1

A CONSTITUTIONAL ANALYSIS OF THE ROLE OF OMBUSMAN IN MAURITIUS AND

CAG IN INDIA.

Contents
ABSTRACT:................................................................................................................................................. 2
METHODOLOGY ..................................................................................................................................... 2
LIMITATIONS ........................................................................................................................................... 2
Nature of ombudsman ................................................................................................................................ 2
Article 96. Office of Ombudsman ............................................................................................................ 2
Article 97. Investigations by Ombudsman............................................................................................... 3
Article 98. Procedure in respect of investigations................................................................................... 3
Article 99. Disclosure of information ...................................................................................................... 4
Article 100. Proceedings after investigation ........................................................................................... 4
Article 101. Discharge of functions of Ombudsman ................................................................................. 4
Method of settlement .................................................................................................................................. 5
Evolution of the office of ombudsman....................................................................................................... 5
Aim of this office ......................................................................................................................................... 6
Types and categories of ombudsman schemes ......................................................................................... 6
Positioning ombudsman services within the justice system ................................................................ 6
Multi-area ombudsman offices ensuring government accountability ................................................ 7
In focus: Role of ombudsman offices in the mauritian framework ............................................................... 7
CAG of india ................................................................................................................................................. 7
UNIQUE POSITION OF CAG................................................................................................................. 7
Duties of CAG: ......................................................................................................................................... 8
Thesis............................................................................................................................................................ 9
conclusion .................................................................................................................................................... 9
 2

ABSTRACT:
An ombudsman is an official who is in charged with representing the interests of the public by
investigating and addressing complaints of maladministration or a violation of rights. The ombudsman is
usually appointed by the government or by parliament but with a significant degree of independence.
Most ombudsman have a wide right to deal with the entire public sector and sometimes with elements of
private sectors as well. Moreover, an ombudsman is appointed to provide a check on government
activities for the benefits of citizens and most importantly to oversee the investigation of complaints of
improper government activity against the citizen. Mauritius was amongst the first commonwealth
countries to adopt the ombudsman institution. An entire chapter of the constitution of Mauritius is
devoted to the ombudsman which includes the manner in which ombudsman is appointed, the extent of
his jurisdiction, what are his power in the country, his role and duties towards the citizens, the procedures
of his investigations and also his annual report which has to be made to the president of the republic. On
the other side, India has Comptroller and Auditor General commonly known as CAG which was created
by the Constitution Act, 1950. CAG are those who audit the accounts and related activities of the three
tiers of Government. The mission of CAG is to promote accountability, transparency, and good
governance through high quality auditing and accounting in order to provide independent assurance to the
legislature, executive and most importantly the public.

METHODOLOGY
The data required for the paper was obtained from search articles, policy papers and government websites
and the study is purely based on secondary data

LIMITATIONS
The subject relating to the office of an ombudsman and CAG of India covers various aspects which have
a very wide scope. The study is limited only to the role, benefits and duties of an ombudsman and the
CAG as a regulatory authority and to introduce a office of ombudsman in India

Nature of ombudsman
Access to justice is both a fundamental right in itself and a precondition for the enjoyment of other
rights. Its conceptualization requires the inclusion of dispute resolution mechanisms as part of
both formal and informal justice institutions, especially in the wake of increasing awareness of the
limitations of courts and tribunals as redress mechanisms. Against this background, this report
seeks
to identify existing and emerging worldwide practices and trends in the development and use of the
ombudsman structure, to bridge the gaps created by formal, expensive and lengthy dispute
resolution processes.

Chapter IX of constitution of Mauritius describes the appointment, role and functions of an ombudsman.

Article 96. Office of Ombudsman

(1) There shall be an Ombudsman, whose office shall be a public office.
(2) The Ombudsman shall be appointed by the President, acting after consultation with the Prime
Minister, the Leader of the Opposition and such other persons, if any, as appear to the President, acting
in his own deliberate judgement, to be leaders of parties in the Assembly.
 3

(3) No person shall be qualified for appointment as Ombudsman if he is a member of, or a candidate for
election to, the Assembly or any local authority or is a local government officer, and no person holding
the office of Ombudsman shall perform the functions of any other public office.

