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: | Users 4 not found. |
| 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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