JAMIA MILLIA ISLAMIA

Faculty of law

Project

Concept & origin of Ombudsman

Administrative Law

Submitted to: Bhavna Sharma

Submitted by: Zene Qamar

BA.LLB (Self-finance) 6th Semester

Batch: 2017 - 2022

INDEX

S.No TOPIC

1. INTRODUCTION

2. BACKGROUND & MEANING

3. CONCEPT OF OMBUDSMAN

4. ORIGIN

5. OTHER OMBUDSMAN INSTITUTIONS

6. IMPORTANT INGREDIENTS & FEATURES

7. THE ROLE OF OMBUDSMAN IN SOME NATIONS

8. DEVELOPMENT IN ENGLAND

9. DEVELOPMENT IN USA

10. OMBUDSMAN IN INDIA

(i) LOKPAL BILL PROVISION
(ii) PRINCIPLES OF LOKPAL & LOKAYUKTA

11. DEFECTS IN THE SYSTEM OF OMBUDSMAN

12. CONCLUSION

13. BIBLIOGRAPHY
Acknowledgement

I would like to express my special thanks of gratitude to my teacher Ma’am Bhavna

Sharma who gave me the golden opportunity to do this wonderful project on the topic
The concept and origin of ombudsman which also helped me in doing a lot of Research
and I came to know about so many new things I am really thankful to them.

Secondly I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

ZENE QAMAR
SEM-VI (SF)

INTRODUCTION

In this paper we will be dealing with the concept and origin of the Ombudsman.
To run any administration there is an essential need to have a proper working group, and
when any law is to be administered there exists a responsibility to work for the welfare and
well being of citizens and public at large, for the same the administrating group has to have a
certain team that may consist of the makers of the law and the framers of a certain policy by
keeping in mind all the odds and essential needs of the people.

The framers frame or make the law and on the other hand there has to be a certain group that
ensures that whether the law framed is in consonance with the needs of the public and is fully
abiding by the norm of ‘welfare of the public’. The laws are formed for the benefit and need
of the citizens or public at large, and there exist an essential need to have complete checks
and balances to ensure that the lawmakers do not misuse their essential power and do not
create mockery of the whole procedure.

Ever since mankind came into existence and realised that there is an important need to have a
proper framework of laws for the regulation of the welfare society, the people started to make
their own laws for the people. In the same cause to keep a check and balance on the laws
which were made there was enumeration of Ombudsman who would ensure that the laws
made and framed are for the people’s welfare. In this paper we will be dealing with the origin
and functioning of the Ombudsman.

CONCEPT OF OMBUDSMAN

In most of the countries there is little in publicness in public administrations. People very
often raise their voices against various shortcomings and limitations of public administration.
As a remedy to these grievances against public administration, alertness at various levels has
been found and the creation of an Ombudsman is a bold step towards it1.

The meaning of Ombudsman is-an official appointed to investigate individuals’ complaints

against maladministration, especially that of public authority. The precise meaning of the
term Ombudsman is grievance officer. An Ombudsman is a public officer whose function is
to investigate the grievances, raised by citizens regarding maladministration of the authority.
In other words if there are gross lapses in the functioning of the public administration the
citizens have power to lodge complaints against the concerned authority. He is an officer of
parliament.

The concept of Ombudsman at first originated in Sweden, a Scandinavian state, in 1809 more
than two centuries ago. From the beginning of the twentieth century the system began to draw
the attention of several other European states.

For example Finland created the institution of Ombudsman in 1919, Denmark in 1955 and
Norway in 1961. The institution of the Ombudsman drew the attention of several European
states, and they did borrow the term. Some countries used the term Parliamentary
commission and New Zealand is one of them2.

From the beginning of the 1960s the British government was seriously thinking about insti-
tuting a body to remedy people’s grievances against public administration and to provide a
constitutional safeguard against the misuse of power. In 1966 the British government
appointed a Parliamentary Commissioner. In 1973 Parliamentary Commissioner also acted as
Health Commissioner.

