1 Ombudsman in India: A Critical Appraisal

ADMINISTRATIVE LAW

GROWTH OF THE INSTITUTION OF OMBUDSMAN IN INDIA: A CRITICAL APPRAISAL

ABSTRACT

“The existing devices for checks on elected and administrative officials have not been
effective as the growing instances of corruption cases suggest. The Central Vigilance
Commission (CVC) is designed to inquire into allegations of corruption by administrative
officials only but cannot punish the guilty 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 pressure
during investigation it can be said,―the CVC is independent but does not have powers while
CBI has power but is not independent‖. As a result the first cannot punish while the latter
cannot investigate fairly.

All these have necessitated the creation of an independent and high powered Lokpal
with its own investigation team. Unfortunately for last four decades, no effective act or
institution was developed. As a result, a nation-wide movement could take place with the
leadership of a Gandhian social activist. Most importantly, this was the time when the nation
witnessed many corruption cases at various level and the intervention of media has helped in
taking to its heights and made it national movement. Hence, while analysing the historical
perspectives of Lokpal, this study would attempt to answer the most pertinent question
whether the mainstream media or social media helped in giving shape for a huge movement.
Secondly this study will also find out the nature of media‘s contribution for establishing an
effective Lokpal in India.”

TABLE OF CONTENT

I. INTRODUCTION...................................................................................................................2

II. DEFINITION OF THE TERM “OMBUDSMAN”.................................................................4

III. MEANING AND IMPORTANCE.........................................................................................5

IV. CHARACTERISTICS AND OBJECTIVES OF OMBUDSMAN INSTITUTION........................6

V. LOKPAL—AN INDIAN OMBUDSMAN.................................................................................7

[A] LOKAYUKTAS IN STATE..................................................................................................7

[B] RATIONALE FOR AN INSTITUTION – LOK PAL.................................................................7

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2 Ombudsman in India: A Critical Appraisal

VI. HISTORICAL ASPECTS....................................................................................................8

[A] LOKPAL.......................................................................................................................10

VII. JAN LOKPAL BILL........................................................................................................10

[A] FEATURES OF THE JAN LOKPAL BILL...........................................................................11

1. Lokpal and its role...................................................................................................11

2. Structure...................................................................................................................11

3. Process of selection..................................................................................................12

4. Jurisdiction...............................................................................................................12

5. Other significant features of the Bill......................................................................12

VIII. ANALYSIS OF THE JAN LOKPAL BILL.........................................................................13

[A] A NAIVE APPROACH....................................................................................................13

[B] EXTRA CONSTITUTIONAL.............................................................................................13

[C] SCOPE.........................................................................................................................14

[D] CRITICISM FROM THE CBI DIRECTOR..........................................................................14

IX. CRITICAL OBSERVATIONS ON OMBUDSMAN SCHEME...............................................14

X. CONCLUSION....................................................................................................................15

I. INTRODUCTION
Years ago, Mahatma Gandhi said that “Corruption and hypocrisy ought not to be
inevitable products of democracy, as they undoubtedly are today.” Now days Corruption has
its deep roots in Indian Society. People who work on right principles are unrecognized and
considered to be foolish in the modern society. Earlier, bribes were paid for getting wrong
things done, but now bribe is paid forgetting right things done at right time. In today’s
scenario, if a person wants a government job he has to pay lakhs of rupees to the higher
officials irrespective of satisfying all the eligibility criteria. In every office one has either to
give money to the employee concerned or arrange for some sources to get work done. There
is not a single forum or organizations of the citizens of India unaffected from Corruption.

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3 Ombudsman in India: A Critical Appraisal

A 2005 study conducted by Transparency International in India found that more than 62%
of Indians had first-hand experience of paying bribes or influence peddling to get jobs done
in public offices successfully.1 In its 2008 study, Transparency International reports about
40% of Indians had first-hand experience of paying bribes or using a contact to get a job done
in public office.2 In 2012 India was ranked 94th out of 176 countries in Transparency
International’s Corruption Perceptions Index.3 The basic idea of the Lok Pal is borrowed
from the office of ombudsman, which has played an effective role in checking corruption and
wrong-doing in Scandinavian and other nations.4 A Lokpal is a proposed ombudsman (Legal
Representative) in India. The word is derived from the Sanskrit word “lok” (people) and
“pala” (protector/caretaker), or “caretaker of people.”

