Underinclusive Laws and Constitutional Remedies - An Exploration of the Citizenship (Amendment) Act 2019

Abstract

It has been widely argued that the Citizenship (Amendment) Act 2019 (‘CAA’) breaches Article 14’s equality guarantee. This is largely due to its under-inclusive nature i.e. it does not include within its ambit many migrants who faced persecution similar to the persons it covers. However, this argument is often countered by the objection that under-inclusive laws are subjected to a low standard of review (‘SoR’), which increases the justificatory burden on those who challenge its validity. I argue, based on a survey of Supreme Court jurisprudence and its principled foundations, that there is no support for the argument that under-inclusive laws are subjected to lower scrutiny than over-inclusive ones.

Linked to this is the question of constitutional remedies. Drawing on jurisprudence and scholarly literature from India, Canada, South Africa and the US, I show that courts must be mindful of other constitutional goals when framing remedies for under-inclusive laws. Contrary to dominant opinion, I argue that, were the CAA to be declared unconstitutional, the appropriate remedy would be to extend its benefits to those hitherto uncovered by it, rather than striking it down.

Keywords: Citizenship Amendment Act 2019, CAA, underinclusive laws, under-inclusion, over-inclusion, article 14, standard of review, constitutional remedies, severance, extension of benefits, Indian constitution, equality