Delhi High Court
Ashok Swain vs Union Of India & Ors. on 28 March, 2025
Author: Sachin Datta
Bench: Sachin Datta
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment pronounced on: 28.03.2025
+ W.P.(C) 11928/2023
ASHOK SWAIN .....Petitioner
Through: Mr. Aadil Singh Boparai,
Mr. Gurveer Lally, Mr. Abhishek
Dubey and Mr. Sachin Kumar,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Shiva Lakshmi, CGSC along
with Mr. Govind Sharma, Advocate
for UOI.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
Factual Background and Submissions of Respective Counsel
1. The present petition has been filed by the petitioner assailing the order
dated 30.07.2023 passed by the respondent no.3/Second Secretary
(Consular), Embassy of India, Stockholm, whereby, the petitioner’s
registration as Overseas Citizenship of India (‘OCI’) Cardholder has been
sought to be cancelled.
2. It is the case of the petitioner that the said order is a non-speaking
order, devoid of any reason to exercise the powers under Section 7-D(e) of
the Citizenship Act, 1955, and as such cannot withstand the scrutiny of law.
It is further averred in the petition that even though the petitioner has been
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ostensibly blacklisted for anti-India activities and/or spreading detrimental
propaganda through his writings and speeches in various public forums, the
impugned order is bereft of any specific details as regard thereto.
3. It is emphasized in the petition that the petitioner is a renowned
scholar and has been serving as the Professor and Head of Department of the
Peace and Conflict Research, Uppsala University, Sweden. It is stated that
the petitioner became the first UNESCO Chair of Uppsala University, since
his appointment in 2017 as the Chair on International Water Cooperation.
Furthermore, the petitioner had been granted citizenship by the Government
of Sweden in 2006.
4. It is averred that in his writings/tweets, the petitioner has analyzed and
criticized certain policies of the Government, however, mere critique of the
policies of the Government shall not tantamount to anti-India activities
under Section 7-D(e) of the Citizenship Act, 1955.
5. A notice dated 06.11.2020 came to be initially issued by First
Secretary (Consular), Embassy of India to Sweden & Latvia (respondent
no.3) which required the petitioner to show cause as to why his registration
as an OCI Cardholder be not cancelled on the ground of having indulged in
“inflammatory speeches and anti-India activities”. The petitioner was asked
to submit his version of the facts with supporting documents, if any, to the
Indian Mission at Stockholm within 21 days from the date of receipt of this
notice. Pursuant thereto, a reply to the said show cause notice was sent by
the petitioner on 25.11.2020, inter alia, stating as under :-
“Thus, it will be only possible for me to reply to the Show Cause Notice if
you can kindly provide me the specific speech and alleged activity which
you allege to be “Inflammatory speeches” and “anti-India activities”,
along with the documents/ evidence complained of.
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Otherwise, as a continuation of the above-humble submission, it is
requested that the Show Cause Notice may kindly be withdrawn and to
allow me to visit my old and ailing mother who lives alone and relies on
my support, as well as my parents-in-law in India.”
6. Subsequently, an OCI Cancellation Order dated 08.02.2022 was
issued by the respondent no.3 / Counsellor (Consultant & Culture), Embassy
of India in Stockholm, stating as under :-
“OCI Cancellation Order
This is with reference to your letter dated 26 November 2020
addressed to the undersigned containing your response to the Show
Cause Notice dated 6 November 2020 issued by this Embassy regarding
the cancellation of the Overseas Citizen of India (OCI) card issued to
you.
The said reply has been examined by the authorities concerned in
the Government of India. This is to convey that your reply to the Show
Cause Notice has not been found satisfactory.
Therefore, in exercise of powers conferred under the Section 7D(e)
of the Citizenship Act, 1955, the Government of India through the Indian
Embassy in Stockholm, hereby cancel the registration as OCI cardholder
granted to Mr. Ashok Swain with immediate effect.
Accordingly, in terms of rule 35(1) of the Citizenship Rules, 2009,
you are hereby directed to deliver the OCI Card bearing number
A3774535 to the undersigned within 15 days from the date of receipt of
this letter failing which it shall be treated as cancelled under Rules, 35(2)
of the Citizenship Rules, 2009 after expiry of 15 days from the date of
receipt of this letter.”
