order,
decency or morality, or in relation to
contempt
of
court,
defamation
or
incitement to an offence" and if not so
issued, they cannot again be invoked to
deny a citizen's fundamental right under
Article 19(1)(a). In Kameshwar Prasad
v. State of Bihar [AIR 1962 SC 1166 :
1962 Supp 3 SCR 369, 383-4] a
Constitution Bench of the Court had to
consider the validity of Rule 4-A of the
Bihar Government Servants Conduct
Rules which prohibited any form of
demonstration
even
if
such
demonstration
was
innocent
and
incapable of causing a breach of public
tranquillity. The Court said:

"No doubt, if the rule were so
framed as to single out those types of
demonstration which were likely to lead to
a disturbance of public tranquillity or
which would fall under the other limiting
criteria specified in Article 19(2) the
validity of the rule could have been
sustained. The vice of the rule, in our
opinion, consists in this that it lays a ban
on every type of demonstration -- be the
same however innocent and however
incapable of causing a breach of public
tranquillity and does not confine itself to
those forms of demonstrations which might
lead to that result."

Examining the action of the
Education Authorities in the light of
Kharak Singh v. State of U.P. [AIR 1963
SC 1295, 1299 : (1964) 1 SCR 332] and
Kameshwar Prasad v. State of Bihar [AIR
1962 SC 1166 : 1962 Supp 3 SCR 369,
383-4] we have no option but to hold that
the expulsion of the children from the
school for not joining the singing of the
National Anthem though they respectfully
stood up in silence when the Anthem was
sung was violative of Article 19(1)(a)."

24. The said two judgments, as
recorded above, were considered and
followed by the Supreme Court in the case
of Union of India Vs. Naveen Jindal and
Another; (2004) 2 SCC 510. While
considering the executive instructions of
the Government of India as contained in
Flag Code viz a viz rights of the people
enshrined under Article 19 (1) (a) of the
Constitution of India, the Supreme Court
recorded as under:-

"28. Before we proceed further, it
is necessary to deal with the question,
1 All. Kabeer Jaiswal Vs. Union of India & Ors.
299
whether Flag Code is "law"? Flag Code
concededly
contains
the
executive
instructions of the Central Government. It
is stated that the Ministry of Home Affairs,
which is competent to issue the instructions
contained in the Flag Code and all matters
relating thereto are one of the items of
business allocated to the said Ministry by
the President under the Government of
India (Allocation of Business) Rules, 1961
framed in terms of Article 77 of the
Constitution
of
India.
The
question,
however, is as to whether the said executive
instruction is "law" within the meaning of
Article 13 of the Constitution of India.
Article 13(3)(a) of the Constitution of India
reads thus:

"13. (3)(a) 'law' includes any
ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the
territory of India the force of law;"

29. A bare perusal of the said
provision would clearly go to show that
executive instructions would not fall within
the
aforementioned
category.
Such
executive instructions may have the force of
law for some other purposes; as for
example those instructions which are
issued as a supplement to the legislative
power in terms of clause (1) of Article 77 of
the Constitution of India. The necessity as
regards determination of the said question
has arisen as Parliament has not chosen to
enact a statute which would confer at least
a statutory right upon a citizen of India to
fly the National Flag. An executive
instruction issued by the appellant herein
can any time be replaced by another set of
executive instructions and thus deprive
Indian citizens from flying National Flag.
Furthermore, such a question will also
arise in the event if it be held that right to
fly the National Flag is a fundamental or a
natural right within the meaning of Article
19 of the Constitution of India; as for the
purpose of regulating the exercise of right
of freedom guaranteed under Articles
19(1)(a) to (e) and (g) a law must be made.

