The 2019 Amendment, and What It Changed

In one line

Act 19 of 2019 widened eligibility for the Chairperson, added Members, reduced the term from five years to three with re-appointment permitted, restructured the deemed Members, and extended the Act to the Union territories, and its effects on independence run in both directions.

The five changes

1. Eligibility for Chairperson widened

Before: the Chairperson had to have been a Chief Justice of India.

After: a Chief Justice of India or a Judge of the Supreme Court.

The argument for it. The pool of former Chief Justices willing and able to serve is very small, and vacancies in the office were prolonged in consequence. Widening the pool is a practical response to a real difficulty.

The argument against it. A former Chief Justice is the most senior available appointee and the least susceptible to influence, and widening the pool increases the appointing authority's choice, which is what the criticism of section 4 is about.

The same change was made for a State Commission, where the Chairperson may now have been a Chief Justice or a Judge of a High Court.

2. Membership restructured

A woman Member requirement was introduced in section 3(2)(d), which now provides for three Members of whom at least one shall be a woman.

And the deemed Members were expanded in section 3(3) to include the chairpersons of the National Commission for Backward Classes, the National Commission for Protection of Child Rights and the Chief Commissioner for Persons with Disabilities, alongside those already there.

Both changes advance pluralism, which is a Paris Principles requirement, and the woman Member requirement is a genuine improvement.

The limitation on the deemed Members remains: they sit for clauses (b) to (j) of section 12 and not for the inquiry function in clause (a). Expanding a category that is excluded from the operative function advances pluralism on paper more than in practice.

3. Term reduced and re-appointment permitted

Before: five years, and no re-appointment for the Chairperson.

After: three years, and eligible for re-appointment.

This is the change most criticised, and the reasoning is standard in the design of independent offices.

A shorter term means the appointing authority makes the choice more often.

And a renewable term means the holder's future depends on the body they exist to scrutinise, which creates precisely the incentive an independent office is designed to remove.

The orthodox design is a longer term that cannot be renewed, and the amendment moved away from it in both respects at once. [The National Commission: Composition and Appointment] records the position.

4. State Commission changes

The Chairperson may now have been a Chief Justice or a Judge of a High Court, as above.