CHAPTER -

Origin and Evolution of the

Ombudsman
 The world has been facing the problem of corruption and maladministration

and the effects of corruption can be seen on the social, political and economic

conditions of ever}- county\ . mainly the common people are victim of administrative

and political corruption. For the redress of grievances and removal of corruption,

common man has to rely and depend upon the bureaucracy which itself is the enemy

complained against. On account of this paradoxical situation, it is difficult for

common man to get justice. It is found that in developing countries problem of

corruption and maladministration is more acute.' The transformation of police State

into welfare State has resulted in the drastic expansion of the State activities. In past,

Government was only concerned with the maintenance of law and order whereas in

modern society Government is also concerned with the welfare of its people. This has

brought about an immense increase in the degree and range of interaction between

administrators and citizens. Over the time, there has been a stupendous expansion in

the function, importance and size of the bureaucracy. The sheer size and range of

bureaucracy have, however dwarfed the traditional mechanism of control.` The

growth of the welfare State had also made new protection for bureaucratic mistakes

and abuses of power. The strong voice was raised for the establishment of machinery

which can redress grievance of people against administration. During the past few

decades, countries have adopted different devices and procedures to impose

administrative accountability on the public servant. They range from Legislature,

Judiciary, Administrative Tribunals, Departmental Checks and Balances, etc.3 In view

of tight party discipline Legislature are also not very much effective in regulating the

administration, they also suffer from pressure of work, scarcity of time, unwieldy size

of the problem, lack of expertise and so on. Legislature generally raised the issues
 2

related to the parties, groups and organizations and not of the common man. The

Judicial Proceedings are dilatory, formal and costly as a result people try to avoid

them. Administrative Tribunals, Departmental Checks and Balances and other

institution are also not very much effective. So the man with scanty means remains

unlooked, unheard and unattended.' Experience has shown that, these mediums are

not sufficient to enforce administrative accountability, reduce corruption and redress

grievances which arise due to the maladministration. Thus there is a need for

providing an institution which can effectively deal with the cases of corruption and

maladministration and to which the citizens may turn to without any expenses or

formality.' In the search for a device to control corruption and maladministration in

high places no other institution has held so much attraction as the Scandinavian

Ombudsman.6 Its need has been felt in almost every country developed and the

developing.

According to the Swedish English dictionary by U.R. Reuter, the term

Ombudsmen means Solicitor. In Swedish Public Law, however, Ombudsmen or

Justitie Ombudsmen means an appointee of the Parliament of Sweden for the

supervision of administration. According to Danish English Dictionary by Madsen

and Viterherge. Ombud means public duty. Finnish name for Ombudsman is often

translated as Solicitor General or Solicitor of the Diet.7 In all countries where the

Ombudsman is in position. he is considered as an officer of Parliament whose duty is

to confirm that civil servants carry out their duties in accordance to the law and if civil

servants are not performing their duties. Ombudsman can make recommendation to

competent authority to institute proceedings against them.8

 3

Institutions similar to Ombudsman in other time and civilization

Protectors of citizen rights existed in other times and civilizations also.

Modern Ombudsman can be compared with some such officers like Rome had an

office of Tribune Plebis — who originally were supposed to protect the lower classes,

the plebs against the arbitrariness of the authorities which undoubtedly have some

similarity to the Ombudsman. Another office that has been mentioned as counterparts

to the Ombudsman is that of the Censors, who would, inter alia castigate immoral

behaviors and have offenders expelled from the Senate. Also the Praetor, who had a

leading function within the judiciary. has been compared with the Ombudsman. In

ancient China, the Tsin Dynasty, whose rule began in 221 B.C. set up an office like

Ombudsman named Control Yuan also referred to as the Censorate which still exists

in Taiwan but has disappeared from the mainland of China. In the Muslim World, it is

argued that the Second Caliph, Umar I, who ruled from 634 to 644, was the first

Ombudsman. He disguised at night and listened to what people said about his officials

and administration. Whenever he heard them lament about any maladministration on

the part of an official, he launched an investigation and set the matter right. Umar I

had also created a special office to deal with these matters, known as Quid-al Quadat

which can be translated as Chief Justice. The Kingdom of Aragon in medieval Spain

had another Ombudsman like office known as the Justicia de Aragon. The Justicia

was the most important of the judicial officials of the Kingdom of Aragon. His duties

were to interpret the laws, determine the privilege's granted and give ruling on cases

of their violation.` In Kautilya's Arthashastra it is given that the King should divide

day and night into sixteen equal parts. Second part is devoted to judge the complaints

of its people and holding daily courts to hear the complaints of its people were among

the most important duties of the King.1° Even before the 16`" century, this philosophy
 4

was in vogue in India where Ministers or advisers of the King were assigned a

responsibility to hear the complaint or grievance of the people against the

administration and try to resolve the issue or brought information to the notice of the

King. Afterwards, the King used to call the complainant for a detailed hearing. On the

basis of the facts and narration, the King used to pass its decisions. During the reign

of King Akbar, in thel6`h century, Birbal performed a prominent role in attracting the

attention of the King Akbar towards the grievances or complaints of the public. King

Jahangir and Shahjahan, son and grandson of the King Akbar, allowed aggrieved

persons to narrate directly to him, their complaints or grievances. Similar

arrangements were also existed in other princely States of India in the form of a

[Link]

Genesis of Ombudsman

Sweden is a native land of the institution of Ombudsman." In 1713 King

Charles XII of Sweden, had been out of the country at war with Russia for nearly

twelve years. He gave order for the appointment of a supreme representative of the

King known as Hogste Ombudsman." This institution was established by the King to

ensure effective enforcement of law and order and to observe the functioning of the

public servants and also to see that they discharged their duties in the public interest.14

In 1719, the name of the Hogste Ombudsman was changed and became Justitie

Kansler. but the functions, duties and responsibilities of the Justitie Kanter did not

undergo any significant change. But during 1766 to 1772 his position was changed

and his appointment was made by the existing representative bodies and not by the

King of Sweden." In 1772 King Grustavas III staged a coup d'etat and Justitie

Kansler again became an office in the confidence of the King. The on-going struggle

between the King and the Parliament on the issue related to the appointment of
 5

