Electronic copy available at: http://ssrn.com/abstract=1131678

Instilling Public Confidence in Administration: The need for an Ombudsman like

Institution in India

Abstract

The continuing increase in the instances of maladministration undermines the public faith in bureaucracy underscoring the need for an ombudsman like institution in India. The Lokpal/ Lokayukta Act has been sought to be promulgated since the 1970s and till today efforts for the same have been all in vain, showing the lack of political will to institutionalize the ombudsman in India. Even though States such as Orissa, Kerala and others have enacted their own State Acts constituting the ombudsman, they havent achieved much success. An understanding of the importance of an ombudsman and the promulgation of a Central Act is the required step forward.

The functioning of administration has also undergone a paradigm change. Focus has shifted from secrecy to transparency, from working in isolation to working with the people, from arbitrariness to accountability for actions. Clearly the time has come to herald change through institutionalizing the ombudsman. This paper gives a brief overview of the institution of the ombudsman highlighting its merits, illustrates the differences between the institution of ombudsman and Courts and that of the Central Vigilance Commission bringing forth the supplemental role played by the same and suggests measures that need to be taken to supplement the success of ombudsman. Finally, the conclusion is presented.

Introduction

"It is not wisdom alone but public confidence in that wisdom which can support an

administration." --Thomas Jefferson to James Monroe, 1824.

This statement underscores the importance of public confidence as a test of the efficacy

of administration. The fundamental principle of administrative law has always remained

the same, namely, that in a democracy the people are supreme, and hence all State

authority must be exercised in the public interest.1 In light of the preeminence of people

in a democracy, it is imperative that people feel that the administrative system is fair and

efficient. Since the purpose of administrative law is to ultimately serve the interests of the

people the people must be confident about the administrative functioning.

However with the increase in the scope of administration in India, 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

1 Justice Markandey Katju, Administrative Law and judical review of administrative action, (2005) 8 SCC (J) 25

Electronic copy available at: http://ssrn.com/abstract=1131678

functionaries resulting in maladministration and corruption.2 Due to the laxity and delay

in the redress of individual grievances by administrative bodies and public officials, the

public confidence in administration has reached its nadir.

Clearly the time has come to install an apposite system in place to make it easy for the

public to keep a check on lapses by administrative agencies and instill confidence. The

Ombudsman can provide this vital role, closing the gaps where Courts and other bodies

are unable to reach thus instilling public confidence.

The object of this paper is to have a comprehensive look at the institution of Ombudsman

as an agent for instilling public confidence in administration. The paper proceeds in four

sections.

Part I gives a brief overview of the institution of the ombudsman highlighting its merits.

The justification of an ombudsman like institution within the framework of the doctrine

of separation of powers is also discoursed.

Part II focuses on the efficacy of the practice in todays context.

Part III illustrates the differences between the institution of ombudsman and Courts in the

context of judicial review of administrative action and that of the Central Vigilance

Commission bringing forth the supplemental role played by it.

Part IV suggests measures that need to be taken to supplement the success of

ombudsman. Finally, the conclusion is presented.

I. Ombudsman : A brief overview

Definition and History

It was in Sweden in 1809 that the institution of Ombudsman can into being. Ombudsman

is derived from the Old Norse (Swedish) word, umbothsmathr; umboth meaning

commission and mathr meaning man.

2 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007)p.905

The Merrium Webster Dictionary defines ombudsman as a government official (as in

Sweden or New Zealand) appointed to receive and investigate complaints made by

individuals against abuses or capricious acts of public officials.3 The purpose of the office

was to serve 'as a bulwark of democratic government against the tyranny of officialdom'.4

In its special sense, it means a commissioner who has the duty of investigating and

reporting to Parliament on citizens complaints against the government.5 As Parliament's

watchman, he can and does proceed on his own motion when problems come to his

attention through newspaper stories, personal conversation, suggestions by officials

themselves, or his own periodic inspection of courts and administrative agencies.6 An

ombudsman requires no legal powers except powers of inquiry. In particular, he is in no

sense a court of appeal and he cannot alter or reverse any governmental decision. Neither

does he have the power to make legally binding decisions.7 Rather, the office relies on

"soft" powers of persuasion and the ability to publicize, including when the government

fails to implement recommendations made.8 His effectiveness is thus derived entirely

from his power to focus public and parliamentary attention upon citizens grievances. For

the department knows that a public report will be made and that it will be unable to

conceal the facts from Parliament and the press.9

Legality

Ombudsman is the projection of the legislative function of supervising the administration.

