OMBUDSMAN

Ombudsman
Lokpal & Lokayuktha
Central Vigilance Commission
OMBUDSMAN
• Modern legal system- large powers conferred on Administrative bodies
• More the amount of power- more is the possibility of abuse or misuse of power
• Though there exists – judicial control over administrative actions – it is not too
manifest – cannot work in the nook & corners – moreover it has limits as well
• Hence – need for OMBUDSMAN
• Parliamentary officers
• Have access to departmental files
• Acts on a complaint- looks into the departmental papers for any error or lapse
• No adversary procedure involved
• Works only on complaint – the complainant – need not lead any evidence
• Work – complementary to the work of the Courts
• Excellent means of redress mechanism for citizens against the Govt.
departments
• The Ombudsman – act either on complaints or suo moto (except in UK)
• The complainant – advantaged – no court fees payable – no advocate
necessary- no publicising
• But, Ombudsman cannot intervene like courts – or grant declarations,
injunctions, writs.
• No power to quash/reverse an administrative action – but can suggest
various remedies to the aggrieved individuals
• OMBUDSMAN – Scandinavian word
• Sweden – 1st adopted – 1809
• Finland – 1919
• Denmark – 1953
• Norway – 1963
• England - 1966
Ombudsman in England
• ‘Parliamentary Commissioner’ – created by the Parliamentary
Commissioner Act, 1967
• Appointed by the Crown – holds office until – 65 years of age
• Tenure – protected like that of Superior judge – can be removed from
office only on an address from both houses
• Schedule II of the Act – Departments under the Ombudsman’s jurisdiction
• Ombudsman – not given the dominance with respect to matters of
national/ public interest, honours/titles; investigation of crimes/ armed
forces; civil service; competence of courts
• Ombudsman – can refuse a complaint – where the aggrieved person has
the right to appeal to the Court
• Complaints – do not reach the Ombudsman directly – only through
Members of House of Commons – quite restrictive – no access to
complaints
• British ombudsman – cannot act suo moto
• If an inquiry has to be instituted w.r.t a complaint – an opportunity has to be given to the
concerned Department- to comment on
• However, has the same power as a Court – to compel the attendance & examination of
witnesses
• No Crown privilege
• (the Cabinet, however – has the privilege)
• After investigation – if the Ombudsman thinks – there is maladministration – he can – lay
a special report before both Houses
• MALADMINISTRATION – the most important term – in accordance to which the
Ombudsman works on
• Ombudsman – also an ex-officio member of the Council of Tribunals
• There may be interaction between Ombudsman & the Courts (Congreve v. Home Office)
• Ombudsman – in England – criticized on the ground – England needs a reform in
Administrative Law & Ombudsman is a mere palliative & does not deal with the central
problem in the British system – there is actually lack of a comprehensive body for
administrative law
OMBUDSMAN - US
• 1967 – 5 State Legislatures & 1 territorial legislature – adopted the system –
Ombudsman
• But USA – readily opposes the concept of ombudsman
• USA – Federal nation- comprises of many States – the States – have adopted
Ombudsman system – but no Ombudsman – at the Central level
• There exist other federal departmental Ombudsman as well
• Ex.: Internal Revenue Services – office of the Tax payer advocate – submits annual
report to the Congress without any review by Internal Service Commissioner
• United States Ombudsman Association (USOA)
• Federation of all Ombudsman Associations
• National Organisation for public sector Ombudsman professionals (founded in 1977)
• Purpose : is to assist existing ombudsman & organizations
• In improving the operation of Ombudsman offices throughout US
• Also perceives the object to promote & encourage the establishment of ombudsman
office – at International, National, State & other local levels
• Presently – the USOA – has special Chapters for Children – fair education, health care &
municipal Government
• The US has passed bye-laws governing the USOA (amended in 2016)
• The purpose is to make an effort to promote & encourage the establishment of Ombudsman
officers that manifest the following characteristics-
• Govt. offices created by the Constitution, Charter, legislation or ordinance
• Responsibility to receive complaints, against Govt. agency and investigate - impartially
• Office – created – to investigate on its own motion
• Power - investigate & access all information (sub pina poena – examination of witnesses)
• Publish its reports & immunity of action against its staff from civil liability on account of
official action
• Confidentiality of information
• Restrictions from conflict of interests – personal, professional, political
• US – initially opposed the concept of Ombudsman, but owing to many reasons – it had to
inculcate this concept & work on it.
