OMBUDSMAN IN INDIA

Author(s): Sarojini Sharan

Source: The Indian Journal of Political Science , April—June, 1971, Vol. 32, No. 2
(April—June, 1971), pp. 158-174
Published by: Indian Political Science Association

Stable URL: https://www.jstor.org/stable/41854435

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 OMBUDSMAN IN INDIA

by
Sarojini Sharan*

I. Introduction

(a) I. Definition : In one of the extraordinary lectures1 delivered

under the auspices of the Institute of Public Administration, Patna
University, Shri K. Hanumanthaiya explained the concept of Ombuds-
man. He said "The concept of Ombudsman is essentially that of an
institution which is independent of the Executive, the Legislature and
the Judiciary. It is freely accessible to the individual citizen who is
aggrieved by administrative action or inaction. If the citizen approaches
the Ombudsman with a genuine complaint, the latter takes up the
responsibility of fully investigating the case himself without any expense
or onus of proof on the complainant. This is a great advantage for the
citizen. It is here that this ready type of remedy steals a march over the
delaying type of judicial proceedings of the Courts' .2

Ombudsman originated in Sweden. The word meant an agent or

attorney and was applied to Government's Chief Prosecutor.

The image which conjures up before our eyes when we utter the
word "Ombudsman" is that of a person who is high above the average
man, who has sound judgment and patience and who is eager to work for
those who have been at one time or the other subjected to unfair treat-
ment by those who are experts in the field of art and craft of public
administration. On the other hand the experts in the field of public
administration picture him as a balancer who also sees that the admini-
strator is not demoralised for the sake of frivolous complaints.

Ombudsman is defined also as "a Legislative Commission for the

investigation of Citizen's Ccmplaints of Bureaucratic a*buse."3 The
Thirty-second American Assembly described him as "an independent,

* Reader in Political Science, Patna University and Head of the Department of

Political Science, Magadh Mahila College, Patna.
1. On 7th September, 1968 Sri K. Hanumanthaiya erstwhile Chairman, Adminis-
trative Reforms Commission, New Delhi spoke on Lokpal.
2. Hanumanthaiya, K. Text of his speech on Lokpal, The Journal of the Adminis-
trative Sciences, January-December 1969, Volume XIV, Nos. 1,2, & 3, pp. 2-3.
3. Anderson, S.V. "Ombudsman", in Encyclopaedia Britannica 1968.

158

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 OMBUDSMAN IN INDIA 159

high level officer who receives complaints, w

matters involved and who makes recommendation for suitable action.
He may also investigate on his own motion. He makes public periodic
reports. His remedial weapons are persuasion, criticism and publicity.
He cannot as a matter of law reverse the administrative action."4

In essence, the Ombudsman is an authority to review the adminis-

trative actions of the various Governmental departments from the point
of view of the citizen's ¡grievances.5 H.W.R. Wade5« describes him as
"an important adjunct to the machinery of Government", calls him "an
ally of an independent judiciary and legal profession" and declares that
"he can be fitted into almost any term of democratic constitution."

( b ) Origin and Development : As mentioned earlier the institution

of Ombudsman originated in Sweden.® After that Ombudsman
hysteria7 gripped many other countries of the world like Finland,
Denmark, Norway and England.

Now the developing countries have also started experimenting with

it. They are Guyana, Mauritius, Tanzania and India. In Guyana
Chapter V of her Constitution which deals with the executive aiso deals
with the office of the Ombudsman. Mauritius devotes the whole of
Chapter IX of her Constitution to Ombudsman. The Interim Consti-
tution of Tanzania8 and the permanent Commission of Enquiry Act No.
25 of 1966 (Amended by Act Nos. 2 and 36 of 1968)8* provide for a
Permanent Commission of Enquiry with the same function as that of
Ombudsman.

