INSTITUTION OF OMBUDSMAN IN INDIA

PROBLEMS AND PROSPECTS

CONTINUOUS ASSESSMENT - III

ADMINISTRATIVE LAW

Submitted By: Submitted To:

Siddharth Tandon Prof. I.P. Massey

Roll No. 1407 Faculty of Law

V Semester - B.B.A. LL.B. (Hons) National Law University, Jodhpur

NATIONAL LAW UNIVERSITY, JODHPUR

(SUMMER SESSION)

(JULY-NOVEMBER 2018)
 Abstract:

An ombudsman is a person who acts as a trusted intermediary between either the state,

elements of state or an organization, and some internal or external constituency, while

representing not only but mostly the broad scope of constituent interests. It has been derived

from a norse word which means ‘representative’. The institution began in Sweden & New

Zealand was the first common law country to adopt it in 1962. There is widespread interest

in the Ombudsman because the institution meets a general need in modern, industrialized

nations for a means of resolving citizens' unique, individual problems with a depersonalized

administration. The courts, which are slow and costly, do not provide adequate means of

redressing citizens' personal grievances. In this article, the Jan Lokpal Bill which was a very

significant attempt at creating proper standards for the role of ombudsman will be analysed,

along with looking at various problems that are currently existing in the legal arena.

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 INTRODUCTION

The institution of ombudsman was first conceived and put into operation in Sweden. Swedish

word meaning commissioner has proved to be very exportable after the Second World War.

Ombudsman has become a reality in several countries and is an aspiration, a much talked about

reform measure in others. It may be taken to cover administrative action or inaction based on or

influenced by improper considerations. Arbitrariness, malice or bias including unfair discrimination are

examples of improper considerations. India is to reincarnate this functionary under the name of lokpal and

is to use it as an anti-corruption institution.

India has been talking about ombudsman more or less regularly since 1967. Given the name of Lokpal, the

Administrative Reforms Commission (1966-70) under Morarji Desai, later K. Hanumanthaiya submitted its

first report recommending the installation of this functionary.

The ARC recommended a two-tiered machinery comprising the Lokpal and the Lokagukta, the former to

deal with complaints against Ministers and states. The Lokayukta, one for the centre and one for each state,

should attend to complaints against the rest of the bureaucracy.

First, the Lokpal Bill mooted in 1968 in terms of the recommendations of the Administrative Reforms

Commission, the Bill was revised in 1971, 1977, 1985, 1989, 1995 and 1996. The Rajiv Gandhi Govt.

brought forward the Lokpal Bill in 1985 only to drop it later. In July 1995 the Narsimha Rao Govt. announced

its intention to in act the Lokpal Bill. The Dove Gowda Govt. introduced the Lokpal Bill in the Loksabha in

September 1996, which however lapsed with the dissolution of the Loksabha.

The Vajapayee Govt. has prepared its own Bill which one must add, marks an improvement on the earlier

ones in many ways, It provides for a multi-member committee for the appointment of the Lokpal and the

two members the Lokpal as proposed now is to be a three-member body. The Congress was opposed to the

idea of bringing the Chief executive within the purview of the Lokpal. The Narsimha Rao Govt. had shown

its agreement not to exclude the chief Executive.

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The Vajpayee Govt. enlarges the jurisdiction of the functionary. The proposed Bill envisages the setting up

of the Lokpal to examine the charges of corruption leveled against the Prime Minister, the union council of

ministers and members of parliament.

The Vajpayee Govt's Bill on Lokpal was first considered by the standing committee on Home Affairs. A

broad-based body must recommend the name for the office. The time span for examination of charges by

the Lokpal must not be unduly restricted.

The Lokpal should examine the charges covering up to a period of the previous ten years. The inquiry should

not be conducted in camera but should be held on open. The elected members must declare to the Lokpal

their assets within 90 days of the commencement of each financial year and annually thereafter within 90

days. Non-filing or delayed filing of returns or incomplete filing should be visited with deterrent punishment.

The Lokpal institution visualised in India is to be a three member body. These members must be absolutely

independent and impartial as both the Prime Minister and the leader of opposition would be within its

jurisdiction. It equally well known, that it is not easy in our courts to prove changes of corruption. The onus

of proof must not rest with the accuser.