The term “access to justice” cannot be given any precise meaning. Its meaning is
intricately intertwined with the meaning of the term ‘justice’. On its turn, the definition of
justice depends on the context it is being used. For every society the term has a different
significance. For some it may be fairness whereas others might term it as advantage of the
stronger. The notion of justice evokes the cognition of the rule of law, of the resolution of
conflicts, of institutions that make law and of those who enforce it; it expresses fairness and
the implicit recognition of the principle of equality. 5 However, a concept common to all
definitions of justice is its intrinsic nexus with the dispute resolution. The primary goal of a
dispute resolution mechanism is to do justice, yet dispute resolution and justice cannot be
used interchangeably. The dispute resolution mechanism chosen by a society reflects the
concept of justice in that society.

It is the duty of a state to perform the functions of legislative, executive and judiciary.
The Constitutions of democratic set up clearly define these functions. The legislature has to
make the laws. The executive has to execute or implements these laws and the judiciary
interprets and applies these laws. Judiciary has authority to pertain the office of a judge and
this authority relates to hearing and determining the questions in controversy. Further, this
judicial authority includes Court and appellate Court.

1
“Transparency International – the global coalition against corruption”.
Source: www.Transparency.org.
2
Centre for Media Studies, India Corruption Study 2005: To Improve Governance: Volume I
– Key Highlights, New Delhi: Transparency International India, 30 June 2005.
3
Source: www.Transparency.org.
4
Ombudsman in India by Aamna. Published on: August 4, 2011
5
J. Rawl, A Theory of Justice, Cambridge, Cambridge University press, Edition 1997, at 11.

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4 Ombudsman in India: A Critical Appraisal

II. DEFINITION OF THE TERM “OMBUDSMAN”

The term “Ombudsman” is Scandinavian, meaning something in the nature of
“entrusted person” or “grievance representative”. The part word “man” is taken directly from
the Swedish (the old Norse word was “umbodhsmadr”) and does not connote any necessity
that the holder be of the male gender. Indeed, if one was to survey the present Ombudsman
community worldwide, it would be seen that there are many women Ombudsman. My tracing
of the office will start with the Scandinavian “grievance person” since this model is said to
set a standard. I do acknowledge, however, that there are several precedents from Asian (and
other) settings of people, in former times, undertaking office to provide relief and redress to
citizens adversely affected by government action.

In earlier times it is also recorded that the Romans installed an officer called the
“tribune” to protect the interests and rights of the plebeians from the patricians. There are also
writings in both China and India, which suggest that three thousand and more years ago,
special officials were designated to function in the manner of Ombudsmen. In China during
the Yu and Sun dynasties it was the duty of the incumbent, who was called the “control
yuan”, to “report the voice of the people to the Emperor and to announce the Emperor’s
decrees to the people”. In India today there are Ombudsmen appointed in twelve of the Indian
states, though not at Federal level. The term for them is“Lokayukta”, an ancient word revived
so as to make it meaningful in a local sense in that country.

In 1809 Sweden appointed an official entitled the “justitieombudsman” to enquire into

actions of the government administration, including the military, and the courts. The
establishment of this office was said to be a reaction to state absolutism and an assertion of
individual rights and dignities of the citizen. Nearly 100 years later, Finland appointed a
similar person and Denmark followed likewise in 1954.

The Ombudsman Committee of the International Bar Association has described the
office thus:

“An Office provided for by the Constitution or by action of the Legislature or

Parliament and headed by an independent, high-level public official, who is
responsible to the Legislature or Parliament, who receives complaints from
aggrieved persons against Government agencies, officials and employees, or who

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acts on [his] own motion, and who has the power to investigate, recommend
corrective action, and issue reports.”6

This contemporary definition of the term“Ombudsman”is not agreed to universally,

but it does serve as a starting point in defining the role.