Ombudsman came to an end in 1809 with the adoption of a new Constitution, in

which the Parliament was given power to appoint a Parliamentary Ombudsman.16 The

democratic Constitution adopted by the Swedish Parliament in 1809 provided for the

division of powers between the King, the Parliament and the Judiciary. Although the

King was given too many powers, Parliament was also endowed with varied means of

exercising control over Government actions, one of such mean being the appointment

to the newly created office of Ombudsman.'' Main function of the Ombudsman was

to exercise Constitutional control over the activities of the King, his subordinate staff

and military [Link] The Swedish Ombudsman ensures that those who hold office

must respect the law and properly fulfill their obligations.19 For all practical purposes

the origin of Ombudsman office, in modem times may be traced to the 1809

Constitution of Sweden. But before any country could adopt this institution, it was

again Sweden which after a very long gap in the year 1915 established one more

Ombudsman to look after the complaints against the armed services, known as the

Milite Ombudsman, It is believed that during the First World War some

complications were aroused in the public services and the grievances arising in and

against the armed forces led to the appointment of the Milite Ombudsman exclusively

to look into the various complaints and criticisms. Therefore, the Milite Ombudsman

may be called a product of the war years. This Swedish office of Milite Ombudsman

continued throughout the Second World War period, but later during the peace time

there was a gradual decline in its work and it was abolished in 1968. Since then the

office has twice been reorganized. The first in 1968, that was after the abolition of the

Milite Ombudsman, the posts of three Ombudsmen of equal rank were created,

second time in 1976, when the Swedish Parliament, opted for a new system where by

four Ombudsmen were appointed29 Out of four Ombudsmen one is elected by the
Parliament to act as a Chief Ombudsman.'' Over the years, Sweden Ombudsmen has

been developed as a successful and strong institution providing help to the aggrieved

citizens. It also emerged as a successful defender of civil liberties. In Sweden the

consumer's interests have also been safeguarded by the Ombudsmen. He is also an

interpreter of law, number of laws has been amended at his initiative, whenever he

found any law to be improper. vague or unsatisfactory he made efforts to amend it.

The Swedish Ombudsmen proved to be a neutral investigator who handles the public

complaints in a simple and effective way.22 But the Swedish Ombudsmen does not go

to the extent of reviewing all administrative action like the French Conseild Etat

having a power to enforce its decision. The Swedish Ombudsmen is an independent

advisory authority, which cannot quash decision of administration nor enforce its own

decision, but can only make investigation and recommendations to Parliament against

public official and Ministers on complaints made by the aggrieved citizens.21 While

other grievance redressal institutions, offices or practices have more or less becomes

part of the history, the institution of Ombudsmen has transcended history.

Ombudsmen in other countries

The institution of Ombudsmen took over a century to spread to other

countries. Finland in 1919. Denmark in 1955, West Germany in 1957, and Norway in

1961. A little changed version of the Ombudsman that is the office of the

Parliamentary Commissioner was established in New Zealand in 1962 and in the

United Kingdom in 1967. The New Zealand Statute provided the model for the

establishment of Ombudsman in Australia, Western Australia appointed an

Ombudsman in 1971. South Australia in 1972, Victoria in 1973, Queensland in 1974,

and New South Wales in 1975. Developments in United States began two years

earlier than in Australia. 11awaii was the first State to set up an Ombudsman in 1969,
Nebraska appointed in 1971, Iowa in 1972 and Alaska in 1975. West Germany had an

Ombudsman of the Armed forces since 1957. There has been no further development

at federal level but in 1974 one of the ten States, Rhineland Patz, set up an

Ombudsman. In Italy an Ombudsman was appointed for the region of Tuscany in

1975. In Israel an Ombudsman was appointed at the national level in 1971 and two of

the principal cites in Israel. such as Jerusalem and Mafia also have an Ombudsman.

Switzerland yet has no Ombudsman at the federal level but Zurich has an

Ombudsman for city affairs since 1971. Tanzania set up a collegiate form of

Ombudsman in 1966. Guyana established Ombudsman in 1967, Mauritius in 1970,

Fiji in 1972, and Zambia in 1973. In Canada eight out of ten provinces had set up an

Ombudsman. The office of Mediateur in France was set up by a law of land in

January 1973, which is well developed system of administrative justice.`` Some

countries have Ombudsman offices at the national and subnational levels, such as

Argentina, Mexico and Spain etc., while other nations have Ombudsman offices only

at the subnational level, such as Canada. India and Italy, etc. Public Sector

Ombudsman offices are located in many countries of Europe, North America, Latin

America, the Caribbean, Africa, the Australia and Pacific region and Asia. According

to the International Ombudsman Institute, there are one hundred forty countries which

are having Ombudsman at the national or subnational level.2 The growing world

community of Ombudsman to match different needs is evidence to the success of the

institution in developing and developed countries. In the United Kingdom the

Ombudsman is developed with the private Ombudsman, in the shape of the Insurance

Ombudsman Bureau in 1981. It is undoubtedly true that Ombudsmen have the power

to adjudicate in most of the significant areas of an individual life.26

 8

Ombudsman in public and private sector

Ombudsman has also penetrated in the private and public sectors of different

countries. They include Banking, Police, Education, Children, Mining, Pension,

Prison, Electrical, etc.

Banking Ombudsman: Banking Ombudsman scheme was adopted for the first

time by the United Kingdom on 2"d January 1986. The main purpose was to resolve

individual complaints about Banking services. All the major Banks are under its

jurisdiction. After the Unied Kingdom, many countreis are adopting the Ombudsman

in Government and private Banks. Banking Ombudsman can deal with the complaints

from individuals, sole trader partnership and incorporated bodies. In some countries, a

complainant is first required to approach the Bank authorities but if the concern

authorities are not responding to the complaints then he or she could approach the

Bank Ombudsman. Bank Ombudsman cannot directly deal with Bank's commercial

judgement. yet it can interfere in maladministration or unfair treatment in the

decision. It cannot make a rule for Banks or cannot advise on any financial matter or

debit problems. The Banking Ombudsman in private sector is proved to be an

impartial, independent and very useful body.

