DECLARATION

I, SHIVAM SAKET, a Bonafide student of B.A. LL.B. (3 yr) Course, School of Law &
Governance, Central University of South Bihar, do hereby solemnly affirm and declare
that this dissertation entitled “Ombudsman and its historical developments in India” is
result of my own research under the supervision and guidance of PROF. PAWAN KUMAR
MISHRA. All the Primary and Secondary sources of information have been duly
acknowledged.

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ACKNOWLEDGEMENT

An enterprise of such a magnitude as this research on “Ombudsman and its historical

developments in India” could only fructify in such a short span of time due to the
coalescing of able guidance and support of many learned and able persons, whose
efforts and cooperation, I as the researcher, with a sense of gratitude, being duty bound
too, acknowledge in no particular order. My deepest gratitude and thanks to the
Hon’ble Prof. (Dr,) Pawan Kumar Mishra, Associate Professor, Central University of
South Bihar, an eminent professor and scholar gave enough time and space for free
exchange of ideas and, opinions greatly benefiting me in augmentation and critiquing of
many of the opinions which find their place in this work.

Despite the busy schedule and onerous academic responsibilities, she gave me ample
time whenever he was approached for his invaluable guidance. I am highly indebted to
the library staff to help me find the relevant books and journals, and other officials and
office staffs, who have also extended their help whenever needed. I would like to extend
my sincere thanks to all of my friends for their review and honest remarks. Last, but not
the least my eternal gratitude is due, to my loving Parents whose constant unflinching
support, blessings and encouragement both, temporal and emotional support, to meet
any challenge with confidence including, of this purposive academic exercise.

GAYA (SHIVAM SAKET)

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Ombudsman and its historical developments in India

Shivam Saket1

INTRODUCTION

An ombudsman is a person who acts as a trusted intermediary between either the state,
elements of state or an organization, and some internal or external constituency, while
representing not only but mostly the broad scope of constituent
interests. Ombudsman is etymologically rooted in the Old Norse word umboðsmaðr,
essentially meaning “representative”. In its most frequent modern usage, an
ombudsman is an official, usually appointed by the government or by parliament but
with a significant degree of independence, who is charged with representing the
interests of the public by investigating and addressing complaints reported by
individuals.

Whether appointed by the legislature, the executive, or an organization, the typical

duties of an ombudsman are to investigate constituent complaints and attempt to
resolve them, usually through recommendations or mediation. Ombudsmen sometimes
also aim to identify systemic issues leading to poor service or breaches of people’s
rights. At the national level, most ombudsmen have a wide mandate to deal with the
entire public sector, and sometimes also elements of the private sector such as
contracted service providers. In some cases, there is a more restricted mandate, for
example with particular sectors of society.

The success of a democracy and the realization of its socio economic goals depend on
the extent to which the grievances of the citizens are redressed. The earliest democratic
institutions created in the world for the redressal of public grievances was the
Scandinavian institution of Ombudsman. The institution of ombudsman in Indian context
is referred to as Lokpal or Lokayukta.

1
3rd Year, B.A. LL.B. (Hons.) Central University of South Bihar, Gaya

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The modern state has taken up the activities in all the areas of human endeavour be it
developmental (socio economic nation building), non developmental (policing, law and
order etc) or symbolic (celebrating national holidays, maintaining museums etc). The
rising footprint of the government has meant greater interaction with the citizens and
thus grater chances of corruption, favoritism, harassment and abuse of authority. This
makes the setting up of an independent institution of ombudsman/Lokpal a clear
necessity. It is in this backdrop that the rising demand for a Lokpal by the members of
the civil society (Team Anna) must be seen.

The word 'ombudsman' comes from Sweden which in 1809 established the position
of Justlie Ombudsman to oversee government administration. The title loosely translates
as 'citizen's defender' or 'representative of the people'. Since 1809, it has been adopted
in many parts of the world, in both government and private industry (eg. banking and
insurance) settings. However, the role has changed considerably and nowadays the
Ombudsman functions in Sweden and elsewhere do not generally involve acting on
behalf of complainants in the way that an advocate or lawyer would do. Nor does the
Ombudsman represent the agency being complained about. Rather, an Ombudsman
acts in an impartial and independent way.

This later spread to other Scandinavian countries like Finland, Denmark and Norway. The
Sweden model of Lokpal where this institution germinated has very broad powers. It is
an institution appointed by the legislature to look into corruption, abuse of discretion,
discourtesy, nepotism and inefficiency. Thus the Team Anna cannot be completely
criticized for demanding power for the Lokpal beyond the corruption cases. But it should
also be kept in mind that India is huge as compared to Scandinavian countries and thus
the number of cases coming to Lokpal can get unmanageable. The Sweden model of
Lokpal can prosecute any erring official including the judges but can only recommend
the punishment to higher authorities and not inflict any punishment by itself.

