Madras High Court
S.Manicka Pradeepa vs The Commissioner on 8 June, 2023
W.P(MD)No.5759 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P(MD)No.5759 of 2023
S.Manicka Pradeepa ... Petitioner
Vs.
1.The Commissioner
Madurai Corporation,
Madurai.
2.The Registrar,
Birth and Death,
Madurai Corporation,
Madurai.
3.The Municipal Welfare Officer,
Madurai Corporation,
Madurai. ... Respondents
1/15
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W.P(MD)No.5759 of 2023
PRAYER : Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus to call for the
records pertaining to the impugned order passed by the 3rd respondent in
Letter No.H5/03535/2022 dated 08.03.2023 and quash the same as
illegal and direct the respondents to enter the petitioner's boy child name
as "K.Amuthan" (instead of the erstwhile name K. Sai Sharvanesh) as
per the publication made in the Tamil Nadu Government Gazette Part VI
- Section 4 dated 07.09.2022 in the register of birth and issue birth
certificate to the petitioner's boy child as K.Amuthan.
For Petitioner : Mr.K.Dinesh
For Respondents : Mr.S.Vinayak,
Standing Counsel
ORDER
The Writ Petition has been filed in the nature of a
Certiorarified Mandamus seeking interference with an order, dated
08.03.2023 in Letter No.H5/03535/2022 and direct the respondents /
Commissioner, Madurai Corporation, Madurai, The Registrar, Birth and
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Death, Madurai Corporation, Madurai and Municipal Welfare Officer,
Madurai Corporation, Madurai, to change the name of the child of the
petitioner as K.Amuthan instead of K.Sai Sharvanesh. The petitioner had
also made necessary publication in the Tamil Nadu Government Gazette
Part VI-Section 4, on 07.09.2022.
2. In the impugned order, it had been stated that under Rule
11 of the Tamil Nadu Registration of Birth and Death Rules, 2000, only
clerical errors can be corrected but the name cannot be changed.
3. The learned Standing Counsel for the respondents stated
that the petitioner can always have the original birth certificate and also
tag the Government Gazette and use it for all purposes.
4. My attention has been drawn by the learned counsel for
the petitioner to a Division Bench judgment of this Court reported in
2016-3-L.W.-863, The Commissioner, Pallavaram Municipality Vs.
SK.Syed Rafiullah and others in a writ appeal (W.A.No.670 of 2016),
wherein, a direction was issued to record the change in the name. The
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W.P(MD)No.5759 of 2023
Division Bench, however, had ordered as follows :
"2. By impugned order, the learned Single
Judge allowed the writ petition and thereby the order
passed by the appellant was quashed and the
appellant was directed to issue Birth Certificate to the
son of the first respondent herein, who was born on
1.11.2012 and correct the same as R.Amanullah as
per the publication made in the Government Gazette
dated 9.10.2013, within a period of three weeks. This
order is under challenge on the ground that as per
Section 15 of the Registration of Births and Deaths
Act, 1969, no such correction can be made, etc.
3. Under Section 15 of the abovesaid Act, what
is contemplated is that if it is proved to the
satisfaction of the Registrar that any entry of a birth
or death in any register kept by him under the Act is
erroneous in form or substance, or has been
fraudulently or improperly made, he may, subject to
such rules as may be made by the State Government
with respect to the conditions on which and the
circumstances in which such entries may be corrected
or cancelled, correct the error or cancel the entry by
suitable entry in the margin, without any alternation
of the original entry, and shall sign the marginal entry
and add thereto the date of the correction or
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W.P(MD)No.5759 of 2023
cancellation. The above section provides the
procedure to be followed by the Registrar on such
application being made. He is vested with the power
to correct the error or cancel the entry by suitable
entry in the margin, without any alternation of the
original entry, and shall sign the marginal entry and
add thereto the date of the correction or cancellation.
It does not necessarily mean that the entry cannot be
made by way of alteration. What is contemplated is
that in the place of entries being made, on satisfaction
of the Registrar, he can only make a marginal entry
and not alter the original entry.
4. Anyhow, it is not even a question of change
or alteration of date of birth or death. It is only the
change of name of the minor child based on a
publication in the Government Gazette. Therefore, the
Officer concerned is duty bound to change the name
and issue the Birth Certificate afresh and it will not
be in violation of section 15 of the abovesaid Act. As
such, we do not find any merit in the appeal filed by
the Commissioner of Pallavaram Municipality and
the same is dismissed.
5. Accordingly, the writ appeal is dismissed.
The appellant-Commissioner of Pallavaram
Municipality is to do the needful as directed by the
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learned Single Judge within a period of fifteen days
from today and issue the Birth Certificate afresh after
changing the name and retaining the same date of
birth as mentioned in the original entry. No costs.
The connected miscellaneous petition is also
dismissed."
5. This reasoning of the Division Bench is binding on the
Court. The learned Standing Counsel for the respondents, however,
stated that the Rule 11 stated above had not been brought to the notice of
the Division Bench, and therefore, stated that when there is no ambiguity
in the legislation, there is no scope for the Court to take upon itself the
task of amending or altering the statutory provisions. It had been stated
that this principle of construction relates to casus omissus. I would
certainly agree with the learned counsel for the respondents but the
judgment of the Division Bench states on the face of this Court and it is
binding.
