Arbitrariness, Subordination and Unequal Citizenship

Abstract

The Citizenship (Amendment) Act, 2019 is unconstitutional for a range of reasons including unlawful discrimination on the grounds of religion and origin, breach of constitutional protections of equal religious freedom and inconsistency with the secular commitments of the constitutional settlement. This paper will argue that the Act is unconstitutional for further, equally significant, reasons. The equality provisions of the Constitution, particularly Article 14, proscribe legislation that is arbitrary as well as legislation that subordinates. The Citizenship (Amendment Act) 2019 is unconstitutional because it is arbitrary and subordinating. The tests for arbitrariness and subordination are currently unclear. So after offering some background to the Act, this paper articulates a test for arbitrariness and subordination, and demonstrates how the Act is unconstitutional when measured against these tests.

Keywords: Citizenship Amendment Act; Article 14 Constitution; Manifest Arbitrariness; Subordination; Second-Class Citizenship; Religious Discrimination; Secularism; NRC; National Register of Citizens; Inequality