The Administrative Reforms Commission which was appointed in

19669 unanimously recommended that Ombudsman type of machinery

4. Quoted by Minathur Joseph, "Ombudsman in Developing Countries", The

Supreme Court Journal , 197, Vol.XLlI, No. 4, 15-2-1970, p. 26.
5. Tripathi, P.K. Lokpal, "the Proposed Indian Ombudsman", Journal of the
Indian Law Institute , Volume 9, April- June 1967, pp. 136. New Delhi-1.
5(a) Wade, M.W.R., "The Ombudsman. The Citizen's Defender" Law and the
Commonwealth , Occasional papers, Fourth Commonwealth Law Conference
New D^lhi (January 6th-13th, 1971) pp. 5 & 6.
6. Minathur Joseph, * -Ombudsman in Developing Countries", The Supreme Court
Journal , 1970, Vol. XLII-No. 4, pp. 26-35.
7. Shukla, V.S., "The Ombudsman Hysteria," Supreme Court Journal, 1967, Vol.
I, pp. 84-96.
8. The Interim Constitution of Tanzania sec. 67 (1) and (4) Act No. 43 of 1965
Chapter VI.
8(a) See Bayne, Peter, Tanzania's Ombudsman : The Permanent Commission of
Enquiry," Law and Commonwealth , Occasional papers for fourth Common-
wealth Conference, op. cit . New Delhi pp. 38-57.
9. The Commission was appointed on Jan. 5, 1966 by the President by a Govern-
ment of India Notification No. 40/3/65-AR (P) and besides the Chairman
Shri Morarji Desai, had Shri K. Hanumanthaiya (who became the Chairman
later on), Shri Debbrata Mukherjee, Shri Harish Chandra Mathur, Shri H.V.
Kamath and Shri V. Shankar.

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160 THE INDIAN JOURNAL OF POLITICAL SCIENCE

should be set up in India also.10 A Bill providing for Ombudsman

in India was introduced in the Lok Sabha in May 196811 by Sri Chav
erstwhile Minister for Home Affairs on the 9th May 1968. It was pass
in August 1969.

(c) Reasons for having an Ombudsman for India : Governments in

the modern age all over the world have come to enjoy a large amount
discretionary powers. If this power is abused it can very easily imperi
the very life, liberty and property of individual. The Ombudsman
needed as one of the weapons in the armoury of Control Mechanism
provided by administrative law to match the growing complexities
the administration.

According to the protagonists of the Institution of Ombudsman for

India, there are several reasons for its installation here. After India took
over from the British, the Indian Administrative set-up came to be over-
burdened with the immense task of meeting the after-effects of Second
World War. The economic crisis, floods and famines were enough for
breaking of their nerves. Over and above these, India set on to the path
of ambitious and revolutionary plans which required complete re-orga-
zation of the administrative set-up. The administrators were armed
with greater powers and thus there was a greater need to safeguard the
citizen from the arbitrary or unfair exercise of powers by the former.

The two reports by Paul M.A. Appleby (Ford Foundation Consul-

tant on Public Administration) did not pay much attention to the
problem of citizen's grievances. The third report on Public Adminis-
tration by A.D. Gorwala also over-looked this problem to a considerable
extent.

Just as it had happened in some other countries like Denmark12, at

the close of Second World War India faced unprecedented problems of
lack of efficiency and corruption in its public services. These amounted
to arbitrariness which called for special methods of control. Finally
whatever agencies the Indian Constitution provided for the Indian
citizens these were not sufficient to meet their grievances. The Indian

10. The last among the list of ten matters which the Commission was requested to
consider in particular was the "Problem of redress of citizen's grievances".
The Chairman submitted the interim report to the Prime Minister by a letter
dated October 20, 1966. See Administrative Reforms Commission , Govern-
ment of India, Interim Report on Problems of Citizen's Grievances, 1966.
11. Bill No. 51 of 1968. The Lokpal and Lokayukta Bill 1968.
12. Shukla, V.S. "The Ombudsman Hysteria," Supreme Court Journal , 1967, op. cit.
p. 86.

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 OMBUDSMAN m ÍNDIA 161

Constitution, for instance, provided for Judiciary

the former was dialatory, expensive, formal and to
the grievances and the latter proved to be inadeq
pressure oí work and lack of time.

(< d ) Earlier efforts : The Indian Constitution h

an Ombudsman by another name for keeping a
accounts. He was the Comptroller and Auditor Ge

Before launching upon the institution of Omb

Government had already made several efforts to
and other maladies of the public services in the c
Vigilance Commission was established by the Minist
Delhi. The Central Government set up the agenc
of Investigation and a Special Police Establishmen
to deal with special problems divulging a lack of
ethics on the part of public servants and busines
some States like Uttar Pradesh new post of Deput
Police (Corruption) was created to tackle such p
States Vigilance Commissions began functioning sin

Besides these, several other efforts were also mad

find out the methods of eradication of corruptio
tion, or to keep them to a minimum. A.D. Gorwa
Administrators 1951, P.B. Gajendragadkar's expre
Administrators in a Democratic Welfare State14 and
on evaluation of the need for an Indian Ombudsman for successful
planning15 are all evidence in support of the fact that some serious
thinking is going on in the country for curbing inefficiency, mal-
administration and corruption.

II. Lokpal and Lokayuktas

(a) Its origin in India. The matter concerning Ombudsman in India
was raised in Parliament on the 3rd of April 1963 when the Demands for
Grant of the Ministry of Law was being discussed. The Administrative
Reforms Committees of Rajasthan and Maharashtra recommended the
establishment of this institution at State level. Kerala and Bihar
Governments also gave some consideration to it.

