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

ABSTRACTIt 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.KEYWORDS: Citizenship Amendment Act 2019CAAunder-inclusive lawsstandard of reviewconstitutional remediesseveranceextension of benefits AcknowledgmentsI thank Tarunabh Khaitan, Faiza Rahman, Apoorva Sharma and Anshuman Singh for their detailed comments on previous versions of this paper. I thank the participants in the session on Constitutional Remedies at the ICON.S 2021 conference, where this paper was presented, and two anonymous reviewers for their careful and detailed feedback. I am grateful to Amber Darr, Nakul Nayak, Arun Thiruvengadam and the editorial team at the Indian Law Review for their patient and thoughtful engagement with the paper. Thanks also to the Melbourne Research Scholarship for supporting my research. Any errors are mine alone.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Citizenship (Amendment) Act 2019, ss 2–4, 6 (CAA).2 Murali Krishnan, “In 10 points, Supreme Court hearing on Citizenship Act petitions explained” Hindustan Times (New Delhi, 30 August 2020) accessed 29 July 2023.3 Constitution of India 1950, art 14 (Constitution).4 Abhinav Chandrachud, “Secularism and the Citizenship Amendment Act” (2020) 4 Indian Law Review 138, 154.5 Citizenship (Amendment) Bill 2019, statement of objects and reasons. See also Preliminary Counter-Affidavit on Behalf of the Union of India 26, 81, in Indian Union of Muslim League v Union of India, Writ Petition (Civil) No 1470 of 2019 accessed 29 July 2023.6 See Kanika Gauba and Anshuman Singh, “Voter, Citizen, Enemy” (2017) 52(23) Economic and Political Weekly 12; Mohsin Alam Bhat, “The Constitutional Case Against the Citizenship Amendment Bill” (2019) 54(3) Economic and Political Weekly 12, 13; Chandrachud (n 4); Jaideep Singh Lalli, “Communalisation of Citizenship Law: Viewing the Citizenship (Amendment) Act 2019 Through the Prism of the Indian Constitution” (2020) 3(1) University of Oxford Human Rights Hub Journal 95, 104.7 Chandrachud (n 4).8 ibid; Lalli (n 6) 110. See also Nivedhitha K, “Guest Post: The Citizenship (Amendment) Bill is Unconstitutional” (Indian Constitutional Law and Philosophy, 5 December 2019) accessed 29 July 2023.9 Ram Krishan Grover v Union of India (2020) 12 SCC 506 [41].10 Counter-Affidavit (n 5) 93–94.11 Tarunabh Khaitan, “Beyond Reasonableness – A Rigorous Standard of Review for Article 15 Infringement” (2008) 50 Journal of the Indian Law Institute 177, 178; Moiz Tundawala, “Invocation of Strict Scrutiny in India: Why the Opposition?” (2010) 3 NUJS Law Review 465, 466; John Sebastian, “Article 15 and the Citizenship (Amendment) Act – A Thought Experiment” (2021) 17 Socio-Legal Review 200, 209.12 See generally Khaitan (n 11); Tundawala (n 11); Aparna Chandra, “Proportionality in India: A Bridge to Nowhere?” (2020) 3(2) University of Oxford Human Rights Hub Journal 55.13 Agnidipto Tarafder and Adrija Ghosh, “The Unconstitutionality of the Marital Rape Exemption in India” (2020) 3(2) University of Oxford Human Rights Hub Journal 202; Saurav Das, “Marriage Equality: Govt Says Only Parliament Can Change Laws: Here are 5 Times The Supreme Court Did” (Article 14, 28 April 2023) accessed 29 July 2023.14 See Sections 2.2 and 2.3 below.15 Nivedhitha (n 8).16 Bhat (n 6) 13.17 Writ Petition of Deb Mukharji 20, in Deb Mukharji v Union of India accessed 29 July 2023.18 Lalli (n 6) 110–11.19 It has, however, received