The Swedish ombudsman’s responsibility however now comprises civil affairs 3, including the
judiciary, the police, prisons, and the public administration, both central and local, but
excluding ministers and the monarch4. He can act as a public prosecutor (although he does
not often do so); as a receiver of complaints from aggrieved citizens; or as an inspector of

1http://www.yourarticlelibrary.com/public-administration/ombudsman/ombudsman-origin-nature-power-and-
functions-public-administration/63448 (last visited April 5 2020)
2 ibid
3 https://www.merriam-webster.com/dictionary/comprises (last visited April 03 2020)
4 https://www.britannica.com/topic/public-administration (last visited April 04 2020)
such institutions as jails, mental hospitals, homes for delinquent children, and retreats for
alcoholics to discover if they are being administered in accordance with the law.

The institution of ombudsman was first adopted in other Scandinavian countries and then—
especially from the 1960s—in many countries throughout the world, including New Zealand
(1962), the United Kingdom (1967), Israel (1971), Portugal (1976), the Netherlands (1981),
and Spain (1981). Australia, the United States, and Canada have ombudsman at the state or
provincial level, and in the United States several cities have municipal ombudsman. In
Britain there is an ombudsman to investigate complaints against local government, the
National Health Service, and administration in Northern Ireland, in addition to the
ombudsman operating at the national level5. Some specialized ombudsmen have been
appointed in the United States to safeguard the rights of prisoners to medical treatment. In
Israel the police have an office of public complaints, and there is a military ombudsman;
there is also a state controller, who issues annual reports on executive procedures.

There is no doubt about the value of the ombudsman in the states in which the institution has
been established. Part of the ombudsman’s usefulness lies in his ability to reassure citizens
who believe they have been unjustly treated that careful inquiry into their complaints shows
their suspicions to be groundless. In most countries the ombudsman has little positive power
other than the right to inspect and to demand the fullest information. He may, however,
recommend a particular interpretation of, or a particular modification of, the law. He can also
recommend that the government pay compensation to a complainant. In the Swedish process
of law, the protection of the rights of individuals in their contacts with authorities is
fundamental. In this context the Swedish Ombudsman system is a guarantee against
oppressive measures and misgovernment in the judiciary and public administration.

ORIGIN OF OMBUDSMAN

The word "Ombudsman' has been derived from the Swedish word "ombud", which in the
Swedish language commonly denotes a person who acts as a spokesman or representative of
another person or persons. It is a public officer entrusted with the power to investigate public
grievances. Its supervision covers all central and local government agencies and their staff.
The powers of the Parliamentary Ombudsman are to supervise the observance of laws by

5 ibid
judges, government officials and other civil servants employees and to advise or prosecute
officials who have acted illegally or have neglected their duties.

The Swedish Parliamentary Ombudsman (JO) is appointed by the Parliament and helps to
maintain public confidence in the activities of the courts and in the Public Administration.
We also have an Ombudsman for Military Affairs to ensure that statutes, regulations and
rules are observed by the officers.

Other Ombudsmen exist in a number of special areas. These are appointed by the
Government - (and are accordingly subject to the supervision of the Parliamentary
Ombudsman) - and they have similar duties of surveillance, each in a particular sphere such
as Consumer Ombudsman, The Equal Opportunities Ombudsman, the Ombudsman against
Ethnic Discrimination, the Children's Ombudsman, the Office of the Disability Ombudsman.
There is also a Press Ombudsman who, rather than being a public institution, is sponsored by
the media.

Sweden was the first country to establish the office of Ombudsman. It dates back to 1809,
created by the constitution. It was originally established to provide the Parliament (Riksdag)
with the means of supervising compliance with laws and ordinances by all judges, civil
servants and military officers.

It took more than 100 years until some other countries followed suit - first in Finland in 1919,
Denmark in 1954 and Norway in 1960. In 1962 New Zealand became the first
Commonwealth country to establish an office of the Ombudsman. In 1966 Tanzania became
the first African country with the name "Permanent Commission of Enquiry". Today we find
similar institutions in a large number of countries.

Now there arises a question: what was the need for the establishment of such an institution.

When we discuss institutional development they can hardly be separated from the socio-
economic context within which they were created or where they operate.

