Delhi High Court refuses to expunge observations on 'objectionable' posts by academician Ashok Swain

New Delhi: The Delhi High Court on Wednesday refused to entertain a plea by academician Ashok Swain seeking to expunge certain observations made by a single judge while dealing with his petition against the cancellation of his Overseas Citizenship of India (OCI) card.

Swain, an India-born Swedish academician, said he was aggrieved by the single judge's observation that it prima facie appeared that some of the tweets of the petitioner contained "objectionable" insinuations and can be construed as undermining the constitutional apparatus and legitimacy of the Indian state itself.

A bench of Chief Justice D K Upadhayaya and Justice Tushar Rao Gedela said the single judge has already clarified in his March 28 judgment that the order should not be construed as an expression of its opinion on the merits of the allegations against Swain, or to assess if the allegations were sufficient to revoke his OCI card.

Perusing the single judge's verdict, which set aside the Centre's order to cancel Swain's OCI card, the division bench said those were not the findings but only a prima facie opinion of the single judge.

As the court was not inclined to entertain the appeal, Swain's counsel sought the liberty to withdraw the plea, which was allowed.

"The appeal is dismissed as withdrawn," the bench said.

On March 28, the single judge set aside the Centre's July 30, 2023, order cancelling the OCI card of Swain and said the authorities were at their liberty to issue a fresh show-cause notice.

Swain approached the division bench seeking to expunge the single judge's observations that "some of the tweets (of Swain) also contain a disparaging reference to the Indian armed forces and law enforcement agencies".

The bench said the single judge's order clarified everything and if required, Swain could approach the court concerned seeking to expunge the remarks.

The single judge also noted the submission of Swain's counsel that he will proceed to delete some of the objectionable tweets.

Swain, who said a "non-speaking" order was passed by the Centre, argued before the single judge that his 78-year-old mother, who lived in India, was unwell and despite being the only son, he hadn't been able to visit India in the past three years.

"Although, it is the alleged case of the respondent (Centre) that the petitioner (Swain) was blacklisted for anti-India activities for allegedly spreading detrimental propaganda through his writings and speeches in various public fora, the impugned order is bereft of any particular incidence/tweet/writing or reason, which remotely demonstrates the contention of the respondent No. 3 (Embassy of India to Sweden and Latvia)," the plea said.

The July 30, 2023, order, the plea claimed, did not pass the muster of a well-reasoned order for it failed to disclose material justifying the cancellation of the petitioner's OCI card.

Swain said being an academician, he analysed and criticised certain policies of the present government and that he couldn't be made to suffer for his views on them.

"Criticism of certain policies of the government would not amount to being an inflammatory speech or an anti-India activity," the petition said.

Swain, professor and head of the department of peace and conflict research at Uppsala University, Sweden, earlier moved the high court challenging the cancellation of his OCI card through a February 8, 2022, order of the Central government.

The high court on July 10, 2023, set aside the government's order, saying it did not give reasons and "hardly gave any indication of application of mind".

The high court directed the Centre to pass a detailed order within three weeks, giving reasons for exercising its powers under the Citizenship Act, 1955.

The petition said despite such specific and unequivocal directions of the high court to pass a detailed order, the authorities padded the July 30, 2023, order in a "callous" manner by merely paraphrasing the provisions of the law.