THE OMBUDSMAN LOKPAL & LOKAYUKTA

Synopsis

I. INTRODUCTION VII. LOKPAL

II. WHO IS AN OMBUDSMAN 1. Composition [S. 3(2)]

III. CHARACTERISTICS OF OMBUDSMAN 2. Eligibility [S. 3(3)]

IV. OBJECT OF THE INSTITUTION OF 3. Appointment [S. 4]

OMBUDSMAN
4. Powers and Functions of Lokpal
V. ORIGIN AND DEVELOPMENT
VIII. LOKAYUKTA
VI. OMBUDSMAN IN INDIA
1. Lokayukta in Maharashtra
Necessity for Ombudsman in India
2. Appointment of Lokayukta
a. Judicial control of administrative
3. Matters dealt with by Lokayukta
action is insufficient
4. All India Conference of Lokayuktas
b. 2. Lack of proper legislative
and Uplokayuktas
control
IX. CONCLUSION
c. Inadequate administrative check

Origin and Development of the

concept in India

Introduction
Due to the tremendous increase in the powers and functions of the administrative authorities, they
now enjoy wide discretionary powers. They discharge not only administrative functions but also quasi
legislative and quasi judicial functions. This has led to an increase in the scope of misuse of power by
them. As LORD ACTON once aptly stated, Power tends to corrupt, and absolute power corrupts
absolutely. Therefore it is important to keep a check on and control the actions of administrative
authorities. Thus in order to ensure the accountability of the administrative authorities the concept of
ombudsman has come into existence.

Who is an Ombudsman
Ombudsman is a Scandinavian word. It is taken to mean a delegate, agent, officer or commissioner.
It is not possible to precisely define the term ombudsman but GARNER describes him as an officer
of Parliament, having as his primary function, the duty of acting as an agent of Parliament, for thr
purpose of safeguarding citizens against abuse or misuse of administrative power by the executive.
Thus an ombudsman is an authority, appointed by the government and even private bodies to
investigate complaints against an authority. Essentially, the ombudsman is an intermediate person
who tries to resolve the complaints which one party has raised against the other. Their task is to look
into the complaint and resolve the matter in a peaceful manner.

Characteristics of Ombudsman
PROFESSOR LARRY B HILL has enumerated the following characteristics of the pure ombudsman

1. Established as separate entity that is functionally autonomous.

2. Operationally independent of both the legislature and the executive.
3. Ombudsman is a legally established governmental official.
4. A monitoring specialist.
5. Administrative expert and professional.
6. Non-partisan.
7. Normatively universalistic.
8. Client-centered, but not anti-administration.
9. Popularly accessible and visible.
10. High status institutions
11. Have extensive resources to perform his mission

Object of the Institution of Ombudsman

the basic purpose of an Ombudsman is provision of a watchdog 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.

The following are 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.

Origin and Development

The institution of Ombudsman first came into operation in Scandinavia. The office of Ombudsman
has been in existence in Sweden since 1809 and in Finland since 1919. Denmark introduced the
system in 1955. Norway and New Zealand adopted it in 1962. In 1966, England appointed a
parliamentary commissioner for administration. In Australia, it has been established at the Centre as
well as State level. In India, it has been established in some States and has not been established in the
centre.

Ombudsman in India
The institution of ombudsman is recognised in India by the name of Lokpal at the Centre level and
Lokayuktas at the State level. The institution of Ombudsman has been primarily established under
the Lokpal and Lokayuktas Act, 2013, commonly known as the Lokpal Act.

Necessity for Ombudsman in India

In India, the institution of Ombusdman is needed for the following three major reasons

1. Judicial control of administrative action is insufficient

Although Courts have expanded their supervision over administrative action, it is not a sufficient and
effective means of controlling the administration.

i. The burden of proof lies on the person who alleges the abuse of power, and considering the fact
that the Govt. may withhold certain important documents and refuse to produce them in the
name of public interest, it is almost impossible for a common man to prove his case.
ii. The judiciary is further weakened by inserting exclusion or finality clause in the statute.
iii. The judicial review of administrative discretion is also very limited.
iv. The judicial proceedings are time consuming and costly which often makes it beyond the reach
of the common man