(4) The offices of the staff of the Ombudsman shall be public offices and shall consist of that of a Senior
Investigation officer and such other offices as may be prescribed by the President, acting after
consultation with the Prime Minister.
This article focuses on the appointment of the ombudsman and the appointment is done by the president
of the republic, but the decision is taken along with the prime minister and other members of the
assembly. He should not be a member for election nor assembly. this provision is aimed on one hand at
reinforcing the independence of the office and on the other hand at ensuring that the choice of the
ombudsman is a generally accepted one and not contested from different quarters.
Ombudsman offices either operate within a general remit or focus their mandate on specificgroups (eg,
women, children or consumers), or sectors (eg, finance, banking, competition or telecommunications),
and can address complaints from individuals, as well as act to investigate,review and address individual
or systemic violations or maladministration.

Article 97. Investigations by Ombudsman

According to this article 97 of the constitution, the main role of the ombudsman office is to
investigate any action mention above along with those issues that he shall not tackle such as
cabinet matters, court proceedings, private disputes, matters concerning foreign missions like;
Embassy high commission and many more. By having these powers of investigation, the
ombudsman shall be a great help to the police force as well as for the supreme court as he
decreases their burden and makes the process faster by tackling public’s issues and bringing
benefits to them.

Article 98. Procedure in respect of investigations

(1) Where the Ombudsman proposes to conduct an investigation under section 97, he shall afford to the
principal officer of any department of authority concerned, and to any other person who is alleged to
have taken or authorized the action in question, an opportunity to comment on any allegations made to
the Ombudsman in respect of it.
(2) Every such investigation shall be conducted in private but, except as provided in this Constitution or
as prescribed under section 102, the procedure for conducting an investigation shall be such as the
Ombudsman considers appropriate in the circumstances of the case; and without prejudice to subsection
(1), the Ombudsman may obtain information from such persons and in such manner, and make such
enquiries, as he thinks, fit and may determine whether any person may be represented, by counsel of
attorney or otherwise, in the investigation.
 4

This article states the method an ombudsman shall conduct his investigation and how the process
should be done in private and without prejudice.

Article 99. Disclosure of information

In this article it can be noted that the same powers of Supreme Court are vested upon the
ombudsman concerning examination of witnesses, attendance and production of documents. He
can take the help of any minister or officer of any department for the documents relating to the
investigation. If any disclosure of documents shall be against the public interest, a notice can be
given to the ombudsman not to communicate to any person concerning such document. It can
again be noted that public benefit is the main objective of the ombudsman. In order to give
someone justice or welfare, somebody else’s reputation is not ruined during the investigation and
is kept privately. Moreover, during the investigation the ombudsman has the same restriction as
the Supreme Court which is a person has the right not to give some documents if he does not
want to the Supreme Court, similarly an ombudsman or his members cannot compel any person
to give documents for the investigation.

Article 100. Proceedings after investigation

Article 100 of the constitution comprises of the role of ombudsman after his investigation is done. He
must report his opinion, reasons or recommendations for further actions to be taken by relevant head of
the department or authority concerned. If no action is taken by the latter, the ombudsman may table his
recommendations to any minister concerned, the Prime Minister or to the national assembly if he deems
fit. However, the ombudsman cannot initiate any legal action against public officials.

Article 101. Discharge of functions of Ombudsman

(1) In the discharge of his functions, the Ombudsman shall not be subject to the direction or control of
any other person or authority an no proceedings of the Ombudsman, other than proceedings under
section102A, shall be called in question in any court of law.
(2) In determining whether to initiate, to continue or discontinue an investigation under section 97, the
Ombudsman shall act in accordance with his own discretion, and any question whether a complaint is
duly made for the purposes of that section shall be determined by the Ombudsman.
(3) The Ombudsman shall make an annual report to the President concerning the discharge of his
functions, which shall be laid before the Assembly
 5

