INSTITUTION OF OMBUDSMAN IN INDIA: PROBLEMS AND PROSPECTS

(Project towards the fulfilment of the assessment in the subject of Administrative Law)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(July-November 2018)

Date of Submission: September 15, 2018

Submitted to: - Submitted By: -

PROF. I.P. MASSEY SARTHAK SINGLA

Dean, Faculty of Law B.A.LL.B. (Hons)

National Law University Roll No. 1472

Jodhpur Semester V

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 INSTITUTION OF OMBUDSMAN IN INDIA: PROBLEMS AND PROSPECTS

-SARTHAK SINGLA*

ABSTRACT
Administrative law is an ever-growing subject which cannot be confined to one single terrain. It does not confine itself
to any one branch of law and is eventually bound to be present at every instance where there is an abuse of power.
For an administrative system to be good it must not abstain from being answerable to the people. But, as has been
said, absolute power corrupts absolutely which implies that if there is power then its abuse is bound to be there. With
the administrative agencies pervading every aspect of our lives, the chances of administrative law interfering with the
rights of a person have increased manifold. It eventually leads to the need for an appropriate mechanism which can
secure the rights of a person from being infringed by administrative wrongs. For this reason, the institution of
“ombudsman” came to the rescue and proved to be of immense importance and has been and is still being adopted
by various nations to protect the rights of the individual against the administrative practices of the State and also to
avoid inefficiency in the administrative set up of the State. This paper provides a comprehensive analysis on the
institution of Ombudsman in India. In part I, the author shall give a brief introduction about the institution of
Ombudsman, and its need in the legal society. In part II, the author shall delve into the development of the Institution
in India, and various prospects of this institution. Before concluding, in part III, the author shall discuss various
problems faced by the administration and faced by the limitations in the development of this Institution.

I. INTRODUCTION
“It is quite possible nowadays for a citizen’s right to be accidentally crushed by the vast
juggernaut of the government’s administrative machine. In this age of the welfare state,
thousands of administrative decisions are made each year by governments or their
agencies, many of them by lowly officials; and if some of these decisions are arbitrary or
unjustified, there is no easy way for the ordinary citizen to gain redress.”1

The governmental administration today is called upon to manage the entire affairs of the socio-
economic life of the people. The enormous expansion of public services has led to the expansion
of bureaucracy. This has also resulted in the multiplication of the administrative processes where-
by administrative power and discretion are vested at different levels of the executive. And where
there are power and discretion there is always the possibility of their abuse in terms of
maladministration and corruption. It has empirically been observed that greater the degree of

* Sarthak Singla is currently pursuing B.A.LL.B. (Hons.), V Semester at National Law University, Jodhpur.
1 Rowatt, D C, No 28 Canadian Journal of Economics and Political Science. P.543.

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discretion granted, the more likely it is that the incidence of mistakes will increase and the less
likely that they will be discovered. Despite its dangers, we cannot eliminate discretion from
administration. What is, therefore, necessary is to devise adequate methods of control over the
exercise of discretion so that the chances of maladministration and corruption arising out of its
misuse are considerably reduced.

Further, the professed aim of a government, its form or label, has always been the service of the
people it governs. The people's satisfaction has been the bed-rock of its stability. Disregard for
people's satisfaction leads initially to an attitude of ambivalence, then to alienation and finally to a
breaking point revolt. But it is not only the stability aspect that is important. There has come about
a revolution in the role concept of public administration. It is regarded today as a great modernizer,
a nation builder and the most important instrument of development. Again, there is increasing
emphasis on 'development with participation', meaning thereby that needs and aspirations of the
people receive adequate attention of those who finally decide and act for their welfare and all-
round development. In other words, the intention is to make the administration responsive to the
needs and aspirations of the people so that it moves in the right direction, serving and extending
the popular interests.

Ombudsman is an effective mechanism that can protect a person from administrative flaws. The
term ombudsman in terms of utility means a “watchdog of the administration” or the “protector
of the little man”. This institution was first developed in Sweden in 1809 and soon became a
cherished importable commodity the world over. It is a unique institution which leads to an “open
government” by providing a democratic control mechanism over the powers of the state. Its main
catch is its apparent effectiveness despite minimal coercive capabilities.