Police Ombudsman: United Kingdom have the Police Ombudsman to prevent the

maladministration in police. There are three departments in the Police Ombudsman's

office of United Kingdom. The first is the Investigator Directorate which deals with

the complaints lodged by citizens. The Ombudsman has access to all the documents

related to the case. The second is the Corporate Service Directorate that collects the

information and statistics, it also prepares the policy of the office. The third is the

Research and Policy Directorate which is responsible to provide the detailed

information and legal advice to the Police Ombudsman and the whole staff. Due to
 9

the check of Police Ombudsman, the police conduct code is exercised as well as

maladministration and misuses of the post by officers and constables are under

control. Many other countries are also trying to establish Police Ombudsman to

remove and tackle administrative defects in the Police Department.

Educational Ombudsman: In the United States of America and the United

Kingdom, approximately, two hundred colleges, schools, universities and educational

institutes have Ombudsman. Universities at Chicago, Colorado, Florida, Kansas,

Texas, have established University Ombudsman. By posting Edward Levi as the first

student Ombudsman in 1968, Chicago University introduced the concept of Education

Ombudsman. The office of Chicago Education Ombudsman is run by the students to

investigate complaints of grievances related to the student, it also suggests a need for

changes in the university- rules, procedures and policies. In Kansas, University

Ombudsman institution is created according to the University Senate Rules And

Regulations Act which can communicate with students, staff, faculty. administrators

and service officers independently, impartially and confidentially. Colorado

Ombudsman has authority to explain university procedures and policies which other

universities do not allow. Ombudsman in Florida can give guidance and advice as

needed by the students and the staff and do investigation in the matter of complaints,

and can discuss with them openly academic cases, testing procedures, employment

problems, etc. The powers vested with Ombudsman in the different universities are

different. The aim of the Ombudsman office is to offer a good service to students and

parents. The State of Hawaii's Board of Education Ombudsman is committed to make

sure that proper attention is given to individual complaints. In United States of

America, Education Ombudsman has created a healthy environment in the field of

education.
 10

Children Ombudsman: Sweden have a Children Ombudsman, it is an

independent body. The Children Ombudsman is working at the national and local

level. The Children Ombudsman is established with the aim of solving problems of

children who are under eighteen. The Ombudsman takes care of children's rights and

laws.

Mining Ombudsman: Mineral rich countries like Australia have several problems

related to mining industry. In February 2000, Mining Ombudsman was formally

established in Australia. The Mining Ombudsman can deal with the complaint of a

person who looses his land without proper compensation and sustainable livelihood

and it also deal with the complaints related to the degradation of waterways and other

natural resources upon which people depend.

Pension Ombudsman: the Secretary of State, in the United Kingdom, appoints

Pension Ombudsman whereas his role and powers are decided by [Link]

Ombudsman can deal with the cases related to the pension schemes and delay in

pension, etc.

Prison Ombudsman: On the recommendations of the prisoners in England and

Wales, in October 1994 Prison Ombudsman was appointed. The intention was to

investigate the complaints of grievances made by prisoners related to the poor

treatment of prisoners by staff of the prison. Some particular areas of prison services,

give rise to complaints including disciplinary adjudication, security categorization,

transfer.

Electricity Ombudsman; Electricity Industry in South Africa established

Electricity Ombudsman. The office determines the prompt resolution of complaints

and disputes between the consumers of electricity services and the electricity

industry.27
Different names of Ombudsman

Countries which have adopted the Ombudsman office used different names to

represent it for example; Defensor Del Pueblo is the title of the Ombudsman office in

a number of Spanish-speaking countries (Spain, Peru, Colombia and Argentina).

Parliamentary Commissioner for Administration (United Kingdom, Sri Lanka),

Provedor De Justica (Portugal). Difensore Civico (Italy). Protecteur Du Citoyen

(Quebec). Mediateur De I.a Republique ( France. Gabon, Senegal, Mauritania), Public

Protector (South Africa), Volksanwaltschaft (Austria), Public Complaints

Commission (Nigeria), Investigator-General (Zambia). Citizen's Aide (Iowa), Wafaqi

Mohtasib (Pakistan). and Lokayukta (India) these are the names of some of the other

Ombudsman offices around the world.

In many countries, the protection of human rights is one of the major duties of

the Ombudsman office, and this is often reflected in the title of the office. For

example, there is Guatemala's Procurador De Los Derechos Humanos (Counsel of

Human Rights). the Procurador Para la Defensa De Los Derecho Humanos (Counsel

for the Defense of I luman Rights) of El Salvador, Mexico's Commission Nacional De

Derechos Humanos (National Commission of Human Rights), the Commission on

Human Rights and Administrative Justice of Ghana, the Civil Rights Protector of

Poland, the Human Rights Ombudsman of Slovenia and the Parliamentary

Commissioner for Human Rights in Hungary. In other countries, although it is not

apparent from the title cif the office, but the laws of the office give it an additional

human rights function, such as Defensores Del Pueblo (Spain, Argentina and Peru)

and the Ombudsman of Finland.`'x

 12

Ombudsman model in least corrupt countries

In the present study five models of Ombudsman are discussed which are

prevalent in least corrupt countries of the world such as Sweden, Denmark, Finland,

Norway and New Zealand.

