Ombudsman: Concept, Development and Working of the Institution
Ombudsman is a quasi-judicial officer who acts independently and non-patricianly to perform his duty to supervise the administration.
Ombudsman is a quasi-judicial officer who acts independently and non-patricianly to perform his duty to supervise the administration. He performs the duty of inquiry and investigation to deal with specific complaints from the public against administrative injustice and maladministration. In essence, the primary duty of an Ombudsman is to investigate complaints and attempt to resolve them, usually through recommendations or mediation. Since a nation's prosperity typically depends on the proper and efficient functioning of the administrative side of the nation, ensuring that no corruption takes place is of significant value.
The Ombudsman plays an important role in tackling the issue of corruption in India; the Lokpal efficiently plays this role at the Centre level and the Lokayuktas at the State level. This article traces the evolution of the institution of the Ombudsman in the UK, USA, and India. It analyses its institution and acts as a watchdog of administration in the Indian context. The article will also discuss the work of Lokayuktas and provide a suitable conclusion.
I. Introduction
The administrative wing of a democratic country has a major role to play in its smooth administration both at the Centre and the State level. The administrative authorities in democratic countries are manifested with vast discretionary powers for proper administration. However, with the ever-increasing wide discretionary powers vested with administrative authorities, it leaves a large room for abuse or misuse of power, resulting in maladministration and corruption in the system.
In countries like India, its traditional democratic organs don’t provide an adequate and effective control mechanism over the administration functioning. Due to this lack of mechanism, it may lead to the negation of democratic values in the country. Here, the role of the Ombudsman comes into play because it is believed to bring and act as an effective control mechanism over the administration.
The word Ombudsman originated from the Swedish word ‘ombuds’, which means an officer or commissioner. In its special sense, it is a quasi-judicial administrative authority, i.e., the commissioner who has the duty of investigating and reporting to Parliament on citizens' complaints against public servants or public agencies[1]. An Ombudsman has no legal powers except the power of inquiry into maladministration complaints made by citizens.
In other words, the Ombudsman is a quasi-judicial officer of Parliament whose primary function is to investigate the complaints or allegations against the public administration and expose the involved administrative or executive officials. The main aim of the institution of the Ombudsman is to safeguard the citizens of his country against misuse of the powers of the administration. The object is to control the administration and thus protect the citizens against injustice brought about by faulty administration.[2]
II. Development in UK, US, and India
The institution of the Ombudsman was first developed in Sweden and established in 1809. In Sweden, an Ombudsman is vested with the power to investigate a case on the complaint filed by a person or can take suo moto cognizance of the allegations. This grants him the power to recommend to parliament its action against public officials and Ministers against whom the complaint is received.
Development in the UK
In England, the first Ombudsman was established in 1967 through the Parliamentary Commissioner Act, 1967 and is called ‘Parliamentary Commissioner’. He was appointed on the advice of the then Prime minister with a tenure of 65 years and was envisaged a permanent appointee under the act with the security of the High Court Judge. The Parliamentary Commissioner Act, 1967, confers jurisdiction of the Parliamentary Commissioner jurisdiction only on the Central Government and only over the department stated in the Second Schedule to the Act.
In 1974 a law was enacted by the British parliament to enhance the jurisdiction of Parliamentary Commissioners to the level of local government as well. After its enactment, the local councillors can lodge complaints against the local government body and seek grievance redressal. However, complaints against the administration can’t be made directly to the Ombudsman but can be made to the Ombudsman only through the members of the House of Commons.
Development in the USA
The USA doesn’t have a unified federal ombudsman service. Nonetheless, handling complaints against federal authorities can be seen to some extent being unofficially incorporated into the role of the US Member of Congress. Since 1963, in every session of the congress, a bill has been introduced to establish an institution akin to Ombudsman is considered by the members as a drag on their status and power.
The members considered the ombudsman powers their sole prerogative to represent their respective constituencies and handle citizen’s grievances. The state-level ombudsman was introduced in 1967.