much attention in US and Canadian constitutional jurisprudence. See generally Evan Caminker, “A Norm-Based Remedial Model for Underinclusive Statutes” (1986) 95 Yale Law Journal 1185; Dianne Pothier, “Charter Challenges to Underinclusive Legislation: The Complexities of Sins of Omission” (1993) 19 Queen’s Law Journal 261.20 There is little engagement with the choice of remedy beyond broad discussions of legislative intention and coherence (both structural and textual). Additionally, the peculiar remedial questions posed by unequal laws deserve special attention. See Section 4 below.21 Kent Roach, “Dialogic Remedies” (2019) 17 International Journal of Constitutional Law 860, 863; See also Tundawala (n 11) 469.22 DS Nakara v Union of India (1983) 1 SCC 305 [60].23 State of Gujarat v Shri Ambica Mills (1974) 4 SCC 656.24 Chiranjit Lal Chowdhuri v Union of India (1950) SCR 869 [86] (SR Das J).25 MP Singh, “Are Articles 15(4) and 16(4) Fundamental Rights?” (1994) 3 SCC Journal 33, 35.26 State of West Bengal v Anwar Ali Sarkar (1952) SCR 284 [55] (SR Das J).27 ibid.28 Joseph Tussman and Jacobus tenBroek, “The Equal Protection of the Laws” (1949) 37 California Law Review 341, 348.29 See n 11.30 Khaitan (n 11) 195.31 Lon Fuller, “The Forms and Limits of Adjudication” (1978–79) 92 Harvard Law Review 353, 394–99.32 Navtej Johar v Union of India (2018) 10 SCC 1 [608] (Chandrachud J).33 Tarunabh Khaitan, “Equality: legislative review under Article 14” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 700, 707–08.34 Tundawala (n 11) 466, 470.35 Constitution, art 14.36 Tundawala (n 11) 466.37 Ambica Mills (n 23).38 Superintendent and Remembrancer Legal Affairs v Girish Navalakha (1975) 4 SCC 754 [10]; Prag Ice v Union of India (1978) 3 SCC 459 [51]; Pioneer Urban Ltd v Union of India (2019) 8 SCC 416 [36].39 Ambica Mills (n 23) [15].40 ibid [7].41 Under the Factories Act 1948, a factory can include a premise with a minimum of ten workers. See Factories Act 1948, s 2(m).42 Ambica Mills (n 23) [56].43 ibid [61] citing Mutual Loan Co v Martell 56 L Ed 175.44 Ibid [57] citing West Coast Hotel Company v Parrish 300 US 379.45 ibid [58], [59], [61].46 ibid [67].47 ibid [72]–[76].48 ibid [72].49 ibid [72]–[76].50 Girish Navalakha (n 38) [11]–[13]; Prag Ice (n 38) [51]-[52], Pioneer (n 38) [41]–[42]. See also Lalli (n 6) 111.51 It has long been established that judgements are only authority for what they actually decide and have to be carefully read within their context. See State of Orissa v Sudhansu Misra (1968) 2 SCR 154 [12] (“It is not a profitable task to extract a sentence here and there from a judgement and to build upon it”.); Union of India v Bahadur Singh (2006) 1 SCC 368 [9] (“Judgements of the courts are not to be construed as statutes”.).52 Ambica Mills (n 23) [70]–[77].53 See Prag Ice (n 38) [51], Pioneer (n 38) [38]–[40].54 Ram Krishan Grover (n 9).55 ibid [41].56 Pioneer (n 38).57 ibid [1], [33].58 ibid [36]–[42].59 Prag Ice (n 38) [51]–[58] (YV Chandrachud CJ).60 Ambica Mills (n 23) [64].61 Khaitan (n 11) 205.62 State of UP v Deoman Upadhyaya (1961) 1 SCR 14.63 ibid [12]–[13], [16] (JC Shah J). However, a powerful dissent by Subba Rao J pointed out that the small numbers of an excluded class cannot by itself provide a justification for unequal treatment, where there were no good reasons for the non-inclusion in question. See ibid [43] (Subba Rao J).64 Basheer v State of Kerala (2004) 3 SCC 609.65 The