Lastly, the Lokpal must be endowed with its independent investigative agency, the CBI being the hand maid

of the ruling party. In India, the Lokpal is visualised as the country's watch dog institution on ministerial

probity but he can be effective only when Viewed as being part of the anti-corruption institutional frame

work, its other parts being an autonomous central Bureau of Investigation, effective electoral and

administrative reform, abrogation of section 1907 the prevention of corruption Act etc.

For the politician in India, no code of conduct has been formulated so far India does not yet have a regular

machinery to book the corrupt politician one must, however, warn that the institution of Lokpal has a fruitful

role to play in a system of government which habitually operates at a reasonably high level of integrity,

efficiency and devotion.

In this article, the concept of ombudsman will be analysed along with looking at various problems associated

with it and future prospects. The Jan Lokpal bill will be analysed in detail, by looking at its various

characteristics.

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 THE CONCEPT OF OMBUDSMAN

Ombudsman is known as the Lokpal or Lokayukta. Being a welfare state the Indian government

performs a plethora of functions and with population of 1.42 billion, it is a mammoth task to

fulfil the expectations of its citizens. It was our former Law Minister, Shri Ashok Kumar Sen

who first introduced the concept of a constitutional ombudsman in the early 1960s in the

parliament whereas it was Dr. L. M. Singhvi, who coined the terms ‘Lokpal’ and ‘Lokayukta’

as a part of the Indian model of Ombudsman. The Indian Model of the Ombudsman i.e. Lokpal

is a forum where the citizens can lodge a complaint against a public official, which would then

be inquired into and the citizen would be provided with some redressal.

Dr. L.M. Singhvi was a firm advocate of the concept of Ombudsman and therefore he moved

a resolution in the Lok Sabha on 3 April 1964, reiterating his demand for setting up an officer

of Parliament known as People’s Procurator, the same was discussed in the parliament and the

government had assured him that the Government constituted a Special Consultative Group of

Members of Parliament on administrative reforms and accordingly, an Administrative Reforms

Commission (ARC) was appointed in January 1966, for making recommendations on the

reorganization of the administrative system of the country. First Administrative Reforms

Commission in its report submitted in 1966 had three ends in view: Establishment of system

for the common people to lodge complaints of maladministration; To create such a structure

which would help reduce maladministration and Setting up a mechanism which would take

cognizance of complaints of favouritism and nepotism against Central and State Ministers.

I. CHARACTERISTICS AND OBJECTIVES OF OMBUDSMAN INSTITUTION

With the spread of ombudsman concept and its utility, several surrogate institutions have

emerged in the private sector, which claim the title of ombudsman.

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Some scholars1 drew distinction between, “classical” ombudsman and other kinds of “quasi”

or “executive ombudsman”. However, Gellhorn made clear distinction between classical and

other agencies performing the ombudsman function. Professor Larry B Hill has enumerated the

following characteristics of the pure ombudsman2:

 Established as separate entity that is functionally autonomous.

 Operationally independent of both the legislature and the executive.

 Ombudsman is a legally established governmental official.

 A monitoring specialist.

 Administrative expert and professional.

 Non-partisan.

 Normatively universalistic.

 Client-centered, but not anti-administration.

 Popularly accessible and visible.

 High status institutions

 Have extensive resources to perform his mission.3

II. FUNCTIONS OF OMBUDSMAN

The core business of public sector ombudsman remains receiving, investigation and redressal

of citizen’s complaints related to mal-administration of government agencies or their

functionaries. An interesting feature of ombudsman institution is that it does not compete with

1
Hill, B Larry and Stanley Anderson.
2
“American Ombudsmen and ‘Wannabe’ Ombudsmen” by Larry B. Hill, Address delivered at the 1997 Spring
Meeting of the American Bar Association Section of Administrative Law and Regulatory Practice, Hotel
Washington, Washington D.C.
3
Kundu, D. R. (2012). Corruption in Governance and Lokpal: The Perspective of 2nd Administrative Reforms
Commission in India. IOSR Journal of Humanities and Social Sciences , Vol.2 (No.4).