Sweden

Sweden institution of Ombudsman has four Ombudsmen. Officially these

Ombudsmen are called the Parliamentary Ombudsmen of Justice. Also the institution

itself is called the Parliamentary Ombudsmen or Justitie Ombudsmen. Each

Ombudsman has a direct individual responsibility to the Parliament for his or her

actions.29 Out of four Ombudsmen one is elected by the Parliament to act as a Chief

Ombudsman, who is an administrative director of Ombudsmen's office. Chief

Ombudsman coordinates the work of other Ombudsmen and with the consultation of

other three Ombudsmen he defines the areas of Government over which they have

responsibility for looking into complaints. The four Ombudsmen cover all agencies of

the Govemment.r0 There is no formal requirement, for Ombudsmen to be lawyer in

practice, but it is must for Ombudsman to first have legal training. An Ombudsman is

elected for a term of four year and can be re-elected?' Re-election is possible though

service beyond three terms is highly unlikely.32 Parliament has a power to remove an

Ombudsman during his term j} The public servant, Members of Parliament, military

personnel, judges comes under Ombudsmen jurisdiction.79 The main function of the

Ombudsman is to make sure that Government agency and the courts follow the

Swedish Law. They do so by working with complaints that ordinary people send to

them. The Ombudsman also visits different courts and public agencies to check how

they are working. The Onibudsman can also decide by them to take up an issue that

seems worth investigating if they come across something in a television program,

 13

newspaper article or if then feel that this is an important matter which should be

inquired. Annual Report which is one of the official publications of the Swedish

Ombudsman is submitted to the standing committee on the Constitution which then

draws up its own written report and notifies the Parliament.35 Chief Ombudsman

handles the major cases and the minor cases are handled by the Deputy

Ombudsman.'6 In 1969. the private Ombudsman for the press was established in

Sweden.''

Denmark

Stephan Hurwitz, the First Ombudsman of Denmark was elected on 29`h

March 1954 and assumed his office in April 1954.38 The decision to introduce

institution of Ombudsman was taken during the deliberations about a new

Constitution in 1953. It was argued at that time that the expansion of the public sector

had reached a level where it was necessary to have more safeguards for the proper

exercise of the States, civil and military competencies. The 1954 Law was to a

considerable extent a copy of the Swedish Ombudsman Law, the practice meant from

the very beginning that the investigating role and not the prosecuting role become its

sole function. The Act has been amended three times, but a definitive overhaul was

initiated in 1992, resulting in a new Act in 1997.39 In Denmark a person who is a law

graduate is eligible to be appointed as an Ombudsman.4° Ombudsman is elected by

the Parliament for a term of four years. If the Ombudsman ceases to enjoy the

confidence of the Parliament, then Parliament have a power to dismiss him.

Ombudsman jurisdiction cover State administration. civil, police, military and since

1962. the municipal authorities also comes under its jurisdiction. Danish Ombudsman

can also supervise the Ministers, civil servants and all other persons acting in the

service of the State. He has been specifically given jurisdiction over discretionary
areas of the administrative decision. but he cannot alter the administrative structure. It

is not mandatory on the part of Government to follow the recommendation of the

Ombudsman. Ombudsman can discuss policy matters of the Government and can

suggest reforms in the defective provision of the law. The Ombudsman shall submit

an Annual Report on his work to the Parliament.41

Finland

In 1920 the first Finnish Parliamentary Ombudsman was elected.'` The office

of the Ombudsman has one Ombudsman and two Deputy Ombudsmen, Deputy

Ombudsmen act independently and with the same authority as the Ombudsmen.°'

Ombudsman and Deputy Ombudsmen are appointed by the Parliament. Ombudsman

and Deputy Ombudsmen shall have outstanding knowledge of [Link] are appointed

for a term of four years which may he renewed by the Parliament of Finland.°a The

Parliament after having obtained the opinion of the Constitutional Law Committee

may for extremely big reasons can dismiss the Ombudsman before the end of his or

her tern, it' it is supported by at least two thirds of the vote cast.45 The President of

the Republic. Ministers, civil servants, public authorities, all comes under the

jurisdiction of Ombudsmen.16 The can also deal with legal cases and complaints

against judges. military person, corporate bodies and enterprises. They cannot oversee

the Parliament, the Procurator of foreign authorities, corporations and non-profit

associations. They assist the business sessions of the Council of State, Tribunals and

Public Departments. He also has some judicial authorities under which he can make

request to the court to reopen the cases. In Finland. Ombudsman is an independent

body that acts upon its own judgment. Ombudsman can investigate a matter of

concern on his or her initiative. Finnish Ombudsman can also do site inspections of

public officials and institutions focusing particularly on prisons, military units and
 15

institutions in the social welfare and health sector. It is the duty of Ombudsman to

makes sure that the laws are upheld generally in the official capacity. The views and

results of Ombudsman investigation are often released and are open to public. In

Finland Ombudsman is the highest guardian of the law.4' The Ombudsman submits an

Annual Report to the Parliament on its work, including observation on the, state of the

administration of justice and on short comings in legislation.48

New Zealand

In 1962 New Zealand adopted Ombudsman by law. It is the fourth in the

World and first Anglo-Saxon country which had adopted the institution of

Ombudsman.49 On l'` October, 1962 Sir Guy Richardson Powles was appointed as the

first Ombudsman (Parliamentary Commissioner).`° Ombudsman is appointed by the

Governor General on the recommendation of the House of Representatives for a term

of five years and he may be reappointed.51 The Ombudsman removal or suspension

from office is possible only upon address of the Governor General to the House of

Representatives for disability, bankruptcy, neglect of duty or misconduct.52 Central

Government departments and organizations had been under the Ombudsman

jurisdiction, which was extended in 1968 by including hospital and education

boards." According to the Ombudsman Act of 1975 the local Goverment authorities

were also included under its jurisdiction. In January 2001, the Protector Disclosures

Act, 2000 or Whistle Blowing legislation came into force. The Act added

Ombudsman to provide advice to an employee who has made or is considering

making a protected disclosure. Ombudsman cannot consider the cases from those who

have acted as a legal adviser to the crown. Ombudsman can investigate military

affairs. The Ombudsman avoids such cases which are excessively delayed or which

are trivial and frivolous in nature or lacking in faith.54 Ombudsman is an officer of

 16

Parliament and is responsible to the Parliament but Ombudsman is independent of the

Govemment.55

Norway

The office was modeled on the basis of the Danish Ombudsman institution.

There are some differences with regard to the independence of the office and its scope

of enquiry 5b In Norway there was a head of the district in Kings Administration who

was similar to the Ombudsman. Alter the Second World War, Norway needed

machinery for administrative development. On 23`s November 1956 the Parliament of

Norway passed Resolution for the establishment of Ombudsman, But the Parliament

Ombudsman for public administration came into force according to the Act of June

1962 and Andreas Schie was crowned as the first Parliamentary Ombudsman.