7. A writ petition bearing W.P.(C) 16823/2022 came to be filed by the
petitioner assailing the said order dated 08.02.2022. The same was disposed
of by this Court vide order dated 10.07.2023, inter alia, holding as under :-
“3. Other than repeating the Section 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. It is well settled that reasons act as a
link between the actual decision and the thought process of the decision
maker. Reasons in an order demonstrates that the order is not a result
of caprice, whims or fancies and has been arrived at after consideringSignature Not Verified
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the facts and it reflects and establishes that the decision was just.
Therefore, the Respondents are directed to pass a detailed order giving
reasons for exercising powers under Section 7(D)(e) of the Citizenship
Act.
4. In view of the above, the impugned Order is set aside. The
Respondents are directed to complete the exercise within three weeks
from today.
5. It is made clear that this Court has not expressed any opinion on the
merits of the case.”
8. In the counter-affidavit filed on behalf of the respondents in the
present petition, it has been averred that in compliance with the aforesaid
order dated 10.07.2023 in W.P.(C) 16823/2022, a revised and detailed order
dated 30.07.2023 has been issued, cancelling the petitioner’s registration as
an OCI cardholder. The said order reads as under:-
”
No. STO/CONS/406/6/20 30 July 2023
ORDER
WHEREAS, Mr. Ashok Swain, a Swedish national (Swedish
passport no.91560307), had applied for grant of registration as an OCI
cardholder at the Embassy of India in Stockholm on 05/12/2019.
AND WHEREAS, such registration as OCI cardholder was
granted to Mr. Ashok Swain by the Embassy of India in Stockholm and
an OCI Card bearing No. A3774535 was issued to him on 14/01/2020.
AND WHEREAS, it had been brought to the notice of the
Government of India by security agencies that Mr. Ashok Swain has been
blacklisted for anti-India activities like spreading detrimental
propaganda through his writings and speeches in various public forums.
Mr. Ashok Swain has been found to be involved in hurting religious
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and attempting to destabilize the social fabric of India. These activities
are deemed to be inimical to India’s sovereignty, security and integrity
and against public interest.
AND WHEREAS, Mr. Ashok Swain has been posting tweets
regularly on his twitter account https://twitter.com/ashoswai, which is in
public domain. He has defamed India on social media platforms by
carrying out detrimental propaganda through his writing and speeches in
various public forums thereby damaging India’s image and its public
institutions at international level.
AND WHEREAS, Fundamental Right to freedom of speech &
expression to move freely and settle in any part of the territory of India
as mentioned in Article 19(1)(a) and 19(1)(e) of the Constitution of India
are only applicable to citizens of India. Hon’ble Supreme Court of India
in the case of Louis De Raedt & Ors. vs. UOI and Ors. [1991 SCR (3)
149] had observed that the Fundamental Rights of foreigners are
confined to Article 21 of the Constitution of India for life and liberty only
and do not include the right to reside and settle in this country as
mentioned in Article 19(1)(e) of the Constitution, which is applicable
only to the citizens of this country. Mr. Ashok Swain, being a foreign
national, is not entitled to these fundamental rights under Constitution of
India.
AND WHEREAS, it was held by the Constitution Bench of
Hon’ble Supreme Court of India in the case Hans Mueller of Nurenburg
v Superintendent, Presidency Jail, Calcutta [1955 SCR (1) 1284: AIR
1955 SC 367 : 1955 Cri LJ 876], that the power of the Government of
India to expel foreigners conferred by section 3(2)(c) of the Foreigners
Act, 1946 is absolute and unlimited and there is no provision in the
Constitution of India fettering this discretion.
AND WHEREAS, the OCI Card is a lifelong visa granted to a
foreign national of Indian origin or their relatives. The grant of a Visa is
a plenary sovereign function of the Government of India. Foreign
nationals cannot claim visa services as a matter of right. Visa service is
meant only for those foreign nationals who intend to arrive/ stay/depart
in/from India legally and follow Indian laws and rules.