2. Lack of proper legislative control

i. It is the traditional function of the legislature to oversee the administration. But nowadays
instead of controlling the executive, the legislature itself is being controlled by the Executive.
ii. The rigid party system makes it difficult for the members of Parliament belonging to the
majority party to go against the decision for the party.
iii. There is overburdening of the Legislature which means that it has no time for redressing
individual grievances.
iv. It is difficult for an ordinary man to get the matter to be raised in the House and thereby attract
the attention of the Houses

3. Inadequate administrative check

The internal administrative check or administrative review of the decisions of the administration is not
adequate in practice. Often the original decisions are tried to be maintained. This necessitates an
authority outside the administrative hierarchy to review the administrative actions and to keep a check
on the administrative powers.
Origin and Development of the concept in India
The idea of ombudsman came to India in the year 1959. Mr C.D. Deshmukh was the Chairman of the
University Grants Commission and he made possible the establishment of a tribunal which would be
completely impartial and would look into the matters and make proper reports on the complaints filed
by the public in general. From this incident there have been continuous demands for the establishment
of such a mechanism like an ombudsman in all the strata of the Indian society.

In 1966 a commission was set up named the Administrative Reforms Commission and this
commission recommended that an institution based on the lines of an ombudsman is necessary in
India.

In pursuance of these recommendations the Lokpal Bill was forwarded in the Lok Sabha in the year
1968. However the Bill lapsed. Subsequent versions were re-introduced in 1971, 1977, 1985, 1989,
1996, 1998, 2001, 2005 and in 2008, but none of them were passed.

In 2012 during the Parliaments Winter Session, the Lok Sabha passed the controversial Lokpal Bill,
but could not be passed by Rajya Sabha due to shortage of time in the winter session of 2011. Finally
the Bill came to be passed in December 2013.

Lokpal
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 Lok Pal is supposed to be a
watchdog over the integrity of Ministers and the Members of Parliament.

The Lokpal Act, 2013 provides for constitution of the Lok Pal as an independent body to enquire into
cases of corruption against public functionaries, with a mechanism for filing complaints and
conducting inquiries etc. Section 3 of the Act states that on and from the commencement of the Act,
there shall be established, for the purpose of this Act, a body to be called the Lokpal.

Composition [S. 3(2)]

The Lokpal shall consist of a Chairperson and a maximum of eight other members.

Out of the remaining members, 50% shall be Judicial Members.

Provision is also made for reservation of 50% of the seats for persons belonging to the Scheduled
Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.

Eligibility [S. 3(3)]

For being Chairperson He shall be a person who is or has been a Chief Justice of India or is or has
been a Judge of the Supreme Court or an eminent person who fulfils the eligibility specified in clause
(b) of sub-section (3).
For being Judicial Member He is or has been a Judge of the Supreme Court or is or has been a
Chief Justice of a High Court

For being a Member other than Judicial Member , if he is a person of impeccable integrity and
outstanding ability having special knowledge and expertise of not less than twenty-five years in the
matters relating to anti-corruption policy, public administration, vigilance, finance including insurance
and banking, law and management.

Appointment [S. 4]
The Chairperson and the Members are to be appointed by the President after obtaining the
recommendations of a Selection Committee. The Selection Committee shall consist of

(a) the Prime MinisterChairperson;

(b) the Speaker of the House of the People
(c) the Leader of Opposition in the House of the People
(d) the Chief Justice of India or a Judge of the Supreme Court nominated by him
(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to
(d) above, to be nominated by the President

The Selection Committee is empowered to constitute a Search Committee for preparing a panel of
persons to be considered for appointment.

Powers and Functions of Lokpal

1. the Lokpal has been empowered to constitute an Inquiry Wing for the purposes of conducting
preliminary inquiry into any offence alleged to have been committed by a public servant
punishable under the Prevention of Corruption Act, 1988
2. similarly the Lokpal is also empowered to constitute a Prosecution Wing for the purpose of
prosecution of public servants in relation to any complaint by the Lokpal under this Act
3. the Lokpal can entertain any complaint from any person other than a public servant
4. the Lokpal has jurisdiction to inquire into any matter of corruption in respect of the following
persons
a. any person who is or has been a Prime Minister (to the extent that it does not relate to
international relations, external and internal security, public order, atomic energy and space)
b. any person who is or has been a Minister of the Union;
c. any person who is or has been a member of either House of Parliament
d. any Group A or Group B officer or equivalent or above, from amongst the public servants
defined in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruption
Act, 1988 when serving or who has served, in connection with the affairs of the Union
e. any person who is or has been a chairperson or member or officer or employee in any body or
Board or corporation or authority or company or society or trust or autonomous body (by
 whatever name called) established by an Act of Parliament or wholly or partly financed by the
Central Government or controlled by it

Thus the Lokpal has not been given jurisdiction to enquire into the allegations against the President,
Vice President, Speaker of Lok Sabha, Chief Justice or any Judge of the Supreme Court, Comptroller
and Auditor General of India, Election Commissioner etc.