Norwegian Ombudsman is elected by Parliament." Citizens of Norway who are

trained in law and who have turned thirty years are eligible for appointed as an

Ombudsman.`N Ombudsman is elected for term of four years 59 The Ombudsman

may be removed from office by the Parliament with a majority of the two thirds.fi0

The Parliament Ombudsman for public administration tries to assess and call the

attention to the faults in administration. He does not have any executive power. The

Ombudsman in Norway can deal with complaints against municipal administration,

judiciary and cases involving deprivation of personal liberty. Parliament itself is out

of its jurisdiction. The Norwegian Ombudsman makes the public administration to

follow up its laws and regulations. The Norwegian Ombudsman powers are limited to

express his opinion on the cases.'

In all the five models of Ombudsman which are functioning in Sweden,

Denmark, Finland, New Zealand, Norway, Ombudsman is appointed by the

Parliament and Parliament has power to remove them, they are appointed for a fixed
 17

time period and they should have legal knowledge. In Sweden after their appointment

legal training is given to them. They have different areas of jurisdiction. In all these

five countries, Ombudsmen have only recommendatory power they don't have an

executive power.

The Ombudsman Committee of the International Bar Association has made an

effort to standardize the meaning of the term Ombudsman. It has suggested that the

term be employed only to refer to those grievance handling mechanisms which come

within the scope of the following definition. "An Ombudsman institution is an office

provided by the Constitution or by action of the Legislature or Parliament and headed

by an independent high level public official who is responsible to the Legislature or

Parliament, who receives complaints from aggrieved persons against Government

agencies, officials, and employees or who acts on his own motion and who has the

power to investigate, recommend corrective action and issue reports.°Z'

In 1962 Cnited Nation had organized a seminar, in Stockholm, Sweden, on

"Judicial and other Remedies against the Abuse of Administrative Authority", which

listed the following features of the Ombudsman institution.

1. The Ombudsman is not only an instrument of Parliament for the supervision of

administration, but also a protector of rights of individuals. The institution not

only afforded a fulfillment of the justice and fair play inherent in every

individual but also provided supervision, on behalf of the people, of the day to

day activities of their Government even if the Government were elected by the

people.

2. There is the principle of impartial investigation by an authority entirely

independent of the administration.


18

3. An investigation could be started by the Ombudsman not only on a complaint by

an individual but also on his own initiative as a result of information he might

acquire from inspections, press reports or other sources.

4_ The investigations of the Ombudsman were conducted informally. In

investigating complaints, the Ombudsman had free access to all the files of the

administration and he could demand explanations from the ofciu1 authorities

concerned.

5. The Ombudsman had considerable flexibility in the form of action which he

could take in a given case. Various forms of action were open to him. If after

investigation, he found that an official had handled a case wrongly or unjustly or

made an erroneous or improper decision than the Ombudsman could demand

that proceedings be instituted against such an official or he might administer a

reprimand and include the case in his report to Parliament. His intervention

might also take the form of persuasion instead of a critical report.63

The former Australian Common Wealth Ombudsman, Dennis Pearce in 1990,

wrote in his final report that the objectives of the Ombudsman are to improve

the quality of administration and to provide a mechanism for individuals to

obtain redress by:

a) Identifying instances of defective administration through independent

investigations.

b) Encouraging agencies to provide remedies for members of the public affected

by defective administration.

c) Identifying legislative policy and procedural deficiencies and encouraging

systematic improvements to overcome those deficiencies.

 19

d) Contributing to advice to the Government on the adequacy, effectiveness and

efficiency of the various means of review of administrative action.64

According to the International Commission of Jurists, Ombudsman is a

mechanism necessary for entbrcing the rule of law. In Public administration,

Ombudsmen have a very important role in offering informal methods for resolving

disputes. It is common experience that law courts in many countries are slow,

overfilled, bogged down by technicalities and expensive for ordinary litigants.

Normally, proceedings before the Ombudsmen do not use the complicated system

found in common law courts, and long and slow procedures which are common in the

ordinary courts are also avoided. In many cases, the grievances of a common person

may not be justiciable so as to found an action in court, although the person is actually

aggrieved in such circumstances Ombudsman are useful in redressing grievances.

Therefore an Ombudsman is a complement to the courts in providing quick remedies

to the [Link]

Spread of Ombudsman

The institution of Ombudsman spread quickly after the Second World War. In

the post 1962 period it has particularly made the mark almost all over the world.

There are many factors which had contributed in the spread of Ombudsman all over

the world, such as:

I. Socio-political situation

After the Second World War mainly two developments had influenced

the spread of Ombudsman, one is the liberation of many countries from the

colonial ode and other one is the adoption of the concept of welfare State by

a large number of newly independent states. The welfare State gave a new

concept of a polity and a new system of administrative mechanism. The new

 20

orientation was basically the fulfillment of the people's hope and visions. As

a result there was a tremendous increase and expansion of the Government

activities covering almost all spheres of life. In order to adequately cope with

the above expansion and proliferation there must also be a concentrated

endeavor towards building up stable and matching institutions. It was this

latter part which did not come up to the expectation, as a result of this, there

was increasing incidence of malpractices, corruption and inefficiency in

almost all spheres of Government functioning. In this situation it was natural

that the Government credibility would be eroded and need would arise for

setting up of preventive and corrective institutions in which the people would

have implicit faith. It was the situation in which the Ombudsman idea caught

up with the people of different countries of the world.

