Introduction:In general sense Ombudsman is Government Official whose job is to examine and report on complaints made by
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Introduction:In general sense Ombudsman is Government Official whose job is to examine and report on complaints made by people about the Government or public authorities. The duty of any good Government and the system of administration of a state is to protect the rights, interest, demands of general people. But sometimes administrative faults, impersonal bureaveratic system advertently or inadvertently tries to overwhelm the “little man” (general people) and feavourilism, nepotism of public authority’s effect the rights, personal or property of general people. So there was a necessity of a mechanism a method or a system for achieving something which can protect the general people from administrative faults. Then a search has produced the idea of “ombudsman” which in terms of utility means a “watching dog of administration or the protector of little man”. In India it is known as Lokpal. There is a Bill, which is known as Lokpal Bill 2003. But it is not successful yet to give proper justice to general people. Ombudsman First Developed:This institution first developed in Sweden in 1809 and soon became a cherished importable commodity the world over. Role of Ombudsman:It is a unique institution which leads to an ‘open Government’ by providing a democratic control mechanism over the powers of the States. Its main watch is its apparent effectiveness despite minimal corrective capabilities.1 Role of Ombudsman in 21st Century:It has its own role to play by bringing ‘renaissance’ and ‘humanism’ in the working of modern Governments which have tended to develop an attitude to look to the paper rather than the person behind it.2 An Ombudsman or his equivalent has become a standard part of the machinery of any modern Government. Therefore the importance of an institution like Ombudsman to protect the little man against administrative faults by luping the administration on rails cannot be overemphasized. 1 2
Administrative Law (I.P.Massey) Administrative Law (I.P.Massey)
Restriction of Ombudsman:Ombudsman is an independent and nonpartisan officer who deals with the specific complaints from the public against administrative injustice and mal administration. Conceptually, an Ombudsman is only a non-adversarial adjudicator, of disputes. Certainly an adversarial adjudication by courts necessarily stands on a higher plan than a decision by Ombudsman. Therefore, if a matter is pending before a court Ombudsman cannot exercise jurisdiction.3
Ombudsman’s Development in Different Countries:Development in Sweden:In Sweden, the institution of Ombudsman was established first in 1809. He can investigate a case on the complaint made by a person or ‘suo moto'. He can recommend action to Parliament not only against public officials but also against ministers against whom he has received complaints. However he cannot rash or reviews the administrative decision4. Where a complaint is found to be justified, he can often persuade a Government department to modify a decision or pay compensation in case where the complainant. The essence of Ombudsmans technique is to receive the complaint informally, to enter the Government department, to speak to officials and read the files and to find out exactly who did what and why. No formal procedure is involved at any stage nor is any legal sanction in question.
Durga Hotel Complex v. Reserve Bank of India, 2007, I.P. Massey, Administrative Law Administrative Law, Sirohi, p. 239
Development in England:Like any other country with an intensive form of Government, in England also, the grip of Parliament and the courts over the ever widening fronts of the administration started showing signs of weakness. Ultimately faults of administration increased in 1954. So for the purpose of citizen Ombudsman system started in England. The Ombudsman in England, officially known as the Parliamentary Commissioner, has been created by the Parliament Commissioner Act, 1962. The British Ombudsman is appointed by the Crown, and holds office until he reaches the age of 65. He is removable only an address from both houses of Parliament. Thus his tenure is protected in the way as that of the superior judges. The department place under his jurisdiction are listed Schedule II to the Act, but this list can be amended by an order in Council. The Ombudsman does not investigate matters which fall within the competence of the courts. He also does not investigate any matter in respect of which the aggrieved party has a right of appeal, review etc before a Tribunal. He does not investigate any matter which is twelve months old. From the citizens complaints does not reach the Ombudsman directly but through the members of the Parliament. Ombudsman makes investigation in private and is free it adopting such procedure as he may consider appropriate in the circumstances of the case. He has the same powers as a court to compel the attendance and examination of witness. The result of investigate has to send to the authority concerned or Parliament by the Ombudsman5.