AND WHEREAS, after consideration of the facts and
circumstances in the matter, the Government of India through the Notice
No. STO/CONS/406/6/20 dated 06/11/2020 of Embassy of India,
Stockholm, served “Show Cause Notice” on Mr. Ashok Swain as to why
his registration as OCI cardholder should not be cancelled under section
7D(e) of The Citizenship Act, 1955.
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AND WHEREAS, Mr. Ashok Swain, vide letter dated
25/11/2020, had given reply to “Show Cause Notice” dated 06/11/2020.
AND WHEREAS, the reply of Mr. Ashok Swain has been
examined and the Government of India is satisfied that the actions of Mr.
Ashok Swain to spread detrimental propaganda through his writings and
speeches in various public forums and his actions have led to damage of
India’s image and institutions at international level. These actions are
deemed to be inimical to sovereignty, security and integrity of India and
also against public interest.
THEREFORE, Government of India is satisfied that it is
necessary to cancel Mr. Ashok Swain’s OCI card under Section 7 D (e) of
the Citizenship Act, 1955.
NOW THEREFORE, in exercise of its powers conferred under
the section 7D(e) of The Citizenship Act, 1955, the Government of India
through the Embassy of India, Stockholm, hereby cancels the registration
as OCI cardholder granted to Mr. Ashok Swain with immediate effect.
Accordingly, in terms of rule 35 (1) of the Citizenship Rules,
2009, Mr. Ashok Swain, a Swedish national, is hereby directed to deliver
the OCI Card bearing number A3774535 to the concerned authority in
Embassy of India, Stockholm within 15 days from the date of receipt of
this order, failing which it shall be treated as cancelled under Rule 35(2)
of the Citizenship Rules, 2009 after expiry of 15 days from date of receipt
of this order.
Sd/-
(Pawan Kumar)
Second Secretary (Consular)”
9. It is the case of the petitioner in the present petition that even the
above order dated 30.07.2023 is unsustainable inasmuch as the same has
been passed in a mechanical manner, merely on the strength of bald
averments that the petitioner has been spreading detrimental propaganda
through his writings.
10. It is contended that the said order is “a name-sake attempt at passing a
detailed order as directed by this Hon’ble Court vide order dated
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10.07.2023, and the same is bereft of any material particulars/ reasons to
believe that the activities of the petitioner are deemed to be inimical to
India’s sovereignty, security and integrity and against the public interest”.
11. It has also been averred in the present petition that 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. It is submitted that there is an extreme urgency for the
petitioner to visit India to tend to his ailing mother.
12. The petitioner is also stated to have filed a revision petition under
Section 15 of the Citizenship Act, 1955 read with Rule 42 of the Citizenship
Rules, 2009, before the respondent no.2 (Ministry of External Affairs)
assailing the order dated 08.02.2022. However, the said revision petition has
remained un-adjudicated by the respondent no.2.
13. Learned counsel for the respondents opposes the present petition
contending that:-
i. as per the section 7-D(e) of the Citizenship Act, 1955, the
Central Government may, by order, cancel the registration
granted under sub-section (1) of section 7-A, if it is satisfied
that it is necessary to do so in the interest of the sovereignty and
integrity of India, the security of India, friendly relations of
India with any foreign country, or in the interests of the general
public;
ii. the grant of a visa is a plenary sovereign function of the Central
Government and across the world, the matters concerning the
non-grant, rejection or cancellation of visas, are not justiciable.
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right, let alone a Fundamental Right and grant of a visa is a
privilege that any country grants to a foreigner. The said visa is
always subject to unilaterally imposed restrictions and remains
terminable unilaterally in case of a breach. In light of the same,
it is submitted that the present petition is not maintainable;
iii. relying upon Section 3 of the Foreigners Act, 1946, it is
contended that the Central Government has sovereign powers to
make any order regulating or restricting the entry of foreigners
into India or their departure therefrom;
iv. it is submitted that in terms of Section 2(a) of the Foreigners
Act, 1946, “Foreigner” is defined as under :-
“2(a) “foreigner” means a person who is not a citizen of India”
v. it is submitted that foreign nationals like the petitioner cannot
claim visa services from the Central Government or assert as a
matter of right that they have an individual right to come into
their country. Reliance in this regard is placed upon Mr. Louis
De Raedt. & Union of India and Ors., (1991) 3 SCC 554 and
Hans Mueller of Nurenburg v. Superintendent, Presidency
Jail, Calcutta, 1955 SCR (1) 1284: AIR 1955 SC 367.