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the courts, or act as a further body to which those unsuccessful in the courts can appeal. The

primary function of the Ombudsman is generally to examine4:

 A decision, process, recommendation, act of omission or commission which is contrary

to law, rules or regulations, or is a departure from established practice or procedure,

unless it is bona fide and has valid reason; is perverse, arbitrary or unreasonable, unjust,

biased, oppressive or discriminatory; based on irrelevant grounds; or, involves the

exercise of powers or the failure or refusal to do so for reasons of corrupt or improper

motives such as bribery, jobbery, favouritism, nepotism, and administrative excesses;

and,

 neglect, inattention, delay, incompetence, inefficiency and ineptitude in the

administration or discharge of duties and responsibilities.5

Professor Larry Hill has described the following six major objectives of the ombudsman

institution: –

1. To right individual wrongs.

2. To make bureaucracy more humane.

3. To lessen popular alienation from government

4. To prevent abuses by acting as a bureaucratic watchdog.

5. To vindicate civil servants when unjustly accused, and

6. To introduce administrative reform.6

Commenting on the role of Ombudsman, which was challenged in 1970 in Alberta, Chief

Justice Milvain said:- “… the basic purpose of an Ombudsman is provision of a ‘watchdog’

4
Establishment of the Office of WafaqiMohtasib (Ombudsman) Order 1983, Presidential Order No.1 of 1983.
(Amended and updated vide Ordinance No. LXXII of 2002)
5
Niazi, D. L. (1994). The institution of Muhtasib (Ombudsman). Lahore: Research Cell, Dyal Singh Trust
Library.
6
Patel, N. (2013). Prosecution of Corrupt Officials in Light of Single Directive. Social Science Research
Network , 1-15.

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designed to look into the entire workings of administrative cases. … [he] can bring the lamp of

scrutiny to otherwise dark places even over the resistance of those who would draw the blinds.

If [his] scrutiny and reservations are well founded, corrective measure can be taken in due

democratic process, if not no harm can be done in looking at that which is good”7

Jurisdiction of the ombudsman

The operational mode of the ombudsman varies greatly according to the activity and

environment. However, in essence, there are two models: –

1. Reactive ombudsman who waits for complaints and acts on what has been brought

forward. In Britain, for example, ombudsmen tend to be reactive offices that can only

respond to complaints or grievances, the last port of call in a formal complaints

procedure.

2. Proactive ombudsman who seeks out matters of concern, inspects and initiates

investigations.8 In Scandinavia, an ombudsman may initiate action and has an ongoing

inspection role, such as the Public Justice Ombudsman who keeps a watchdog eye on

public administration and tackles action to ensure acceptable quality and standards are

maintained.9

III. CRITERIA USED BY OMBUDSMAN TO JUDGE THE OFFICIAL ACTIONS

Ombudsman Offices around the world receive a bulk of complaints each year. Out of these, a

large number of complaints are rejected on the ground that they fall outside the ombudsman

7
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8
Soye, S. C. (2007). Illusory Ethics: Legal Barriers to an Ombudsman's Compliance with Accepted Ethical
Standards. Pepperdine Dispute Resolution Law Journal , Vol.8 (No.1).
9
V. Carmona, C. G., Brillantes, A. B., & Tiu Sonco ll, J. O. (2012). Ensuring Accountability in Privatized and
Decentralized Delivery of Public Services: The Role of the Asian Ombudsman. Social Sciences Research
Network .

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jurisdiction. Ombudsmen have to operate within the jurisdiction set out in their legislation.

Common criteria for accepting or rejecting complaints largely include the following questions:

 Is the complaint within the Ombudsman’s jurisdiction at all? (A surprising number are

not.)

 Has the person complaining exhausted the other remedies available to them? (The

Ombudsman should be a last resort, not a first port of call.) If not, is it reasonable to

expect them to have done so?

 Has the complainant sufficient personal interest in the subject matter of the complaint?

 Is the matter already before the courts? If so, is it appropriate for the Ombudsman to

become involved?

 On the face of the complaint, does it appear that the person complaining is not acting

in good faith?10

Ombudsmen apply various criteria for making judgment whether a particular conduct is proper

or improper. Some of the important criteria are: –

 Whether a particular government action concords or conflicts with statutes and

principles, Ideally, an Ombudsman approaches the action broadly and reviews it both

in the light of the provisions of the written law, and in the light of unwritten legal

principles, as well as, against the standards for good governance.

 Investigations of the action in view of the written law include such areas relating to

human and constitutional rights, definitions of competence, and provisions governing

from procedure and substance.