The Home Minister made a statement on 16th December 1963,

before the Parliament and admitted the importance and urgency of

13. Indian Constitution, Articles 148-151.

14. Indian Journal of Public Administration , 592, 603 (1963).
15. 24 Indian Journal of Political Science , 347, 354 (1963). Quarterly Organ of the
Indian Political Science Association.

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162 THE INDIAN JOURNAL OP POLITICAL SCIENCE

providing machinery for looking into the grievances of citizens against

the administration.16 Later on many Commissions of enquiry wer
appointed under the Commissions of Enquiry Act to enquire into t
conduct of Chief Ministers and Ministers of several States. All these
showed an awareness and a need for some agency which would not only
investigate the allegations against the Chief Minister, Ministers, Deputy
Ministers and other public servants17 but also look into the instances of
maladministration and hear grievances of the citizens.

The Lokpal Bill contemplates Ombudsman at two levels. At one

level is the Lokpal who is to investigate any action which is taken by or
with the general or special approval of a Minister or a Secretary.18 At the
second level is the Lokayukta or two Lokayuktas to investigate any action
taken by or with the general or special approval of an official lower in
rank than that of a Secretary.19 A minister means a person who is a
member of the Council of Ministers of the Union Government and
includes a Deputy Minister.20 An officer is a person appointed to a public
service or post in connection with affairs of the Union.21 The Ministers
and officials of the Union Territories as defined in Government of Union
Territories Act 1963 have also been brought under the purview of the
Lokpal or the Lokayuktas under this Act.2*

There has been a debate on the conflict of the Lokpal's functions

with the Constitutional Principle of Ministerial Responsibility,23 and
Parliamentary Control.24 But one has to remember that the Lokpal is
not allowed to take any direct action againt any erring Minister. He

16. The Journal of the Administrative Science, Vol. XIV- January-Dec. 1969,
pp. 9-10. Journal of the Institute of Public Administration, Patna University.
(See the text of speech delivered by Shri K. Hanumanthaiya on the occasion of
extraordinary lecture on Lokpal under the auspices of the Institute of Public
Administration, Patna University on 7th Sept. 1968).
17. ¡bid, P. 12 "The definition of "Public Servant" includes Ministers, Officers of
Central Government (including those of Union territories) and the Employees of
Corporations and Companies owned or controlled by the Central Government.
The employees of the local authorities in the territories and societies controlled
by the Central Government which are notified in the official Gazette".
18. Section 7(1) of the Lokpal Bill.
19. Section 7(2) of the Lokpal Bill.
20. Section 2(h) of the Lokpal Bill.
21. Section 2(1) of the Lokpal Bill.
22. Section 2 (Ar) (Hi), of the Lockpal Bill.
23. See Sathe, S.P. Lokpal and Lokayukta : The Indian Ombudsman," Journal of
the University of Bombay, Arts: Humanities and Social Sciences. October
1969, No. 74 Vol. XXXVIII, p. 268.
24. See Minathur, M.A., "Ombudsman in India," The Supreme Court Journal,
Vol. 38 1968 (Madras-4), p. 37. Also see! Tripathi P.K. Lokpal : "The proposed
Indian Ombudsman", Journal of the Indian Law Institute, Vol. 9, April-June
1967 pp. 135 to 152. (op. cit.).

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 OMBUDSMAN IN INDIA 163

has merely to make reports to the Parliament w

authority to take action against the Ministers.

Before venturing on further discussions it w

understood in clear terms what is to be looked
Lokayuktas. They are (a) allegations and (b) g
servants. The term "public servant'' has alre
earlier pages. As commonly understood penalty
there is a question of allegation and a redress is
is a question of grievances. For putting the adm
track both are needed. For allegations25 the L
have to investigate into political and official cor
and improper conduct of the public servant
Lokpal and the Lokayuktas have to look into a
procedure or practice governing such action
unjust, oppressive or improperly discriminatory

(i b ) The Nature of Lokpal's or Lokayukt

examines the nature of the functions of Lok
aspects become obvious- the guilt aspect and
aspect. Shri K. Hanumanthaiya expressed a f
Bill that it was more allegation oriented (guilt or
be more grievance- oriented (maladministration
This is also the opinion of others. The guilt
official acts28 seem to be more dominating in t
functions. He has to investigate the acts in whi
to have 'abused' his position for obtaining any g
or to any other person or to cause undue harm
person or to have been "actuated in the discharg
public servant by personal interest or improper
guilty of corruption, lack of integrity or improp
as such public servant.29 The Lokpal can investi
any action taken by way of decision recommen
any other manner including failure to act.30 Th

25, Shri K. Hanumanthaiya, op. cit., p. 12.