Development in India
Following the recommendation of the Administrative Reforms Commission, headed by Moraji Desai, the Central Government took some steps for the adoption of the Ombudsman system in India. The Commission submitted its report on October 20, 1966, and propounded a scheme for creating an Ombudsman system in the country.
Although the commission drew largely from the experiences of other nations in drafting its ombudsman scheme, it was composed of a number of peculiar features drafted on its own owing to the diverse circumstances in India such as federal structure; larger population than other countries having the Ombudsman system; parliamentary government with ministerial responsibility. The Government of India accepted the commission’s recommendation.
The term ‘Lokpal’ was earlier coined in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate about the redressal mechanism of grievances. In India, the word Lokpal was derived from the Sanskrit words “Lok” (people) and “Pala” (protector/caretaker), meaning “Caretaker of People”.[3]
In 1969 the Lok Sabha enacted the Lokpal and Lokayukta Bill, 1968. It was the second definitive step taken towards the creation of the Ombudsman system in India[4]. The Bill reflected the recommendations of the commission with a few deviations.
The first deviation made by the bill was to confine the jurisdiction of the Ombudsman within the central sphere, excluding the states out of its purview but the bill lapsed. In 1971, another attempt was made with the introduction of another bill, yet again failed. The third attempt was made in 1977 with the introduction of the Lokpal Bill, 1977 in the Lok Sabha. Again with the dissolution of Lok Sabha, this bill also lapsed. Another Lokpal Bill was brought before the Parliament in 2001 but lapsed on account of the dissolution of the 13th Lok Sabha.
Each time the Lokpal Bill was introduced in the Parliament, it was referred to committees for their recommendation before the Government could take a final stand in the matter of the Lok Sabha house being dissolved. It is evident that so far, all attempts of the parliament members to establish the central-level Ombudsman system have proved futile.
III. Institution of Ombudsman in the States
In India, the notion of a constitutional ombudsman was first proposed by the law minister Ashok Kumar Sen in the early 1960s. The term ‘Lokpal’ and ‘Lokayukta’ were coined by Dr. L.M. Singhvi. In 1968, Lokpal Bill was passed in Lok Sabha but lapsed with the dissolution of Lok Sabha and was lapsed eight times afterwards till the year 2011. In 2002, M.N Venkatachaliah, the chairman of the review commission, asked for the appointment of the Lokpal and Lokayuktas with a recommendation that the Prime Minister should not be included within the purview of its authority.
It was in the year 2011 the Lokpal Bill was passed, and it eventually led to the establishment of the institution of an Ombudsman (Lokpal) at the Centre and Lokayukta at the State level. Lokpal is the Indian Ombudsman, and Lokayuktas is the State Ombudsman. Lokpal in India is a national anti-corruption ombudsman to look into complaints against public servants and officials, which are defined under the Lokpal Act 2013. This quasi-judicial body was constituted to check the menace of corruption in India.
The composition of Lokpal office comprises a Chairman and up to 8 members. The chairman of the Lokpal can be a current or retired judge of the Supreme Court or the chief justice of High Courts, or an eminent person having special knowledge and expertise of not less than 25 years in the matters relating to:
- Anti Corruption Policy
- Public administration
- Vigilance
- Law and Management
- Finance, including insurance and banking
Section 25 of the Lokpal Act 2013 deals with the powers of Lokpal. The provision states that once the Lokpal receives a complaint under the Prevention of Corruption Act 1988, it can initiate the investigation. If the complaint is found to be true in the investigation, then he can ask the government to take disciplinary action against the concerned public servants or file a corruption case in a special court.
IV. Working of Lokayuktas
In spite of several attempts on the introduction of the Lokpal Bill, the institution of the Ombudsman (called Lokpal) has not been established at the Centre. However, some states have adopted the Ombudsman system (called Lokayukta) with the institution of Lokayukta being established in several States with an enactment of a statute.