 Investigation of the action in view of the unwritten legal principles (developed in case

law and legal doctrine) are equally relevant to the lawfulness of government conduct,

10
Wallace, G. (1993). Recent Role Variations in the Ombudsman in Education. Journal of UCI Ombudsman .

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 and include the principles of: equal treatment for equal cases; reasonableness;

proportionality between means and end; legal certainty and of legitimate expectations;

the requirement to provide reasons for decisions; and, of certain duties of care.11

 An Ombudsman also uses standards or guidelines for good governance which

contribute to the decency of the way the executive authorities act. The standards can be

summed up as the imposition of a broad duty of care. These are manifested in certain

accepted standards for administrative processes and the conduct of public servants in

relation to the public. They include the requirement to act without undue delay; to

supply the individual with relevant information; to treat people fairly and respectfully;

and, to be unbiased and helpful.12

 Finally, the Ombudsman sets standards for the government organization – such as those

of coordination, monitoring of progress, protection of the individual’s privacy, and

accessibility of the authorities.13

11
Shahid, M. I., & Shahid, M. (2011). Public Administration. Lahore: Advanced Publishers.
12
Yasmeen, S., & Ali, W. (2011). Role and Fuctions of Judicial System in Pakistan. Science, Technology and
Development Paper , Vol.30 (No.3).
13
Zbiral, R. (2007, October 28). Devolution as an Impetus for Reform? The Case of Scottish Ombudsman.
Social Sciences Research Network .

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 LOKPAL

A SIGNIFICANT STEP TOWARDS ESTABLISHING A PROPER OMBUDSMAN SYSTEM

A Lokpal is a proposed ombudsman in India. The word is derived from the Sanskrit word “lok”

(people) and “pala” (protector/caretaker), or “caretaker of people”. The Jan Lokpal Bill or the

Citizen’s Ombudsman Bill is a draft anti-corruption bill drawn up by prominent civil society

activists, seeking the appointment of a Jan Lokpal, an independent body that would investigate

corruption cases, complete the investigation within one year and conduct trials for the case

within the next year.

The basic idea of a Lokpal is borrowed from the Office of the Ombudsman, which has the

Administrative Reforms Committee of a Lokpal at the Centre, and Lokayuktas in the states.

I. HISTORY OF THE BILL:

The concept of a constitutional ombudsman was first proposed in parliament by Law Minister

Ashok Kumar Sen in the early 1960s. The first Jan Lokpal Bill was proposed by Shanti

Bhushan in 1968 and passed in the 4th Lok Sabha in 1969, but did not pass through the Rajya

Sabha. Subsequently, ‘Lokpal bills’ were introduced in 1971, 1977, 1985, again by Ashok

Kumar Sen, while serving as Law Minister in the Rajiv Gandhi cabinet, and again in 1989,

1996, 1998, 2001, 2005 and in 2008, yet they were never passed. Forty-two years after its first

introduction, the Lokpal Bill is still not enacted in India.14

II. OBJECTIVE:

The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption

against the prime minister, other ministers, and MPs. The Administrative Reforms Commission

14
Narayana, A., Krishnaswami, S., & Kumar, V. (2011). The Lokpal Bill.

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(ARC) recommended the enacting of the Office of a Lokpal, convinced that such an institution

was justified, not only for removing the sense of injustice from the minds of citizens, but also

to instill public confidence in the efficiency of the administrative machinery.

III. JAN LOKPAL BILL

The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a draft anti-corruption bill drawn up

by prominent civil society activists, seeking the appointment of a Jan Lokpal, an independent

body that would investigate corruption cases, complete the investigation within one year and

conduct trials for the case within the next year.

Drafted by Justice Santosh Hegde ,a former Supreme Court Judge and former Lokayukta of

Karnataka, Prashant Bhushan, a Supreme Court Lawyer and Arvind Kejriwal, an RTI activist,

the draft Bill envisaged a system in which a corrupt person found guilty would go to jail within

two years of the complaint being made and his ill-gotten wealth confiscated. It also sought

power for the Jan Lokpal to prosecute politicians and bureaucrats without requiring

government permission.

Retired IPS officer KiranBedi and others, like Anna Hazare, Swami Agnivesh, Sri Sri Ravi

Shankar, and Mallika Sarabhai are also members of the movement called India Against

Corruption. Its website describes the movement as “an expression of collective anger of people

of India against corruption.” It goes on to state: “We have all come together to

force/request/persuade/pressurize the Government to enact the Jan Lokpal Bill. We feel that if

this Bill were enacted it would create an effective deterrence against corruption.”