II. DEVELOPMENT OF THE INSTITUTION OF OMBUDSMAN IN INDIA

Governments in the modern age all over the world have come to enjoy a large amount of
discretionary powers. If this power is abused it can very easily imperil the very life, liberty and
property of individual. The Ombudsman is needed as one of the weapons in the armoury of
Control Mechanisms provided by administrative law to match the growing complexities of the
administration. According to the protagonists of the Institution of Ombudsman for India, there
are several reasons for its installation here. After India took over from the British, the Indian
Administrative set-up came to be over- burdened with the immense task of meeting the after-
effects of Second World War. The economic crisis, floods and famines were enough for breaking
of their nerves. Over and above these, India set on to the path of ambitious and revolutionary
plans which required complete reorganization of the administrative set-up. The administrators

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were armed with greater powers and thus there was a greater need to safeguard the citizen from
the arbitrary or unfair exercise of powers by the former. Finally, whatever agencies the Indian
Constitution provided for the Indian citizens these were not sufficient to meet their grievances.

A. EARLIER EFFORTS IN DEVELOPING AN EFFECTIVE MECHANISM

The Indian Constitution had already provided an Ombudsman by another name for keeping a
watch on national accounts. He was the Comptroller and Auditor General. Before launching upon
the institution of Ombudsman, the Indian Government had already made several efforts to
eliminate corruption and other maladies of the public services in the country. An office of
Vigilance Commission was established by the Ministry of Home Affairs, Delhi. The Central
Government set up the agencies of Central Bureau of Investigation and a Special Police
Establishment, who were required to deal with special problems divulging a lack of public morality
and ethics on the part of public servants and business establishments.

In some States like Uttar Pradesh new post of Deputy Superintendent of Police (Corruption) was
created to tackle such problems. In several States Vigilance Commissions began functioning since
recent times. Besides these, several other efforts were also made in recent years to find out the
methods of eradication of corruption and maladministration, or to keep them to a minimum. A.D.
Gorwala's Report on Public Administrators 1951, P.B. Gajendragadkar's expressions on the role
of Administrators in a Democratic Welfare State and many similar studies on evaluation of the
need for an Indian Ombudsman for successful planning are all evidence in support of the fact that
some serious thinking is going on in the country for curbing inefficiency, mal- administration and
corruption.

B. INDIAN OMBUDSMAN: THE LOKPAL

The Lokpal Bill was for the first time presented by Mr. Shanti Bhushan during the fourth Lok
Sabha in 1968, and was passed there in 1969. However, while it was pending in the Rajya Sabha,
the Lok Sabha was dissolved, and so the bill was not passed at that time. Subsequently, Lokpal
bills were introduced in 1971, 1977, 1985 (again by Ashoke Kumar Sen when serving as Law
Minister in the Rajiv Gandhi cabinet), 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were
never passed. Each time, after the bill was introduced to the house, it was referred to some
committee for improvements a joint committee of parliament, or a departmental standing
committee of the Home Ministry and before the government could take a final stand on the issue,
the house was dissolved again.

In 2002, the report of the National Commission to Review the Working of the Constitution urged
that the Constitution should provide for the appointment of the Lok Pal and Lokayuktas in the

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states but suggested that the Prime Minister should be kept out of the purview of the authority. In
2004, the UPA government’s National Common Minimum Programme promised that the Lok Pal
Bill would be enacted.2 The Second Administrative Commission, formed in 2005, also
recommended that the office of the Lok Pal be established without delay. In January 2011, the
government formed a Group of Ministers, chaired by Shri Pranab Mukherjee to suggest measures
to tackle corruption, including examination of the proposal of a Lok Pal Bill.

C. JAN LOKPAL BILL

The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a draft anticorruption 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 Kiran Bedi 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.”

Anna Hazare, an anticorruption crusader, began a fast unto death, demanding that this bill, drafted
by Civil Society, be adopted. The website of the India Against Corruption movement calls the
Lokpal Bill of the government an “eyewash”, and hosts a critique of that government bill. It also
lists the difference between the bills drafted by the government and civil society.

Various features of the Jan Lokpal Bill are enumerated as follows:

a.) Lokpal and its role: The bill proposes to establish autonomous and independent institutions
called Lokpal at the central level and Lokayukta for states. These shall have powers of
superintendence and direction for holding a preliminary inquiry, causing an investigation to be

2 National Common Minimum Programme of the Government of India, May 2004,

http://pib.nic.in/archieve/upareport/upa_3_year_highlights.pdf

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made and prosecution of offences in respect of complaints under any law for the prevention of
corruption.

