ADMINISTRATIVE LAW ASSIGNMENT ON

CONCEPT OF OMBUDSMAN

NAME- ADITI SINGH

ENROLLMENT NO.- 00316503518

BATCH- 2018-2023

COURSE – BBA LLB (4th Semester)

1 Page
INTRODUCTION

Ombudsman means a delegate, agent, officer or commissioner. Gender defines ombudsman as “an

officer of parliament, having as his primary function, the duty of acting as an agent for parliament,

for the purpose of safeguarding the citizen against abuse or misuse of administrative power by the

executive “. Administrative law provides for control over the administration by an outside agency,

strong enough to prevent injustice to the individual, at the same time leaving the administration

adequate freedom to enable it to carry on effective government. In every progressive system of

administration, there is a need for a mechanism for handling grievances against administrative fault.

Thus ombudsman is one of such machinery one can find in today’s time.

The parliamentary and judicial control on the administrative action is very week, except there is a

statutory provision for an administrative tribunal. There is no means for handling grievances against

misconduct, inefficiency, delay, negligence, etc. against the officials. The natural remedy open to

the aggrieved person, in such cases, is for him to persuade the minister if he is accessible to the

aggrieved person, or to draw his attention by raising a question in parliament to which he is

responsible .but in practice it is difficult .even the parliamentary remedy is also not adequate. It was

felt necessary to have alternative or additional institution to control wrong decision,

maladministration or corruption of public officials. the ombudsman is one such principle alternative

provided for.

TITLES GIVEN TO OMBUDSMAN

In Guatemala ombudsman is known as Procurador de Los Derechos Humanos (Counsel of Human

Rights), in El Salvador as the Procurador Para la Defensa de Los Derechos Humanos (Counsel for

the Defence of Human Rights), and in Mexico as Comisión Nacional de Derechos Humanos

(National Commission of Human Rights). Other national-level example includes Plenipotentiary for

Human rights in Russia, the Commission on Human Rights and Administrative Justice of Ghana,

2 Page
 the Civil Rights Protector of Poland, the Human Rights Ombudsman of Slovenia and the

Parliamentary Commissioner for Human Rights in Hungary. The modus operandi of ombudsmen,

therefore, varies enormously from impartial investigator to enabler-facilitator and broker-negotiator

to citizen-advocate.1

NATURE OF OMBUDSMAN

1. It is an institution to protect individuals from the injustice done to them by any of the three main

organs of the government.

2. It is independent of the three organs of state. In other words, it is an independent body and, once

instituted, neither of the organs of government has any control over it. Every man has free access to

it.

3. This is a great advantage and the citizen can get prompt relief or remedy to his grievances.

4. The Ombudsman has power to collect facts taking initiative and can decide the matter. On the other

hand, the courts cannot do this.

5. If the issue or problem is placed before it, then only can it take up the case. This special role of the

Ombudsman is of great importance and a critic remembering this write “The Ombudsman is

primarily the people’s investigator, guide and defender”.

6. Viewed from this perspective we want to say that the system of ombudsman possesses immense

importance. It is an important mile-stone in the vast field of citizen-administration relationship.

7. Established as separate entity that is functionally autonomous.

8. Operationally independent of both the legislature and the executive.

9. Ombudsman is a legally established governmental official.

10. A monitoring specialist.

11. Administrative expert and professional.

12. Non-partisan.

1
Mora Atonio, “El Libro Del Defensor Del Pueblo” Defensor Del Pueblo, Madrid 2003. P.185-189

3 Page
13. Normatively universalistic.

14. Client-centered, but not anti-administration.

15. Popularly accessible and visible.

16. High status institutions

17. Have extensive resources to perform his mission.

CASE LAWS:

In B.C. Development Corp vs. Friedmnn2,

The Supreme Court of Canada has stated that the powers granted to the Ombudsman

allow him to address administrative problems that the courts, the legislature and the

executive cannot effectively resolve. The institution of Lokpal is called by the name

ombudsman in foreign countries.

In Durga Hotel Complex vs RBI3 it was held that:

Conceptually, an ombudsman is only a non-adversarial adjudicator of disputes. He

serves as an alternative to the adversary system for resolving disputes, especially

between citizens and government agencies. He is an independent and non-partisan

officer who deals with the specific complaints from the public against administrative

injustice and maladministration. Certainly, an adversarial adjudication by courts

necessarily stands on a higher plane than a decision by the ombudsman. Therefore, if a

matter is pending before a court, ombudsman cannot exercise jurisdiction.