vi. it is submitted that the cancellation of registration of an OCI
Cardholder can be resorted to as a matter of sovereign
discretion, which is exercisable on the basis of national/ public
interest, security concern, foreign relations etc. It is further
averred in the counter-affidavit that the Ministry of External
Affairs examined the activities of the petitioner in view of
reports received from security agencies, which revealed that the
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petitioner persistently and wilfully “indulged in writings and
inflammatory speeches that tarnished the image of the country
and its institutions in the eyes of international community
undermining the nation and hurting the interests of the country
and its people”.
14. Accordingly, the registration of the petitioner as an OCI Cardholder
was cancelled under Section 7D(e) of the Citizenship Act, 1955. It is
emphasized that in compliance with the directions of this Court vide order
dated 10.07.2023 in W.P.(C) 16823/2022, the respondent no.3 (Embassy of
India to Sweden & Latvia) passed an elaborate order dated 30.07.2023
(supra).
15. It is submitted by the learned counsel for the respondents that the
action of the respondents cannot be faulted and the present petition is liable
to be dismissed.
16. During the course of hearing, learned counsel for the respondents has
produced the relevant tweets/writings of the petitioner which have been
found to be objectionable. The same have been perused by the Court.
17. It is contended by the learned counsel for the respondents that a
perusal thereof clearly demonstrates that there is adequate justification for
the impugned order, by virtue of which, the petitioner’s registration as an
OCI Cardholder has been cancelled.
18. It is submitted that the nature of the tweets made by the petitioner is
such that the same can be said to be inimical to the interest of sovereignty,
integrity and security of India.
19. It is submitted that the writings of the petitioner are inflammatory in
nature and have the effect of tarnishing the image of the country and its
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institutions in the eyes of the international community, thus undermining the
national interest and also the public interest at large.
Reasoning and Findings
20. It is noticed that in terms of Section 7-B of the Citizenship Act, 1955,
read with notification dated 04.03.2021 issued in exercise of the powers
conferred by Section 7-B(1) of the Citizenship Act, 1955, certain vital rights
have been conferred on an OCI cardholder. In terms of the said notification,
the entitlements of an OCI cardholder are as under :-
“(1) grant of multiple entry lifelong visa for visiting India for any
purpose:
Provided that for undertaking the following activities, the OCI
cardholder shall be required to obtain a special permission or
a Special Permit, as the case may be, from the competent
authority or the Foreigners Regional Registration Officer or
the Indian Mission concerned, namely:-
(i) to undertake research;
(ii) to undertake any Missionary or Tabligh or Mountaineering or
Journalistic activities;
(iii) to undertake internship in any foreign Diplomatic Missions or
foreign Government organizations in India or to take up
employment in any foreign Diplomatic Missions in India;
(iv) to visit any place which falls within the Protected or
Restricted or prohibited areas as notified by the Central
Government or competent authority;
(2) exemption from registration with the Foreigners Regional
Registration Officer or Foreigners Registration Officer for
any length of stay in India:
Provided that the OCI cardholders who are normally resident
in India shall intimate the jurisdictional Foreigners Regional
Registration Officer or the Foreigners Registration Officer by
email whenever there is a change in permanent residentialSignature Not Verified
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address and in their occupation;
(3) parity with Indian nationals in the matter of,-
(i) tariffs in air fares in domestic sectors in India; and
(ii) entry fees to be charged for visiting national parks,
wildlife sanctuaries, the national monuments,
historical sites and museums in India;
(4) parity with Non-Resident Indians in the matter of,-
(i) inter-country adoption of Indian children subject to the
compliance of the procedure as laid down by the
competent authority for such adoption;
(ii) appearing for the all India entrance tests such as
National Eligibility cum Entrance Test, Joint Entrance
Examination (Mains), Joint Entrance Examination
(Advanced) or such other tests to make them eligible
for admission only against any Non-Resident Indian
seat or any supernumerary seat:
Provided that the OCI cardholder shall not be eligible
for admission against any seat reserved exclusively for
Indian citizens;
(iii) purchase or sale of immovable properties other than
agricultural land or farm house or plantation
property; and
(iv) pursuing the following professions in India as per the
provisions contained in the applicable relevant statutes
or Acts as the case may be, namely:-
(a) doctors, dentists, nurses and pharmacists;
(b) advocates;
(c) architects;
(d) chartered accountants;
(5) in respect of all other economic, financial and educational fields
not specified in this notification or the rights and privileges not covered
by the notifications made by the Reserve Bank of India under the
Foreign Exchange Management Act, 1999 (42 of 1999), the OCI
cardholder shall have the same rights and privileges as a foreigner.”