26. Ibid, p. 12.
27. Ibid , p. 14.
28. Sec Tripathi, P.K. "Lokpal - Tne proposed Indian
the Indian Law Institute ", Vol, 9(1967), pp. 135, 149
29. Lokpal Bill Sectiou 2(b).
Also see Administrative Reforms Commission, Gov
Report on Problems of Redress of Citizen's Grieva
"In the first place, it is our experience and our cons
regard to the manner in which our democracy has
the Centre and in the States, cases of injustice at
be dealt with."
30. Section 2(a) .

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164 THE INDIAN JOURNAL OP POLITICAL SCIENCE

function entrust him with very wide powers as compared to his counter-
parts in other countries. Acting under these definitions he can even
probe into matters of policy31 for ascertaining personal interests,
personal gains and favours, currupt motives, integrity and improper
conduct of Ministers, Deputy Ministers and Secretaries.
The second aspect of Lokpal's or Lokayuktas function is the
maladministration aspect. Maladministration has been comprehensively
defined by the Lokpal Bill, Section 2(g) as follows

"Maladministration" means action taken or purportly to have been

taken in the exercise of administrative functions in any case : (a) where
such action or the administrative procedure or practice governing such
action is unreasonable, unjust, oppressive or improperly discriminatory ;
or ( b ) where there has been negligence or undue delay in taking such
action or the administrative procedure or practice governing such action
involves undue delay.

The Lokpal will investigate into the conduct of Ministers or officers

keeping in view these objectives also. As it is very difficult for one
individual or few individuals to act as the watch dog of public morality,
it will be better if the emphasis shifted from the guilt of the Ministers
or officials to the grievance of the citizen in order to give him redress
and protection from maladministration. In fact in the relation of
Ombudsman with the Government Servant the emphasis in western
countries has shifted from inflicting penalty on the civil servant to exact-
ing a redress for the citizen.

(c) Appointment and Removal of Lokpal and Lokayukta : Lokpal

is to be appointed by the President of India in consultation with Chief
Justice of India and the leader of the Opposition in Lok Sabha.
If there is no such leader a person is to be elected for this purpose
by the Members of the opposition in that house in such a manner
as the speaker may direct82 : The Lokayukta is to be appointed by the
President after consultation with Lokpal.83 In the case of the appoint-
ment of the First Lokayukta such consultation is not needed.84 Every

31. Parliamentary Commission (Ombudsman) Act 1962, at 1117-72, quoted in

Tripathi, P.K. op. cit , p. 139 "Perhaps" a "policy" is transmuted into a 'matter
of administration' when a general principle is administratively applied to a
specific "person or body of person in his or its personal capacity" (in the
words of section 11 of the Ombudsman Act). When, however, an issue is of
concern to the public at large, as distinct from identifiable individuals upon
whom it particulary focuses, then possibly it should be left to political
controls other than to the Ombudsman's evaluation,"
32. Section 3(1 )(a).
33. Section 3 (!)(£}•
34. Section 3 (2).

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 OMBUDSMAN IN INDIA 165

person entering the office of the Lokpal or a Lok

oath or affirmation set out in the first Schedule35.
the porpose of convenient disposal of investigatio
or special directions as he considers necessary to
Lokayukta shall be subject to the administrative
But Lokpal has no right to question any finding, con
mendations of a Lokayukta.37

The Lokpal or Lokayuktas are not members of

State Legislatures. They are not to hold any offic
other than the office of Lokpal or Lokayukta or car
or be connected with Political Parties.38

Every person appointed as the Lokpal or a Lok

office for a term of five years. They are not eligible
They can resign from their office by writing to the Pre

The Lokpal or the Lokayukta may be removed fr

the President only on grounds of misbehaviour or in

Before removing the Lokpal or Lokayukta th

appoint a person, and get an enquiry done. Such
have been a Judge of the Supreme Court or the
High Court.42 The Inquiry report is to be submit
who gets it laid before each house of Parliament.4
remove the Lokpal or the Lokayukta unless an addre
Parliament supported by a majority of the total
House and a majority of not less than two-thirds of
house present and voting has been presented to t
same session for such removal.44 The independen
of the Supreme Court and the High Court by the
is similar.45

(</) The Powers and Procedure of Lokpal o

complaint can be lodged before the Lokpal or Lok
case of a grievance by the person aggrieved, sec

35. Section 3 (3).

36. Section 3 (4).
37. Ibid
38. Section 4.
39. Section 5(1).
40. Ibid, proviso Clause (a).
41. Section 5(1)(6).
42. Section 6(1) proviso.
43. Section 6(2).
44. Section 6(3).
45. Articles 124(4), 125(2), 217, 218 ot tfte inaian consuiuuon.