Development in USA:5
Administrative Law, I.P. Massey
Though there is a lot of Ombudsman in USA no Ombudsman has infiltrated the administration except in the three states of Hawaii, Nebraska and Oregon for local Government agencies. Since 1963, in every session of the congress a bill has been introduces to established an institution akin to Ombudsman, but it now become an Act. The predominant reason seems to be that in USA the institution of Ombudsman is considered by the members of the Congress as a drag on their status and power for they consider it their sole progressive to represent their constitutiencies and to handle the grievances of the people. However the congressional investigation and grievance cells established in various departments like the police review boards discharge the work of Ombudsman. Development in New Zealand:Though the Ombudsman system was adopted in New Zealand in 1962 when the Parliamentary Commissioner (Ombudsman) Act, 1968 was enacted in 1975, the Act provided one or more Ombudsman for the purpose of works. Each Ombudsman was appointed by the Governor General for a term of five years and can be reappointed. He can be removed from his office on certain grounds (e.g. Disability, negligencey of duty, misconduct etc.). A general person cans complaint to the Ombudsman against the fault of administration and he can investigate and can take ‘suo moto’ action also. A committee of the House may refer any petition to his for investigation. Ombudsman can send any complain o Supreme Court if any doubt arise. But Ombudsman does not make himself any executive order or decision. Ombudsman is required to make an annual report to Parliament and the Ombudsman exercise of his functions.
Ombudsman Development India (Lokpal):-
M.C.Setalvad, in his speech at the all India Lawyers conference held in 1962, suggested the idea of establishing on institution similar to that of an “Ombudsman”. The idea was extensively investigated by the Administrative Reforms Commission and definite suggestion was placed before the Government in its interim report, dated October 14, 1966. On the basis of the recommendation, the government prepared lokpal and lokayuktas bill, 1968 and introduced in the parliament but eventually it was allowed to lapse. After 1966, many times this bill was introduced but this bill could not see the light of day. But in 2005 a new bill was again introduced. But like other previous bill this new proposed bill too lapsed.
Tenure of the Lokpal:The Chairman and Members shall hold office for a term of three years or until the age of seventy years, whichever earlier. The Chairperson and Members shall not be removed from this office except by an order of the President.
Division of this Institution:An Administrative Reforms (ARC) was set up on 05.05.1966 under the Chairmanship of Sri Moraji Desai. It recommended 2 machinery. Ombudsman/Lokpal Likpal (At centre)
Lokayaktu (At the State level) Uplokayukta
Necessity of Lokpal in India:-
India is a democratic republic but the general people can’t meet with the Government directly for complaining about the faults of administration so, one easy or direct institution is important for the general people. So, the need of Ombudsman is not less. A strong system of Ombudsman is necessary for India. (1) The administration (Lokpal) in India has been acquiring vast power in the name of socioeconomic development. They discharge not any the administrative function but also quasi legislative and quasi judicial functions, thus chances for administrative excesses and abuse of powers, therefore, close supervision over the administration and a mechanism for redressed of grievances become necessitated6. (2) The judiciary, Parliament and the executive has not been successful controlling the administration authorities and there are several restrictions on the power of judiciary to control the power of administration. (3) It is not easy as for the courts to prove malafides, improper purpose etc where the Government claims privileges withhold the document. (4) Each democratic Government has an obligation to satisfy the citizens about its functions and provide them adequate means for the redressed of their grievances (5) Lokpal is the watch, dog of the administration and it try to remove administrative faults by the complaint of general people. (6) Lokpal protects the little man because it does not hold the Government post or public post or any party. These are above necessity of the institution of Ombudsman. Though the birth of Ombudsman in the centre is still doubtful, but some states have adopted the Ombudsman system called Lokayukta7. Orissa is 1st state to present a bill on establishment of lokayukta 1970, however Maharashtra is 1 st to have established the institution in 1970. The institution is functioning in thirteen states are:
Administrative Law, Kailash Rai, p. 478 Administrative Law, I.P. Massey
Andhra Pradesh(1983), Assam, Bihar(1974), Uttar Pradesh(1977), Himachal Pradesh(1983), Karnataka(1984), Madhyapradesh(1981), Punjab, Orissa, Rajasthan, Maharashtra, Gujrat, Haryana. In Tamilnadu and Jammu and Kashmir different investigation agencies are functioning. A similar proposal is pending in the state of Kerala. Delhi has also established the institute on of Lokpal.
