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Ombudsman in India: An Analysis of Lokpal and Lokayutkas

Ombudsman, Mal-administration is like a termite that eats away at a country’s basis. It obstructs the administration’s ability to complete its mission. Corruption is the basis of the dilemma that our country is experiencing. Despite the fact that India has a plethora of anti-corruption bodies, most of them are not truly autonomous. The Supreme Court of India has referred to the CBI as a “caged parrot” and “its master’s voice.” Many of these institutions are merely advisory groups with no real capacity to combat corruption, and their recommendations are rarely followed. There’s also the issue of internal transparency and accountability to consider. Furthermore, there is no efficient and independent mechanism in place to keep such entities in check. In this backdrop, the establishment of an independent Lokpal and Lokayukta was a watershed moment in Indian politics, providing a solution to the never-ending threat of corruption. It is a strong and effective tool for combating corruption at all levels of government. The Lokpal and Lokayukta Act of 2013 mandated the creation of a Lokpal at the federal level and a Lokayukta at the state level. The Lokpal and the Lokayuktas are statutory bodies with no constitutional significance. These organisations fulfil the function and responsibility of a “Ombudsman”. They look into claims of corruption against governmental entities and organisations, as well as other problems.

An ombudsman is a person who acts as a trusted intermediary between the state or elements of the state or an organization, and some internal or external constituency while representing not only but primarily the interests of the constituents. The name ombudsman is derived from the Old Norse word umbosmaar, which means “representative.” In its most common modern usage, an ombudsman is a public official who is charged with representing the public’s interests by investigating and addressing complaints reported by individuals. Ombudsmen are usually appointed by the government or by parliament but have a significant degree of independence.

The normal tasks of an ombudsman, whether appointed by the legislature, the administration, or an organization, are to examine constituent concerns and attempt to address them, usually through recommendations or mediation. Ombudsmen are sometimes tasked with identifying systemic problems that contribute to poor service or violations of people’s rights. Most ombudsmen at the national level have a broad mandate to deal with the whole public sector, as well as private sector aspects such as contracted service providers. In some circumstances, such as with specific sectors of society, there is a more limited mandate.

History of Ombudsman

The position of the Ombudsman, in its current form, has its origins in Sweden. Charles XII, King of Sweden, ordered the establishment of a comparable organization in Sweden. The office of Justitieombudsman was established in Sweden in 1809, with the title of Justitieombudsman. The term ‘ombudsman’ comes from a Swedish word that has been used to denote someone who represents or protects the interests of others for generations. The name comes from mediaeval Germanic tribes, where it was used to refer to a third person whose job it was to collect fines from regretful offender families and distribute them to the victims’ relatives. The component term ‘man’ comes directly from Swedish (the old Norse word was ‘umbodhsmadr’) and does not always imply that a bearer is a man. Several women are currently active members of the ombudsman community around the world. The Parliament of Sweden established the ombudsman office to help it in dealings with the Executive and the Judiciary. It appears that the Riksdag (Swedish Parliament) was unable to adequately exercise its oversight over the operations of other bodies of government. The Swedish Parliament thought it required an official who could actively deal with complaints made by the public against actions taken by the Executive and the Judiciary in order to fulfil its responsibility as a representative of the people.

The institution of ombudsman developed and evolved dramatically later in the twentieth century, following World War II. In 1962, countries such as New Zealand and Norway adopted the ombudsman system. This mechanism was crucial in extending the concept of an ombudsman to other countries around the world. The Ombudsman was established in the United Kingdom in 1967, after the recommendations of the Whyatt Report of 1961. Great Britain became the first eminent nation in the democratic world to have such an anti-corruption institution after adopting such a system. In 1966, Guyana became the first developing country to adopt the notion of an ombudsman, following the United Kingdom. Mauritius, Singapore, Malaysia, and India were among the first countries to adopt this notion.