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166 the ínďian Journal of political science

an allegation by any person oiher than a public servant.16 Wh

person is dead or is unable to act for himself the complaint
made by any person who in law represents his estate or by any
who is authorised by him in his behalf.47

Any letter written to the Lokpal or a Lokayukta by a per

police custody or in a Jail or in any asylum or other respecta
for insane persons, must be forwarded to the addressee unopened
out delay.48 The Lokpal or a Lokayukta may in his discretion ref
investigate any complaint involving a grievance or an allegatio
his opinion ( a ) the complaint is frivolous or is not made in good
( b ) there are not sufficient grounds for investigating or, as the
be, for continuing the investigation, or (c) other remedies are av
to the complainant and in the circumstances of the case it would b
proper for the complainants to avail of such remedies.49

The Lokpal shall not investigate (a) any complainants invo

grievance, if the complaint is made after the expiry of twelve m
from the date on which the action complained against become
to the complainant ; ( b ) any complaint involving an allegation
complaint is made after the expiry of five years from the date o
the action complained against is alleged to have taken place.50 Ho
the Lokpal or Lokayukta may entertain a complaint referred to i
(a) if the complainant satisfies him that he has sufficient cause f
making the complaint within the period specified in that cl
When it is decided by the Lokpal not to entertain a complaint or
continue any investigation in respect of a complaint he has to
his reasons for that and communicate them to the complain
the public servant concerned.62 If the Lokpal decides to inves
complaint he shall forward a copy of the complaint along w
grounds thereof to the relevant public authority concerned and g
such authority an opportunity to offer his comments on such co
or statements.53

(i) Grievance. If after investigation of a grievance the Lok

satisfied that such action has resulted in injustice to the complain
any other person, he shall by a report in writing, recommend
public servant and the competent authority concerned that such

46. Section 9(1).

47. Ibid.
48. Section 9(3).
49. Section 10(4).
SO. Section 8(4).
51. Ibid
52. Section 10(5).
53. Section 10(1).

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 OMBUDSMAN IN INDIA 1Ó7

shall be remedied in such manner and within such

specified in the report.64 The competent authority
report is sent shall, within a month of the term specifi
intimate or cause to be intimated to the Lokpal, the
compliance with the report.65

(//) Allegation. If after investigation of an allegat

is satisfied that such allegation can be substantiated
partly, he shall give a report in writing, communicate hi
with the relevant documents, material and other eviden
tent authority.56 The competent authority shall examin
and intimate to the Lokpal within three months of the d
of the report the action taken or proposed to be take
the report.67 If the Lokpal is satisfied with the action t
to be taken on the recommendation or findings contain
he shall close the case but where he is not so satisfied and he considers
that the case so deserves, he may make a special report upon the case
to the President and may also at his discretion inform the complainant
concerned.58 No such report, however, is to be jnade in respect of any
action taken in consultation with Union Public Service Commission.59

(///) Report . The Lokpal shall present annually a consolidated

report on the performance of his function under the Act to the Presi-
dent.60 Report containing adverse comments against any person or
department or organisation (made in annual or special report) shall also
contain the substance of the defence adduced by the person complained
against the comments made by or on behalf of the department or orga-
nisation affected.61 After receiving a special report from the Lokpal
with an explanatory memorandum it is to be laid before each House of
Parliament.62

(iv) Investigation. The procedure for conducting an investigation by

the Lokpal is to be such as he considers appropriate in the circumstances
of the case.63 The identity of the complainant and the identity of the
public servant affected by the investigation is not to be disclosed to the
press or the public either before or after the investigation.64

54. Section 12(1).

55. Section 12(2).
56. Section 12(3).
57. Section 12(4).
58. Section 12(5).
59. Ibid.
60. Section 12(6).
61. Section 12(7).
62. Section 12(8).
63. Section 10(3).
64. Section 10 (2).

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 168 The îndîan Journal of political sčiénčě

Under the Act Lokpal may require any public servant or any person
who in his opinion is able to furnish information or produce documen
relevant to the investigation to furnish any such information or produ
any such documents.65 The Lokpal has all the powers of a civil cou
while trying a suit under the Code of civil procedure, 1908 in respect
the following matters namely : -

{a) summoning and enforcing the attendance of any person an

examining him on oath ;
(b) requiring the discovery and production of any document ;
(c) receiving evidence on affidavits ;
( d ) requisitioning any public record or copy thereof from an
court of office ;

{è) issuing commissions for the examination of witnesses or docu-

ments ;