NEED FOR OMBUDSMAN

2
51985 1 W.W.R 193 (SCC) at 206.
3
(2007)5 SCC 120

4 Page
 One, large powers have been, and are being conferred on the administration with the result that a

huge administrative machinery having vast discretionary powers has come into existence. The

administration has come to play a decisive role in influencing and shaping the socioeconomic order

in today’s society. The administration enjoys a vast reservoir of powers to order and affect the daily

lives of the people over a wide canvas. Two, a feeling has arisen in the public mind that vesting of

such vast powers in the administration has generated possibilities and opportunities of abuse or

misuse of power by administrative functionaries resulting in maladministration and corruption. In

the flush of power, the administration very often exhibits a tendency to disregard individual rights

and interests in the name of public good.

CASE LAW:

In Chandra Bansi Singh vs. State of Bihar4 it was held that:

“It is not eccentric to conclude that if there is more administration, there will be more

maladministration”. The greater the power given to the executive, the greater the need

to safeguard the citizen against its arbitrary or unfair exercise. Therefore, an urgent

problem of the day is to evolve an adequate and effective mechanism to contain these

dangers by controlling the administration in exercising its powers, safeguarding

individual rights, and creating procedures for redressal of individual grievances

against the administration.

In Barium Chemicals Ltd vs. Company Law Boards5 it was held that:

The court’s reluctance or inability to look into departmental files remains a major

hindrance in the way of challenging an administrative action at the present moment and

this saps the efficacy and vitality of judicial review to a considerable extent. Further, in
4
AIR 1984 SC 1767 : (1984) 4 SCC 316.
5
AIR 1967 SC 295: 1966 Supp SCR 311.

5 Page
 writ petitions, which is the most common technique of challenging administrative

action, the courts mostly go by the affidavits filed by the parties concerned. They do not

usually call for oral testimony or permit cross-examination or the persons filing

affidavits.

In G. Sadanandan vs. State of Kerala6, the supreme court of India told that it must be kept in

mind :

“ continuous exercise of the very wide powers conferred by the rules on the several

authorities is likely to make the conscience of the said authorities insensitive, if not

blunt, to the paramount requirement of the Constitution that even during the

emergency, the freedom of Indian citizens cannot be taken away without the

existence of the justifying necessity specified by the (Defence of India) Rules

themselves. The tendency to treat these matters in a somewhat casual and cavalier

manner which may conceivably result from the continuous use of such unfettered

powers, may ultimately pose a serious threat to the basic values on which the

democratic way of life in this country is founded.”

OMBUDSMAN’S JURISDICTION

As everybody is well aware, it is very difficult for an ombudsman to satisfy all expectations of all

the members of public who have disputes with government administration.

‘The office should be legally established, functionally autonomous, external to the administration,

operationally independent of both the executive and legislature, specialist, expert and non-partisan,

normatively universalistic, client-centered but not anti-administration, and both popularly accessible

and visible.’

6
AIR 1966 SC 1925

6 Page
The Ombudsman is granted wide powers such as to enter and inspect premises, to require anyone to

produce documents or furnish information, to summon and examine under oath anyone possessed of

relevant information, to conduct hearings and must give notice of the investigation when it is

required to do so.

If maladministration is discovered, the Ombudsman can recommend but not order a governmental

official to remedy the wrong. An Ombudsman can report bureaucratic abuses to the legislature,

which may then take remedial steps.

Generally, the Ombudsman is not accountable to any external authority. If the parties involved

dissatisfied with Ombudsman’s decision, their complaint may seek judicial review, though it rarely

succeeds. Judges do not normally overturn decisions of Ombudsman but can require the

Ombudsman to reconsider a decision.

This section of the Ombudsman Act 1979 mainly focuses on the investigation procedure of the

Office of the Ombudsman. The Ombudsman is obligated to report the details found against

government authority. The Supreme Court of Canada has adopted a “pragmatic and functional”

approach to determining the level of scrutiny a court should exercise when reviewing the decision

of a statutory decision-maker.

However, the Ombudsman scheme is only a poor substitute for administrative courts. The

Ombudsman is clearly not a judge, so it is necessary to determine the extent to which Ombudsman

may legitimately be compared because, on one hand, it will not help further development of public

law in a country.

On the other hand, day by day, more and more cases have been referred to the office of

Ombudsman. The Ombudsman lacks the statutory powers and can only make recommendations

7 Page
because Ombudsman does not have the power to initiate legal proceedings or prosecution on the

grounds of a complaint.

RELATIONSHIP BETWEEN OMBUDSMAN AND DEMOCRACY

There is an inseparable relation between democracy and ombudsman. The central idea of

democracy means people’s rights and freedom shall be vindicated and protected and their legitimate

grievances shall be removed. When in 1809 the Swedish government created the institution of

Ombudsman the purpose was to protect rights and privileges.