2. Protection of citizens' rights

With the gradual development of the welfare State into the pragmatic

reality of an administrative State, it began to be realized that the dangers to the

citizens' rights should be effectively removed which led to the creation of the

suitable mechanisms to prevent administrative excess. Thus all countries,

firmly established, as well as those that were newly born democratic States,

the common concern was to provide for effective safeguards against the

infringement of democratic rights and liberty of the citizens. However it was

only after two decades of the Second World War that the office of

Ombudsman came to be regarded as the effective watchdog of the individual's

rights in the middle of the ever expanding and increasingly complex activities

of the State.
 21

3. Stephan Hurwitz's pioneering role

The development of the Ombudsman, in the post-World War It era, owes

much to the efforts of Professor Stephen Hurwitz, who served as the First Danish

Ombudsman from 1955 to 1971. Sweden had the Ombudsman tradition from 1809,

but it was so absorbed within the intricate Swedish Constitutional machinery that the

outside world could pay little attention to it. After Stephan Hurwitz's appointment as

at Ombudsman of Denmark this office became famous. He not only made this office

a great success but also in an enthusiastic manner spread it to other countries. He

devoted much time and energy to popularize this institution both in Denmark and

outside it, by contributing articles on the Ombudsman to European and other

international journals and by advocating for the institution in his speeches in various

countries. Even while loaded with heavy schedule of duties and responsibilities, he

was always willing to give information about this office to those who needed it. When

lie was in the United Kingdom, he spoke to the academic audiences and appeared on

television. The effect of his British tours was seen from the fact that after his return to

Denmark, he received letters of complaints from the United Kingdom citizens against

the British administration. Later on Judge Bexelius, who was a Swedish Ombudsman

and Gruy Powles, ex-Chief Ombudsman of New Zealand and consultant of

International Ombudsman Institute Edmonton, Alberta, Canada, also contributed in

the spread of the idea of Ombudsman through their writings and lecture tour.

4. Impact of scholarly writings

The scholarly writings of the D.C. Rowat, Walter Gellhom, W.A. Robson,

S.V. Anderson. T.E. Utley, Geoffrey Sawer, K.C. Davis, Karl Friedmann, Brian

Chapman, Kent M. Weeks, Fred Vauighan, Larry B. Ilill and Frank Stacey have

created a movement for the establishment of the Ombudsman institution in various

 22

countries of the world. As a result today countries have a greater amount of

information about this institution and also in a larger number they are going in for the

setting up of the Ombudsman institution.66

5. Council of Europe

In October 1971, the Council of Europe at its Vienna Conference had

requested the European nations to give consideration to the creation of the

Ombudsman institution on the line of Scandinavian countries. In January 1972, as a

follow up measure, the Consultative Assembly of the Council of Europe passed a

Resolution asking the European National Parliament to give effect to the proposal

suggested at the Vienna Conference. Later on, as suggested by the above body,

Committee on the Ministers and the Legal Affairs Committee were constituted to

study and report the question of the establishment of the institution of Ombudsman at

European level. In order to ascertain the views of the different offices at the European

level, the Legal Affairs Committee organized a meeting of the already functioning

European Ombudsman. The meeting was also attended by representatives from the

European Courts of the Human rights, the European Commission of Human Rights

and several other experts and observers. After the detailed and lengthy discussions at

the meeting, recommendation was made, which stated that the Committee of

Ministers request member States, to consider the possibility of appointing at national,

regional or at local levels persons discharging functions similar to those of existing

Ombudsman and Parliamentary Commissions. The recommendation was later on,

communicated to the member States. By its various conferences, committees and

other working groups, Council of Europe, made the idea of Ombudsman famous

inside as well as outside Europe.

 23

6. International Conference on Ombudsman

In September 1976. the first international conference on Ombudsman was

convened by Randall Ivany, at province of Alberta at Edmonton, Canada, in which as

many as forty working Ombudsman from eighteen different countries of the world

participated and shared their views and experiences regarding the office of

Ombudsman- The theme of the first conference was `Experience, Expectations and

Surprise'. This conference had made big impact on the development and growth of

the Ombudsmen office. Apart from exchanging ideas, the conference decided to

establish an Ombudsman institute at Edmonton, to collect and preserve materials

related to the office of the Ombudsman operating in various countries of the world. In

addition to the documentation work, the institute has also on its cards an impressive

program schedule like seminars on a periodic basis for current Ombudsman staff

members. Government officials, and for others having significant interest in the work

of Ombudsman. The institution has since been established and apart from other

activities it brings out Ombudsman Journal.6'

7. The United Nations

United Nation through its various conferences helps in the propagation of the

idea of Ombudsman. The United Nation Division of Human Rights supported the

Ombudsman institution, at its conferences in Kandy (Sri Lanka) (1969), Buenos Aires

(1959) Stockholm (1962), Jamaica (1967A) and Cyprus (1968). These conferences

included key officials from most of the participating countries in the area concerned.

8. International Commission of Jurists

International Commission of Jurists has taken keen interest in the evolution

and growth of the Ombudsman institution, It has contributed to the development of

the idea in three ways. Firstly by producing through its different sections reports
 24

regarding the desirability of the office of the Ombudsman and secondly by publishing

articles about the institution in its news butletins, journals and thirdly by propagating

the idea through various conferences, seminars and symposiums which were

organized in different parts of the world from time to time. The idea was discussed in

1965 at the Bangkok South East Asian and Pacific Conference, in 1966 Colombo

Colloquium on the Rule of Law and in the 1968 Strasbourg Conference on the

Individual and the State. In September 1976 seminar was convened by the

International Commission of Jurists at Dar-es-Salaam on `Human Rights, their

Protection and the Rule of Law in single party system of Government in the State'. In

this seminar, Ombudsman concept was further examined and certain

recommendations were made. Thus an International commission of Jurists had

continuously tried to advocate that one of the most effective and practicable

safeguards against the possible abuse of power by the executive, is to control it with

the institution of Ombudsman.

9. Ombudsman Committee

The Ombudsman Committee of the International Bar Association is a first

committee at the international level that look up the progress of the Ombudsman idea

as its chief aim. The Ombudsman Committee of the International Bar Association was

founded in pursuance of the 1972 Resolution of the Council of the International Bar

Association with Bernard Frank, the chairman of the United States Bar Association,

as its chairman. It is represented by members from different countries of the world. Its

two important organs are an Academic Advisory Board, and a Member Organization

Liaison Group. The International Ombudsman Committee has taken upon the task of

imparting necessary information, data and guidance to those interested in the

institution. It brings out the monthly newsletter and periodic surveys, these two

fl4EStS
 25

periodical handouts contain the updated information regarding the Ombudsman

institution. In 1974, Ombudsman Committee at its Vancouver conference, by

adopting a Resolution called upon nations to give serious consideration to the

establishment of the office of Ombudsman on the national. State and province level,

in order to protect persons against the violation of their rights by Government officials

and agencies.

