Introduction :The genesis of the Ombudsman may be traced as far back as 1809 whenthe institution was first established by the Swedish which was basically ofScandinavian tradition with a view to raising the standards of moderndemocratic forms of parliamentary administration.A tribune of the people:According to Wade (1988) the institution of Ombudsman is “a tribune of thepeople”. The word is of a Scandinavian, meaning thereby ‘Officer’ or‘Commissioner’. Wade contended that :“An Ombudsman requires no legal powers except powers of inquiry. Inparticular, he is in no sense a court of appeal and he cannot alter or reverseany government decision. His effectiveness derives entirely from his power tofocus public and parliamentary attention upon citizen’s grievances. Butpublicity based on impartial inquiry is a powerful lever”.Similarly, Jain and Jain (1986) observed, ‘Ombudsman acts as an externalagency, outside the administrative hierarchy to probe into administrativefaults. In theory Ombudsman is the projection of legislative function ofsupervising the administration.”Peter Cane (1987) propounded that ‘Ombudsman’ “is an official, independentof the administration with power to investigate the citizen’s complaints ofmaladministration.” The terminology ‘maladministration’ being the formalpoint of the institution, needs to be understood in its right perspective. DCMYardly (1986) defined ‘maladministration’ as complaints tainted with :(a) nepotism, corruption or bias;(b) failure to observe a sound administrative basis;(c) negligence in carrying out a duty;(d) misuse of discretion;(e) incompetence;(f) loss of documents or papers;(g) tardiness and delay;(h) unjust segregation or discrimination;or (i) any similar matters.In fine, the main objects to the appointment of Ombudsman are to institute,according to Balbir Singh(1986),“… new standards and evolve new and more congenial pattern ofadministrative behaviour”, including doing away with corruption of all sorts.Chronological perspective:Interest generated in the idea of Ombudsman was of relatively recentphenomenon which gained momentum by the persuasive publicity given byStefan Hurlvitz, the Danish Ombudsman under the statute of 1954.In England, Justice (1961) came out openly in support of the concept ofOmbudsman in his report on the subject matter known as ‘Whytt Report’. This
was soon followed with the institution of various kinds of Ombudsman onexperimental basis to deal with the central and local Government, NorthernIceland and health service in England. New Zealand closely followed the heelsof England among the Commonwealth countries and created Ombudsman in1962 enacting the Parliamentary Commissioner (Ombudsman) Act, 1962.Other Commonwealth countries took up the institution of Ombudsmanin quick succession, each country adopting in the manner to suit its ownpolitical, legal and constitutional usage.Thus, as to whether the Ombudsman, as the instrument of parliamentaryprocess, press and public debates, redressal of public grievances, etc, isbeing effectively used or not, has come to stay in each country wherever thesame has been instituted.Ombudsman has grown and developed in its legal perspective and publicestimation or acceptability as aneffective institution for redressal of publicgrievances and minimization; if not total elimination of maladministrationover the years could be evidenced from various Law journals.The Commonwealth Law Bulletin, January, 1994 reported that in Hong Kong,the Commissioner for Administration complaints (Amendment) Bill, 1993sought to amend its ordinances so as to –(a) allow public direct access to the Commissioner for Administrativecomplaints;(b) include major statutory bodies within the purview of the Commissioner;(c) allow the Commissioner to publicize its investigation reports;(d) the Commissioner may investigate action taken by or on behalf of anyorganisation in exercise of administrative functions upon a complain by aperson who claims to have sustained injustice in consequence uponmaladministration in connection with that action;(e) thereafter if he deems proper and is in the interest of public; may-i) publish the report; andii) that the Commissioner shall not be restrained from disclosing the identityof the organisation involved on the matter in his report.In brief, the exercise was to enhance the powers of the Commission forAdministrative Complaints.Secondly, in the United Kingdom, the report of the Commissioner forAdministration on the investigation of a complain was found not to thesatisfaction of the complainant who filed a complaint in the Court of Lawagainst the Ombudsman on the grounds that the method of investigation wasnot satisfactory, that the Commissioner refused to reinvestigate the Complaintand that the Commissioner had exceeded his authority. The issue raisedcertain legal basic questions as to whether the complainant was entitled toreceive draft report, etc, in pursuance of the parliamentary Commissioner’sAct, 1967.