Throughout the 17th-18th centuries, domestic politics were dominated by a power struggle
between the king and the aristocracy. With the death of King Karl XII - and the fall of the
Swedish "empire" - there was an almost total change in the mode of Government.
"Here everyone is behaving like flies that have survived the winter and come to life again"
we read in a letter describing the political activity at that time. During the following decades
of what we call "The age of Freedom" (1719-1772) The Parliament gradually grew into a
strong constitutional position. We had a somewhat unique feature in Sweden at that time with
more than 50% of landowner self-owning farmers or peasants forming their own association
and party. The emerging division of interests was a crucial basis for the enhancement of the
role of the Parliament as the focal arena for debate and consultations on vital national issues 6.
Despite autocratic interventions by the kings, the Parliament alone controlled the state's
finances and had exclusive control of legislation. And not only this. It also exerted its sway
over foreign policy through its Secret Commission. At any moment it could also intervene in
the administration or the judiciary.

In 1809, Parliament was summoned and worked out and adopted a new constitution. Based
partly on Montesquie's ideas, partly on indigenous experiences from the Age of Freedom, the
1809 Constitution distributed the power between king, Council or Government and
Parliament. Sweden became a constitutional monarchy7. The institution of Ombudsman
became an important body to provide the Parliament with a means of supervising compliance
with laws and ordinances by all judges, civil servants and military officers8.

The functions of ombudsman is carried in a particular manner, The Parliamentary

Ombudsman (JO) covers all central and local government agencies and bodies. It does not
intend to supervise Cabinet Ministers or members of Parliament. There are special Standing
Constitutional Committees dealing with that. There are four Parliamentary Ombudsman
elected for four-year periods. One of them is responsible for administration and focus of its
activities.

Anyone who feels that he or she has been wronged may submit a written complaint to the JO.
Some 5,000 such complaints are handled each year. About 40% of these usually prove at an
early stage to be unfounded, and can therefore be summarily dealt with.

6 hedailystar.net/news/the-role-of-the-ombudsman-the-swedish-experience (last visited April 06 2020)

7 ibid
8 https://www.thedailystar.net/news/the-role-of-the-ombudsman-the-swedish-experience (last visited 10 April
2020)
The Parliament has empowered the Ombudsman (JO) with full discretion to decide which
cases to investigate. It has also been authorised to refer to other agencies' cases that are more
appropriately dealt with there.

The JO concentrates on those that are significant in the sense that they involve striking a just
balance between the claims of the community and the freedom of the individual. Many of the
complaints come from people caught on a bureaucratic "merry-go-round", a vicious circle.
The aggrieved citizens may lodge complaints with the Ombudsman, but he can also proceed
upon his own motion through any other means.

It is the JO's duty to inspect, from time to time, authorities under their supervision. Frequent
inspections have been made of central government agencies, courts, prisons, the police etc.
The JO also pursue long-term investigations. The power over the court is especially
interesting as we also have the principle of independence of the judiciary. JO is not concerned
with the contents of the court's decision but rather with the question of whether a judge has
acted illegally and violated its mandate.

When the JO finds that an error has been made, but one of such seriousness as to entail
punitive or disciplinary consequences, the JO may issue critical statements of opinion. These,
containing more or less serious criticism, usually feature in some 600 JO decisions annually.
That represents about one-fourth of the investigations.

One of the duties is to present an annual report to the Parliament. The report contains an
account of the work done and the investigations carried out. It is entitled to draw to the
attention of the Parliament or the Government inconsistencies, gaps or other shortcomings in
the regulatory and administrative system that have come to light during the investigations. It
could result in an amendment of a law or ordinance. The report is examined by one of the
Standing Parliamentary Committees. After examining the contents on a spot-check basis, the
committee presents a statement of opinion to the Parliament 9. The mass media may also be
said to exercise control over the JO, since they often take up controversial cases for debate.

Other Ombudsman Institutions

9 ibid
The Consumer Ombudsman took office in 1971 with the duty to ensure that "The Marketing
Act" and "The Unfair Contract Terms Act" are followed to protect the consumer.

The Swedish Children's Ombudsman watches over juvenile rights and interests. The basis of
this work is the UN Convention of the Rights of the Child and to ensure that Sweden fulfills
its obligations. The Equal Opportunities Ombudsman was established in 1980 the same year
in which the Act concerning Equality between Men and Women at Work came into force.
The purpose of the Act is to promote equal rights and opportunities for men and women with
regard to work and terms of employment.