In Indian context it was the first Administrative Reforms Commission headed by Morarji
Desai that first recommended setting up of Lokpal and Lokayuktas in 1966. The first ARC

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proposed to keep judiciary out of the preview of Lokpal and included ministers and
secretaries of central and state governments. Since then there has been eight official
attempts to create this institution by way of legislation. The first such attempt was by
Indira Gandhi government in 1968.

While central government is still debating the establishment of such institutions many
state governments have already set up Lokayuktas. The first state to do so was
Maharashtra in 1971. Orissa passed such an act in 1970 but it came into force only in
1983. The model of Lokayukta varies in different states widely and so does its power and
authority. Some states have given suo motu power of investigation to Lokayukta while
the others have not. Some states like Uttar Pradesh and Gujarat have judicial
qualification prescribed for the institution while states like Bihar and Maharashtra have
no such criteria. Chief Minister is included in the Lokayukta’s jurisdiction in states like
Himachal Pradesh and Madhya Pradesh while it is excluded from states like Bihar and
Orissa. Thus this wide variation calls for some broad uniform enabling law from the
central government within which the states can pass their own acts.
Significant changes have taken place in the politico administrative realities of India since
its “Tryst with Destiny” started more than sixty years ago. At the turn of 21st Centuary
our administration seems to be mired in the charges of corruption, dishonesty,
nepotism, elitism and self aggrandizement. An independent and effective Lokpal will act
as the bulwark of democratic government against the tyranny of officialdom. It will be
the keeper of public conscience which will increase the faith of citizens in rule of law and
help in maturing of our democracy.

The bill was first brought before the fourth Lok Sabha in 1968 and passed in 1969.
However, the house was dissolved, resulting in the first death of the bill.
The legislation was revived in 1971, 1977, 1985, 1989, 1996, 1998, and 2001, but never
survived.
In September 2004, Prime Minister Manmohan Singh said the Congress-led United
Progressive Alliance (UPA) government would lose no time in enacting the bill.

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It finally took a mass mobilisation by Anna Hazare and his associates in April this year to
get the government to work on the Lokpal bill and bring it to parliament.

The issue has gathered momentum with his current fast, which Friday entered its 11th
day.

From 1968 to 2011, the bill has come before parliament under seven prime ministers
beginning with Indira Gandhi.

Of them, only V.P. Singh, H.D. Deve Gowda and Atal Bihari Vajpayee agreed to have
prime ministers under the law’s purview. However, none of these eight bills had the
judiciary under its purview.

“The idea of an ombudsman first came up in parliament during a discussion on budget

allocation for the law ministry in 1963. The first administrative reforms committee in
1966 recommended the setting up of two independent authorities at the central and
state level to look into complaints against public functionaries, including MPs,”
according to PRS Legislative Research.

The first time parliament heard about Lokpal was in May 1968 when Indira Gandhi was
prime minister. The Lokpal and Lokayuktas Bill, 1968, did not have either the prime
minister or MPs under its purview.

The bill, passed in 1969, never became law, as it lapsed after the fourth Lok Sabha was
dissolved. Indira Gandhi was still the prime minister in August 1971 when the bill was
again introduced in parliament. The 1971 legislation was never referred to any
committee and it lapsed after the fifth Lok Sabha was dissolved.

The third attempt was made by the Janata Party under Morarji Desai. The bill presented

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to parliament in July 1977 did not include the prime minister but allowed for MPs to be
brought under its purview.
A joint select committee considered the bill and made recommendations, but the sixth
Lok Sabha was dissolved soon after.
Under Rajiv Gandhi, the Lok Sabha took up the bill once again in 1985 and it was
referred to a joint select committee. Later, the bill was withdrawn by the government.
The government under V.P. Singh was the next to bring a Lokpal Bill in the ninth Lok
*Sabha and it was sent to a parliamentary standing committee in 1989. But the bill
lapsed due to dissolution of the Lok Sabha.
Again, the Third Front government under Deve Gowda introduced the bill in 1996 and
the parliamentary standing committee submitted its recommendations in 1997
suggesting amendments to it. The bill again lapsed after the Lok Sabha was dissolved.
Vajpayee’s National Democratic Alliance government introduced the bill twice, once
during the 12th Lok Sabha and again in the 13th Lok Sabha.

While the 12th Lok Sabha was dissolved before the government could take a view on the
parliamentary standing committee recommendations, the 12th Lok Sabha too met the
same fate before the bill could be passed.