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21. It has been judicially recognised that an OCI cardholder benefits from
the privileges that elevate them above the ordinary foreign nationals,
aligning them, in many respects, with Indian Citizens.
22. The Supreme Court has also taken note of the special status of OCI
cardholders and has termed the right conferred on such OCI cardholders as a
“midway” right. In Anushka Rengunthwar v. Union of India, (2023) 11
SCC 209, it has been observed as under :-
“46. To put the matter in perspective and understand the concept based
on which the rights are being claimed by the petitioners, it is necessary
to advert to the fact situation and the law governing them despite being
classified as “foreigner”. Most of the petitioners are all persons who are
either of full age or are yet to reach the full age but are all children,
whose both parents or one of them are Indian citizens. In the changing
world and in an era where the concept of multinationals providing
employment to Indian citizens had increased, the incident of birth of the
children taking place in a country outside India had also increased. In
that circumstance, successive Governments had to bestow their attention
to this aspect of the matter to provide better rights to such persons, who,
though in the technical sense where “foreigners”, not being citizens of
this country, yet had a “connect” with this country. These were cases
where though the umbilical cord with the biological mother had snapped
in a foreign country, the umbilical connections with the country continue
to remain intact as the entire family including the grandparents would be
in India and the parents were Indian citizens in most cases. In that view,
having considered all these aspects of the matter, despite such persons
not having the benefit of citizenship as provided under Part II of the
Constitution through Articles 5 to 8 thereof and there being no scope for
dual citizenship, certain rights were created under the 1955 Act which
had come into force based on the provision in Article 11 of the
Constitution of India.
47. In that regard, in a concept where the “dual citizenship” was not
recognised, such persons as like that of the petitioners were considered
as Overseas Citizens of India cardholders as defined under Section 2(ee)
of the 1955 Act. The 1955 Act through Amendment Act 6 of 2004 brought
certain rights and through substitution of Sections 7-A to 7-D the manner
of registration of Overseas Citizen of India cardholder; renunciation of
citizenship and cancellation of registration were provided for. In the
cases, on hand, the fact that all the petitioners are registered as Overseas
Citizens of India cardholders is not in dispute. The right to which they
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which has been extracted and noted above. The right to education which
was conferred under the Notification dated 11-4-2005, in parity with the
non-resident Indians is due to the fact that the non-resident Indians
which is a separate class, had such right similar to that of the Indian
citizens in matters relating to education. It is based on such right being
conferred as far back as in the year 2005, the OCI cardholders were
taking part in the process of selections conducted for undertaking
educational courses in India. Such benefit was extended to appear for the
All India pre-medical test or such other tests to make them eligible for
admission in pursuance of the provisions contained in the relevant acts,
through the Notification dated 5-1-2009. The said benefit is being
enjoyed by all the OCI cardholders in the same manner as the non-
resident Indians were enjoying along with the Indian citizens. In that
circumstance, most of such OCI cardholders have been pursuing their
entire educational career in India.
* * *
54. As noted, the right of the OCI cardholders is a midway right in the
absence of dual citizenship. When a statutory right was conferred and
such right is being withdrawn through a notification, the process for
withdrawal is required to demonstrate that the action taken is reasonable
and has nexus to the purpose. It should not be arbitrary, without basis
and exercise of such power cannot be exercised unmindful of
consequences merely because it is a sovereign power. To examine this
aspect, in addition to the contentions urged by the learned Additional
Solicitor General we have also taken note of the objection statement filed
with the writ petition.”