(/) such other matters as may be prescribed.66

Any proceedings before the Lokpal or a Lokayukta shall be deemed
be a judicial proceeding within the meaning of section 193 of the India
Penal Code.67 Any one who gives false evidence or fabricates fals
evidence for the purpose of a proceeding before the Lokpal or a Lok
yukta would therefore be punished according to the Indian Penal Code

The Bill further provides that the Government may claim privile
to withhold disclosure of documents where such disclosure might pre-
judice the security of defence or international relations of India or mig
involve the disclosure of proceedings of the cabinet of the Union Gover
ment.68 A certificate issued by a Secretary certifying that any docume
or information cannot be disclosed for the above purpose is binding an
conclusive.69

III. Conclusions

After discussing the various points in connection with an Ombud

man in India we cannot overlook the practical difficulties which he w
have to come across and the atmosphere in which he will have to wor
If we compare the geographical, demographical, political, economi
and social conditions of India with other countries where the institution
of Ombudsman is in operation we will find several differences. India
will have great difficulty in securing an exact precedent from these
countries.

65. Section 11 (i7).

66. Section 11 (2).
67. Section 11(3).
68. Section 11(5).
69. Ibid.

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 OMBUDSMAN IN INDIA 169

{a) Firstly, the institution of Ombudsman has

in geographically small countries uptil now. In
occupying vast expanse of land and sea. Function
comes very difficult and onerous because of the f
many villages with too little communication. The
to establish any personal rapport with him which
institution is to rectify the grievances of the c
administration.

Secondly, in other countries the population is small and hemoge-

neous, whereas India has a big population and a heterogeneous population,
which is very badly suffering from parochialism. That will give the
citizens too many occasions for grievances.

Thirdly, other countries even including New Zealand and U.K. have
unitary constitutions and India has a federal constitution with all its
complexities. Moreover, Indian Constitution has defined objectives
prescribed in Directives of State Policy and detailed fundamental rights. It
confers specific authority on the High Courts and the Supreme Court for
the enforcement of these rights. The Ombudsman cannot enforce rights,
he can only recommend actions to the Government. In the eyes of the
citizens this may lessen his prestige as compared to the courts.

Fourthly, comparing with other countries, India instead of climbing

the ladders of econo mic progress has been gradually sinking in economic
backwardness. The problems of rising prices, increasing unemployment,
exploding population, deepening inequality and the like are baffling her.
The occasions for citizen's grievances are innumerable. The Ombudsman
will be stormed with complaints of grievances and allegations. The
Ombudsman may take very long to investigate all of these. Then it
will become doubtful if he will be able to make any impact upon the
administration.

Fifthly, in other countries the success of the institution depended

upon the prestige and high social standing of the incumbent of the office.
India has no traditions of Ombudsman. She has seen corruption even
in high offices. Even though there is no dearth of incorruptible
people, she may find it difficult to make them join this office for they may
prefer to remain in their own field and serve the people in their own
capacity.

Sixthly, we must not forget that the power pattern has begun
changing since the Fourth General Elections in 1967. An element of
instability has entered into the Ministries in the States as well as the
Centre. The stability of Government every where is in jeopardy these days.
Hence who will form the opposition or the Government is most unpre-
dictable. It is true that a hope of stability in centre has been generated by

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 170 THE INDIAN JOURNAL OF POLITICAL SCIENCE

the Mid Term Elections of the Lok Sabha held in February 1971
But it is yet too early to predict what will happen after the nex
elections if the hopes of the people remain only party fulfilled.
premise of ours will hold good in some of the states even now. M
over the institution of Ombudsman has to transcend stable as well as
unstable power patterns in the government. If the leader of the
opposition who has advised the President for the appointment of certain
person for Ombudsman's office becomes the Prime Minister, the
Ombudsman may not feel free to investigate against him. The appoint-
ment may become political in course of time and some times men of
lesser ability may come in. This will devaluate the office.

Seventhly, the people of India who are tired of corruption and

maladministration may come to expect too much from the Ombudsman
because this will be the first time that they will be given direct access to an
high officer for making complaints. This may lead to two consequences.
Firstly the people will storm the Ombudsman with all sorts of
frivolous complaints. Indian people engage in gossips and the Indian
Press with its yellow journalism accentuates it. Secondly, when the
Ombudsman will not be able to deal with all the complaints to the
satisfaction of the people, the people will become disillusioned which will
ultimately be very harmful for the successful working of democracy.

