Prof Ashok Swain to delete ‘some objectionable tweets’ after Delhi HC says it could ‘undermine constitutional apparatus’

Swain’s submission came during the course of the hearing after Justice Sachin Datta observed, “From a perusal of the tweets of the petitioner (Swain), as produced by the respondents (authorities), 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. 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,” the order stated.

On March 28, the high court set aside a July 2023 order cancelling the professor’s OCI registration and also set aside the procedure followed by the authorities to issue the cancellation. This was the second time the high court set aside an order of OCI cancellation for Swain. On July 10, 2023, too it had set aside an order of February 8, 2022, cancelling his OCI status.

Justice Datta took into consideration the law laid down in a verdict by the Delhi High Court in November 2024 while setting aside the cancellation of OCI registration as well as the blacklisting of a Kashmir-origin US national.

The high court had held in November that “striking a balance between individual rights and national security is essential”, and had ruled that for any cancellation order to withstand judicial scrutiny, “it must not only be grounded in specific, reasonable grounds but must also reflect a process that meets both substantive and procedural reasonableness…an order to cancel OCI registration must transparently reflect both the grounds for cancellation and a fair decision-making process.”

Noting that the July 30, 2023, cancellation order and the procedure followed by the authorities, “does not meet the statutory requirements as set out in the proviso to Section 7-D of the Citizenship Act, 1955 as interpreted by this Court in Khalid Jahagir (supra),” Justice Datta reiterated in its order that “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.”

Section 7D of the Citizenship Act affords a person the right to be heard before the cancellation of their OCI status.

The court granted the authorities liberty to issue a fresh show-cause notice to Swain, indicating the allegations against him and providing relevant materials/writings to Swain, “thus, enabling him to present his explanation, if any.”

Swain was granted Swedish citizenship in 2006 and he received OCI status in January 2020. On November 6, 2020, he received a show-cause notice from the Embassy of India to Sweden and Latvia, notifying that his OCI card was liable to be cancelled as he had been indulging in inflammatory speeches and anti-India activities. After Swain’s reply to the notice, nearly a year and a half later, on February 8, 2022, his OCI card was cancelled. According to the professor, the cancellation order was “bereft of any substantial basis/reasons” and was passed without providing him with an opportunity of hearing.

He then moved the Delhi High Court which set aside the Centre’s order cancelling the OCI registration on July 10, 2023. The court had observed then: “Other than repeating the Section (7D (e) of the Citizenship Act) as a mantra, no reason has been given in the order as to why the registration of the Petitioner as an OCI card holder has been revoked.”

The court had directed to pass a detailed order with reasons for exercising powers under section 7D(e) of the Act. The provision allows the Centre to cancel OCI registration “in the interests of the sovereignty and integrity of India.”

On July 30, 2023, the Indian Embassy again passed an order cancelling his OCI registration, alleging that Swain “defamed India on social media platforms by carrying out detrimental propaganda through his writings and speeches in various public forums”. He then challenged it again before the high court on the ground that he was not provided with any substantial material for the said allegations.