Before the early 1960s, Ashok Kumar Sen, a former law minister, was the first Indian to propose the concept of a constitutional Ombudsman in Parliament. Dr. L. M. Singhvi was also the one who invented the terms Lokpal and Lokayukta. The First Administrative Reform Commission issued suggestions in 1966 for the establishment of two autonomous bodies at the federal and state levels. The commission recommended that two independent authorities be established to investigate complaints against public officials, including members of Parliament. Prior to 2011, a commission headed by M.N. Venkatachaliah was established in 2002 to assess the Constitution’s operation. The Lokpal and Lokayuktas were recommended for appointment by this Commission. The commission also suggested that the Prime Minister be exempt from the Lokpal’s jurisdiction. Later in 2005, the Second Administrative Reforms Commission, directed by Veerappa Moily, recommended that the Lokpal agency be established as soon as possible. Despite the fact that none of these proposals received the attention they deserved, the government convened a Group of Ministers in 2011, chaired by former President Pranab Mukherjee. These ministerial working committees looked into the Lokpal Bill idea and proposed ways to combat corruption. The necessity for such a system to be implemented into the Indian governance system was felt by not just the administration and government, but also by the people of India. India erupted in a nationwide demonstration in support of Lokpal. Anna Hazare led the “India Against Corruption” movement to put pressure on the United Progressive Alliance (UPA) government at the centre. The Lokpal and Lokayuktas Bill, 2013, was passed by both Houses of Parliament as a result of the demonstrations and campaign. The bill gained the President’s assent on January 1, 2014, and became law on January 16, 2014, under the name “The Lokpal and Lokayukta Act 2013.”

Lokpal and Lokayukta Amendment Act, 2016

Following the adoption of the Lokpal and Lokayukta Act in 2013, Parliament enacted a bill in July 2016 amending the Lokpal and Lokayukta Act. In the absence of a recognized Leader of the Opposition, this change allowed the leader of the single largest opposition party in the Lok Sabha to become a member of the selection committee.

Section 44 of the Lokpal and Lokayukta Act 2013 was also changed by this bill. Section 44 of the Act dealt with the requirement that each public official provides information about his or her assets and liabilities within 30 days of joining the government service. The 30-day time limit was replaced by this modification. It specified that government employees must declare their assets and liabilities in the form and manner prescribed by the government.

When a non-governmental organization receives more than Rs. 1 crore in government grants or more than Rs. 10 lakhs in foreign funding, the assets of the trustees and board members must be revealed to the Lokpal. The bill extended the deadline for trustees and board members to report their own assets and those of their spouses.

Structure of the Lokpal

The Lokpal is a multi-member body with one chairperson and up to eight members. The Lokpal’s chairperson must be one of the following individual(s):

  • The former Chief Justice of India; or
  • The former Judge of the Supreme Court; or
  • A prominent individual of impeccable integrity and exceptional ability who must have unique expertise and a minimum of 25 years of experience in the following areas:
  1. Anti-corruption policy; 
  2. Public administration; 
  3. Vigilance;
  4. Finance including insurance and banking;
  5. Law and management.

The Chairman and Members of the Lokpal can serve for a maximum of 5 years or until they reach the age of 70, whichever comes first. The president appoints the members and chairperson of Lokpal based on the recommendations of a selection committee. The selection committee is made up of the following individuals:

  • The Prime Minister of India; 
  • The Speaker of Lok Sabha;
  • The Leader of Opposition in Lok Sabha;
  • The Chief Justice of India or any Judge nominated by Chief Justice of India;
  • One eminent jurist.

The selecting committee is chaired by the Prime Minister. The chairperson and members are chosen by a search panel made up of at least eight people appointed by the selection committee. The Department of Personnel and Training is required by the Lokpal Act of 2013 to compile a list of candidates interested in serving as chairperson or members of the Lokpal. The planned eight-member search committee would then be presented with the list. After receiving the list, the committee shortlists the names and presents them to the Prime Minister’s selection panel. 

The selection panel has complete discretion in picking names from the search committee’s list. The government formed a search committee in September 2018, led by Justice Ranjana Prakash Desai, a former Supreme Court judge. The Lokpal and Lokayukta Act of 2013 also stipulates that all states shall establish a Lokayukta office within one year of the Act’s enactment.

Jurisdiction of Lokpal 

The Prime Minister, Ministers, Members of Parliament, Groups A, B, C, and D officers, and Central Government Officials are all subject to Lokpal’s jurisdiction. Except in circumstances of charges of corruption relating to international affairs, security, public order, atomic energy, and space, the Lokpal’s jurisdiction extends to the Prime Minister. The Lokpal’s jurisdiction does not extend to ministers or members of Parliament in cases involving: any speeches delivered in Parliament; or a vote cast in Parliament. Every person who is or has been in charge (director/ manager/ secretary) of a body or a society set up by an act of the central government, any society or body financed or controlled by the central government, Any person involved in act of abetting, Bribe giving or bribe-taking are all within Lokpal’s jurisdiction. 