In any democracy, the following ideas are given predominance—rule of law equality before the

law, and equal protection of the law. If these are neglected or are not properly maintained the idea

or value of democracy will face a big question mark. Another idea of liberal democracy is the

attainment of justice —especially redistributive justice.

POWERS AND FUNCTIONS OF OMBUDSMAN

(1) An important function of Ombudsman is to protect the rights and freedoms of citizens and

needless to say that primarily for this purpose the post of ombudsman was instituted. In the

nineteenth and twentieth centuries, there were autocracies in many European states and even the

bureaucracies were indifferent to people’s freedom. This appalling situation inspired freedom-

loving men to find out a solution and ombudsman was the consequence.

(2) In the Scandinavian countries, the ombudsman has another function. The ombudsman shall have

the power to supervise the general civil administration. On this point, the duty of ombudsman is

closely connected with the public administration. Because of the protection of freedom, execution

of policies and another fall within the jurisdiction of public administration and whether these are

properly performed or not that requires to be examined-and ombudsman does this job.

8 Page
(3) In many states, Ombudsman or institution like this supervises the general administration. It is

also called general surveillance of the functioning of the government. This is a very important

function. Particularly in the Scandinavian states the Ombudsman or person of this type performs

this function. In these countries, the Ombudsman has been found to undertake tour for inspection.

(4) In some countries, the Ombudsman enjoys enormous power. For example, in Sweden, the

Ombudsman has been empowered to investigate the cases of corruption (in any form) not only

against the government officers but also against the judges of the highest court! But the supervising

power of Ombudsman over the judges does not erode the independence of the judiciary. The judges

are prosecuted or fined for corruption, negligence of duties, or delay in delivering judgement.

(5) In the UK the Parliamentary Commissioner (British type of Ombudsman) also acts as a Health

Commissioner. In 1974 the British parliament enacted a law to enhance the jurisdiction of

Parliamentary Commissioner to the level of local government. The local councillors can lodge

complaints against the local body and can seek redressal of grievances.

(6) An important function of Ombudsman is the exercise of discretionary powers. The discretionary

powers are really vast and how to use these powers depend upon the person concerned.

Discretionary powers include corruption, negligence, inefficiency, misbehaviour etc.

Hence, we find that the Ombudsman is a very important institution for the protection of democratic

rights and freedoms and to free the general administration from corruption and inefficiency. In the

Scandinavian countries, the Ombudsman plays a very crucial role. But the study of the British

constitutional system reveals that the parliamentary commission does not play a very important role.

There is, of course, a reason. The British people are highly conscious of their rights and freedoms

and the common law is always in favour of British citizens.

LOKPAL – AN INDIAN ATTEMPT AT ESTABLISHING AN OMBUDSMAN SYSTEM

9 Page
 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 concept of a constitutional

ombudsman was first proposed in parliament by Law Minister Ashoke Kumar Sen in the early

1960s. The first Jan Lokpal Bill was proposed by Shanti Bhushan in 1968 and passed in the 4th Lok

Sabha in 1969, but did not pass through the Rajya Sabha. Subsequently, ‘Lokpal bills’ were

introduced in 1971, 1977, 1985, again by Ashoke Kumar Sen, while serving as Law Minister in the

Rajiv Gandhi cabinet, and again in 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were never

passed.7Forty-two years after its first introduction, the Lokpal Bill is still not enacted in India.

The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption against

the prime minister, other ministers, and MPs. The Administrative Reforms Commission (ARC)

recommended the enacting of the Office of a Lokpal, convinced that such an institution was

justified, not only for removing the sense of injustice from the minds of citizens but also to instill

public confidence in the efficiency of the administrative machinery.

Following this, the Lokpal Bill was, for the first time, presented 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 thus the bill was not passed8.

The bill was revived several times in subsequent years, including in 2011. Each time, after the bill

was introduced to the House, it was referred to a committee for improvements, to a joint committee

of parliament, or to a departmental standing committee of the Home Ministry. Before the

government could take a final stand on the issue, the house was dissolved again. Several

conspicuous flaws were found in the 2008 draft of the Lokpal Bill. The basic idea of a Lokpal is

borrowed from the Office of the Ombudsman, which has the Administrative Reforms Committee of

a Lokpal at the Centre, and Lokayukta in the states.

10 P a g e
 Anna Hazare fought to get this bill passed, and it did pass on Dec 27, 2011, around 9:30, with some

modifications. These were proposed as the Jan Lokpal Bill. However, Hazare and his team, as well

as other political parties, claimed that the Lokpal Bill passed was weak, and would not serve its

intended purpose. So, the proposed bill by the ruling Congress Party has yet to be accepted in the

Rajya Sabha. As of Dec 29, 2011, the bill has been referred to the next parliamentary session, amid

much controversy and disruption by the LJP, RJD and SP parties. The media at large, and the

opposition parties, claimed the situation had been staged.