Function of the Lokayukta:(1) Investigation into the citizens’ “grievances” of injustice and hardship caused by maladministration. (2) Inquiry into “allegation” of abuse of office, corruption or lack of inequity against public servant. Such additional functions in relation to the redress of grievances and eradication of corruption as may be specified by the Governor, by notification 8. Such additional functions may be include(a) Supervision over an investigation of anti corruption agencies to authorities and officers. (b) Investigation in any action not mentioned in the Act “notwithstanding” anything contained therein, if required by the Governor, by an order. The Lokayukta and UP Lokayukta shall present annually a consolidate report on the performance of their functions under the Act to the Governor9. In Prof. S.N. Hegde v. The Lokyukata, Bangalore and others. An important question arose about the Jurisdiction of the Lokayukta, under the Banglore Lokayukta Act. In this case High Court has held that if the Lokayukta has to entertain and investigate a complaint against a public servant other than Chief Minister, a Minister or a Secretary or a member of the State Legislature he has no such power unless it is conferred on him by a notification by the State Government. The Jurisdiction of the enquiry and removal of Vice Chancellor of the State University. The lokayukta has not jurisdictions of the Act such a jurisdiction is clearly barred in view of section 14 of the universities Act. And lokayukta has no jurisdiction ender the notification to investigate complaints against them.
Section 7, 17(2), 17(3) Administrative Law (UPD Kesari)
Lokayukta in Maharashtra:In 1971, in Maharashtra, an Act Entitled the Maharashtra Lokayukta and Uplokayukta Act, 1971 has been extends. It extends to the whole of the State of Maharashtra. For the purpose of conducting investigations in accordance with the provisions of this Act10. Governor shall by work and under his hand and seal, appoint a person to be known as the Lokayukta and one or more persons to be known as the Lokayukta or Uplokayuktas11.
Qualification Every person appointed as the Lokayukta or an Uplokayukta shall, before entering upon his office make and substitute before the Governor or some person appointed in that behalf by him on oath or affirmation in the form set out for the purpose in the first Schedule. According to section 4 of the Act the Lokayukta or Uplokayukta shall not be a Member of Parliament as member of the Legislature of any State etc.
Function According to section 7 of the Act subject to provisions of this Act, the Lokayukta may investigate any action which is taken by or with the general or specific approval of the minister or secretary or any public servant of a clan or sub-clan of public servants. The Lokayukta may, for reasons to be recorded in writing, investigate any action which may be investigation by Uplokayukata. The Lokayukta and Uplokayukta shall present annually a consolidated report on the performance of their functions under this Act, to the Governor. On receipt of that report the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House at the State Legislature.
Administrative Law, Kailash Rai Administrative Law, Kailash Rai
Lokaukta in Karnataka:The Karnataka Lokayukta Act 1984 has ben enacted for the purpose of establishing the institution of Lokayukta in Karnataka12. The Lokayukta and Uplokayukta are appointed by the Governor. A person who has held the office of a Judge of Supreme Court or that of the Chief Justice of a High Court. A person to be appointed as an Uplokayukta shall be a person who has held the office of a Judge of High Court.
Qualification The Lokayukta and Uplokayukta shall not be a Member of Parliament, trust, legislature, business etc. of any State. If he is as a member of any above groups he has to resign before enter it.
