The Supreme Court, in a judgment delivered on Thursday, issued guidelines for the Central Board of Secondary Education to process the applications for correction or change in the certificates issued by it.
The bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari issued these directives while disposing a batch of appeals questioning the bye law restrictions relating to correction/change in name/surname/date of birth of candidates or their parents in the certificates issued by the Board.
The court also directed the CBSE to take immediate steps to amend its Byelaws so as to incorporate these guidelines for recording correction or change in the certificates already issued or to be issued by it.
Where the incumbent wants "correction" in the certificate issued by the CBSE to be made consistent with the particulars mentioned in the school records
The Court said that 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, as we have held, would be unreasonable and excessive. We repeat that 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.
Request for "change" of particulars in the certificate issued by the CBSE
In this situation, the court said that 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.", it said.
(a) Reverting to the first category, as noted earlier, 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).
(b) 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 130 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.
Following are some of the important observations made in the judgment
Name is an intrinsic element of identity
1. "What's in a name? that which we call a rose by any other name would smell as sweet", said Juliet. This quote from William Shakespeare's "Romeo and Juliet" is unarguably one of the most iconic dialogues in classical literature. It conveys that the natural characteristics of an individual are more important than his/her artificial/acquired characteristics. A poetic statement as it certainly is, it does not go in tune with the significance of a name in marking the identity of an individual in his/her societal transactions. To put it differently, name is an intrinsic element of identity
Byelaws of the Board have the force of law and must be regarded as such for all legal purposes.
109. 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 as we have seen in the present batch of petitions.110. 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.
CBSE Board is a State and Functions performed by it are public functions
The court also rejected the argument that Byelaws of the Board are contractual elements as CBSE is a registered society unbacked by a statute for the following reasons
112– 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, as already observed.
The court added that even if it held that 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 Part III.
Case: Jigya Yadav vs. C.B.S.E.
Coram: Justices AM Khanwilkar, BR Gavai and Krishna Murari i
Citation: LL 2021 SC 264