• Since Corruption – not alien to the US as well
OMBUDSMAN - INDIA
• Maladministration & Corruption – flesh & blood of Indian Administrative
System
• Need for Ombudsman – strongly felt – but no paradigm law – was in
existence
• 1966 – Administrative Reforms Committee Report – advocated for
adoption of Ombudsman in India – to work against – prevalence of
corruption, widespread inefficiency, administrative unresponsiveness to
the popular needs – to protect the true image of administrative agency
• 1969- The Lokpal & Lokayuktha Bill, 1968 – Lok Sabha – dissolved – the
Bill- lapsed
• 1971, 1977 & 2001– bill – again –lapsed
• 2013 – The Lokpal & Lokayuktha Act, 2013 – passed
• Received the assent of the President – came into force on – Jan 16, 2014
• Generally called – The Lokpal Act, 2013
• Provides for –
• The establishment of – Lokpal – Union; Lokayukthas – States
• Inquire into allegation of corruption – public functionaries & matters
connected therewith
• Constitution-
• Multi-member body – headed by – The Chairman & Members(max. 8)
• Chairman - may be former CJ of India/Judge of SC or an eminent person
with impeccable integrity – having special knowledge & expertise (min. 25
years) – in matters related to vigilance, public administration, finance,
insurance, banking, management, etc.
• Members- 8 – ½ - Judicial (former Judge of SC or CJ of HC)
• ½ - Non- Judicial
• Out of 8 members – ½ must be represented by SC, ST, OBC, minority,
women
• Select Committee - makes appointments
• PM – Chairman
• Speaker of the Lok Sabha – ex-officio member
• Leader of the Opposition
• CJ or any Judge nominated by the CJ of India
• Eminent Jurist
• Tenure – 5 years or till they attain 70 years (whichever is earlier)
• Salary – as that of CJ of India
• Once nominated – no post retirement jobs shall be undertaken
• States – on their own laws have their own Ombudsman
• Ex. Karnataka State Lokayukthas – which have in fact proved to be
efficient in working & also serving the purpose of grievance redressal
w.r.t administrative abuse of power
 CENTRAL VIGILANCE COMMISSION
• Created in 1964
• As a result of the recommendations of the –
• Committee on Prevention of Corruption – The Santanam Committee, 1962
• 2 major problems were the reason for the recommendation –
maladministration & corruption
• The Govt. accepted the recommendations w.r.t. – Corruption only
• CVC – jurisdiction & powers in respect of matters to which the executive
power of the centre extends-
• Govt. servants (employed in Ministries & Departments)
• Employees of Public Sector Undertakings, Statutory Corporations
• Gazetted Officers
• Employees of Public Undertakings & Nationalized banks
• - drawing a basic pay of Rs. 1000/- per month & above
• Central Vigilance Commissioner – appointed by the President
• Security of tenure – same as UPSC Commissioner
• Tenure – 3 years – can extend for 2 more years (public interest)
• After office – cannot accept a political public office
• The Commission – attached to the Ministry of Home Affairs – but not
subordinate to any Ministry / Department.
• Functions –
• When complaints received – refers them to CBI or concerned
Ministry/Department for investigation
• Bodies – to send the reports to CVC; it can also drop complaints at the
initial level – if it thinks unfit
• Advises as to the action to be taken in – reports of CBI (investigation)
• Reports of Ministry/Department – disciplinary action
• Cases received from public sector undertakings & statutory Corporations
• Power to require – oral enquiry in departmental proceedings
• Chief Vigilance Officers – required to furnish to the Commission – reports of
their vigilance work
• Miscellaneous functions – conducting orientation courses for vigilance
officers-
• Courses in the conduct of Departmental proceedings
• Review of vigilance arrangements in Ministries/Departments/Public
Undertakings
• Commission – to submit an annual report to the Ministry of Home Affairs
• Central Vigilance Commission – much weaker status than the Ombudsman
• Agency of the Executive & not the Legislature
• No statutory basis
• Owes its position to the Executive
• Has no investigatory mechanism
• Has to depend on other public agencies for this purpose
• Sunil Kumar v. State of West Bengal
• CVC – problems can arise- because of its non-statutory basis
• Union of India v. Alok Kumar
• SC – unless the rules so require – the advice of CVC is not binding
• State of Maharashtra v. [Link] (complaint against CM of
Maharashtra)
• Antulay v. Nayak
• Private complaint in respect of offences committed by a public
servant – cognizable by Court – SC
• Also 161 to 166-A – provide for ‘special Judges’ to be appointed in
special cases
• Antulay’s case – great importance – because an ex Chief Minister –
prosecuted for the first time on a private complaint
• Observation-
• Corruption & misuse of power by holders of high offices – constitute a
serious malady – affecting public interest as such factors distort the
whole process of policy & decision making & a strong mechanism –
needed to fight the same
• CVC – though was effective in the initial days of its working – has now
been acting according to the whims & fancies of the party in power –
which is hampering the very grievance redressal mechanism available
to the common man – from the roots