23. It is also noticed that Section 7-D of the Citizenship Act, 1955,
contemplates grounds for cancellation of registration as an Overseas Citizen
of India Cardholder. The said provision reads as under :-
“7D. Cancellation of registration as Overseas Citizen of India
Cardholder .- The Central Government may, by order, cancel the
registration granted under sub-section (1) of section 7A, if it is satisfied
that-
(a) the registration as an Overseas Citizen of India Cardholder was
obtained by means of fraud, false representation or the
concealment of any material fact; or
(b) the Overseas Citizen of India Cardholder has shown disaffection
towards the Constitution, as by law established; orSignature Not Verified
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(c) the Overseas Citizen of India Cardholder has, during any war in
which India may be engaged, unlawfully traded or communicated
with an enemy or been engaged in, or associated with, any
business or commercial activity that was to his knowledge carried
on in such manner as to assist an enemy in that war; or
(d) the Overseas Citizen of India Cardholder has, within five years
after registration under sub-section (1) of section 7A, been
sentenced to imprisonment for a term of not less than two years; or(da) the Overseas Citizen of India Cardholder has violated any of the
provisions of this Act or provisions of any other law for time being
in force as may be specified by the Central Government in the
notification published in the Official Gazette; or
(e) it is necessary so to do in the interests of the sovereignty and
integrity of India, the security of India, friendly relations of India
with any foreign country, or in the interests of the general public;
or
(f) the marriage of an Overseas Citizen of India Cardholder, who has
obtained such Card under clause (d) of sub-section (1) of section
7A,-
(i) has been dissolved by a competent court of law or
otherwise; or
(ii) has not been dissolved but, during the subsistence of such
marriage, he has solemnised marriage with any other person:]
[Provided that no order under this section shall be passed unless
the Overseas Citizen of India Cardholder has been given a
reasonable opportunity of being heard.”
24. It can be seen 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.
25. The expression “reasonable opportunity of being heard” has been
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interpreted by the Supreme Court in a catena of cases.1 It is now well settled
that the same subsumes an effective opportunity to meet the relevant
allegations. Necessarily, the same also takes within its sweep the entitlement
to being informed about the material/ basis for taking the proposed action.
26. In the present case, in response to the show cause notice dated
06.11.2020, the petitioner specifically sought as under :-
“Thus, it will be only possible for me to reply to the Show Cause Notice if
you can kindly provide me the specific speech and alleged activity which
you allege to be “Inflammatory speeches” and “anti-India activities”,
along with the documents/ evidence complained of.
Otherwise, as a continuation of the above-humble submission, it is
requested that the Show Cause Notice may kindly be withdrawn and to
allow me to visit my old and ailing mother who lives alone and relies on
my support, as well as my parents-in-law in India.”
27. The record of the case reveals that the said documents/material sought
by the petitioner was not supplied to him.
28. Even in the aftermath of the order dated 10.07.2023 passed by this
Court, wherein this Court observed that the order dated 08.02.2022
1
State of Gujarat v. R.G. Teredesai and Another, (1969) 2 SCC 128; State of Orissa v. Binapani Dei
1967 SCC OnLine SC 15.
In State of Orissa v. Binapani Dei (supra), it has been held as under-
“12. …… It is true that the order is administrative in character, but even an administrative order
which involves civil consequences, as already stated, must be made consistently with the rules of
natural justice after informing the first respondent of the case of the State, the evidence in support
thereof and after giving an opportunity to the first respondent of being heard and meeting or
explaining the evidence. No such steps were admittedly taken, the High Court was, in our
judgment, right in setting aside the order of the State.”
In State of Gujarat v. R.G. Teredesai and Another (supra), it has been held as under –
“5. …… The entire object of supplying a copy of the report of the Enquiry Officer is to enable the
delinquent officer to satisfy the punishing authority that he is innocent of the charges framed
against him and that even if the charges are held to have been proved the punishment proposed to
be inflicted is unduly severe. …….”
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(whereby the registration of the petitioner as an OCI cardholder was
cancelled), referred to the statutory provision “only as a ‘mantra’ “, the
respondents did not take steps to supply the relevant material/document to
the petitioner so as to inform the petitioner of the allegations against him and
to enable the petitioner to submit his reply/defence dealing with the same.