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 LokSabha in 1969, but did not pass through
the RajyaSabha. 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. Forty-
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

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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 LokSabha in 1968, and was passed there in 1969. However, while it was pending
in the RajyaSabha, the Lok Sabha was dissolved, and thus the bill was not passed.

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, andlokayuktas in the states.

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 RajyaSabha. As of Dec 29, 2011, the bill has
been deferred 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.

Jan Lokpal Bill

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

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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 ArvindKejriwal, 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 KiranBedi 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 the India Against Corruption
movement calls the Lokpal Bill of the government an “eyewash”, and hosts a critique of
that government bill. It also lists the difference between the bills drafted by the
government and civil society.

Features of the Jan Lokpal Bill:

1. An institution called Lokpal at the centre and Lokayukta in each state will be set
up.
2. Like the Supreme Court and Election Commission, they will be completely
independent of governments. No minister or bureaucrat will be able to influence
their investigations.
3. Cases against corrupt people will not linger on for years anymore: investigations
in any case will have to be completed in one year. Trial should be completed in

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 the next one year, so that the corrupt politician, officer or judge is sent to jail
within two years.
4. The loss that a corrupt person caused to the government will be recovered at the
time of conviction.
5. If the work of any citizen is not done in a prescribed time, in any government
office, Lokpal will impose a financial penalty on the guilty officers, which will be
given as compensation to the complainant.
6. So, you could approach Lokpal if your ration card or passport or voter card had
not been made, or if the police are not registering your case, or if any other work
is not being done within the prescribed time. Lokpal will have to get it done in a
month’s time. You could also report any case of corruption to Lokpal, like rations
being siphoned off, poor quality roads being constructed or panchayat funds
being siphoned off.
7. But won’t the government appoint corrupt and weak people as Lokpal members?
That won’t be possible because its members will be selected by judges, citizens
and constitutional authorities, not by politicians, through a completely
transparent and participatory process.
8. The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any
complaint against any officer of Lokpal will be investigated and the officer
dismissed within two months.
9. CVC, the departmental vigilance and anti-corruption branch of the CBI, will be
merged into Lokpal. Lokpal will have complete powers and machinery to
independently investigate and prosecute any officer, judge or politician.
10. It will be the duty of the Lokpal to provide protection to those who are being
victimized for raising their voice against corruption.

Fundamental duties

1. To judge the cases and make jurisdictions against corruption cases with the
Lokpal.
2. To judge whether a case is genuine or whether a fake complaint has been made.

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 3. To potentially impose fines on a fake complaint, or even a short span of jail time,
if the case is not proved to be legally true.

Criticisms of the Jan Lokpal Bill

A Naïve Approach-The bill has been criticised as being naïve in its approach to
combating corruption. According to PratapBhanu Mehta, President of the Center for
Policy Research Delhi,the bill “is premised on an institutional imagination that is at best
naïve; at worst subversive of representative democracy”. The very concept of a Lokpal
concept has received criticism from Human Resource Developmentminister KapilSibal in
that it will lack accountability, be oppressive and undemocratic.

Extra Constitutional- The pro-bill activist ArvindKejriwal rejects the claim of Lokpal being
extra-constitutional with the explanation that the body will only investigate corruption
offences and submit a charge sheet which would then tried and prosecuted through trial
courts and higher courts, and that other bodies with equivalent powers in other matters
exist. The proposed bill also lists clear provisions for the Supreme Court to abolish the
Lokpal.

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

The bill also states that “Lokpal shall have, and exercise the same jurisdiction powers
and authority in respect of contempt of itself as a High court has and may exercise, and,
for this purpose, the provisions of the Contempt of Courts Act, 1971 (Central Act 70 of
1971) shall have the effect subject to the modification that the references therein to the
High Court shall be construed as including a reference to the Lokpal.”Review of
proceedings and decisions by Lokpal is prevented in the bill by the statement “…no
proceedings or decision of the Lokpal shall be liable to be challenged, reviewed, quashed

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or called in question in any court of ordinary Civil Jurisdiction.”. As a result, how the
trials will be conducted is unclear in the bill, although the bill outlines requiring judges
for special courts, presumably to conduct trial that 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.

Scope- The matter of whether the Indian Prime Minister and higher judiciary should or
should not be prosecutable by the Lokpal remains as one of the major issues of dispute.
Anna’s own nominee 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”.

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

Critical Observations on Ombudsman Scheme

The most common criticism of the ombudsman system is that the function is not
generally well understood. There is relatively limited documentation and information
about their work, often confusion and uncertainty about their role, and with the
proliferation of ombudsman offices in different sectors, the confusion can be
exacerbated. In spite of the key characteristic of accessibility, ombudsman offices are

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

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

Conclusion:

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 procedure. The ombudsman should be concerned not merely
with laws or codes as they stand, but also as they might be.

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