Under-inclusive laws and constitutional remedies: An Exploration of the Citizenship (Amendment) Act 2019

Sebastian, John (2023) Under-inclusive laws and constitutional remedies: An Exploration of the Citizenship (Amendment) Act 2019. Indian Law Review. ISSN 2473-0580 (In Press)

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Abstract

It has been widely argued that the Citizenship (Amendment) Act 2019 (“CAA”) breaches Article 14’s equality guarantee due to its under-inclusiveness i.e. it does not include within its ambit many migrants who faced persecution similar to the persons it covers. However, it is often argued that under-inclusive laws are subjected to a low standard of review, which increases the justificatory burden on those who challenge its validity. I argue that there is no support in principle or case law for the argument that under-inclusive laws are subject to lower scrutiny than over-inclusive ones. Linked to this is the question of constitutional remedies for under-inclusive laws, which I analyse drawing on jurisprudence from India and other jurisdictions. 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.

Item Type: Article
Keywords: CAA | Citizenship Amendment Act 2019 | Constitutional Remedies | Extension of Benefits | Severance | Standard Of Review | Under-Inclusive Laws
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 27 Sep 2023 04:12
Last Modified: 27 Sep 2023 04:12
Official URL: https://doi.org/10.1080/24730580.2023.2255478
URI: https://pure.jgu.edu.in/id/eprint/6691

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