Removal In case of misbehavior or in capacity Governor can remove Lokayukta from his office and then he can join his previous office it is said under section 6 of this Act.
Function Subject to the provisions of the Act, the Lokayukta may investigate any action which is taken by or with the general or specific approval of the Chief Minister, a Secretary a member of the State Legislature or any other public servant where he decides not to entertain a complaint or to continue any investigation in respect of a complaint, he shall record his reason therefore and communicate the same to the complaint and the public servant concerned. For the purpose of investigation under this Act, no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a court. The Lokayukta and Uplokayukta shall present annully consolidated on the performance of his functions under this Act to the Governor. On receipt of the report or the annual report, the Governor shall produce a copy before each House of the State Legislature.
Lokayukta and Uplokayukta in Uttar Pradesh:12
Administrative Law, Paras Diwan
In U.P. an Act called Uttar Pradesh Lokayukta and Uplokayukta Act 1976, has been enacted with the project to make provisions for the appointment and functions of certain authorities for the investigation of grievances, allegation against ministers Legislatures and other public servants in certain cases and for matters connected therewith.
Qualification According to this Act, the Lokayukta shall be a person who is or has been a Judge of the Uplokayukta shall be a person who is not and has never been a number of Parliament or a member of trust, profit, any State Legislature, political parties member etc.
Tenure of Lokayukta or Uplokayukta Every Lokayukta or Uplokayukta shall hold office for a term of 6 years from the date of entering gim office Governor can remove Lokayukta by voting of 1/3rd members of House.
Function The person so, appointed shall submit the report of investigation to the Governor who shall as soon as may be, cause it to be laid before the State Legislature. On receipt of special report and annual report the Governor shall cause a copy therefore together with an explanatory memorandum to be laid before each House of the State legislature. Here Lokayuktas in some States have been discussed above.
Following tables would show the working of the Lokayuktas in State of Kerala
Complaints disposed of
Salient Features of Lokpal:Through the previous biils have not been passed yet an analysis can be done for the better understanding over the recent Bill 2003. The bill provides that the institution of Lokpal shall consists of a Chairperson who is or has been a Chief Justice or a Judge of the Supreme Court and other two member who are or have been Judges of the Supreme Court or the Chief Justices of the High Courts. And they shall make and subseries before the President or a person appointed in that behalf by the President an oath or affirmation in the form set out in the Schedule. (Lokpal Bill Sec. 3) The members shall be appointed by the President of India after obtaining the recommendations of committee consisting of i) Vice President of India ii) Prime Minister iii) Speaker of the Lok Sabha iv) Home Minister v) Header of Opposition in Lok Sabha and Rajya Sabha However no sitting judge of the Supreme Court or sitting Chief Justice of High Court shall be Appointed except after consultation with the Chief Justice of India (Sec. 4).
Jurisdiction of Lokpal (Sec. 10 Lokpal Bill 2003):-
The Lokpal is empowered to investigate into any administrative action taken by or with the approval of a minister or secretary of union or State Government either on receiving a written complaint by an aggraded person or suo moto, relating to mal administration, undue favour or corruption. But the Lokpal is not to undertake any investigation in respect of which the aggrieved person has any remedy before a Court of Law Statutory Tribunal. Matters which are not subject to Jurisdiction of Lokpal i) Action relating to Foreign Government. ii) Action relating to Foreigner’s Act and the Extradition Act. iii) Action relating to commercial relations Governed by contract. iv) Action relating to appointments and removal. v) Exercise of power to determine whether a matter shall go to Court or not. Lokpal shall not enquire if it made after the expiry of 10 years from the date on which the affiance mentioned in such complaint is alleged to have been committed.
Making of Complaint (Sec. 12 Lokpal Bill):Any person other than a public servant can make a direct complaint to the Lokpal. The Complaint shall be made in the prescribed manner and shall be accompanied by prescribed fee and affidavit except in case of a complaint from a person in jail or other place of custody.