10. International Organization World Peace through Law

International Oreanization World Peace through Law has also tried to

propagate the Ombudsman at its numerous conferences which were held in Geneva

(1967), Bangkok (1969) and Belgrade (1971). In 1971 through a Resolution, it called

upon States to adopt the institution of Ombudsman or similar institution in order to

protect human rights.(1s

11. International Ombudsman Institute

Some Ombudsman thought to come together under one roof, to exchange

ideas with the intention of shareing experiences related to the Ombudsman institute.

Where they can pass some ideas of Ombudsman mainly to control a world wide

problem of corruption and maladministration. On this background, the International

Ombudsman Institute was established in 1978. It is instrumental in the exchange of

information and experiences between Ombudsmen, working in different countries, 69

International Ombudsman Institute is a non profit organisation whose main aim is the

promotion of the concept of Ombudsman, encouragement and support of research in

the field of Ombudsman. devclopement of educational programmes associated with

Ombudsman, organisation of international Ombudsman conferences and provision of

a resource centre f'or storage and dissemination of information about the Ombudsman

institution.' To achieve these purposes, International Ombudsman Institute supports

 26

the researches and studies on Ombudsman system. It gives scholarships, fellowships

and grants to the researchers and encourages the idea of Omhudsman. It has its

proceedings in English, Spanish and French languages. After every four years it

organizes conferences, The first conference was held at Edmond, Canada in 1978," It

organises conference and workshops for the promotion of the Ombudsman institute. It

has a publication of yearly reports, journals, occasional paper series, news teller, etc.

It maintains a library and resource of monographs, articles, legislation and other

research material related to Ombudsman of different countries.

12. European Ombudsman Institute

In October 1982, the Working Association for the Insurance at University of

Innsbruck organized a conference in Innsbruck, which was dedicated to more

scientific interest and to the ideas of Ombudsman. The proponents were Professor

Hans Klecatoky, Professor Fritz Riechert Facilides, Professor Norbert Wittier who

inspired to Associate European Ombudsman Academy. This was not a legal

organization. In 1988, it was transformed legally by naming European Ombudsman

Institute. It is housed at Innsbruck, Tyrol. It adopted a scientific view to analyze

human rights. It conducts the research pro}cets in the Ombudsmanship area to

promote and disseminate in non-Ombudsman countries. It is mainly active in

supporting the Ombudsman idea and to give publicity.

Besides International Ombudsman Institute and European Ombudsman

Institute there are several other Ombudsman associations like Ombudsman

Association of United States of America, British and Irish Ombudsman Association,

Australia and Pacific Ombudsman Association, Canadian Ombudsman Association,

Asian Ombudsman Association etc. which are contributing in the propagation of

Ombudsman idea.'2
 27

Role of Ornbudsmau

A court may find itself helpless when there is a technical sense non compliance

by an administrative agency with the rules. But the Ombudsman may go beyond

the formal requirement and see if there has, any kind of unjustice irrespective of

the formal observance of the rules. A major source of grievance is the large

number of discretionary powers, which are not property defined articulated and

exercised by administrators. If an officer knows that each and every of his

decision relating to the citizen will be subject to a review by the Ombudsman, he

will not show any favour and delay any natter which will be the cause of

injustice to any one.

2. lie can act to bridge the gulf between the people and the administration. If

reasons behind any decisions are explained to the citizens,they would often feel

satisfied that after all the adminslration had not acted in an arbitrary fashion. A

number of grievances continued to linger because the concerned departments do

not explain the reasons behind these decisions.

3. For the wrongs and corruption of a few, the entire hierarchy is held in suspicion.

The Ombudsman can help in removing such suspicions and doubts in the public

mind through his investigations.73 It should be noted that the Ombudsman is not

only helpful to any individual having grievances against Government officials

but it also vindicates the public officials of unfair accusations from members of

the public, if after a thorough investigation, it is established that the complaint is

not justified or that the allegations made are baseless.79 This distorted image is

corrected when complaints are proved [Link] Ombudsman will thus be a

protection for and a source of strength rather than a discourgement to an honest

off ciat.' Thus Ombudsman has an important role to play in the development of
 28

public administration, he is able to correct the injustice, unfairness by direct

means.76 The Ombudsman becomes useful machinery to ensure that justice is

done and that bureaucracies treat their clients fairly, promptly and respectfully,

and checks on their operations to make sure that any kind of fault that may not

have been noticed are finally caught and rectified,97

According to Professor Geoffrey Sawer, a good Ombudsman will reduce

complacency, verging towards arrogance. which is a characteristic vice of

bureaucracies, and he will also remove many of the chips on shoulders which citizens

tend to display in (heir dealings with Government] So the Ombudsman is good for

everybody both the private individual and the public officials in Government.79

In the words of the Whyatt Report, "Ombudsman has a number of desirable

characteristics, which argue for its adoption". Firstly. there is principle of impartial

investigation. If a citizen makes a complaint against the conduct of a civil servant, the

matter is investigated by the Ombudsman, who is an impartial authority, acts on

behalf of Parliament although he is also protecting the interest of the individual

complainant. Secondly, the investigation is conducted openly. Thirdly, method of

submitting complaints is easy and the investigation of complaints is very informal ,20

So the Ombudsman is someone to whom any citizen may take complaints about the

actions of ollicials in the Government service. He will listen, examine and try to

obtain redress of an injustice or a grievance. It is his duty to keep watch over, the way

in which the Government agencies and officials apply the law and rules in dealing

with the public. The institution of the Ombudsman went a long way towards

providing what is necessary.8]

 29

Some elements towards effective operation of Ombudsman

Tu increase the effectiveness of the Ombudsman institution it must be

established at a high level of Government system because the status of the head of the

Ombudsman institution will also affect its credibility. To ensure continuity,

permanency of operations and superiority of authority the institution must be

established by Statute. preferably. in the Constitution. The legislation must provide

for the autonomy of the institution and the security of tenure for office bearers. To

aoid undue political influence the procedure for removal of the Ombudsman must be

en under legislation. There are man) factors for consideration in this regard every

system of Government dictates the level of merit for its public officials. It is within

those sane levels that the institution of the Ombudsman will have to be

accommodated. The jurisdiction of the Ombudsman institution is another important

factor to arils its eftecti\•eness. Beside, powers to investigate complaints brought to

its attention, it should also have the power to initiate investigations on its own in any

matter of public concern where people's rights are being jeopardized.82 Success of the

institution largely depends on the person who is holding the office of the

Ombudsman. Therefore. he must he a person with the great legal knowledge, high

practice. great energy and abundant courage to take action against any one. He should

be concerned himself more about discharging a job of social worth than personal

popularity. Thus according to the job of the Ombudsman, the incumbent must be a

man of legal ability and outstanding integrity. Of course finding such a person is a

difficult task, but experience of the Seden shows that it is not much difficult.