III. MEANING AND IMPORTANCE

Ombudsman offices are form of watchdog on government, investigating and resolving
citizen’s complaints. Ombudsman means “a public official who acts as an impartial
intermediary between the public and government or bureaucracy, or an employee of an
organization who mediates disputes between employees and management” 7. An indigenous
Danish, Norwegian and Swedish term, 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.8

The institution of ombudsman originated in Scandinavian countries. The institution of

‘Ombudsman’ first came into being in Sweden in 1713 when a ‘Chancellor of Justice ‘was
appointed by the King to act as invigilator to look into the functioning of war-time
government. Thereafter, a new beginning was made in 1809, when it was laid down that the
Ombudsman would be made thereafter by the legislature. 9 Other Scandinavian countries
followed the model of Sweden almost after a century. Amongst other countries, New Zealand
was the first country outside Scandinavian to institute an Ombudsman in 1962. 10 It has been
adopted in a number of countries, such as Finland,1919; Denmark, 1954; Norway, 1960;
Mauritius, 1966;Guyana, 1966; United Kingdom, 1967; Australia, 1976.11Today there are
Ombudsman offices in over 80 countries at the national provincial and local level.12

6
International Bar Association
7
Source: www.Legal-dictionary.thefreelegaldictionary.com
8
Source: www.http://en.wikipedia.org/wiki/Ombudsman
9
Triloknath Mishra, Lokpal in India-An Analysis, 2011
10
Standing Committee on Home Affairs eighty fourth Report on Lokpal Bill, 2001
11
J.J.R. Upadhaya, Administrative Law (2004) p. 382
12
PUBLIC ADMINISTRATION AND PUBLIC POLICY vol. II-The Ombudsman Office-S.
E.Aufrecht:E1-34-05-08.pdf

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6 Ombudsman in India: A Critical Appraisal

Office of Ombudsman was established under the provisions of constitutional law in

Austria, Burkina Faso, Denmark, Finland, the Netherlands, Poland, Portugal, Spain and
Sweden. While in other countries13 belonging to Anglo-Saxon legal traditions, the office is
generally regulated under ordinary statute law.14

IV. CHARACTERISTICS AND OBJECTIVES OF OMBUDSMAN INSTITUTION

With the spread of ombudsman concept and its utility, several surrogate institutions have
emerged in the private sector, which claim the title of ombudsman. Some scholars drew
distinction between, “classical” ombudsman and other kinds of “quasi” or “executive
ombudsman”. However, Gellhorn made clear distinction between classical and other agencies
performing the ombudsman function. Professor Larry B Hill has enumerated the following
characteristics of the pure ombudsman:

i. Established as separate entity that is functionally autonomous.

ii. Operationally independent of both the legislature and the executive.
iii. Ombudsman is a legally established governmental official.
iv. A monitoring specialist.
v. Administrative expert and professional.
vi. Nonpartisan.
vii. Normatively universalistic.
viii. Client centred, but not ant administration.
ix. Popularly accessible and visible.
x. High status institutions
xi. Have extensive resources to perform his mission.

V. LOKPAL—AN INDIAN OMBUDSMAN

The Indian Lokpal is synonymous to the institution of Ombudsman existing in the
Scandinavian countries (Sweden, Finland, Denmark etc). The office of the Ombudsman
originated in Sweden in 1809 and has been adopted by many nations. The Swedish word
Ombudsman means ―a procurator or agent of civil affairs which may be interpreted as ―the
13
Great Britain, Iceland, Ireland, Israel, New Zealand, Norway, Slovenia, South Africa,
Zambia
14
Standing Committee on Home Affairs eighty fourth Report on Lokpal Bill, 2001

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7 Ombudsman in India: A Critical Appraisal

people advocate‖. Ombudsman is a government official who investigates citizen‘s complaints

against the administrative and judicial action. Though appointed by the legislature he is an
independent functionary – independent of all three organs of the state, but reports to the
legislature. The Ombudsman can act both on the basis of complaints made by citizens or suo
moto-that is, on his own initiative. He can look into allegations of corruption as well as
maladministration.15