Procedure of investigation by the Lokpal:Every enquiry shall be conducted by the Chairman and the members siting jointly. The enquiry shall be another place to which public may have excess except in exceptional circumstances and for reason to be recorded in writing such enquiry may be conducted in camera. The Lokpal shall complete enquiry within a period of six months but where it is not possible it shall record reason in writing.
Power of Lokpal (Sec. 15):-
The bill has empowered the Lokpal to require a public servant or any other person to give such information as may be desired for the purpose of investigation.
Sec.16:Lokpal shall have power to search and Scize any document. And the Lokpal has the Power of Civil Court.
Report (Sec. 17):After enquiry if offence is proved Lokpal send it to the competent authority and competent authority will send to the Lokpal after examine within ninety days. And Lokpal will send it to the President and President will present it to the Houses not less than ninety days.
Expenditure for Lokpal (Sec 19):The expenditure for Lokpal members charged on the consolidated fund of India.
Punishment for interrupting to Lokpal (Sec 20):Whoever intentionally offers any insult or causes any interruption to the Lokpal shall be punished for a term which any extend six months or fine or both.
Action in case of false complaint (Sec 22):In case of false complaint he will give of showing cause if he fails. Then punishment will be extends three years or fine or both.
Section 26 Lokpal Bill:The Lokapl shall give opportunity of being heard if he thinks fit.
Protection of action in good faith (Sec 27):No suit on legal proceeding shall lie against the Lokpal in any court or no question can be arise against the decision of Lokpal.
Power to make rule (Sec 29):The President may be Notification in the Official Gazette, make rule for the purpose of caring out the provision of this Act. And every rule made under this Act shall be laid before each of House of Parliament.
Why the Lokpal Bill has not become a Law:The institution of the Lokayukta though is functioning smoothly in 13 States the institution of Lokpal in the centre have not been approved for some reasons why the Lokapl Bill has not become a Law, may be discussed with some criticism. Biasness appointment:The Lokpal has to inquire against the public functionary. This public functionary includes those administrative heads who appoint the Chairperson and other members of the institute of the Lokpal. So, there may be a doubt whether the Lokpal would inquire or take any step against them without any bias. Biasness in inquiry:When a Chairman is required to enquire against any public functionary, he may be bias in time of inquire. Here his preference and non-preference comes in the track of inquiry. He may inquire against the ministers casually whom be prefers. And he may take strict steps against the ministers whom do not prefer.
Public servant can enquire:-
Any person other than a public servant can make complaint in the Lokpal. But in practical servants have to face more contributory actions of public functionaries than the generate public. So, provisions for the public servant to make complaint before the Lokpal have to be made. Complaints himself have to proof the charge:The complaint must be absolutely sure of the fact and must have proof to substantiate the complaint. It is like working the complaint to investigate the case, collect evidence and prepare a foolproof charge sheet. But, it is not justified the Lokpal is suffer to enquire the charge itself instead the complainant. But the complainant here is acting like a Lokpal. Punishment for Complaint:If the complaint made by the complainant in good faith is not proved, the complain may be required to pay a five up to Rs. 50,000 and face a fail term up to three years. The provision would certainly better even a genuine complainant by this provision, firstly the complainant is not getting the remedy though his charge is true moreover, he was to get punishment or give compensation. Parliament empowered to take decision:After the making the inquiries, as the Lokpal necessary, it has to lay down the reports to the Parliament. It signifies that Parliament has superior power than Lokapl. As Lokapl have to lay down the details, it is not an independent body. Perhaps in most cases, the Parliament has been empowered to take decisions. So, it may be concluded that the institution of Lokpal is very much necessitated in the Centre of India and the Lokapal Bill will be passed as an Act by the Parliament, but before that the ssort coming of the bill must be removed.