CASE LAW:

In Institution of A.P. Lokyukta/Upa/Lokyukta v. T. Ramma Subba Reddy 9, Supreme court of India

held:

“that since the Lokayuktas or Upa-Lokayuktas are high judicial dignitaries, it would be

obvious that they should be armed With appropriate powers and sanctions so that their

opinions do not become mere paper directions. These authorities should not be reduced

to mere paper tigers but must be armed With proper teeth and claws so that the efforts

put in by them are not wasted and their reports are not shelved. For this, the court

suggested an appropriate legislation in this behalf so that the confidence of the people in

this institution is maintained. However, before more powers are given to the Lokayukta,

it is essential to ensure that political influence in the appointment of Lokayukta is

eliminated. Fact remains that power is not a self-validating value, important is the

purpose for which it is exercised”.

JAN LOKPAL BILL

9
(1997) 9 SCC 42

11 P a g e
The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a draft anti-corruption 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 anti-corruption crusader, began a fast-unto-death, demanding that this bill, drafted

by Civil Society, be adopted. The website of 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.

Features of the Jan Lokpal Bill:

12 P a g e
 1. Lokpal and its role10

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 made and prosecution of offences

in respect of complaints under any law for the prevention of corruption.

2. Structure11

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.

3. Process of selection12

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.

10
Anil Dharker, The Topiwala Camera, The Outlook, New Delhi, 2011
11
Ibid
12
Ibid

13 P a g e
 4. Jurisdiction13

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.

5. Other significant features of the Bill14

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 corruption. Lokpal to have power of

superintendence and direction over any investigation agency including Central Bureau of

Investigation (CBI) for cases referred to them.

Investigation process under the bill :

13
Ibid
14
Ibid

14 P a g e
 CRITICISMS OF THE BILL

1. Naïve Approach- The bill has been criticized 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”.15 The very concept of a Lok pal concept has received

criticism from Human Resource Development Minister Kapil Sibal in that it will lack

accountability, be oppressive and undemocratic.16

2. Extra Constitutional17 - The pro-bill activist Arvind Kejriwal rejects the claim of Lok pal being

extra-constitutional with the explanation that the body will only investigate corruption offenses

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 Lok pal.

Despite these clarifications, critics feel that the exact judicial powers of Lok pal are rather

unclear in comparison with its investigative powers. The bill requires “…members of Lok pal

and the officers in investigation wing of Lok pal shall be deemed to be police officers”.

Although some supporters have denied any judicial powers of Lokpal, the government and

some critics have recognized Lokpal to have quasi-judicial powers.

15
[Link]
16
[Link]
17
[Link]

15 P a g e
 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 a trial that should 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.

3. Scope- The matter of whether the Indian Prime Minister and the higher judiciary should or

should not be prosecutable by the Lokpal remains as one of the major issues of dispute. Anna’s

own nominee 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”18.

4. Criticism from the CBI Director 19- 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 anti-corruption 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 the last 60 years

comprising competent professionals should not be subsumed under Lokpal. CBI officers

18
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.
19
Ibid

16 P a g e
 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.

CENTRAL VIGILANCE COMMISSION

Establishment of Central vigilance Commission (CVC) was recommended by the Committee on

prevention of Corruption i.e. the Santhanam Committee, which was appointed in 1962. The

Santhanam Committee had recommended that the CVC must be concerned with two major

problems facing the administration: -

1. Prevention of corruption and maintenance of integrity amongst public servants; -

2. Ensuring just and fair exercise of administrative powers.

The government accepted the recommendation as regards corruption but not as regards mal-

administration and accordingly constitutes CVC in February, 1964 by resolution of Government

of India. However, under the 1964 model, the CVC had a much weaker status than the

Ombudsman, as it had no statutory basis it acted as an agency of the executive.

CONCLUSION

Since the ombudsman’s powers lie essentially in recommendation there is a genuine concern that

the ombudsman lacks ‘teeth’. For instance, the annual report (for many ombudsmen the only public

document issued) is often considered an inadequate instrument for influencing administration

procedures and practice, informing mass media and educating the public. Moreover, the

ombudsman is generally powerless to change or reverse decisions. In fact, some believe that the

ombudsman’s powers as critic and reformer must be strengthened to influence changes in

legislation and policy and not just administrative procedures. The ombudsman should be concerned

not merely with laws or codes as they stand, but also as they might be.

17 P a g e
18 P a g e