He is the appointee of the legislature; he acts as its eye and reports to it.10 He is thus an

agent of the legislature, his role fitting within the framework of the doctrine of

separations of power. This makes sense since in theory the legislators ideally ought to

cater to remedying the grievances of the citizens of the constituencies. As John Stuart 3 http://www.merriam-webster.com/dictionary/ombudsman as visited on 20th April 20084 Pradeep K Baisakh, The Lokpal cycle, http://www.indiatogether.org/2005/jan/law-lokpal.htm as visited on 20th April 20085 Wade & Forsyth, Administrative Law, (Oxford University Press, Oxford, Eight edition, 2000)p.886 Walter Gellhorn, The Swedish justitieombudsman, 75 Yale L.J. 17 Wade & Forsyth, Administrative Law, (Oxford University Press, Oxford, Eight edition, 2000)p.888 Linda C. Reif, Building democratic institutions: the role of national human rights institutions in good governance and human rights protection, 13 Harv. Hum. Rts. J. 19 Wade & Forsyth, Administrative Law, (Oxford University Press, Oxford, Eight edition, 2000)p.8810 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007)p.909

Mill wrote in 1862, in a representative democracy the legislature acts as the eyes, ears,

and voice of the people: "[T]he proper office of a representative assembly is to watch and

control the government: to throw the light of publicity on its acts, to compel a full

exposition and justification of all of them which any one considers questionable; to

censure them if found condemnable....In addition to this, the Parliament has an office...to

be at once the nation's Committee of Grievances, and its Congress of Opinions."11 The

ombudsman institution serves to fulfill and turn into reality this duty of the legislative

organ.

In certain cases where the scope of the ombudsmans control extends to the judiciary and

limited intervention in the field of legislation, the question of the propriety of the same

has arisen. Nevertheless, the office can be said to be compatible with the ideas of

Montesquieu insofar as that philosopher valued having certain authorities to see that the

three main powers do not overstep their boundaries.12

Need for an ombudsman

The need for an ombudsman arises from the ineffectiveness of the traditional modes of

control over administration and the remedying of individual grievances against

maladministration.

Firstly, there exist internal checks over the affairs and decisions of public officers within

the department. Any decision of one official can be appealed to a higher official, all the

way up to the head of a department. However, this mechanism has inherent flaws. Higher

officers enjoy departmental fraternity with those against whom complaints are made, and

both sail the same boat.13 Quoting a New Zealand ombudsman, M.P. Jain and S.N. Jain in

Principles of Administrative Law have put forth that the first decision is made at a lower

level of administration and as it goes up to a higher level for review its starts building up

its own defenses within the department a process of rationalization generally brings

11 Norman Ornstein, The Role of a legislature in democracy (Freedom Paper No. 13), http://usinfo.state.gov/products/pubs/archive/freedom/freedom3.htm as visited on 20th April 200812 Stig Jgerskild, The Swedish Ombudsman, 109 U. Pa. L. Rev. 107713 Pradeep K Baisakh, The Lokpal cycle, http://www.indiatogether.org/2005/jan/law-lokpal.htm as visited on 20th April 2008

about arguments in favour of the original decision that may not have been known to the

person who made the earlier decision.14

Secondly, the conventional mode of the citizen approaching the Courts has its own

limitations. Courts are formal in their approach towards petitions which leads to

procedural delays. Besides, their jurisdiction extends only to overseeing the adherence of

administrative action to law. Such a straight jacket formula for public complaints, though

valid in terms of law and the jurisdiction of Courts, fails to keep an effective check on

administrative bodies. It is these small acts of maladministration, procedural delays,

biases and laxity that often go unnoticed but mounts up to create the larger problems

facing administration which ultimately poses a major encumbrance in the progress of the

country. Additionally, Courts 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.15

Thirdly, from the legislative angle, a citizen can approach the M.L.A or the M.P. of his

constituency but this mode is obviously not practical and feasible and would not make

sense in view of the large number of cases and the populous nature of constituencies.