IV. FEATURES OF THE JAN LOKPAL BILL:

The following are some of the most prominent features of the Bill:

 An institution called Lokpal at the centre and Lokayukta in each state will be set up.

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  Like the Supreme Court and Election Commission, they will be completely independent

of governments. No minister or bureaucrat will be able to influence their investigations.

 Cases against corrupt people will not linger on for years anymore: investigations in any

case will have to be completed in one year. Trial should be completed in the next one

year, so that the corrupt politician, officer or judge is sent to jail within two years.

 The loss that a corrupt person caused to the government will be recovered at the time

of conviction.

 If the work of any citizen is not done in a prescribed time, in any government office,

Lokpal will impose a financial penalty on the guilty officers, which will be given as

compensation to the complainant.

 So, you could approach Lokpal if your ration card or passport or voter card had not

been made, or if the police are not registering your case, or if any other work is not

being done within the prescribed time. Lokpal will have to get it done in a month’s

time. You could also report any case of corruption to Lokpal, like rations being

siphoned off, poor quality roads being constructed or panchayat funds being siphoned

off.

 But won’t the government appoint corrupt and weak people as Lokpal members? That

won’t be possible because its members will be selected by judges, citizens and

constitutional authorities, not by politicians, through a completely transparent and

participatory process.

 The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any

complaint against any officer of Lokpal will be investigated and the officer dismissed

within two months.

V. FUNDAMENTAL DUTIES

There are three most fundamental duty associated with the Bill:

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 1. To judge the cases and make jurisdictions against corruption cases with the Lokpal.

2. To judge whether a case is genuine or whether a fake complaint has been made.

3. To potentially impose fines on a fake complaint, or even a short span of jail time, if the

case is not proved to be legally true.

VI. PROBLEMS ASSOCIATED WITH THE BILL

Though the Bill is well drafted and it can be seen that a lot of work has put into it, but according

to the author, there exists some flaws with the Bill. These criticisms are as follows:

 Not every aspect is properly covered: The bill has been criticised as being naïve in its

approach to combating corruption. According to Pratap Bhanu Mehta, President of the

Center for Policy Research Delhi, the bill “is premised on an institutional imagination

that is at best naïve; at worst subversive of representative democracy”. The very concept

of a Lokpal concept has received criticism from Human Resource Development

Minister Kapil Sibal in that it will lack accountability, be oppressive and undemocratic.

 Goes beyond the law of the land: The pro-bill activist Arvind Kejriwal rejects the claim

of Lokpal being extra-constitutional with the explanation that the body will only

investigate corruption offences and submit a charge sheet which would then tried and

prosecuted through trial courts and higher courts, and that other bodies with equivalent

powers in other matters exist. The proposed bill also lists clear provisions for the

Supreme Court to abolish the Lokpal.

 Restrictive The matter of whether the Indian Prime Minister and higher judiciary should

or should not be prosecutable by the Lokpal remains as one of the major issues of

dispute. Anna’s own nominee for co-chairing the joint panel Justice Verma, the former

Chief Justice of the Supreme Court, has expressed his constitutional objections for

including the Prime Minister and higher judiciary under Lokpal. According to him,

“this would foul with the basic structure of the constitution”.

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 CONCLUSION

The motive behind two decades of struggle to implement the Lokpal and Lokayuktas Act, 2013

is to provide a forum to the citizenry where they can raise their voice against corruption without

any fear. Keeping this view in mind Lokpal is kept outside the clutches of the executive and

the office of the Prime Minister has also been kept within the purview of the Lokpal.

In the past governments had enforced Institutions like Central Vigilance Commission and

Central Bureau of Investigation but despite a few historic cases these institutions have mostly

failed to prevent and/or curb the widespread corruption which has become a part and parcel of

the daily lives of the citizens. Such rampant corruption has necessitated the creation of Lokpal

and Lokayukta. Therefore, there is a need for a mechanism that provides for simple,

independent, speedy means of delivering justice by redressing the grievances of the people

without succumbing to the clutches of the executive.

But if our past history is any proof India has several laws covering a plethora of subjects and

area but has failed to execute the same effectively and in a timely manner and as we all know

justice delayed is justice denied. Any new piece of legislation even when implemented

becomes lengthy and time consuming and stretched over years. It is rightly said by Publius

Cornelius Tecitus that “the more corrupt the state, the more laws”.

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