[A] LOKAYUKTAS IN STATE

Even after a lapse of so many years nothing has been done substantially at the central
level for implementing the institution of Lokpal. But at the state level, many states have
adopted this institution in the name of Lokayukta. There are as many as 17 states where the
institution of Lokayukta has been constituted, beginning with Orissa in 1971. However, the
power, functions of jurisdiction of Lakayuktas are not uniform in the country. In some state,
it has been applicable to the entire elected representative including CM. on the contrary, in
some other state legislators have been deliberately kept out of his purview. Lokayuktas have
not been provided with their independent investigating machinery making them dependent on
the government agencies. As a result there lies enough scope for the politicians and the
bureaucrats to tinker with the process of investigation.

[B] RATIONALE FOR AN INSTITUTION – LOK PAL

The mechanisms available in the regular process of government, are inadequate to
check corruption in administrative department, for example, and any decision of an official
can be appealed to a higher official all the way up to the head of a department. However this
mechanism has inherent flaws. Though officers enjoy departmental fraternity with those
against whom complaints are made, and both sail the same boat. Therefore their impartiality
in judging appeals is always doubted. On the legislative side, an individual can approach the
member representing his constituency for his demands but given the absence of easy access
of an ordinary to his representative, this has more remained a myth than reality. Other than
this politics is now ridden with nepotism and favouritism, criminals have easy access to
legislature, political corruption is mounting this is more dangerous than bureaucratic
corruption.

Among the organs of state, the judiciary has proved itself to have highest credibility
in protecting individual right. However, due to procedural complexities involved in the court
15
C. Rowat Donald, The Ombudsman: Citizen's Defender, 1965. Pp. 348, University of
Toronto Press, Toronto.

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8 Ombudsman in India: A Critical Appraisal

cases– right from the filing a case to the delivery of final verdict – there are inevitable delays
of justice, which often are considered as denial of justice. The existing devices for checks on
elected and administrative officials have not been effective as the growing instances of
corruption cases suggest. The Central Vigilance Commission (CVC) is designed to inquire
into allegations of corruption by administrative officials only but cannot punish the guilty
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 pressure during investigation it can be said, the CVC is
independent but does not have powers while CBI has power but is not independent‖. As a
result the first cannot punish while the latter cannot investigate fairly. All these have
necessitated the creation of an independent and high powered Lokpal with its own
investigation team.

Therefore there is a need for a mechanism that would simple, independent, speedy
and inexpensive means of delivering justice by redressing the grievances of the people.
Examples from various countries suggest that the institution of ombudsman has very
successfully fought against corruption and unscrupulous administrative decisions by the
person held high offices.

VI. HISTORICAL ASPECTS

After independence when increasing practice of corruption, maladministration and
misuse of authority and resource couldn’t be curbed by existing measures under the Indian
Penal Code, 1860 and the Prevention of Corruption Act,1988, need for an agency
independent of the executive, legislative and judiciary, to look into citizens’ grievances and
cases of corruption have been widely felt.16

The Lokpal Bill provides for constitution of the Lokpal as an independent body to
enquire into cases of corruption against public functionaries, with a mechanism for filing
complaints and conducting inquiries etc. 17 Dr. L.M. Singhvi moved a resolution in the Lok
Sabha on 3 April1964, reiterating his demand for setting up an officer of Parliament known
as People’s Procurator. The resolution was discussed in detail by all sections of the House but
was withdrawn on the assurance of the Government that it would look into the matter. In

16
Triloknath Mishra, Lokpal in India-An Analysis, 2011
17
Second Administrative Reforms Commission: Twelfthreport, February, 2009, pg. no. 3

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9 Ombudsman in India: A Critical Appraisal

pursuance of this assurance, the Government constituted a Special Consultative Group of

Members of Parliament on administrative reforms, in early 1965, which favoured a high
powered inquiry commission on administrative reforms. Accordingly, an Administrative
Reforms Commission (ARC) was appointed in January 1966, for making recommendations
on their organization of the administrative system of the country. 18 First Administrative
Reforms Commission in its report submitted in 1966 suggested that:

“The special circumstances relating to our country can be fully met by providing for
two special institutions for their dress of citizens’ grievances. There should be one
authority dealing with complaints against the administrative acts of Ministers or
Secretaries to the government at the centre and in the states. There should be another
authority in each state and at the centre for dealing with complaints against the
administrative acts of other officials. The setting up of these authorities should not,
however, be taken to be a complete answer tithe problem of redress of citizens’
grievances. They only provide the ultimate set-up for such redress as has not been
available through the normal departmental or governmental machinery and do not
absolve the department from fulfilling its obligations to the citizen for administering
its affairs without generating, as far as possible, any legitimate sense of grievance.
Thus, the administration itself must play the major role in reducing the area of
grievances and providing remedies where necessary and feasible. When this
machinery (in-built departmental machinery) functions effectively, the number of
cases which will have to go to an authority outside the Ministry or the Department
should be comparatively small in number”19

The ARC while preparing its report had three ends in view:

i. Evolution of a suitable grievance procedure for the individuals to invoke in

complaints of maladministration;
ii. Creation of a mechanism which would reduce corruption in the administrative
services; and
iii. Setting up a mechanism which would take cognizance of complaints of
favouritism and nepotism against Central and State Ministers.20

18
Triloknath Mishra, Lokpal in India-An Analysis, 2011
19
Administrative Reforms Commission Report submittedin 1966: Quoted from Para 6
20
Interim Report of the Administrative Reforms Commission on Problems of Citizen’s
Grievances, 1966, p.8-15.

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10 Ombudsman in India: A Critical Appraisal

[A] LOKPAL
The Lokpal Bill was for the first time presented by Mr. Shanti Bhushan 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 so the bill was not passed at that time.
Subsequently, Lokpal bills were introduced in 1971, 1977, 1985 (again by Ashoke Kumar
Sen when serving as Law Minister in the Rajiv Gandhi cabinet), 1989, 1996, 1998, 2001,
2005 and in2008, yet they were never passed. 21 Each time, after the bill was introduced to the
house, it was referred to some committee for improvements a joint committee of parliament,
or a departmental standing committee of the Home Ministry and before the government could
take a final stand on the issue, the house was dissolved again.22

In 2002, the report of the National Commission to Review the Working of the
Constitution urged that the Constitution should provide for the appointment of the Lok Pal
and Lokayuktas in the states but suggested that the Prime Minister should be kept out of the
purview of the authority.23 In 2004, the UPA government’s National Common Minimum
Programme promised that the Lok Pal Bill would be enacted. 24 The Second Administrative
Commission, formed in 2005, also recommended that the office of the Lok Pal be established
without delay.25 In January 2011, the government formed a Group of Ministers, chaired by
Shri Pranab Mukherjee to suggest measures to tackle corruption, including examination of
the proposal of a Lok Pal Bill.26

VII. JAN LOKPAL BILL

The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a draft anticorruption 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 Santosh Hegde, a former Supreme Court Judge and former Lokayukta
of Karnataka, Prashant Bhushan, a Supreme Court Lawyer and Arvind Kejriwal, an RTI
21
Source: http://www.hindu.com/thehindu/holnus/002200804051550.htm
22
Source: http://en.wikipedia.org/wiki/Lokpal
23
“Executive and Public Administration,” Chapter 6 of the National Commission to Review
the Working of the Constitution (Chairperson: Shri M.N. Venkatachiliah),March 31, 2002
24
National Common Minimum Programme of the Government of India, May 2004
Source: http://pib.nic.in/archieve/upareport/upa_3_year_highlights.pdf)
25
“Ethics in Governance,” Fourth Report of the Second Administrative Reforms
Commission, Jan 2007
26
“GoM on Corruption to Firm up Lok Pal Bill at the Earliest, Outlook, January 21, 2011.

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11 Ombudsman in India: A Critical Appraisal

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 Kiran Bedi 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 anticorruption 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.