The Ombudsman against Ethnic Discrimination was established in 1986. Ethnic

discrimination is in the Act defined as when a person or group of persons is treated unfairly,
compared to others, because of race, skin, colour, national or ethnic origin or religious faith.

The Office of the Disability Ombudsman aims to work for the rights and interests of persons
with functional disabilities, to promote their full participation in society.

The Press Ombudsman is entirely voluntary and wholly financed by the three press
organisations. The National Press Club, the Union of Journalists, the Newspaper Publishers
Association. These organisations are also responsible for drawing up Sweden's Code of
Ethics for the press, television and radio. The purpose is to establish a self-regulatory system.
The Swedish Press Council founded in 1916, is the oldest tribunal of its kind in the world. A
newspaper that has been found to contravene good press practice is expected to publish the
findings of the Press Council. It may also have to pay an administrative fee.

Important ingredients and features10

It has a high degree of independence from executive intervention. It enjoys full freedom in
regard to investigations. It is being manned by people of outstanding merits and integrity to
ensure trust in its operations.

It has powers of investigation - to have access to and investigate any documents and other
material - to give strength and credibility of the investigation. It has the power to recommend

10 http://www.legalserviceindia.com/legal/article-103-study-of-ambudsman.html (last visited 12 April 2020)

- not to enforce changes - but the system of transparency and credibility will give the
recommendation high weight.

In its annual report it can provide the people (mainly through the media) and the Parliament
with adequate information, not least to clarity general expectations of the bureaucracy in its
dealings with citizens11.

The concept of Ombudsman originated in Sweden. Now the institution has been adopted in
many parts of the world, irrespective of social, economic, demographic, legal or political
diversities among these countries. The primary duty is to fight against maladministration. The
fundamental function is to ensure transparency and accountability and efficiency - all vital
ingredients of Good Governance.

The role of Ombudsman in some countries

History has shown as many instances of corruption, abuse of power and nepotism in public
administration. The system of modern administration is no exception to these problems.
Complaints of maladministration, corruption, inefficiency delay, bias, in public
administration etc, have now started increasing. The concentration of power in a single
individual leads to tyranny and dictatorship. The judicial control is weak and the
discretionary power, delay of the administrators cannot be questioned in the court of law. To
solve these problems, countries like Sweden, USA, England, Australia have created the office
of Ombudsman.

Development In England

In England the first Ombudsman was established in 1967 by parliamentary commissioner act
of 1967 and it is called Parliamentary Commissioner. He appointed by the government on the
advice of the prime minister and hold office for sixty five years 12. The Parliamentary
Commissioner envisaged under the act is a permanent appointee with the security of the High
Court Judge. Since 1994 Ombudsman has entertained responsibility for enforcing the open
government code of practice on access to government information.

11 ibid
12 A.W. Bradely and K.D Ewing 12th Edition, 1997
He investigates the complaints made before him by the parliamentary members against the
government and other bodies which come under his jurisdiction and the official who fails to
comply with the provision of the code13. If there is a absence of enforcement provision, the
select committee of the members of parliament plays an important role in bringing pressure
on the department to accept Ombudsman’s report. There are times when Ombudsman reports
have not been selected it can be overcome by the existence of the select committee thus it has
strengthened this institution.

The ombudsman can be dismissed on the complaint of both house of Parliament. The
department that has been placed under his jurisdiction has been listed in schedule II to the
Act. This list can be order in the council. Thus, the Parliamentary Commissioner Act, 1967,
confers on the Parliamentary Commissioner jurisdiction only on the Central Government and
only over the department stated in the Second Schedule to the Act. This Act expressly
includes the Ministers along with their departments. Several matters have been excluded by
his Act and they are not subject to the Commissioner’s investigation. Such matters are
specified in Schedule III. Complaints against the administration cannot be made to the
Ombudsman directly. It can be made to the Ombudsman only through the members of the
House of Commons and only sent through them. The reports are given by the Ombudsman to
the members who had made the complaint. When the enquiry starts opportunity must be
given to comment on the allegation contained in the complaint for both the departments.