b.) Structure of the institution: The Lokpal will consist of a chairperson and a maximum of eight
members of which fifty percent shall be judicial members. Fifty percent of members shall be from
amongst Scheduled Caste (SC), Scheduled Tribe (ST) and Other Backward Classes (OBC),
minorities and women. It has an inquiry wing for conducting the preliminary inquiry and a separate
independent prosecution wing. Officers of the Lokpal will include the secretary, director of
prosecution, director of inquiry and other officers.

c.) The process of selection: The selection of chairperson and members of Lokpal shall be through
a selection committee The Selection Committee shall comprise of the Prime Minister, Speaker of
the Lok Sabha, Leaders of the Opposition in both houses, a Union Cabinet Minister nominated
by the Prime Minister, one sitting judge of the Supreme Court, and one sitting Chief Justice of the
High Court’s both nominated by the Chief Justice of India, an eminent jurist nominated by the
central government and a person of eminence in public life with knowledge of public
administration, policy making, anticorruption policy, vigilance and finance.

d.) Jurisdiction: Prime minister has been brought under the purview of the Lokpal with specific
exclusions. Lokpal cannot hold any inquiry against the prime minister if allegations relate to
international relations, external and internal security of the country, public order, atomic energy
and space. Any decision of Lokpal to initiate preliminary inquiry or investigation against prime
minister shall be taken only by the full bench with a 3/4th majority. Such proceedings shall be held
in camera. Its jurisdiction to include all categories of public servants including Group ‘A’, ‘B’, ‘C’
and ‘D’ officers and employees of government. On complaints referred by Lokpal, the Central
Vigilance Commission (CVC) will send its report in respect of Group ‘A’ and ‘B’ officers back to
Lokpal for further decision. With respect to Group ‘C’ and ‘D’ employees, the CVC will proceed
further in exercise of its own powers under the CVC act subject to reporting and review by Lokpal.
All entities receiving donations from foreign sources in the context of the Foreign Contribution
Regulation Act (FCRA) in excess of Rs.10 lakh per year are brought under the jurisdiction of the
Lokpal. Lokpal will not be able to initiate suo moto inquiries.

e.) Other significant features of the Bill: No prior sanction shall be required for launching
prosecution in cases enquired by Lokpal or initiated on the direction and with the approval of
Lokpal. There are Provisions for confiscation of property acquired by corrupt means, even while
prosecution is pending. Lokpal to be final appellate authority on all decisions by public authorities
relating to provision of public services and redressal of grievances containing findings of

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corruption. Lokpal to have power of superintendence and direction over any investigation agency
including Central Bureau of Investigation (CBI) for cases referred to them.

III. PROBLEMS/CRITICISM FACED BY THE JAN LOKPAL BILL

The bill has been criticised as being naïve in its approach to combating corruption. According to
Pratap Bhanu Mehta, President of the Centre 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.

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.

Despite these clarifications, critics feel that the exact judicial powers of Lokpal are rather unclear
in comparison with its investigative powers. The bill requires “members of Lokpal and the officers
in investigation wing of Lokpal shall be deemed to be police officers”. Although some supporters
have denied any judicial powers of Lokpal, the government and some critics have recognised
Lokpal to have quasi-judicial powers.

The bill also states that “Lokpal shall have, and exercise the same jurisdiction powers and authority
in respect of contempt of itself as a High court has and may exercise, and, for this purpose, the
provisions of the Contempt of Courts Act, 1971 (Central Act 70 of 1971) shall have the effect
subject to the modification that the references therein to the High Court shall be construed as
including a reference to the Lokpal.” Review of proceedings and decisions by Lokpal is prevented
in the bill by the statement “no proceedings or decision of the Lokpal shall be liable to be
challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction.” As
a result, how the trials will be conducted is unclear in the bill, although the bill outlines requiring
judges for special courts, presumably to conduct trial that’s hould be completed within one year.
The critics hence express concern that, without judicial review, Lokpal could potentially become
an extra constitutional body with investigative and judicial powers whose decisions cannot be
reviewed in regular courts.

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

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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”.3

Further, the CBI Director, in a presentation before the Standing Committee of the Parliament, has
strongly argued against the vivisection of the CBI and merger of its anticorruption wing with the
Lokpal, noting that this would seriously cripple the core functioning of the CBI and reduce it to
irrelevance. An organization built over last 60years comprising competent professionals should
not be subsumed under Lokpal. CBI officers concede that in some sensitive political cases there
is of course interference from the government, but in respect of an overwhelming majority of
cases CBI functions, unfettered and uninfluenced by extraneous considerations. For this reason,
there is an ever-increasing demand for CBI investigation from all over the country in respect of
important cases.