Members of legislatures have a lot of functions and a check on the instances of

maladministration or faults or lapses would figure at the bottom of his priorities.

Furthermore, most of them are a part of the executive wing itself.

Merits

The chief vantage of an ombudsman lies in the fact that it is an external body which

implies its impartiality, non-discriminatory nature and neutrality. The specificity of its

functions also implies that the ombudsman will put in his skill and efforts while acting

upon the complaint. This very fact is bound to increase the confidence of the public in

14 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007)p 90715 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007) p 906

the institution and as has been advocated by numerous authors, the mere appraisal of the

matter by the ombudsman which is in a different hierarchy from the authority passing the

order will satisfy a citizen even though there might not be a relief.

There are various other merits of an ombudsman institution. The institution has the

advantage of simplicity, speed, informality and cheapness. The ombudsman also employs

informal methods in arriving at its decisions and is not bound by any law or procedure

unlike the Courts. Thus an ombudsman can have discussions with various persons such as

academicians, public administrators, and the officials in charge etc. and come up with

more pragmatic solutions which will not only remedy the grievance of the citizen but also

serve as a means to improve the functioning of the government body. Apart from this,

there is no personal cost to the complainant and the office of the ombudsman is borne by

the taxpayers. This entails no need for the citizen to employ any lawyer.

Demerits

It has been argued that the institution of ombudsman is liable for being used for

mudslinging since he possesses the power to publicize. In an era of scams and corruption

and hunger for power, the political executive can influence the Lokpal.16 However this

argument can be refuted with the fact that review of maladministration and the like are

not issues (most of them being relating to procedural matters) that would compel an

official to resort to measures like bribery etc. Besides, as has been mentioned before, the

Lokpal only softly pressurizes the administration and does not threaten it.

Another criticism is that the Lokpal might not even have the time to look into all the

complaints and devote quality time into the investigation of each one. This strikes at the

very root of the central basis of the office of the ombudsman. However the systemic

changes that can be brought about in administration by the suggestions and checking by

the ombudsman outweighs the apprehension that certain individuals might not be able to

get a satisfactory relief.

II. Ombudsman in India 16 Mary Parmar, Lokpal to restore faith in democracy:A person of proven integrity should hold the office, http://www.tribuneindia.com/2003/20030721/edit.htm#6 as visited on 23rd April 2008

When posed with the question as to how to provide the citizen with an institution to

which he can have easy access for the redress of his grievances which he is unable to

seek any where?, the Administrative Reforms Commission (1966) provided the solution

to the problem with the proposal of adoption of the ombudsman type institution in India.

Even before the Commissions recommendation, the idea of establishing such an

institution was brought by Shri M. C. Setalwad in his speech at the All India Lawyers

Conference in 1962.17

A multi level approach was proposed with the Lokpal, looking into maters in the Centre

and the Lok Ayukt for the States. The Commission was confident that the institution

would serve two prongs, one being the redress of grievances of citizens against

administration and second, instilling public confidence in the administrative machinery.

The Lokpal and Lok Ayuktas Bill was presented in the Parliament a number of times in

the years 1971, 1977, 1989 and 2001. Each of the times the Bill lapsed either due to the

Lok Sabha being dissolved or it being refereed to a Committee which prolongs the

discussion and by that time the Lok Sabha dissolves. Again in 2005, the Law Minister has

referred the existing Lokpal Bill to a Group of Ministers. This clearly shows the lack of

political will to enact the bill.

Nevertheless some states have enacted their own acts setting up ombudsman though there

is no uniformity in the Acts. These Acts have not been that successful in countering

maladministration or corruption. Hence the urgent need for a Central Act to consolidate

and provide the strong framework for the effective functioning of the ombudsman.

III. Ombudsman vis a vis Judicial review and Central Vigilance Commission

17 Dr. Hari Sharan Saxena, Ombudsman : India and the world community, Central India Law Quarterly, Vol 9 (1996)

A comparison of ombudsman institution with the concept of judicial review and that of

the central vigilance commission would clearly bring about the nature of functions and

the merits of having this institution in place.