Development In USA

In the United States, there is no unified federal ombudsman service. The role of handling
complaints against federal authorities has to some extent been unofficially incorporated into
the role of the US Member of Congress. This informal job has become increasingly time
consuming. It is subject to criticism on the grounds that it interferes with a legislator's
primary duty, namely to read and be knowledgeable about a bill before casting his or her
vote. Though there are a lot of ‘Ombudsman’ in the USA no ‘Ombudsman’ has infiltrated the
administration except in the three states of Hawaii, Nebraska and Oregon for local
government agencies.14

13 Commentaries on the Laws of England, 1765

14 ibid
Since 1963, in every session the of the congress a bill has been introduced to establish an
institution akin to Ombudsman is considered by the members of the Congress as a drag on
their status and power for they consider it their sole prerogative to represent their
constituencies and to handle the grievances of the people. However , the congressional
investigation and grievances cells established in various departments, like the police review
Boards, discharged the work of the Ombudsman.

Now I will discuss the role of the ombudsman in India and its provisions & functions thereby.

Ombudsman In India15

The functions of the ombudsman which were successful in the other countries inspired the
establishment of Lokpal and Lokayuktas in India also. Lokpal is the Indian Ombudsman and
Lokayuktas is the State Ombudsman.

In 1962, M.C. Setalvad suggested the idea of establishing an Ombudsman at the All India
Lawyers’ Conference. The Administrative Reforms Committee made a proposal to the
Government in 1968. In 1971, the bill was again introduced, however to end up in failure.

Lokpal Bill Provision

In the Central Government, the President is empowered to appoint the Lokpal after
consultations with the Chief Justice of India and the Leader of Opposition in Lok Sabha. The
Lokayuktas are appointed by the Governors in consultation with Lokpal. In a case the
Supreme Court held that the opinion of the Chief Justice of the High Court has primacy in
appointments of Lokayuktas. The Lokpal or LokAyuktas hold office for a term of 5 years.
They cannot be easily removed from political and judicial interference. They can be removed
from the office on the ground of misbehaviour, incapacity etc, by the President after
following the procedure mentioned below,
An enquiry must be conducted by a Judge of the Supreme Court. The report of the judge must
be placed before both the House of Parliament. The President gives an address before both
the Houses. A resolution is passed in both in the House and is voted with not less than 2/3

15 http://www.legalserviceindia.com/legal/article-103-study-of-ambudsman.html (last visited 11 April

2020)
members of the House present and voting. The President must sign the resolution. Only then,
the Lokpal or Lokayukta is removed from service.

Principles For Setting Up Lokpal And LokAyukta

The following must be followed while setting up Lokpal & LokAyuktas

● He should be appointed in a non-political manner andhe should be independent and
impartial.
● The investigation held by him should be informal and in private
● Matters involving acts of injustice, corruption, etc, should be dealt by him and his
office.
● He should be apart from judicial interference. No pecuniary benefit or advantage
should come to him from the executives.
● The president can appoint ‘Special Lokpal ‘ for fast disposal of complaints. Special
Lokpal is appointed by the President after consulting the Chief Justice of India,
Speaker of the Lok Sabha and Chairman of Rajya Sabha.
The following are the qualification for a Lokpal
● He should not be a Member of Parliament or State Legislature.
● If he is holding any office of trust or profit, he should resign from it.
● He should sever relations with political parties. He should leave up any other
profession he was attending.
● He should leave up any trade or any other occupation.

The salary and pension of the Lokpal are equal to that of the Chief Justice of India.
Complaints lodged for investigation will be taken up with the consent of the Lokpal. If he is
biased in the matter, the President shall deal with it in consultation with the Chief Justice of
India. Mal-administration means unreasonable, unjust or improper administration, undue
delay or negligence in administrative procedure16. If there is alternate remedy by way of
proceeding before any Tribunal or Court of Law, then Lokpal will not investigate a
grievance.

Under the following circumstances, the Lokpal will not investigate the complaint.

16 Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law Publishers, Agra, Edition
2002.
If the complaints are time barred. If the complaints relate to any person who is not a public
servant. If the complaints are trivial or malafide. If there is no sufficient ground for
proceeding with the investigation.
Complaints can be filed only by any person who is not a public servant and it should be in the
prescribed form, with prescribed fee, except for those who are poor and have no means to pay
the fees.