All public officials must declare their assets and liabilities, as well as their respective dependents, according to the Lokpal and Lokayukta Act. The Lokpal can also exercise supervisory authority over the CBI. It also has the power to give orders to CBI. If the Lokpal refers a case to the CBI, the investigating officer in that case cannot be changed without the Lokpal’s permission. The Lokpal’s Inquiry Wing has been given the powers of a civil court.

In exceptional cases, the Lokpal has the authority to seize assets, revenues, receipts, and benefits derived or obtained via corruption. It also has the authority to issue recommendations for the transfer or suspension of public employees who have been accused of corruption. Lokpal has the authority to issue orders to prohibit the destruction of records during the preliminary investigation.

Limitations 

The Lokpal was established as a much-needed shift in the fight against corruption. The Lokpal was a tool to combat the corruption that was rife across India’s administrative structure. At the same time, there are flaws and omissions that must be addressed. Lokpal’s appointing committee is made up of representatives of political parties that try to sway Lokpal’s decisions.

There are no standards for determining who is an “eminent jurist” or “a person of integrity,” which skews the Lokpal selection process. The Lokpal and Lokayukta Act of 2013 failed to provide whistleblowers with any type of concrete immunity. In circumstances where the accused is ruled innocent, the provision relating to the commencement of an investigation against the complainant discourages individuals from filing complaints. One of the most significant flaws is the Lokpal’s exclusion of the judiciary from its purview.

The Lokpal is not backed by the constitution. In addition, there are no effective procedures for appealing Lokpal’s decisions. The states have complete discretion over the exact details surrounding the appointment of the Lokayukta. The Lokpal and Lokayukta Act, which changed the appointment process for the CBI’s Director, has met the demand for functional independence of the CBI to some extent. The Lokpal and Lokayukta Act also stipulates that no complaint against corruption can be filed until a period of seven years has passed from the date on which the alleged offence was committed.

Conclusion

The most prevalent criticism levelled at the ombudsman system is that the role is poorly understood. There is little documentation and information regarding their job, and there is sometimes confusion and uncertainty about their position, which is exacerbated by the development of ombudsman offices in various industries. Despite the importance of accessibility, ombudsman offices are regularly criticized for being inaccessible. Few people are aware of the many ombudsman systems, how to contact them, and how to file a complaint.

Inaccessibility is the primary reason why ombudsman offices are underutilized, particularly by the most disadvantaged, who are less likely to be aware of the ombudsman’s presence and have greater trouble filing complaints or grievances. Many ombudsman initiatives, notably in the United Kingdom, appear to be obscured by bureaucracy and formality and lack a human face. The issue of visibility is linked to broader concerns of the ombudsman’s operational mode as being excessively reactive, waiting for complaints rather than bringing the office to the public’s attention or initiating investigations.

The Lokpal and Lokayukta must be economically, administratively, and legally separate from those they are tasked with investigating and prosecuting. Appointments to the Lokpal and Lokayukta must be made in a transparent manner to reduce the likelihood of the wrong people being appointed. To avoid the concentration of too much power in one institution or authority, a diverse set of decentralised institutions with proper accountability systems is required.

The ombudsman office has also been chastised for its effectiveness, which is said to be more dependent on the character and personality of the ombudsman officer(s) than on the institution as a whole. They are a highly personalized institution, regardless of their organizational framework, and success necessitates an individual or team that is perceived as independent and impartial, has relevant qualifications and in-depth knowledge of the sector, and can command respect and trust from all parties. Of course, such people are hard to come by.

Because the ombudsman’s powers are primarily advisory, there is legitimate worry that the ombudsman lacks ‘teeth.’ For example, the annual report (which is often the only public document issued by ombudsmen) is frequently regarded as an insufficient tool for altering administration processes and practice, informing the media, and educating the public. Furthermore, the ombudsman has little power to overturn or amend rulings. In fact, some argue that the ombudsman’s duties as a critic and reformer should be expanded to include legislative and policy reforms as well as an administrative procedure. The ombudsman should be concerned not just with existing laws or codes, but also with those that may be enacted in the future.

References

https://blog.ipleaders.in/lokpal-and-lokayuktas/

https://www.lawctopus.com/academike/ombudsman-critical-appraisal/

https://dopt.gov.in/sites/default/files/407_06_2013-AVD-IV-09012014_0.pdf

https://darpg.gov.in/panel/first-administrative-reforms-commission-reports

By Arryan Mohanty