The main issue in the matter was about the conduct of the Department ofSocial Security in connection with the claims for certain benefits by thecomplainant. While investigating the case, the Commissioner upheld action ofthe Department of Social Security, refusing to re-open the case whenrequested to do so.If petition for a judicial review of the decision of the Commissioner was filedwith the Queen’s Division Bench for which the Court held that :(1) although there was nothing in the Commissioner’s role or statutory frame-work within which he operated so singular as to take him outside the purviewof judicial service the Court could not readily be persuaded to interfere withthe exercise of the Commissioner’s discretion under the Act of 1967;(2) that, since the exercise of that discretion involved a high degree ofsubjective judgement, it would be difficult to mount an effective challenge tohis decision on the grounds of unreasonableness;(3) that, the Commissioner was entitled to the exercise of his discretion tolimit the scope of his investigation by selecting which complain he isaddressed and by identifying and investigating broad categories of complaints;(4) that, the reasons for sending the draft report to the department to allow itto point out any inaccuracy to give notice of document or informationdisclosure of which could be contrary to the public interest and to indicate anyproposed remedy did not apply to the applicant and although the decision ofthe Commissioner affected the rights to fairness of the applicant did notdemand the applicant should be shown the draft report; and(5) that, once the Commissioner’s report had been submitted to the relevantmember of Parliament and the department, he was functus officio and wasunable to re-open his investigation without a further referral under section 5of the Act.Thirdly, in Mauritius, the Ombudsman, Mr. S.M. Hatteea, in his 18th AnnualReport covering the period January – December, 1991, stated that in view ofthe increasing number of cases that had been received during the year underreport than that of the previous year was indeed an encouraging sign of thegrowing faith of the public in the institution of Ombudsman to assist thepublic who claim to have sustained injustice as a consequence ofmaladministration.to be continuedThe report of Ombudsman highlighted two sensitive areas for improvement ofthe performance of the Government in that :(a) the Ministers and departments should make the required information ofOmbudsman with promptness without requiring them to be reminded; and(b) though he could not find evidence of proof that officials were communal intheir dealings with the public, such impression should not be created in thedischarge of their duty as public servants.
The Ombudsman further observed that for the sake of good administration itwas expedient that the public servants should at all cost be well perceived inthe mind of the public and that in their dealings with the latter they shouldalways be impartial and just.Fourthly, the Scottish Legal Services Ombudsman, Mr. David Marvell, in hisSecond Annual Report, 1992 recommended a public-oriented five pointinnovation for better administration and redressal of public grievances to theLaw Society.Fifthly, in Zimbabwe, the Ombudsman, Mrs. S.G. Chanetasa, in her EighthAnnual Report covering the period January-December, 1992 gave theemphasis on radical improvement of their attitude and treatment of theofficials towards the interest and redressal of citizen’s grievances by beingmore easily accessible.Indian Panorama:The origin, growth and function of the concept of Ombudsman cannot bestudied in isolation. As one of the Commonwealth Countries, theOmbudsmania certainly had the impact in India, where the root had crept intothe social milieu and administrative mechanism. Nevertheless, in view of itspeculiar social structure based preponderantly on Hindu Caste System withmulti-faceted ethnic diversity and religious pluralism as enshrined in its broadbased secular constitution, the structure and function of the Ombudsman hasto undergo necessarily modifications without loosing, of course, its originalconcept so that it may be fitted not only with its democratic and parliamentaryinstitution but also conformed to their social and economic systems.The ARC initiative of Lokpal:Keeping this in view and convinced with the opinion that there is no effectivemechanism to redress grievances of all kinds against the administrative evils,the Administrative Reforms Commission under the Chairmanship of MorarjiDesai recommended to set up Lokpal similar to that of