Narcotic Drugs and Psychotropic Substances Act 1985.66 Basheer (n 64) [20] (emphasis added).67 Joseph Shine v Union of India (2019) 3 SCC 39.68 Indian Penal Code 1860, s 497.69 Sowmithri Vishnu v Union of India (1985) Supp SCC 137.70 ibid [9].71 Joseph Shine (n 67) [124]–[127] (Chandrachud J), [48] (Misra CJ), [109] (Nariman J).72 KS Puttaswamy v Union of India (2017) 10 SCC 1 [146] (Chandrachud J), [647] (Kaul J); Navtej Johar (n 32) [328] (Nariman J), [643.5] (Malhotra J).73 KS Puttaswamy (n 72) [310] (Chandrachud J); [638]-[640] (Kaul J); Anuradha Bhasin v Union of India (2020) 3 SCC 637 [78].74 Chandra (n 12) 85–86.75 State of Tamil Nadu v National South Indian River Interlinking Association (2021) SCC OnLine SC 1114 [33].76 Ramesh Chandra Sharma v State of UP (2023) SCC OnLine 162 [42]. An alternative formulation of this is that the reasonable classification test is covered within the first two prongs of proportionality (legitimate aim and suitability) (Ramesh Chandra (n 76) [53]).77 Notably, Ramesh Chandra involved a classification that was both under-inclusive and over-inclusive, but this did not affect the SoR applied: ibid [40], [45]–[46], [56]–[58].78 CAA, s 2.79 Citizenship (Amendment) Act 2003 (2004 amendments), ss 2, 3, 5, 6. I term this the “2004 amendments” since this Act was eventually passed and enforced in 2004.80 Chandrachud (n 4) 148–49; Lalli (n 6) 100; Niraja Gopal Jayal, “Faith-based Citizenship” (The India Forum, 31 October 2019) accessed 29 July 2023.81 CAA, s 2.82 These benefits include an abatement of any pending illegal migration or citizenship proceedings, and a reduction in the minimum period of residence required to apply for citizenship by naturalization. CAA, ss 3, 6.83 See text to n 11.84 I do not mention other excluded groups who are not covered by the CAA, such as Baháʼís, Jews, etc for ease of understanding. This does not imply that the suffering of these groups is any less serious.85 The reasons for a person to enter a particular country have often informed the manner in which legal regimes deal with their status. Niraja Jayal, Citizenship and Its Discontents: An Indian History (Harvard University Press 2013) 59.86 Pothier (n 19) 303.87 Ambica Mills (n 23) [55].88 Kenneth Simons, “Overinclusion and Underinclusion: A New Model” (1989) 36 UCLA Law Review 447, 460.89 Girish Navalakha (n 38).90 ibid [6].91 RC Cooper v Union of India (1970) 1 SCC 248 [43], [49]–[52] (Shah J); Bennett Coleman v Union of India (1972) 2 SCC 788 [39] (AN Ray J); National River Interlinking (n 75) [19]–[22].92 The CAA does not give a right to illegal migrants of the communities it mentions to acquire citizenship. Such persons will still have to make an application for citizenship which the government “may” grant. The CAA only removes the barrier brought in by the 2004 amendments, which made it impossible for illegal migrants to even be considered for the grant of citizenship (CAA, s 2). An SCI judgement (Assam Sanmilita Mahasangha v Union of India (2015) 3 SCC 1), enforcing harsh citizenship laws, led to the Union Government’s first notifications in 2015 creating exceptions for some communities from neighbouring countries. This, with some amendments, ultimately took statutory form in the shape of the CAA. See Chandrachud (n 4) 150.93 This error would be compounded because the SCI is yet to adjudicate on legal challenges to the 2004 and 1985 amendments. See Assam Mahasangha (n 92) [33]–[34]; Assam