The ombudsman office is also criticized for the fact that its effectiveness tends to depend upon
the character and personality of the ombudsman officer(s) themselves rather than the system as a
whole. Regardless of their organizational framework they are a highly personalized institution and
success demands an individual or team who are perceived as independent and impartial, with
relevant qualifications and in-depth knowledge of the sector, and can command respect and trust
from all parties. Of course, such individuals are hard to find.

CONCLUSION
In spite of the key characteristic of accessibility, ombudsman offices are frequently noted for their
inaccessibility. Few citizens are aware of the different ombudsman schemes, how to reach them
and how to process a grievance. Inaccessibility is the chief reason why ombudsman offices tend
to be underutilised, especially by the most disadvantaged who are less likely to know of the
existence of ombudsman and have more difficulty in registering complaints or grievances. It seems
that many ombudsman schemes, particularly in Britain, are hidden by bureaucracy and formality
and lack a human face. The question of visibility is linked to more general criticisms of the
operational mode of the ombudsman as too reactive, waiting for complaints rather than taking the
office to the public or initiating investigations.

Some of the reason responsible for the failure of this institution in India include lack of political
will to root out corruption, politicization of appointment of Lokayukta, lack of infrastructural

3Ministry of Law and Justice. “Government Issues Notification to Constitute a Joint Drafting Committee to Prepare Draft Lok Pal
Bill.” Press Information Bureau, Government of India.
Source: http://pib.nic.in/newsite/erelease.aspx?relid=71560

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facilities, lack of administrative cooperation and political apathy, lack of independent investigatory
machinery and advisory nature of recommendations, etc. To some extent the institution itself is
responsible for its failure. Fact remains that any other institution can be easily destroyed by lack
of political will and bureaucratic apathy. Personal interest and not the public interest is still
the suprema lex. Remedy against administrative faults must be preventive and punitive both.

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 BIBLIOGRAPHY
1. Statutes/Legislative materials
 Standing Committee on Home Affairs 84th Report on Lokpal Bill, 2001.
 Administrative Reforms Commission Report submitted in 1966.
 Interim Report of the Administrative Reforms Commission on Problems of Citizen’s
Grievances, 1966.
 “Ethics in Governance,” Fourth Report of the Second Administrative Reforms
Commission, Jan 2007.
 Ministry of Law and Justice. “Government Issues Notification to Constitute a Joint Drafting
Committee to Prepare Draft Lok Pal Bill.” Press Information Bureau, Government of India,
http://pib.nic.in/newsite/erelease.aspx?relid=71560.
 Lokpal and Lokayukta Act, 2013.
 “Executive and Public Administration,” Chapter 6 of the National Commission to Review
the Working of the Constitution (Chairperson: Shri M.N. Venkatachiliah),March 31, 2002

2. Books
 J.J.R. Upadhaya, Administrative Law (2004) p. 382
 IP Massey, Administrative Law, (eastern Book Company, 9th ed.)

3. Journal/Articles
 P. K. Tripathi, Lokpal: The Proposed Indian Ombudsman, Journal of the Indian Law Institute,
Vol. 9, No. 2 (APRIL-JUNE 1967), pp. 135-152.
 Haridwar Rai & Sakendra Prasad Singh, Ombudsman In India: A Need For Administrative
Integrity And Responsiveness, The Indian Journal of Political Science, Vol. 37, No. 3 (July. -
Sept. '76), pp. 43-63.
 Sarojini Sharan, Ombudsman in India, The Indian Journal of Political Science, Vol. 32, No.
2 (April—June, 1971), pp. 158- 174.
 Anil Dharker, The Topiwala Camera, The Outlook, New Delhi, 2011.
 Centre for Media Studies, India Corruption Study 2005: To Improve Governance: Volume I – Key
Highlights, New Delhi: Transparency International India, 30 June 2005.
 J. Rawl, A Theory of Justice, Cambridge, Cambridge University press, Edition 1997, at 11.
 C. Rowat Donald, The Ombudsman: Citizen's Defender, 1965. Pp. 348, University of Toronto
Press, Toronto.

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4. Internet Sources
 Transparency International, global coalition against corruption, www.Transparency.org.
 http://www.legalserviceindia.com/legal/article-50-lokpal.html
 https://www.legalbites.in/law-notes-administrative-law-ombudsman/
 https://www.lawctopus.com/academike/institution-ombudsman-legislative-judicial-
outlook/
 https://www.lawteacher.net/free-law-essays/administrative-law/role-of-ombudsman-in-
administration.php

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