Ombudsman in Indiain its “Interim Report on the Problems of Redressal of Citizen’s Grievances(1966) most probably as a result of eminent lawyers none other than M.C.Setalrod, L.M. Singhi etc in the early sixties.First Indian Version of Ombudsman (1968) :The first Indian version of Ombudsman Bill 1968 was presented by in thefourth Lok Sabha. Unfortunately, it got lapsed before its being approved by theRajya Sabha to become law due to dissolution of the Lok Sabha. The Bill wasknown as “The Lokpal and Lokyuktas, 1968”. It was modeled very closely onthe draft Bill, proposed by the Administrative Reforms Commission in theInterim Report. It envisaged a Lokpal to monitor the actions of the Ministersand the Secretaries, and a Lokayukta to consider complaints against theactions of administrative cadres below the rank of Secretary.The Second Lokpal Bill (1971) :
A Second Bill was introduced in 1971. It was also lapsed due to dissolution ofthe fifth Lok Sabha. The Lokpal and the Lokayuktas Bill 1971 did not make anysubstantial departure from the earlier Bill, 1968.The highlight the main features, the Bill envisaged to focus on two kinds ofactivity – ‘allegation’ and ‘grievances’. The term ‘allegation’ may be summedup as in relation to a public servant who is found to have –(a) abused his position to obtain any gain or favour to himself or to any otherperson or to cause undue hardship to any other person or to cause unduehardship to any other person;(b) biased by personal interest or improper or corrupt motives, etc, in thedischarge of his official duty;(c) guilty of corruption, lack of integrity or improper conduct in his capacity.Likewise, while clause 2(d) of the Bill defined grievance as a claim by a personthat he suffered injustice or undue hardship in consequence of‘maladministration’ as action taken or purported to have taken in exercise ofthe administrative function wherein such action or administrative procedureor practice governing such action was alleged or found to have beenunreasonable, unjust, oppressive or improperly discriminatory, negligent,unduly delayed, etc.Secondly, clause 9(1)(a) and (b) further explained that while ‘grievance’ can bebrought by a person who was actually aggrieved, ‘allegation’ can be brought byany person other than a public servant.Thirdly, except the Prime Minister, complaint could be lodged against allshades of public servants. The Lokpal, on his part, is obliged to lay hisinvestigations to the Prime Minister in case of Cabinet Minister and in othercases before the Officer or Minister who is superior to the public servantinvolved.The Lokpal proposed by the 1971 Bill could have yielded enormous powers andcould have investigated various kinds of cases including maladministrationand allegations of corruption of any sort. The institution was not aparliamentary creation, could receive complaints directly and also monitor theaction taken by the authority concerned in pursuance of the report of Lokpal.In case the Lokpal was not satisfied, he might seek the help of the Presidentand through him of Parliament.The Lokpal Bill, 1971 would also have been a very effective instrument ofchange for improvement and in the nature of administration, but for its beinglapsed before it became a law.Growth of Lokpal in States :Despite the fact that the Lokpal Bill could not be created as a nationalinstitution, interest generated in the concept of Ombudsman throughout thecountry made its manifestation felt in the enactment of various State
Legislations. Orissa was the first State that enacted a legislation in 1970 on theinstitution, Lokpal.This was soon followed by Maharashtra in 1971, Rajasthan and Bihar in 1973,Madhya Pradesh in 1974 and Uttar Pradesh in 1975; Kerala adopted a policy toinstitute a Commissioner to expose corruption in 1976, the Jammu andKashmir as Prevention of Corruption Statute in 1975, Tamil Nadu asAdministrative Criminal Misconduct in 1974, Karnataka in 1973, and so on.Two kinds of Lokpal :The above mentioned State Legilsatyions may be categorized into two. Thefirst category consists of statutes which are modeled on the Lokpal Bill 1972,with modifications to accommodate indigenous elements. The second categoryis of the kind that was enacted in Rajasthan and Gujarat which were primarilyconcerned with examining and looking into ‘allegation’ aspect only.Distorted Lokpal at National Level (1977) :Some state institutions of Lokpal had shown remarkable success in dealingwith ‘grievance’ cases along with ‘allegation’. Despite this, the JanataGovernment at the centre preferred the Rajasthan and Gujarat models anddecided