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Authors

John Sebastian

Abstract

The Citizenship (Amendment) Act, 2019 (‘CAA’) has been the subject of many constitutional challenges and intense legal debate. Despite this, there has not been sufficient debate on the question of the applicability of Article 15(1)’s non-discrimination clause to the CAA. Article 15(1) of the Constitution prohibits the State from discriminating, inter alia, on the grounds of religion. Since the CAA covers those who are not currently citizens, and Article 15(1) mentions a citizen as its subject, many have argued that Article 15 cannot apply despite the CAA explicitly being grounded on religion. I contest this, and argue that due to the nature of the CAA as a law which determines the conditions of entry into the community of citizens, it must be subject to Article 15(1) (through the ‘conditions of entry’ principle). First, recent Supreme Court jurisprudence has shown that entry conditions cannot be ignored when discussing Article 15(1). Second, I conduct a thought experiment through a hypothetical citizenship law. Through this thought experiment, I demonstrate that to not extend Article 15(1) to the CAA would be illogical and allow the legislature to accomplish indirectly what is impermissible directly. It could deprive that great non-discrimination clause of its vitality through an act of subterfuge. I defend my thought experiment by addressing various arguments on the grounds and subjects of discrimination, the question of numbers, and anti-subordination, and demonstrate that my claim is consistent with the text of Article 15(1). Hence, the CAA should be subject to the rigorous scrutiny of Article 15(1).

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