[A] FEATURES OF THE JAN LOKPAL BILL

1. Lokpal and its role27
The bill proposes to establish autonomous and independent institutions called Lokpal at
the central level and Lokayukta for states. These shall have powers of superintendence and
direction for holding a preliminary inquiry, causing an investigation to be made and
prosecution of offences in respect of complaints under any law for the prevention of
corruption.

2. Structure28
The Lokpal will consist of a chairperson and a maximum of eight members of which fifty
percent shall be judicial members. Fifty percent of members shall be from amongst
Scheduled Caste (SC), Scheduled Tribe (ST) and Other Backward Classes (OBC), minorities
and women. It has an inquiry wing for conducting the preliminary inquiry and a separate
independent prosecution wing. Officers of the Lokpal will include the secretary, director of
prosecution, director of inquiry and other officers.

27
Anil Dharker, The Topiwala Camera, The Outlook, New Delhi, 2011
28
Ibid

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3. Process of selection29
The selection of chairperson and members of Lokpal shall be through a selection
committee The Selection Committee shall comprise of the Prime Minister, Speaker of the
Lok Sabha, Leaders of the Opposition in both houses, a Union Cabinet Minister nominated
by the Prime Minister, one sitting judge of the Supreme Court, and one sitting Chief Justice
of the High Court’s both nominated by the Chief Justice of India, an eminent jurist nominated
by the central government and a person of eminence in public life with knowledge of public
administration, policy making, anticorruption policy, vigilance and finance.

4. Jurisdiction30
Prime minister has been brought under the purview of the Lokpal with specific
exclusions. Lokpal cannot hold any inquiry against the prime minister if allegations relate to
international relations, external and internal security of the country, public order, atomic
energy and space. Any decision of Lokpal to initiate preliminary inquiry or investigation
against prime minister shall be taken only by the full bench with a 3/4th majority. Such
proceedings shall be held in camera. Its jurisdiction to include all categories of public
servants including Group ‘A’, ‘B’, ‘C’ and ‘D’ officers and employees of government. On
complaints referred by Lokpal, the Central Vigilance Commission (CVC) will send its report
in respect of Group ‘A’ and ‘B’ officers back to Lokpal for further decision. With respect to
Group ‘C’ and ‘D’ employees, the CVC will proceed further in exercise of its own powers
under the CVC act subject to reporting and review by Lokpal. All entities receiving donations
from foreign sources in the context of the Foreign Contribution Regulation Act (FCRA) in
excess of Rs.10 lakh per year are brought under the jurisdiction of the Lokpal. Lokpal will
not be able to initiate suo moto inquiries.

5. Other significant features of the Bill31

No prior sanction shall be required for launching prosecution in cases enquired by Lokpal
or initiated on the direction and with the approval of Lokpal. There are Provisions for
confiscation of property acquired by corrupt means, even while prosecution is pending.
Lokpal to be final appellate authority on all decisions by public authorities relating to
provision of public services and redressal of grievances containing findings of corruption.

29
Ibid
30
Ibid
31
Ibid

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13 Ombudsman in India: A Critical Appraisal

Lokpal to have power of superintendence and direction over any investigation agency
including Central Bureau of Investigation (CBI) for cases referred to them.

VIII. ANALYSIS OF THE JAN LOKPAL BILL

[A] A NAIVE APPROACH
The bill has been criticised as being naïve in its approach to combating corruption.
According to Pratap Bhanu Mehta, President of the Centre for Policy Research Delhi, the bill
“is premised on an institutional imagination that is at best naïve at worst subversive of
representative democracy”.32 The very concept of a Lokpal concept has received criticism
from Human Resource Development minister Kapil Sibal in that it will lack accountability,
be oppressive and undemocratic.33

[B] EXTRA CONSTITUTIONAL34

The pro-bill activist Arvind Kejriwal 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
32
Source: http://www.youtube.com/watch?v=kc5Ql00ftKg
33
Source: http://www.youtube.com/watch?v=QT5kB5Hm4Ys,
34
Source: http://www.youtube.com/watch?v=S6rK-fLEuNA

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14 Ombudsman in India: A Critical Appraisal

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’s hould 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.