that the Ombudsman shall investigate into ‘allegation’ only. Thus, the1977 Bill is not concerned with the administration at all. It only concerns withthe ‘corruption’ of any member of the Council of Ministers for the Unionincluding the Prime Minister, the Chief Ministers, and members of Parliamentand of Legislative Assemblies, leaving the Administrative cadres completelyexcluded.The fact that the 1977 Bill had laid emphasis on ‘corruption’ made the Lokpal acomplete departure from the Ombudsman model as was originallyunderstood.The Lokpal Bill, 1985 :The Rajiv Gandhi Government re-introduced the Bill in 1985 in the Lok Sabhaon the 26th August, 1985. It was referred to a joint committee of each Housesof Parliament. In the Committee several members criticized the Bill to theeffect that the scope of the same was too restrictive. Thus, the joint committeereport on the Bill said,“It did not provide for the redressal of grievances of citizens but only providedfor a pre-trial inquiry into the cases of corruption.”Under the situation the Government deemed it proper to re-examine thewhole issue of establishment of a Lokpal, his powers, functions, jurisdictionetc, and, therefore, withdrew the Bill so as to introduce a more comprehensivelegislation on the subject despite strong protest to do so from the oppositionheavy-weight leaders, such as, L.K.Advani, P. Upendra, V. Arunachalam, K.P.Unikrishnan, S. Jaipal Reddy, etc. on the ground that the Bill could be adoptedwith suitable modification without being withdrawn.The Lokpal Bill, 1989 :
Two years later, the National Front Government introduced the Bill in 1989.The Bill brought in the Prime Minister within the purview of the Lokpal. Infact, the Bill was almost a reproduction of 1985 Bill with minor modifications.The change worthy of mention that had been brought about is in respect ofprovision for a troika consisting of a Chairman and two members.Observations with Comments :As per the 1989 Bill, the Lokpal is merely to conduct pre-trial enquiry againstpersons holding ministerial posts who are alleged to be guilty under thePrevention of Corruption Act, 1988.Sathe (1991) contended that this would place the Lokpal in embarrassingsituation. The Government may put up cases before a competent court of Lawagainst the evidence or finding of the Lokpal and may even get the person heldto be prima facie culpable by the Lokpal acquitted by the trial Court under thePrevention of Corruption Act and questioned as to the worthwhile purpose ofsuch an expensive institution of Lokpal, “If it is merely to hold pre-trialenquiries”. Sathe further commented that“We do not know how far the Lokpal will be able to unearth cases ofcorruption by ministers. This is going to be a very top heavy machinery forthat purpose. But certainty the present Lokpal Bill totally buries the concept ofOmbudsman which the Administrative Reforms Commission has spelt out inits reports. The Lokpal will not be of any use to the common man whose maingrievances is against maladministration, red tape, callousness and negligence.We feel that it might turn out to be another cosmetic office to induct a sense ofcomplacency. What we need is a system which will provide quick relief topeople against administrative action as well as administrative inaction. Goingto the Court is too expensive and many a time one cannot Marshall Evidenceenough to obtain favourable judicial response. So far as corruption isconcerned, the prevention of Corruption Act shall be suitably strengthenedand even a special tribunal or court with appeal only to the Supreme Court onquestions of law could be provided for dealing with those cases. Ombudsmanis not the remedy for that purpose.All said and done as it stands now in the Indian context, it is a matter to watchand see how the Lokpal as the Indian version of Ombudsman is to take finalshape to become a Law in the Country so as to raise the standard ofadministration which lessens, if not done away with, the grievances of citizens.Conclusion :So far, as Dhavan had rightly pointed out, the concept of Ombudsman in theform of Lokpal particularly that of the 1977 Bill:“… transparently concerns itself with politics. It does not, in fact, belong to theOmbudsman idea as we know it. It is a Bill which has been designed bypoliticians for political purpose to be used against politicians. It is a Bill whichis a typical product of the aftermath of the emergency. Its object is to promote
witch-hunts, not good administration. And indeed, this is exactly how the Billwas greeted when it was introduced in Parliament by Charan Singh, the HomeMinister.”