6. The learned counsel for the petitioner also brought to the
notice of this Court, a judgment of the Allahabad High Court, in Neutral
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Citation No.-2023:AHC:121065, dated 25.05.2023 in Writ -C Nos.3671
of 2022 and 14043 of 2023, very recently delivered, wherein, it had been
stated that the right to change the name, is a right vested in every
individual. There had been references to judgments rendered by various
Courts and let me extract paragraph Nos.24 to 29 of the judgment of the
Hon'ble Allahabhad High Court which are as follows :
"24. Kerala High Court in Kashish Gupta Vs.
Central Board of Secondary Education and others,
brought the right to a name within the scope of Article
19(1)(a) and Article 21 of the Constitution of India by
holding:
“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
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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.”
25. Similarly Delhi High Court in Rayaan Chawla Vs.
University of Delhi and another11 set its face against
adopting a technical approach to the issue of change of
name and expounded the law as under:
“14. Hence, the aforesaid judgment has clearly
stated that to have a name and to express the
same in the manner he wishes, is a part of the
right to freedom of speech and expression under
Article 19(1) (a) as well as right to liberty under
Article 21 of the Constitution of India. It cannot
be denied that the right to change a name is a
protected right and the petitioner would normally
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W.P(MD)No.5759 of 2023
be not denied the said right on technical issues.”
26. The Supreme Court in Jigya Yadav Vs. CBSE12 , held
that “name is an intrinsic element of identity”. The nexus
of name and identity, and the freedom to express one’s
identity in the manner of one’s preference was thus
expounded in Jigya Yadav (Supra):
“125. Identity, therefore, 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
recognised 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. In light of Navtej Singh Johar [Navtej
Singh Johar v. Union of India, (2018) 10 SCC 1 :
(2019) 1 SCC (Cri) 1] , 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.
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126. Having recognised the existence of this
right, the essential question pertains to the rights
that flow due to the change of name. The question
becomes vital because identity, as stated above, is a
combination of diverse set of elements. Navtej Singh
Johar [Navtej Singh Johar v. Union of India, (2018)
10 SCC 1 : (2019) 1 SCC (Cri) 1] dealt with
“natural identity” and here we are dealing with
name, which can only be perceived as an “acquired
identity”. Therefore, the precise scope of right and
extent of restrictions could only be determined upon
deeper examination.
127. To begin with, it is important to explain
what we understand by this right to change of name
as a constituent element of freedom of expression of
identity. 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. Afterall, in social sphere, an individual is
not only recognised by how an individual identifies
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oneself but also by how his/her official records
records introduce the person by his/her name and
other relevant particulars.”
27. Bhatia, J. in Rashmi Srivastava Vs. State of U.P.
and another13 reaffirmed the right to change the name as a
facet of the fundamental right guaranteed under Article
19(1)(a) of the Constitution of India.
28. The United Nations Human Rights Committee in
Coeriel and Aurik v. The Netherlands14 acknowledged that
name is an indispensable component of a person’s identity
and it falls within the realm of right to privacy by holding
thus:
“10.2….The Committee is of the view that
a person's surname constitutes an important
component of one's identity and that the
protection against arbitrary or unlawful
interference with one's privacy includes the
protection against arbitrary or unlawful
interference with the right to choose and change
one's own name………The question arises
whether the refusal of the authorities to recognize
a change of surname is also beyond the threshold
of permissible interference within the meaning of
article 17.
10.5. In the present case, the authors'
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request for recognition of the change of their
first names to Hindu names in order to pursue
their religious studies had been granted in 1986.
The State party based its refusal of the request
also to change their surnames on the grounds
that the authors had not shown that the changes
sought were essential to pursue their studies,
that the names had religious connotations and
that they were not 'Dutch sounding'. The
Committee finds the grounds for so limiting the
authors' rights under article 17 not to be
reasonable. In the circumstances of the instant
case the refusal of the authors' request was
therefore arbitrary within the meaning of article
17, paragraph 1, of the Covenant.”
29. A similar view was taken by the United Nations Human
Rights Committee in Raihman v. Latvia15, and by the Court
of Justice of the European Community in Standesamt Stadt
Niebüll."
7. In view of the judicial pronouncements made, it is only
appropriate that this Court maintains consistency with the views
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expressed. The respondents will have to get necessary clarification of
the Division Bench order in the first place and if only that this done, this
Court take an alternate view.
8. In view of these reasons, the Writ Petition stands allowed.
The impugned order is set aside. A direction is given to the respondents
to carry out necessary alteration in the Birth Certificate within a period
of four weeks from the date of receipt of a copy of this order. No costs.
08.06.2023
Index :Yes/No
Internet :Yes/No
NCC : Yes / No
RM
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W.P(MD)No.5759 of 2023
To
1.The Commissioner
Madurai Corporation,
Madurai.
2.The Registrar,
Birth and Death,
Madurai Corporation,
Madurai.
3.The Municipal Welfare Officer,
Madurai Corporation,
Madurai.
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W.P(MD)No.5759 of 2023
C.V.KARTHIKEYAN, J.
RM
W.P(MD)No.5759 of 2023
08.06.2023
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