Public Works v Union of India (2019) 9 SCC 70 [7].94 George Schedler, “Does Strict Judicial Scrutiny Involve the Tu Quoque Fallacy?” (1990) 9(3) Law and Philosophy 269, 274. Interestingly, the “tolerance” of under-inclusive laws discussed in Ambica Mills (n 23) drew from an article from Tussman and tenBroek (n 28), which urged this tolerance only because their analysis was limited to burdens and did not include benefits. See Simons (n 88) 507 fn 203.95 Livingston Hall, “Strict or Liberal Construction of Penal Statutes” (1935) 48 Harvard Law Review 748, 749; See also Standard Chartered Bank v Directorate of Enforcement (2005) 4 SCC 530 [7]–[8], [23] (Balakrishnan J); In Re Exploitation of Children (2017) 7 SCC 578 [64]–[68].96 Anwar Ali Sarkar (n 26).97 Joseph Shine (n 67).98 Pothier (n 19) 262–65.99 Ashoka Kumar Thakur v Union of India (2008) 6 SCC 1 [209]–[210] (Balakrishnan CJ). See also Tundawala (n 11) 469.100 David Bizar, “Remedying Underinclusive Entitlement Statutes: Lessons from a Contrast of the Canadian and US Doctrines” (1992) 24 University of Miami Inter-American Law Review 121, 151; Pothier (n 19) 303.101 Caminker (n 19) 1204.102 Nakara (n 22).103 ibid [5].104 ibid [42].105 ibid [35].106 ibid [40].107 ibid [33]–[37], [65].108 See Section 4.3 below.109 Nakara (n 22) [60].110 ibid [62]–[63].111 D Rae, Equalities (1981) 129 (as cited in Caminker (n 19) 1186).112 TMA Pai Foundation v State of Karnataka (2002) 8 SCC 481 [29] (Kirpal CJ).113 Constitution, art 15(1).114 Bizar (n 100) 142 (emphasis added).115 Ramana Shetty v International Airport Authority (1979) 3 SCC 489 [12]; Natural Resources Allocation, In Re (2012) 10 SCC 1 [107], [146] (Jain J).116 Caminker (n 19) 1193.117 See generally Gautam Bhatia, “Directive Principles of State Policy” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 644.118 Francis Coralie v Administrator, Delhi (1981) 1 SCC 608 [8].119 Constitution, art 19(1)(g).120 Constitution, art 41.121 Caminker (n 19) 1186–87; Bizar (n 100) 143.122 Schachter v Canada (Employment and Immigration Commission) [1992] 2 SCR 679 (Canada) 701–02.123 Minister of Home Affairs v Marie Fourie (CCT 60/04) [2005] ZACC 19 [135] (Sachs J).124 Joseph Shine (n 67).125 ibid [49]–[58] (Misra CJ), [280]–[282] (Malhotra J).126 Bizar (n 100) 122. See also Schachter (n 122) 696.127 Kihoto Hollohan v Zachillhu 1992 Supp (2) SCC 651 [67]–[68], [76].128 State of Bombay v FN Balsara 1951 SCR 682 [60]; Harakchand Banthia v Union of India (1969) 2 SCC 166 [27]–[28].129 Pothier (n 19) 278.130 Schachter (n 122).131 ibid 689–92.132 ibid 694.133 ibid 698–99 (emphasis added).134 ibid 699.135 ibid 702.136 Navtej Johar (n 32) [268] (Misra CJ), [618] (Chandrachud J) (reading in a requirement of absence of consent in the Indian Penal Code 1860, s 377); Kedar Nath Singh v State of Bihar 1962 Supp (2) SCR 769 [25], [26].137 People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301 [35].138 Schachter (n 122) [716]. See also Kedar Nath (n 136) [26].139 Anwar Ali Sarkar (n 26) [52] (Mukherjea J).140 ibid [32] (Fazl Ali J), [49] (Mukherjea J).141 ibid [33] (Fazl Ali J), [51]–[52] (Mukherjea J).142 See Secretary, Mahatma Gandhi Mission v Bhartiya Kamgar Sena (2017) 4 SCC 449 [82]–[90] (citing DS Nakara approvingly to extend benefits); Prem Singh v State of UP (2019) 10 SCC 516 [7], [33], [34] (where the Court extended pensionary benefits to “work-charged” employees on par with regular employees, despite the State