(a) Judicial review compared with ombudsman

There exist certain differences between the exercise of judicial review by the Court and

the review exercised by that of the ombudsman.

Firstly, judicial review does not comprehend the merits of administrative decisions. The

Courts do not substitute their discretion for that of the official on whom the power is

conferred by law.18 This is a limitation of judicial review which can be rectified by the

system of ombudsman.

The efficacy of judicial review of administrative action is also diluted by several other

significant restrictive factors, eg., a number of aspects of administrative functioning fall

outside the judicial purview; the legislature does not often lay down articulately the

norms and guidelines for exercising the vast powers which are conferred on the

administration; failure of the legislature to lay down procedures which the administration

must follow while exercising its powers etc. 19

Besides, ombudsmans inquisitorial procedure is a much more efficient way to establish

the truth than the adversary system followed by the Courts.20 He has the prerogative and

time to look into departmental files. Thus, the chances of a relief to the complainant are

also a lot more in the ombudsman system.

18 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007) p 90619 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007)p 90620 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007)p 910

Walter Merricks in his article The jurisprudence of the ombudsman has summarized

some of the advantages of ombudsman over the Courts as follows21 : Ombudsmen can

talk freely to the outside world, discussing possible approaches to decisions. They

dont have to pretend to "find" what the law is, unashamedly making new "law". Not

being bound by precedent, ombudsmen can consult on changes and then enact them from

a given date. Unlike courts who refuse to consider hypothetical questions, they can

consider situations that have not yet arisen but look likely to do so. By inventing

formulae for frequently encountered situations, ombudsmen enable disputes to be

resolved quickly and fairly by the parties without coming to the Courts. Also, they can

intervene actively to reduce or prevent disputes arising.

However the ombudsman institution has its own flaws too. It does not have the power to

quash or reverse administrative decisions. His decisions are not as authoritative as that of

the ones arising out of judicial review where the Courts can intervene very swiftly to

prevent the recurrence or continuance of wrongful acts as thy can grant injunctions,

declarations, writs and stay orders.22

Thus it is seen that in the area of acting as a watchdog over the bureaucracy, both the

ombudsman institution and the Courts by exercising its power of judicial review have

their own merits and thus complement each other rather than compete with each other in

providing justice to the aggrieved citizen.

(b) CVC compared with ombudsman

The CVC is primarily entrusted with the task of looking into matters of corruption in

administration as against the focus of the ombudsman which is to primarily look into

maladministration though complaints with respect to corruption is also entertained. This

is clarified in the official website of the CVC as follows23-

21 Walter Merricks, The jurisprudence of the ombudsman , J.B.L. 2001, NOV, 654-66022 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007)p 93823 Complaint handling policy, http://cvc.nic.in/comp_policy.pdf as visited on 23rd April 2008

The Central Vigilance Commission is constituted under the provisions of

the Central Vigilance Commission Act of 2003 to exercise superintendence

over vigilance matters and implementation of anti-corruption measures in

the Central Government Departments and in their attached/subordinate

offices, Government Company, Society and any local authority owned or

controlled by the Central Government. The Commission has also been

assigned superintendence over the functioning of the Central Bureau of

Investigation in so far as it relates to offences alleged to have been

committed under the Prevention of Corruption Act, 1988. It shall act as

the designated agency for receipt of written complaints in allegation of

corruption or misuse of office and recommend appropriate action under

GOI Resolution Public Interest Disclosure and Protection of

Informer.

It is further clarified that Complaints to the Commission are meant to result in punitive

action against the erring public servant(s). Relief as such in the matter to the

complainant is only incidental to the vigilance action. Redressal of grievances vis--vis

Government organizations or public sector enterprises should not be the focus of

complaints to the Commission.24

The CVC has much weaker status than the ombudsman.25 The reason for this is that he is

not a creature of statute. His office is enmeshed with the executive of a state which

subjects him to political interference.