Functions
The Lokpal can take action against all public servants. He can also investigate any complaint
made by a private person. He can take decisions against the erring public servants. He can
recommend his findings to be enforced into action.

Lokayuktas
Some States have adopted the Ombudsman system called Lokayukta. The instruction of
Lokayukta has been established in several States by enacting a Statute specifically for this
purpose. In some States, Uplokayutkas has been appointed. The States in which Lokayuktas
have been established by enacting Statutes include the States of U.P., Bihar, State of H.P.,
Karnataka, Andhra Pradesh, Maharashtra, Orissa, Rajasthan, Gujarat, etc.17
The provisions of the States, however, are not the same. But in all the states, the Lokayuktas
have been given jurisdiction over the Ministers, Public servants and officers in all States. In
Karnataka, Himachal Pradesh and Orissa, Lokayutkta has been given jurisdiction over the
Chief Minister also. In Maharashtra, Bihar, U.P. and Rajasthan, Lokayukta has not been
given jurisdiction over ex-ministers and ex-secretaries.

Qualification and Function

The Lokayukta of UpLokayukta should not be members of any Legislative and should not be
connected with any political party or carry on any business or profession. His term of office
is 5 years. He shall investigate any complaint filed by an aggrieved person along with an
affidavit. The complaint will not be taken up, if there is any alternate remedy. The procedure
of investigation, etc, is the same as that of the Lokpal. The Lokayukta and Uolokayukta will
present a consolidated report of their functions to the Governor.

17 http://www.legalserviceindia.com/legal/article-103-study-of-ambudsman.html (last visited 11 April

2020)
Defects
Even though there are advantages, there are some arguments against setting up the office of
the Ombudsman.
It is said that this institution may be successful in countries with low populations, but
countries with large populations like India or the USA with their large complaints may be
difficult for a single man to solve all those problems.

It is also said that the success of the institution of Ombudsman in Denmark owes its success
to its first Ombudsman, Prof. Hurwitz. He took great interest to look into the complaints sent
to him and solved it personally. Prestige will be lost if there are many such officers or if there
is a single officer who has always to depend upon a large staff and subordinate officers.

According to Mukherjea J, in India this institution is not suitable. He describes it as an

accusatorial and inquisitorial institution and a combination unprecedented in democracy with
a tradition of an independent judiciary. It is an "impractical and disastrous experiment" which
will not fit into the Constitution.

Any progressive system of administration presupposes the existence of a mechanism for

handling grievances against administrative faults, and the recognition of a right of every
member of the public to know what passes in the government files. The search has produced
the idea of ‘ombudsman’ which in terms of utility means a ‘watchdog of the administration’
or ‘the protector of the little man’.
Conclusion
In a democratic government, it is expected that the subjects have adequate means to solve the
problems. Since the present judicial system is not sufficient to deal with all cases of
injustices, a system like the Ombudsman may help in solving the administration problems
and give justice to aggravated persons.
But Ombudsman is not a "panacea for all the evils of bureaucracy" state. His success depends
upon the existence of a reasonable well-administered state. He cannot cope with the situation
where administration is riddled with patronage and corruption.Thus the researcher conclude
that it’s a great system of control it may be applicable for the country which has less
population and good working government but in the country like India or USA with this large
population it is not that effective for check in administration as it is institution with a less
persons to complaint or investigate and giving report to parliament and solve the issues.
BIBLIOGRAPHY

Books Referred
● A.V. Dicey, Introduction to the Study of the law of the Constitution,
London, 1931.
● Ashok Chanda, Indian Administration, London.
● Administrative Law Treatise, 1958 Vol.1
● Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata, Sixth
Edition, 2004.
● Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law
Publishers, Agra, Edition 1996.

Internet sites
● htpp://answer.ask.com
● wikipedia,
● the freeencyelopedia.
● www.google.com www.1egalsutra.com.
● http://en.wikipedia.org
● http://esciencenews.com
● http://Iegalserviceindia.com
● http://www.docstoc.com
● http://www.airwebwor1d.com
● www.guestia.com