The Lokpal has to ensure that the investigation is complete within a period of one year from the date
of complaint and that the case is disposed of and decided within a period of one year from the date of
filing of the case in the Special Court.

Lokayukta
In the wake of the recommendations of the first Administrative Reforms Commission, many State
Governments enacted legislation to constitute the Lokayukta to investigate allegations or grievances
arising out of the conduct of public servants including political executives, legislators, officers of the
State Government, local bodies, public enterprises and other instrumentalities of Government
including cooperative societies and universities.

By virtue of such legislation, a member of the public can file specific allegations with the Lokayukta
against any public servant for enquiry. It is also open to the Lokayukta to initiate suo-motu inquiry
into the conduct of public servants.

The States in which Lokayukta has been established by enacting a statute include States of U.P.,
Bihar, Himachal Pradesh, Karnataka, Andhra Pradesh, Maharashtra, Orissa, Rajasthan etc.

Lokayukta in Maharashtra
The State of Maharashtra is the first and pioneer State in India to introduce the concept of Lokayukta
by enacting the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971 in view of the
recommendations made by the Administrative Reforms Commission headed by Late Shri Morarji
Desai in 1966. The Maharashtra Lokayukta Institution came into being from 25th October, 1972.

The Lokayukta Act empowers the Governor of Maharashtra to appoint a person known as Lokayukta
and one or more persons to be known as the UpaLokayukta or Upa-Lokayuktas.

Appointment of Lokayukta
The Lokayukta is generally a retired Judge of the High Court or the Supreme Court and normally
appointed for a five-year term on the basis of a joint decision involving the Chief Minister, the Chief
Justice, the Speaker of the House and leader of the Opposition. For example S. 3 of the Maharashtra
Lokayukta Act provides that the Lokayukta shall be appointed after consultation with the Chief
Justice of the High Court and the Leader of the Opposition in the Legislative Assembly. If there is no
such Leader of Opposition, the Members of the Opposition in that house may elect a person for the
said purpose. The Upa-Lokayukta or Upa-Lokayuktas are to be appointed after consultation with the
Lokayukta.

Matters dealt with by Lokayukta

While in all states the Lokayuktas deal with issues of corruption, in some, they also deal with other
grievances. The Maharashtra and Orissa Lokayuktas assume more the character of a grievance
redressal organization rather than an Ombudsman for cases of corruption.

All India Conference of Lokayuktas and Uplokayuktas

An all India conference of Lokayuktas and Uplokayuktas was held at Simla in 1986. The Conference
proposed a comprehensive Bill for a uniform institution of Lokayukta in every state, based on a
Central legislation with Constitutional back up. The Committee also made certain notable suggestions
for the improvement of the institution of Lokayukta. These include

a. extension of jurisdiction of Lokayukta to not only allegations of corrupt practices but also to
the grievance and maladministration as defined in the Central Lokpal & Lokayukta Bill, 1968.
b. Former ministers and public servants should also be brought under the scrutiny and
supervision of Lokayukta
c. Lokayuktas and Uplokayuktas should be empowered to investigate suo motto.
d. Lokayuktas and Uplokayuktas should be given power to sanction search and seizure under the
CrPC.

Conclusion
Despite the enactment of the Lokpal Act, the Govt. has failed to establish the Lokpal. The Second
Administrative Reforms Commission of India in its report on Ethics in Governance recommended
that the Constitution be amended to provide for a national Ombudsman and also to make it obligatory
on the part of State Governments to establish the institution of Lokayukta. Considering the urgent
need for the establishment of the institution of Ombudsman in India, it is high time that these
recommendations are taken into account by the Government and appropriate amendments are made so
as to give a constitutional recognition to the institution of ombudsman.