Origin and Evolution

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.1

‘Ombudsman’2 is an old Swedish word that has been used for centuries to describe a person who
represents or protects the interests of another. The word was originally derived from medieval
Germanic tribes where the term was applied to a third party whose task was to collect fines from
remorseful culprit families and give them to the aggrieved families of victims (Kircheiner, 1983).
The part word, ‘man’ is taken directly from Swedish (the old Norse word was ‘umbodhsmadr’)
and does not necessarily mean that the holder be of the male gender. At present, there are several
women, who are part of ombudsman community worldwide.

In Sweden, the ombudsman office was established by the Parliament to assist it in its dealings
with the Executive and the Judiciary. Apparently, it may be considered that the Riksdag
(Swedish Parliament) felt inability to satisfactorily exercise its oversight on the activities of other
branches of government. In order to carry out its role as representative of the people, the Swedish
Parliament felt that it needed an officer who could actively deal with complaints made by the
public about action being taken by Executive and the Judiciary. In addition, the following key
elements of the Swedish form of government also led to the establishment of ombudsman
office:3 –

1. There is no concept of Ministerial responsibility such as exists in Parliaments based on

the Westminster system, where the minister is chosen from the members of the
Parliament.

1
https://www.lawctopus.com/academike/ombudsman-critical-appraisal/
2
An Ombudsman Overview, David Peppiatt, Project Researcher, Briefing Paper for The Ombudsman Project Inter-
agency Steering Group Meeting on November 21, 1997 at British Red Cross.
3
 2. In Sweden the Judiciary is a career service that is modeled much more closely on a
traditional executive style of decision maker and which therefore lends itself to some of
the pressures that exist in any career and promotion based bureaucracy.

The Ombudsman concept provides the safeguard that every citizen will be provided an avenue to
voice his concerns and grievances and permit opportunity for resolution prior to seeking remedy
within the costly, cumbersome and backlogged judicial system. The informality, low cost,
rapidity of action, flexibility, ability to enforce new policy, freedom from elaborate rules and of
evidence are the important qualities, which make the ombudsman institution an ideal for the
common man to seek relieve against administrative excesses and to get his grievances small or
great, redressed without spending money.4 The role of the ombudsman is to ensure that all public
officials perform their duties with justice, honesty and public responsibility. Thus, the
ombudsman became a unique instrument to represent the interests of citizens, protect basic
human rights and improve quality of public administration.

The ombudsman concept is one which has grown rapidly in a variety of constitutional settings
throughout the world5. According to Roy and Giddings, “Ombudsman nowadays take many
different forms, they work in different ways, and they dwell in variety of habitats”. In early
1980s, Caiden et al observed in an ombudsman study in the following manner: –

“It is found in old countries and new countries, rich countries and poor countries, capitalist
economies and socialist economies, unitary states and federal states, civil regimes and military
regimes, states with strong administrative law system and states with week administrative law
systems, presidential and cabinet systems, political systems where legislators enjoy constituents’
case work and political systems where they do not”.6

Lokpal- An Indian Attempt at Establishing an Ombudsman System

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

4
A Commentary on Ombudsman, Law, Scope and Prospects by Mobeen Ahmed Khan, Asia Law House Karachi.
2001
5
International Ombudsman Institute website “www.law.ualberta.ca/centres/ioi/eng/eng_home.html
6
ibid
constitutional ombudsman was first proposed in parliament by Law Minister Ashoke Kumar
Sen in the early 1960s. The first Jan Lok pal 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. 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 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 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 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 SantoshHegde ,a former Supreme Court Judge and former Lokayukta of
Karnataka, PrashantBhushan, 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 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.
 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 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 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.

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.