Some states have even Uplokayuktas been appointed. In India, the first state was Maharashtra to introduce Lokaykta through the Maharashtra Lokayukta and Uplokayuktas Act in 1971. Presently there are no Lokayuktas in the states of Andhra Pradesh, Arunachal Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tamil Nadu, Tripura and West Bengal.
The Lokayukta[5] under the State Acts is generally a retired Judge of the Supreme Court or a retired Chief Justice or Judge of a High Court. The appointment of Lokayukta is done by the Governor as a result of consultation between the Chief Minister, Chief Justice of the High Court concerned and the Leader of the Opposition. But notably, the entire appointment procedure is solely reliant on the opinion of the Chief Justice who has the primacy to recommend names of a retired Chief Justice or a Judge.
The tenure of Lokayukta is for five or six years, he gets the same salary, perquisites and privileges he enjoyed as a Judge or Chief Justice before retirement. In states where the Uplokayukt is appointed, provision is made for the role of Uplokayukt to share the workload of the Lokayukta. Still, mainly the complaints against ministers and officers of the rank of Secretary are generally to be enquired into by the Lokayukta.
The Apex court in the case of Dinesh Trivedi v. Union of India[6] recommended that till the institution of the ombudsman is constituted, a High-Level Committee to be appointed by the President in consultation with the Prime Minister and Speaker. Following the disclosures made in the Vohra Committee Report, the Committee was directed to monitor the investigation with regard to the nexus between criminals and politicians, bureaucrats, media persons and some members of the judiciary.
In another case of Justice K.P. Mohapatra v. Ram Chandra Nayak, the Hon’ble Supreme Court, while dealing with functions of Lokpal under section 7 of Orissa Lokpal and Lokayukta Act, 1995 held that:
“In the context of the functions which are to be discharged by the Lokpal, it is apparent that they are of utmost importance in seeing that unpolluted administration of the State is maintained and mal-administration, as defined under Section 2(h), is exposed so that appropriate action against such maladministration and administrator could be taken. The investigation which Lokpal is required to carry out is that of quasi-judicial nature which would envisage not only knowledge of the law, but also of nature and work which is required to be discharged by an administrator.”[7]
The Lokpal Bill 2018 was passed under Article 252 of the Indian Constitution, which envisages provision pertaining to the power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State. In 2019, Former Supreme Court Judge Justice Pinaki Chandra Ghose was appointed as India’s first Lokpal, the anti-corruption ombudsman.
V. Conclusion
Corruption in any administration becomes a deep-rooted cause behind its failure and the biggest hurdle in the development of a nation. To tackle the issue of maladministration and corruption against government servants, the institution the Ombudsman plays a significant role. In India, the role of the Ombudsman is played by the Lokpal. At present, the institution of Ombudsman is established mainly to fight against corruption and malpractices by the administration and ministers.
Moreover, it is noteworthy that the corruption issue can’t be overcome by only enacting legislation, but a unified and concentrated effort is required from the society as a whole. The reason that corruption at present is so deeply rooted in the system makes the citizens of the country equally responsible for that. To keep a regular and proper check on the exercise of the powers by the administration, India needs to establish the Lokpal bill that comes into enforcement stringently.
This will improve the consciousness of the institution of the ombudsman, giving legislative backing to the bill to take action on public complaints. To conclude, granting constitutional status to the institution of the Ombudsman would do more good in the functioning of administration within the scope of their powers and against maladministration.
[1] Wade, Administrative Law, p. 75(Fourth Edn).
[2] M.P. Jain & S.N. Jain, Principles of Administrative Law, p.969(Sixth Edn).
[3] Meenakshi, Short Essay on Jan Lokpal Bill. Retrieved 01 March 2018.
[4] M.P. Jain & S.N. Jain, Principles of Administrative Law, p.987(Sixth Edn).
[5] M.P. Jain & S.N. Jain, Principles of Administrative Law, p. 994(Sixth Edn).
[6] (1997) 4 SCC 306.
[7] (2002) 8 SCC 1.