The same is not in consonance with the dicta laid down by this Court in
Khalid Jahangir Qazi through his power of Attorney Holder Ms. Farida
Siddiqi v. Union of India through Secretary and Others and connected
matter, 2024 SCC OnLine Del 7847, wherein, it has been held by a co-
ordinate Bench of this Court as under :-
“49. Section 7-D of the Citizenship Act, as amended by the Citizenship
(Amendment) Act, 2019, introduced a significant procedural safeguard
by embedding the principles of natural justice into the cancellation
process for OCI card-holders. Effective from 10-1-2020, this amendment
added a crucial proviso to Section 7-D, mandating that no order to
cancel OCI registration shall be issued without first granting the card-
holder a reasonable opportunity to be heard. This right to a fair hearing
embodies the principles of natural justice, a concept has been long
recognised by the courts. In this context, the right to a “reasonable
opportunity of being heard” does more than merely allow a card-holder
to state their case; it mandates a level of transparency and specificity in
the grounds for cancellation. The Government is required to provide
clear reasons for the proposed action so that the OCI card-holder can
respond meaningfully, safeguarding the procedural fairness that
natural justice principles intend to protect.
50. Furthermore, Section 7-D begins with the mandate that the Central
Government must be “satisfied” that the grounds for cancellation are
justified. The term “satisfied” emphasises that a high standard of
decisional fairness is expected, where the reasons for cancellation are
explicit, allowing the card-holder a genuine opportunity to engage with
the basis for the action. Therefore, 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.
51. Consequently, the 2019 amendment’s requirement of a “reasonable
opportunity of being heard,” when read along with the requirement of
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transparently reflect both the grounds for cancellation and a fair
decision-making process. This combination of principles ensures that any
adverse action taken under Section 7-D must meet the test of
reasonableness and fairness. Therefore, the Government’s decision for
cancellation should be clear, justified, and procedurally sound and
apposite.
Reconciling the Citizenship Act and Foreigners Act: need for harmonious
construction
52. The Citizenship Act, particularly Section 7-D affords a right to be
heard before cancellation of OCI status. In contrast, under Section 3(2)
of the Foreigners Act does not mandate these procedural protections,
allowing for broad discretion in matters of national security or public
order. Although this does not present a direct conflict, certain areas do
create a need for a balanced interpretation to ensure coherence and
avoid incompatibility.”
29. In the said case, this Court has gone to the extent of saying that where
action under Section 7-D of the Citizenship Act, 1955 is proposed to be
taken simultaneously with action under Section 3(2) of the Foreigners Act,
1946 the principles of harmonious interpretation mandate that the procedural
safeguards under Section 7-D of the Citizenship Act, 1955 should also be
extended for the purpose of any action under Section 3 of the Foreigners
Act. It has been observed as under:-
“53. Since legislature has enacted two statutes covering related issues, it
is presumed that both are meant to co-exist. Such an interpretation is
necessary as both statutes address grounds like national security and
public interest as ground for restricting OCI card-holders to enter the
country. While the Citizenship Act provides a comprehensive regulatory
framework applicable to OCI card-holders, the Foreigners Act may still
apply in situations where a broader public interest requires uniform
treatment of all foreign nationals. As per our analysis, it emerges that
while the Foreigners Act applies to OCI card-holders, the Citizenship Act
confers on them a unique status with distinct rights and procedural
protections. Considering this, a harmonious interpretation is necessary
to enable the operation of both statutes alongside each other, upholding
the legislative intent of each legislation. Therefore, where the grounds
for blacklisting an OCI card-holder mirror those for cancellation
under Section 7-D of the Citizenship Act, the procedural safeguards
under Section 7-D should be extended to the blacklisting process. This
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Government should observe procedural fairness by allowing the OCI
card-holder an opportunity to respond when the grounds for blacklisting
are one of the grounds mentioned under Section 7-D. This interpretation
is in consonance with the legislative intent, and the object and reasons
behind the amendment of Citizenship Act, which recognises OCI card-
holders and grants them rights that set them apart from ordinary
foreigners.