Now a few words about the atmosphere wherein the Ombudsman

will have to work. The atmosphere of the country is surcharged with
corruption.70 Corruption has thoroughly drenched all walks of life in
India- whether it is the business concerns or the Government services,
whether it is the towns or the villages or whether it is the people or their
representatives in the Parliament and the Assemblies. It has entered
into the marrow of the Indian bones. Black-inarkets flourish all over
the country. Milk is three-fourth water when it reaches the household.
Even the enemy on the national borders has not propelled honesty into
the character of contractors. Shelter walls built against air raids have
collapsed only under the stress of passing pedestrians. " Grease Money"
or bribery has become necessary for import licenses, civil service
appointments, building permits, liquor permits, aid for agriculture
and for numerous other matters which require administrative sanction.
Bribe is necessary even for school and college examination results. For
propelling a file from one table to the next, bribe is a 'musť otherwise
it will take months to reach the next stage. Tax evasions have almost
been spectacular especially amongst the film stars and big business
concerns. Even a Minister in the Union Government has been covenien-
ly forgetting to file his income tax returns.

70. S.D. Segal, Ronald, Crisis of India ; Corruption and the New Raj , pp. 277-310*

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 OMBUDSMAN IN INDIA Í71

The attention given by the Government to

is very meagre and the difficulties experienced
dable.

Corruption is not only limited to towns.

vitals of the Indian villages also. India's eight
villages. The Government of India can be judged
of the officials witn whom the ordinary village
there one finds villagers being forced to pay b
records or giving certain information. If he
officials the 'grease money' they some how bri
hold of him for this or that reason and harass him. Sometimes these
petty officials openly confess that they take bribe.71

Police constables are notorious for accepting bribes. Many cases

are hushed up because a criminal presses a few rupees into the palms of
a police constable. Unless these villagers are salvaged from the ocean
of corruption and maladministration, democracy will fail. The* Ombuds-
man in India is expected to work in this oppressing climate. He is to
hear to the citizen's grievances and rectify maladministration. The task
seems to be too stupendous. In view of the country wide custom of
paying of ťgrease money' at different tables in the Government offices it
becomes doubtful if the poor uninfluential and innocent villager will ever
reach the Ombudsman.

Red-tapism may grip even Ombusman's office.

If at all Ombudsman proves to be a panacea for any evil in
administration, in fact we will need him in all walks of life, whether it is
the University, the Local Government or the Departmental store. One
of the American Universities has appointed an Ombudsman to deal
with student grievances.72 One of the Department Stores in San
Francisco has appointed an Ombudsman to deal with customers's com-
plaints.73 In England Ombudsman for hospitals was being contemplated
and one of the borough councils in London announced the appointment
of an unofficial Ombudsman.74

In view of the widespread corruption and maladministration too

many Ombudsmen may still be failures. The Norwegian Expert Com-
mission in Administrative Procedure, held that the system of Ombudsman

71. Referred in Segal Ronald, op . cit .

Research workers from Lucknow University who were given financial help by
the Ford Foundation carried out a detailed study of a medium sized village in
Uttar Pradesh called Mohana.
72. Information taken from Minathur, Joseph, op . cit., p. 26.
73. Ibid., p. 26.
74. Ibid., p. 26.

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172 THE INDIAN JOURNAL OF POLITICAL SCIENCE

is a safeguard against the possibility of excess but not a weapon agains

abuses believed to be widespread.'6 Justice P.B. Mukherjee said th
soon after the Ombudsman there will be a need for another Ombudsman
for the Ombudsman.76

IV. Suggestions

(1) A start has to be made very carefully. Future of the institu-

tion of the Ombudsman will depend much upon this start. The first
appointment should be made very judiciously. Otherwise the whole
edifice of the institution will crumble. The Parliamentary Commissioner
in the U.K. proved ineffective,77 in the sense that he received 1069
complaints from 48 M.Ps. Out of that 849 cases were decided, 569 were
rejected as outside jurisdiction. After preliminary investigation 100 cases
were rejected. Only 1 88 cases were fully investigated, out of this only
in 19 cases some elements of maladministration were detected. But in
none of the cases did the parliamentary commissioner offer any criticism
of the Department concerned.

The first incumbent of the office must have the following quali-
ties : - Firstly, he must be of unimpeachable character ; secondly, he must
have administrative experience of some kind ; thirdly, he should be of
great stature and finally he must be a person of "mixing" nature. He
should not live in ivory towers. He must move amongst poorest and
most uninfiuentials as well as the richest and the most powerful. Here
he differs from the judges who mostly are aloof from the people.

(//) The general disbelief in the fairness of all kinds of Indian

authorities needs careful consideration of certain measures, which may
dispell skepticism. Bodies, like Public Service Commissions and law
courts78 which are considered to be independent and impartial have also
come under the fire of criticism. Ombudsman in India may also be
listed in the same category by one side or the other. The parties will
be many based on caste, religion language and region etc. The parochial
feelings will have to be encountered in his appointment. After appoint-
ment he will be criticised by the "other groups" for his investigations or
recommendations.