Additionally, the role of the Commission is restricted in that it encompasses only the

advisory function. No investigative powers are conferred upon it and its functions are

confined to exercising a general check and supervision over government department as

compared to the wider powers of the ombudsman. The Commission also does not qualify

as a competent authority to sanction criminal prosecutions for offences committed by

24 Ibid25 M.P. Jain & S.N. Jain, Principles of Administrative Law (Wadhwa & Co. Nagpur, New Delhi, Fifth edition, 2007)p 938

public officials. Furthermore, in a number of cases the SC has held that the

recommendation of the Chief Vigilance Commissioner regarding question of punishment

is not binding on disciplinary authority.26

In fact, the CVC has not achieved the kind of success that it was desired to achieve at its

conception. The CBI, the premier investigating agency of the country, functions under the

supervision of the Ministry of Personnel, Public grievances and Pensions (under the

Prime Minister) and is therefore not immune from political pressures during

investigation. Indeed, the lack of independence and professionalism of CBI has been

castigated by the Supreme Court often in recent times.27

IV. Questions to ponder over

Some of the recent questions that have arisen with respect to the framework within which

the ombudsman is to be set up have been discussed under this head.

One of the major questions that have arisen is whether the judiciary should come under

the purview of the ombudsman as has been done in Sweden. This would raise questions

as to the dilution of the theory of separation of powers. The researcher feels that in the

initial few years, it would not be advisable to extend the scope of the ombudsman to the

judiciary. The first things first principle should be followed as of now, i.e.,

concentration should be on the correction of the administrative machinery and the

rectifying of the grievances of the citizens in this regard. On the review of the

performance of the ombudsman during the initial few years, the feasibility and the

legality of expanding the scope of ombudsman should be explored.

Another frequent question raised is as to whether the office of the prime minister should

be brought under the purview of the ombudsman. One view propounds that, the prime

minister is already invested with a lot of important functions and complaints on trivial

acts or omissions would result in unnecessary wastage of his time. It further says that the 26 Sunil Kumar v. State of West Bengal, AIR 1980 SC 1170, Satyendra Chandra Jain v. Punjab National Bank, (1997) 11 SCC 30627 Pradeep K Baisakh, The Lokpal cycle, http://www.indiatogether.org/2005/jan/law-lokpal.htm as visited on 20th April 2008

Prime minister is not a subdued person to be chided by a father like figure (the Lokpal).

The second view is that inclusion of his office strengthens the cause of probity in public

life and that even the Prime Minister cannot soar above the law.28

The researcher feels that the office of the Prime Minister should be open to review by the

ombudsman since being an important member of the executive, he cannot be excluded.

The presence of such a provision would be a source of assurance to the people. Besides, it

is open to the ombudsman to screen complaints against the prime minister which will

ensure that only bona fide complaints are being looked into. In fact, the ombudsman

operates without grossly interfering in the administrative machinery.

Additionally, as regards the question as to whether the Lokpal should have its own

investigative machinery or not, the researcher opines on the affirmative. This is primarily

because of the functional autonomy of the institution which would be ensured. Reliance

on another agency for investigation would vitiate the independence and degree of

freedom of the body, as has happened in the case of CVC.

Another aspect that has often been broached in academic discussions is as to whether

prior sanction of a competent authority is required for initiation of prosecution. The

researcher feels that the sanction of the competent authority would inordinately delay the

process. In the matter of sanction, the important but entirely ignored fact is that a person

of the status of a Lokayukt is either a retired judge of the Supreme Court or a retired

Chief Justice of a High Court. Similarly, an Upalokayukt has to be a retired judge of a

High Court or a Secretary to the Government of India. The governments and competent

authorities have retained the power of sanction and use it according to their whims and

fancies to serve the interests of a chosen few 29

V. Conclusion

28 Ibid29 Faizanuddin , Toothless Watchdogs, http://www.indianexpress.com/res/web/pIe/ie/daily/19991011/iex11076.html as visited on 23rd April 2008

The continuous failure of the government in enacting the Lokpal/Lokayukt Bill in India

further undermines the public confidence in administration. The government must be

impressed upon and urged to provide an environment conducive for grievance redressal

which would ultimately lead to better systems and functioning of administrations. It must

be remembered that for success all sections of society must come together with

singularity of purpose. The citizens hope in better administration lies in the promulgation

of a Lokpal/LokAyukt Act and this must be done with the least possible delay.