HC sets aside Centre's order cancelling OCI card of academic Ashok Swain

New Delhi: The Delhi High Court on Monday set aside an order of the Centre by which the Overseas Citizenship of India (OCI) card of academic Ashok Swain was cancelled.

The court said the February 8, 2022 order of the Central government does not give any reasons and it "hardly gave any indication of application of mind".

"Other than repeating the Section (under which the OCI card was cancelled) as a mantra, no reason is given in the order as to why the registration of the petitioner as a OCI card holder has been revoked," Justice Subramonium Prasad said.

The high court passed the order on a petition by Swain, a resident of Sweden, against the cancellation of his OCI card.  It directed the Centre to pass a detailed order within three weeks giving reasons for exercising its powers under the Citizenship Act, 1955.

"The impugned order is set aside. Respondents (Centre) are directed to complete the exercise within three weeks," the high court said.

In his plea, the petitioner –- Professor and head of department at the Department of Peace and Conflict Research, Uppsala University in Sweden -- said that pursuant to a show-cause notice issued in 2020, his OCI card was arbitrarily barred on the alleged premise that he was indulging in inflammatory speeches and anti-India activities.

Subsequently, on February 8, 2022, the authorities arbitrarily cancelled the OCI card without giving a fair and just opportunity to the petitioner, in violation of his Right to free movement, the plea claimed.

During the hearing on Monday, the judge observed that the Centre's February 2022 order was "hardly an order" and asked the authorities to pass a reasoned order.

The counsel for the Centre submitted that the agencies had got an information and on perusing the documents, this order was passed.

"Where are the reasons for not finding the explanation (of the petitioner) satisfactory? You pass a reasoned order," the judge said.

The high court had on December 8, 2022, issued notice and granted time to the Centre to state its stand.

The petitioner has emphasised that as a scholar, it is his role to discuss and critique government policies but he has never engaged in any inflammatory speech or anti-India activities and the cancellation order was passed without giving him an opportunity to rebut the allegations or supplying him material on the basis of which proceedings were initiated.

The plea alleged that the cancellation order is ex-facie illegal, arbitrary and non-est in law, besides being non-speaking and unreasoned and the petitioner cannot be “witch-hunted for his views on the political dispensation of the current government or their policies”.

“The petitioner has never engaged in any inflammatory speech or anti-India activities. As a scholar it is his role in society to discuss and critique the policies of the government through his work. Being an academician, he analyses and criticises certain policies of the present government, mere criticism of the policies of the current ruling dispensation shall not tantamount to anti-India activities under Section 7D(e) of the Citizenship Act, 1955,” said the plea filed through lawyer Aaadil Singh Boparai said.

“He cannot be made to suffer for his views on the policies of the government.... 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,” it submitted.

The petitioner said he has not visited India for the past two years and nine months and there is extreme urgency in the matter as he has to visit India and attend to his ailing mother.

“The impugned (cancellation) order was passed without giving the petitioner an opportunity to rebut the allegations made against him. He was not even supplied with the material on the basis of which impugned proceedings were initiated qua the petitioner. Thereby violating the principles of natural justice” the plea said.

It further informed that the petitioner filed a revision application before the authorities against the cancellation order but he has not received any communication regarding the status of the same.