claiming that “the economy of the State would collapse” due to the costs this would entail).143 The NRC exercise, spearheaded by SCI decisions, cost the exchequer over Rs 1200 crore according to government statistics just as of 2018 (Press Information Bureau, “Cabinet approves revised cost estimates … of NRC in Assam” (Government of India, Ministry of Home Affairs, 4 April 2018) accessed 29 July 2023. This is not counting the thousands of crores required in fencing, roads, and lighting along the border, which the SCI also directed: Assam Mahasangha (n 92) [42], [46].144 Minerva Mills v Union of India (1980) 3 SCC 625 [57] (YV Chandrachud CJ).145 See Bizar (n 100) 140.146 See Section 4.5 below.147 Caminker (n 19) 1202; Bizar (n 100) 140.148 See generally Mark Tushnet, “Dialogic Judicial Review” (2009) 61 Arkansas Law Review 205; Roach (n 21).149 Schachter (n 122) 690.150 See Heckler v Matthews 465 US 728 (1984), upholding the legislative response to a finding of unconstitutionality in the previous case of Califano v Goldfarb 430 US 199 (1977).151 Caminker (n 19) 1204.152 Municipal Corporation of Ahmedabad v New Shorock (1970) 2 SCC 280 [7].153 See M Nagaraj v Union of India (2006) 8 SCC 212 [2].154 Caminker (n 19) 1205.155 Bizar (n 100) 145. Courts have largely refused to question the motives behind legislations partly on this basis, confining their analysis instead to whether the legislation breached constitutional limitations. See Anwar Ali Sarkar (n 26) [47] (Mukherjea J).156 ibid.157 See Section 4.3 above.158 Guido Calabresi, A Common Law for the Age of Statutes (1982) (as cited in Caminker (n 19) 1206).159 HM Seervai, Constitutional Law of India (4th edn, NM Tripathi 1991) vol 1, 465.160 Fourie (n 123) [156], [162] (Sachs J).161 ibid [161].162 ibid [171] (O’Regan J).163 Port Elizabeth Municipality v Occupiers (CCT 53/03) (2004) ZACC 7 [38], [59].164 Roach (n 21) 881–82.165 Bruce Miller and Neal Devins, “Constitutional Rights without Remedies: Judicial Review of Underinclusive Legislation” (1986) 70 Judicature 151, 155.166 See Section 1 above.167 Writ Petition of Deb Mukharji (n 17).168 See n 93.169 The 2004 amendments disqualify “illegal migrants” from seeking citizenship by naturalization or registration, which effectively blocks off any channels for the acquisition of Indian citizenship for such persons. Citizenship (Amendment) Act 2003, ss 5, 6. See Bhat (n 6) 12. See also Chandrachud (n 4) 158–59, n 162 (discussing how even section 5(4) of the Citizenship Act 1955 is unlikely to be of assistance to such migrants).170 Writ Petition of Deb Mukharji (n 17) 41–44.171 See n 92.172 Lalli (n 6) 119. Notably, rather than specifying the various groups, the Court could order an extension to “members of other groups facing persecution”. This would leave the question of determining such groups, who can presumptively claim persecution, to judicial interpretation in the future.173 Mithu v State of Punjab (1983) 2 SCC 277 [16], [23].174 ibid.175 See n 92.176 Chandrachud (n 4) 155–161. See also generally Jayal (n 85) for a detailed overview of India’s citizenship and migration regime.177 Assam Mahasangha (n 92) [38], [45].178 Writ Petition of Deb Mukharji (n 17) 55.179 ibid 27; See also Farrah Ahmed, “Arbitrariness, Subordination and Unequal Citizenship” (2020) 4 Indian Law Review 121, 133.180 Simons (n 88) 452.181 Anwar Ali Sarkar (n 26) [83]–[84], [92] (Bose J); EP Royappa v State of Tamil Nadu (1974) 4 SCC 3 [85].