Underinclusive Laws and Constitutional Remedies – An Exploration of India’s Citizenship (Amendment) Act, 2019

The Citizenship (Amendment) Act 2019 (‘CAA’) relaxes the criteria for Indian citizenship for migrants who belong to certain religious communities. Arguably, the CAA breaches the constitutional guarantee of equality due to its underinclusive nature i.e. it does not include migrants who faced persecution similar to the persons it covers. However, many object that underinclusive laws are subject to a low standard of scrutiny, which increases the justificatory burden on those who question its validity. I argue, based on normative principles and case law, that underinclusive laws are not subject to lower scrutiny. Further, drawing on jurisprudence from India, Canada and the US, I show that courts must be mindful of other constitutional goals when framing remedies for underinclusive laws. Contrary to dominant opinion, I then argue that, were the CAA to be declared invalid, the appropriate remedy would be to extend its benefits to those hitherto uncovered by it, rather than striking it down.