Swedish Ombudsman has never been doubted and it proved its effectiveness in

redressing grievances of ordinary citizen against public servant. R3 Swedish

Ombudsman has received a world wide recognition. Maximum developed and

 30

de-, eloping countries are going with the Swedish idea of Ombudsman. For a better

governance, modem and democratic Government requires efficient, effective,

transparent and accountable administration. It demands faith of its citizens in the

administration. Ombudsman is a friend of people, which has the capability to fight

rising challenges of Government such as corruption and maladministration.

Ombudsman showed its integrity and utility to citizens around the world.

Ombudsman, as a citizens defender is successful in the public and private field. The

Ombudsman is a novel and appropriate institution for dealing with the common

citizens complaints about unfair administrative action. It differs from our traditional

methods of dealing with the complaints related to the grievances and is supposed to

ha~c advantages over traditional methods. l'hc important feature in all systems of

Ombudsman so far proposed is that. because of the simple and cheap way in which

complaints are handled, many minor complaints can he satisfied. Many cases involve

no more than explaining to the complainant the reasons fir the decision about which

he has complained and warning to the Government officer in question that in future it

should give proper reason for its decisions. Many countries still does not have this

kind of institution. International Ombudsman Institute and European Ombudsman

Institute and others Ombudsman association are trying to expand the idea of

Ombudsman in those countries which are not having it.

 31

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of the Ombudsman Idea in Trinidad and Tobago". Indian Journal of Public
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2. \leenakshi Kulkarni. "Ombudsman the Institution of Lokayukta and

Upalokayukta". Dattsons. Nagpur, 2004, p.11.

3. Ibid.

4, S.L Verma, "Bureaucracy and the Common Man", Indian Journal of Public
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5. Meenakshi Kulkarni, no.2.

6. Sadhan Kumar Samanta, "Corruption in India: A Case for the Ombudsman",

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7. John \V h}att. "Citizen and Administration: The Redress of Grievances",

Steven and Son. London. 1961. pp.45-46.

8. Sadhan Kumar Samanta. no.6.

9. U.I..F. Lundvvik, "A Brief Survey of the History of Ombudsman", The

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10. [mesh Kumar, "Kautilya's Thought on Public Administration", National

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11. K.S. Shukla and S.S. Singh "Lokayukta (Ombudsman in India): A Socio-
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13. Subhash Chandra Gupta. "Ombudsman: An Indian Perspective", Manak

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14. Sten Rudholm, no.12.

15. \lar\ Parmer. "[Link]", Reliance Publishing 1louse, New Delhi, 2000,
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16. Tore Modeen. "The Swedish and Finnish Parliamentary Ombudsman", in Roy
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20. Rajani Ranjan Jha, "Lokayukta: The Indian Ombudsman", Rishi Publications,
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21. Frank Staces, "Ombudsman Compared", Clarendon Press, Oxford, 1978, p.2.

22. Mari Parmar, no.15, pp.4-5.

23. Subhas Chandra Gupta, no.13.

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30. Frank Staces, no.21.

31. w www . [Link]/en/About. last accessed on 03.10.2011.

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33. Ibid.

33

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38. D.R. Saxena, "Ombudsman (Lokpal): Redress of Citizens Grievances in
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39. Jan Erik Lane. "The Ombudsman in Denmark and Norway", in Roy Gregory
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41. Preeti Dilip Pohekar. no.27, pp.67-68.

42. Tore Modeen. no. 16. p.319.

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4.1. GeIhorn Walter. no.32, p.12.

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46. Gellhorn Walter. no.32. p.12.

47. Preeti Dilip Pohekar, no.27, pp.71-72.

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49. Preeti Dilip Pohekar. no.27. p.68.

50. Subhash Chandra Gupta, no.13, p.41.

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52. Subhash Chandra Gupta, no.13. pp.41-42.

53. J.F' Northcv, "New Zealand Parliamentary Commission', in Donald C. Rowat

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 34

54. Preeti Dilip Pohekar. no.27. p.69.

55. w\v\\ .[Link], last accessed on 07.10.11.

56. Jan Erik Lane. no.39. p.151.

57. Precti Dilip Pohekar. no. 27, p.70.

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59. Precti Dilip Pohekar. no.27. p. 70.

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63. K.S Shukla and S.S Singh, no.11, pp.5-6.

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66. Rajani Ranjan Jha, no.20, pp. 39-42.

67. ibid.. pp. 45-47.

68. ibid.. pp. 42-45.

69. Preeti Dilip Pohekar. no.27, p.81.

70. Linda C. Rief. "The International Ombudsman Yearbook", Vol. 1. 1997.

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71. Preeti Dilip Pohekar. no.27, p.81.

72. Ibid.. pp.82-83.

73. Subhash Chandra Gupta, no.13. pp.3-4.

74. Frank Kajwara, no.65, p.55.

75. Subhash Chandra Gupta, no.13. pp.3-4.

 35

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77. Frank Kajwara. no.65. p.55.

78. G. Sayer. "Ombudsmen", Melbourne University Press. New Zealand, 1968,

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79. Frank Kajwara. no.65. p.58.

80. John Whvatt. no.7. pp.67-72.

81. \Ianju Saxena and Harish Chandra, "Law and Changing Society", Deep and
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82. Madam Justice Florence N. Mumba. "The Ombudsman: The Need for
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83. Nianj u Saxena and flarish Chandra, no.81, pp.51-52.

84. P.13 Mukharji. "Grievance-man in the Indian Administrative System-

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