[C] 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”.35

[D] CRITICISM FROM THE CBI DIRECTOR36

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 60years 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.

IX. 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

35
Ministry of Law and Justice. “Government Issues Notification to Constitute a Joint
Drafting Committee to Prepare Draft Lok Pal Bill.” Press Information Bureau, Government
of India.
Source: http://pib.nic.in/newsite/erelease.aspx?relid=71560
36
Ibid

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15 Ombudsman in India: A Critical Appraisal

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
underutilised, 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.

X. CONCLUSION
India is a country where honesty and integrities in public and private life have been
glorified and upheld in great epics such as Vedas, Upanishad and in the books and practices
of every religion practiced here. Yet, India today is one of the most corrupt countries in the
world. Bringing public servant and public functionaries under a scanner which makes them
strictly accountable, is the start of a movement against corruption in India. And one

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16 Ombudsman in India: A Critical Appraisal

significant step in attacking the spectrum of corruption in India will be the implementation of
the Lok Pal Bill. Realizing the need of such institution with its immediate effect, a movement
started by Anna Hazare with the support of other volunteers and social activists. The
movement has also shown how media can effectively be used. Though the propriety
regarding active participation of news media in a movement is debatable, it is true to an
extent that Indian media has voluntarily become a party, a sort of participant, in this drive for
Jan Lokpal Bill. There are charges that elitist media groups that are mostly anti-reservation
and want to establish hegemony over institutions, are behind this movement. No wonder that
the ruling party feels that this mass movement is a media creation.

The role of the media as an institutional limb of modern democracy‖ was yet again amply
demonstrated during the recent phase of the Jan Lokpal movement that was unprecedented in
many ways. Projecting the anti-corruption Jan Lokpal movement as a second freedom
struggle was nothing short of a masterstroke by Team Anna. The movement has seen all the
elements of the freedom struggle an insensitive government disconnected with the pulse of
the people, a Gandhian non-violent protest with an indefinite fast, the waving of the tricolour,
slogans of Jail Bharo, Inquilab Zindabad, Jai Hind and Vande Mataram and the over
whelming participation of the youth. Such was the impact that even the Indian Diaspora was
inspired. Many genuinely felt that since they were not there during Mahatma Gandhi‘s
freedom struggle, let‘s now be a part of this movement for freedom from corruption.

The massive use of social media in Lok Pal movement is a trend setter and can be seen as
a successful experimentation for good cause. People can use social media content to gauge
the status of a movement and to identify the goals it seeks to attain. It is true that the
movement which was initiated by the social media geared up the main stream media. Main
stream media did not have any alternative as the visual popularity of the movement has given
a sharp rise in TRP rating of the issue and main stream media had to depend on it because of
its revenue generation. Secondly this movement had its youth based and could spread to the
rural areas with huge middle class audience and viewers. Thirdly this was an occasion where
media could project its role through intervention to claim for its fourth pillar status and avoid
the criticism of paid news. And most importantly, people were disenchanted due to the
number of scams and political corruption for last one decade and eagerly waiting for a
platform to show their protest. Finally, the strategic use of media in different format by the
volunteers could help in drawing the crowd manifold.

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17 Ombudsman in India: A Critical Appraisal

The main objective behind the institution of Lokpal is to give strength to citizens so that
they can raise their voice against corruption without any fear. The existing devices like CVC
and CBI for checks on elected and administrative officials have not been effective, as the
growing instances of corruption cases suggest. All these have necessitated the creation of
Lokpal with its own investigating team.

Therefore, there is a need for a mechanism that would adopt very simple, independent,
speedy and cheaper means of delivering justice by redressing the grievances of the people.
But our Country is famous for its beautiful numerous laws and its poor execution. Most of the
laws have been proved fail to achieve its goal. No law or institution would have been helped
to remove deep roots of corruption from our country without its proper execution.

It is rightly said by Publius Comelius Tecitus that “the more corrupt the state, the more
laws”.

Administrative Law Assignment National Law University, Jodhpur