Delhi High Court Sets Aside Centre's Order Cancelling Academic Ashok Swain's OCI Card

The Delhi High Court on Friday (March 28) set aside an order issued by the Central Government cancelling the OCI card of academic and writer Ashok Swain.

Justice Sachin Datta said that the concerned authority would be at liberty to pass a fresg order as it thinks fit after considering the reply or explanation, if any, furnished by Swain.

”Needless to say, once such an order is passed, the petitioner would be entitled to avail statutory remedies as provided under Section 15 or 15A of the Citizenship Act, 1955,” the Court said.

The plea contended that Swain cannot be witch-hunted for his views on current government or its policies.

Justice Datta said that even though Swain's tweets, prima facie, undermine the constitutional apparatus and legitimacy of the Indian State itself, but the authorities must grant him an effective opportunity to furnish an explanation or to take remedial steps.

“From a perusal of the tweets of the petitioner, as produced by the respondents, it does appear, prima facie, that some of the tweets of the petitioner contain objectionable insinuations, and can be construed as undermining the constitutional apparatus and legitimacy of the Indian State itself. Some of the tweets also contain a disparaging reference to the Indian armed forces and law enforcement agencies,” the Court said.

“Notwithstanding however, it is still incumbent on the concerned authorities to afford an effective and real opportunity to the petitioner to furnish an explanation and/or take remedial steps,” it added.

As Swain's counsel said that some of the tweets in question will be deleted, the Court said that all such are the aspects that are required to be gone into by the concerned authorities while considering the matter in consonance with procedural and substantive requirements.

Justice Datta said that there is a statutory proscription from cancelling of registration as an OCI cardholder unless the concerned OCI cardholder has been given “reasonable opportunity of being heard”. 

As such, the principles of natural justice have been embedded and made part of the statutory procedure envisaged for cancelling the registration of an OCI cardholder, the Court said.

“The pendency of a review under Section 15 of the Citizenship Act, 1955 read with Rule 42 of the Citizenship Rules, 2009, does not come in the way of the aforesaid directions inasmuch as it is incumbent on the authorities, in the first instance, to comply with the necessary statutory requirements before passing an order under Section 7-D(e) of the Citizenship Act, 1955,” it added.

The impugned order was passed on July 30, 2023, after a coordinate bench on July 10, 2023, had quashed an earlier similar order cancelling Swain's OCI card.

While doing so, the Court had asked the Central Government to pass a detailed order giving reasons for exercising its powers under Section 7D(e) of the Citizenship Act, 1955.

In his subsequent petition, Swain had said that despite “specific and unequivocal directions” of the court to pass a detailed order, the Embassy of India to Sweden & Latvia passed the the fresh order in a “callous manner” by merely para-phrasing the provisions of law.

“The Petitioner has an ailing mother aged about 78 years who is suffering from various medical ailments including Diabetes, High Blood Pressure and other age-related ailments. The Petitioner is the only son, and has not been to India in the past 3 years. Thus, there is an extreme urgency for him to visit India and attend to his ailing mother,” the plea filed by advocate Aadil Singh Boparai said. 

Swain had also said that he is a well-known academic and researcher, and that being an Academician, he analyses and criticises certain policies of the present government.

“He cannot be made to suffer for his views on the policies of the government. As a scholar it his role in the society to discuss and critique the policies of Government through his work. The Petitioner cannot be witch-hunted for his views on the political dispensation of the current government or their policies. Criticism of certain policies of the government would not amount to being an inflammatory speech or an Anti-India activity,” the plea added.

The Embassy of India to Sweden and Latvia on February 8 last year year cancelled Swain's OCI Card under Section 7D(e) of the Citizenship Act.

Case Title: Ashow Swain v. Union of India & Ors 

Citation: 2025 LiveLaw (Del) 379

Click here to read order