75. Gellhorn, Welter, -'The Norwegian Ombudsman," Stanford Law Review, Vol. 8,
No. 2, p. 293.
76 The Hindustan Times Weekly , 27th November 1966. Justice Mukherjee m the
last lecture in the Sir Chumanlal Setalwad Memorial Lecture Series, under the
auspices of Bombay University.
77. Hanumanthaiya, K. op . cit., pp. 8-9.
78. The Statesman , Thursday July 2, 1970, p. 6.

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 OMBUDSMAN IN INDIA 173

It will be better if ths Collegiate Principle

manship in India. Three or five people from di
also depend upon different languages will seem
able to allay the fears of different groups. Pr
ded a Commission of three members in prefer
for populous countries. Because according to hitn complex and
important cases of a judicial nature should not be decided by a single
persoñ.79

The Collegiate principle can be advocated on another ground also.

It will be an application of the principle of check and balance- One
colleague will be checking the other colleague. In view of the widespread
corruption and resulting cynicism India cannot afford to have single
Ombudsman operating in solitary splendour. The very mission of
ombudsman will fail. Single ombudsman will be stormed with all kinds
of'pairvis'. However incorruptible he may be, he may not be able to
avoid the imperceptible impact of social and political pressure. It is
interesting to note in this connection that in Tanzania the Interim consti-
tution provides for a collegiate Ombudsman. It is called the Permanent
Commission of Enquiry. This was done in view of widespread corrup-
tion, bribery and nepotism there80 We can do the same thing in India
if we want this institution to be successful.

(///) The Lokpal or the Lokayukta should have greater access to

the documents and files of the Government. We have seen earlier that
the Secretary has become very powerful in these matters. If a Secretary
certifies that some disclosures are not desirable81 the Ombudsman of
India will not be able to have access to the necessary files and docu-
ments. Over and above this in normal cases the Lokpal or the Lokáyukta
has lesser powers than the Courts82 in matters of Goverment files and
documents. These restrictions may affect the very purpose of this
institution.

It is suggested here that we in India may follow the principle of

'document publicity' which is followed in Sweden. It is something
unique. But it will facilitate the work of Lokpal and the Lokayukta and
also help in creating confidence among the people and assist in curbing

79. Rowat "An Ombudsman scheme for Canada" Canadian Journal of Economics
and Political Science 28 (1962), 543 P. 550.
80. Minathur Joseph, op. cit. pp. 33-35.
81. Section 11(5).
82. Because where under the Indian Evidence Act Section 123 this privilege is
claimed before an ordinary court of law, the court has power to inquire whether
such document is pertaining to the "Affairs of State". See S-tate of Punjab v¿.
Sadhu Sukhdev Singh A.I.R. 1961. Sc. 493. Amarchand vs. Union of India
A.I.R. 1964 S.C. 1958.

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 174 THE INDIAN JOURNAL OF POLITICAL SCIENCE

corruption and maladministration amongst Government servant

Ministers.

According to the Principle of 'document publicity' any citizen can,

subject to certain minimum restrictions, examine any file in a Govern-
ment office without assigning any reason. Even the closed investigation
files in the Ombudsman's office may be examined by any body. Hence
the fears expressed by Justice P.B. Mukherjee can be assuaged to some
extent if this principle is followed and the people themselves put a check
upon the Ombudsman.

(iv) The jurisdiction of the Indian Ombudsman should reach the

interior villages. All Local Government authorities of the towns and the
villages should come under his purview because these have become
very important in modern states. It is the local Government which runs
hospitals, constructs roads and houses, distributes electricity, cleans filth
and supervises the work of social welfare agencies. The citizens are directly
affected by its administration in his day to day normal life. And these
are overflowing with maladministration and corruption.

(v) The Ombudsman may be given greater powers to be exercised

on their own initiative. They should have the power to call police or
other officers for explaining why certain matters were not being
investigated.

(vi) Finally, there should be a provision for discouraging frivolous

complaints. This may be done by requiring a deposit at the time of
lodging a complaint. This deposit could be made liable to forfeiture if
the complaint turns out to be frivolous.

This may be hard upon the poor. But then this rule could be
made flexible by leaving the discretion for condonation of such deposit
with the Ombudsman. The Ombudsman are expected to move among
the poor people also. They can even have direct knowledge about their
economic status.

But after discussing everything about the institution of Ombudsman

and giving suggestions for its successful future operation in India, we
cannot become oblivious of the truth that any improvement in adminis-
tration should start from within. No outside imposition will do, unless
each public servant becomes a conscientuous worker. Moreover, good
government also requires good citizens. They themselves shape the
services they receive.

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