54. If this safeguard in not applied, we would run the risk undermining
the very purpose of the OCI scheme, as it would enable authorities to
bypass the specific protections and privileges granted to OCI card-
holders by indiscriminately invoking the Foreigners Act. Such an
approach would conflict with the doctrine of non-retrogression–
principle of progressive realisation of rights and by discouraging any
regressive measures that undermine established rights–effectively
weakening the OCI framework by treating card-holders as ordinary
foreigners. Allowing the State to circumvent the safeguards embedded in
the OCI scheme would erode the privileges the legislature intended for
OCI card-holders, undermining both the purpose and object of the status
of OCI card-holders under the Citizenship Act, 1955, and rendering their
protections redundant. The result would be that an OCI card-holder,
though technically retaining their registration, would effectively be
prevented from exercising the rights afforded by that status. The long-
term visa rights conferred under the OCI scheme would, in effect, be
nullified without due process, denying the card-holder of the intended
benefits.”
30. In Ramesh Ganeriwal v. Union of India and Anr., 2017 SCC OnLine
Del 10082, it has been held by a co-ordinate Bench of this Court as under :-
“13. It is apparent from the above that the controversy involves two
principal questions. First, whether there is sufficient material to establish
the allegations of (i) encroachment of forest land; (ii) holding benami
property; and (iii) illegally acquired immovable property. And second,
whether such allegations, if established, would warrant cancellation of
petitioner’s OCI Card in the interest of the general public.
14. It is apparent from the above that although certain allegations had
been made against the petitioner, however, he had not been provided any
real opportunity to meet the same. The Show Cause Notice issued on
11.11.2014 was completely bereft of any specific details of “anti-
social/illegal activities”, thus, providing no opportunity to the petitioner
to provide any explanation with respect to the same. In the impugned
order passed on 13.01.2017, it was alleged for the first time, that theSignature Not Verified
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petitioner was in possession of agricultural/forest land and had thereby
violated the provisions of the Gazette Notification no. S.O. 542(E) dated
11.04.2005. The said impugned order also does not mention any specific
details as no particulars of the agricultural land alleged to have been
acquired by the petitioner or forest land alleged to have been encroached
by the petitioner or any legal proceedings in that regard were mentioned.
xxx xxx xxx
16. In the given facts, this Court is of the view that principles of natural
justice had not been followed. It is trite law that a Show Cause Notice
must specifically indicate the case that a noticee has to meet. In the
present case, it is apparent that in absence of any specific details, the
petitioner has been deprived of an opportunity to submit an explanation.
17. The learned counsel for the respondents had also contended that the
petitioner has no rights and, therefore, cannot invoke the jurisdiction of
this Court under Article 226 of the Constitution of India. This Court is
not persuaded to accept the said contention; while, the petitioner being a
foreign citizen may not have certain rights but nonetheless, he is entitled
to the protection of Article 14 of the Constitution of India. It is well
settled that Article 14 of the Constitution strikes at arbitrariness in state
action; thus notwithstanding that the petitioner is not a citizen of India,
the respondents being State are enjoined to act fairly and to follow the
principles of natural justice.”
31. 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. 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.
32. During the course of hearing, learned counsel for the petitioner has, in
fact, submitted that the petitioner will proceed to delete some of the
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objectionable tweets. All these are aspects that are required to be gone into
by the concerned authorities while considering the matter in consonance
with procedural and substantive requirements set out by a co-ordinate Bench
of this Court in Khalid Jahagir (supra).
33. In the circumstances, the said order dated 30.07.2023 and the
procedure followed by the respondents, 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). The same is,
accordingly, set aside.
34. 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.
35. It is clarified that this order shall not preclude the concerned
authorities from issuing a fresh show cause notice, indicating the allegations
against the petitioner and providing relevant materials/writings to the
petitioner, thus, enabling him to present his explanation, if any.
36. The concerned authority would be at liberty thereafter to pass such
order as it thinks fit after considering the reply/explanation, if any, furnished
by the petitioner.
37. 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.
38. It is also clarified that this order shall not be construed as an
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expression of opinion of this Court as regards the merits of the allegations
against the petitioner and/or whether such allegations are sufficient to
revoke the petitioner’s OCI Card under Section 7-D of the Citizenship Act,
1955.
39. The present petition is disposed of in the above terms.
SACHIN DATTA, J
MARCH 28, 2025
r, dn
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