30. In Kharak Singh v. State of
U.P. [AIR 1963 SC 1295 : (1963) 2 Cri LJ
329] this Court held: (AIR p. 1299, para 5)

"Though learned counsel for the
respondent started by attempting such a
justification by invoking Section 12 of the
Indian Police Act he gave this up and
conceded that the regulations contained in
Chapter XX had no such statutory basis but
were merely executive or departmental
instructions framed for the guidance of the
police officers. They would not therefore be
'a law' which the State is entitled to make
under the relevant clauses (2) to (6) of
Article 19 in order to regulate or curtail
fundamental rights guaranteed by the
several sub-clauses of Article 19(1), nor
would the same be 'a procedure established
by law' within Article 21. The position
therefore is that if the action of the police
which is the arm of the executive of the
State is found to infringe any of the
freedoms guaranteed to the petitioner the
petitioner would be entitled to the relief of
mandamus which he seeks, to restrain the
State from taking action under the
regulations."

31. To the same effect are the
decisions of this Court in State of M.P. v.
Thakur Bharat Singh [AIR 1967 SC
1170] and Bijoe Emmanuel v. State of
Kerala [(1986) 3 SCC 615] ."

25. In view of the judgments of the
Supreme Court, the Rules as framed by
the CBSE do not have any statutory
flavour and cannot be considered to be
the ''law' as required for placing a
reasonable restrictions on the rights
enshrined under Article 19(1)(a), in terms
of Article 19(2) of the Constitution of
India.
300 INDIAN LAW REPORTS ALLAHABAD SERIES

26. In any event, even for restricting
the scope of Article 19 (1) (a) by means of
any law, it is clear that the operation of
such law by the State imposing reasonable
restrictions should be in the interest of the
sovereignty and integrity of India, the
security of the State, friendly relations with
the Foreign States, public order, decency or
morality or in relation to contempt of court,
defamation or incitement of an offence.

27. In view of the law as pronounced
by the Supreme Court, it is clear that the
CBSE Regulations relied upon by the
respondents cannot be considered to be a
''law' as required under Article 19(2)
through which reasonable restrictions can
be imposed on the freedom of expression
guaranteed under Article 19 (1) (a). Thus, I
have no hesitation in holding that the right
of freedom of expression guaranteed to the
petitioner under Article 19 (1) (a), in the
present case freedom of expression through
change of name, cannot be denied to the
petitioner and he is entitled to change his
name.

28. It is further to be considered that
different name in different records will lead
to undue hardship to both the petitioner and
the respondents, as such to reconcile the
issue and the hardships that may be faced
by the CBSE in changing the name, as the
certificate issued by the earlier name has
already been issued to the petitioner, taking
a cue from the judgment in the case of
Rayaan Chawla (Supra), I direct that the
CBSE shall record in their records the
name of the petitioner as "Kabir Jaiswal
alisa/nee Rishu Jaiswal" in the records of
the CBSE and shall issue a fresh certificate
recording the name as directed above in
respect
of
the
Secondary
School
Examination of the academic sessions
2011-2013 Class-X bearing Roll No.
5118987 and the Senior School Certificate
Examination of the year 2015 i.e. Class-XII
bearing Roll No. 5653747. The said
exercise shall be carried out by the
respondents within a period of two months
from the date a copy of the order is
produced before the respondent no. 2.

29. The writ petition is allowed in
terms of the said order.

30. Copy of the order downloaded
from the official website of this Court shall
be treated as certified copy of this order.
----------
(2021)01ILR A300
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ C No. 19538 of 2020

Hindustan
Aeronautics
Ltd.
Transport
Aircraft Division Chakeri, Kanpur Nagar
 ...Petitioner
Versus
State of UP & Ors. ...Respondents

Counsel for the Petitioner:
Sri Diptiman Singh

Counsel for the Respondents:
C.S.C.

(A) Labour Law - Industrial Disputes
Act, 1947 - Section 10(1)(c) - U.P.
Industrial
Disputes
Act,
1947
-
Section 4-K - reference - no principle
known to law which permits an
administrative
review
of
judicial
action - law envisages judicial review
of administrative action, and in some
cases, legislative action also - Judicial
orders can be undone by invoking the