Method of settlement
Most ombudsman schemes use the inquisitorial model of dispute settlement, with alternative

dispute resolution (ADR) methods, such as mediation and arbitration, also being employed

within various models. The classical model involves a structure headed by an individual, while

alternative models incorporate the development of a business code of practice, generally

operated by the industry itself for members and clients, and accompanied by a dispute resolution

mechanism (typically, conciliation or arbitration). By reason of the diversity of schemes, close

attention should be paid to their substantial characteristics – although certain schemes may

ostensibly possess the characteristics of an ombudsman structure: (i) independence; (ii)

impartiality in conducting inquiries and investigations; and (iii) confidentiality (in accordance

with the mauritius Bar Association (A) definition), the body may operate under a different

name. By contrast, schemes that bear the label of ‘ombudsman’ may lack one or more of these

characteristics.

Evolution of the office of ombudsman

Although, traditionally, ombudsman offices have played a role in the context of administrative justice,
which is concerned with good decision-making by government officials and the rights of citizens to
challenge decisions affecting their rights or legitimate expectations effectively, more recently, they have
also experienced exponential use in the private sector.

There is a variety of institutional and jurisdictional arrangements, operational methods and

decisionmaking processes related to ombudsman offices across numerous jurisdictions. This report
focuses on ombudsman schemes whose mandate has a strong link with economic and social rights that are
directly relevant to poverty reduction, economic growth and development. The study assesses the
practices of multi-area ombudsman offices ensuring government accountability and sector-specific
ombudsman schemes in three relevant areas

 financial services,
 consumers and telecommunications
 with models ranging from that of a ‘mediator’ to that of a ‘guarantor of rights’.
 6

Aim of this office

The Committee’s goals in commissioning this work are to:

• understand and raise awareness of how ombudsman schemes fit into the wider regulatory

framework that aims at developing and implementing cost-effective justice models;

• identify those characteristics that make certain ombudsman models particularly successful

and may have a tangible impact on poverty reduction, growth and development, including for

vulnerable groups; and

• provide a valuable tool for lawyers, practitioners and civil society organizations involved in the

design of justice sector reforms.

In this way, the report forms part of the Committee’s ongoing activities of gathering, publicizing

and coordinating information from around the country on barriers to access to justice in different

jurisdictions, and ways in which these barriers can be overcome.

Types and categories of ombudsman schemes

Positioning ombudsman services within the justice system

ombudsman schemes can be broadly considered as part of administrative and civil
justice.They offer a form of alternative dispute resolution (ADR) that allows citizens to resolve their
complaints about public services, or goods and services provided in the private sector. Ombudsman
schemes have become a significant and permanent feature of legal systems across the world in recent
decades, with the model developing from a constitutional accountability tool to an independent
complaints mechanism widely used in the private sector. First, the scope of an ombudsman’s
mandate has expanded from purely redressing maladministration by government institutions to
also considering whether human rights violations have taken place, with the purpose of remedying
relevant power imbalances and enabling individuals to effectively enjoy economic and social rights.
Respect for human rights is now seen to be an ‘intrinsic element’ of good administration
 7

Multi-area ombudsman offices ensuring government accountability

As bureaucracies have grown in size and complexity, there has been an increased need to ensure that
citizens can, where necessary, seek effective administrative justice remedies against governmental
authorities. Ombudsman schemes have had a crucial role in this sphere, having the potential to offer a
cheaper, quicker and, overall, more accessible way to challenge government action as compared to
bringing an action before the courts. The ombudsman institution has thus been welcomed as one that
restores the balance between the citizen and the state. Ombudsman offices have a key role to play in
ensuring accountability, provided they operate with independence and transparency

In focus: Role of ombudsman offices in the mauritian framework

The Mauritian constitution has specifically highlighted the role of the ombudsman in the promotion and
protection of human rights, including through a series of resolutions adopted by the Assembly.The latest
resolution adopted by the General Assembly on 19 December 2017 recognised and welcomed the ‘rapidly
growing interest throughout the world in the creation and strengthening of the Ombudsman, mediator and
other national human rights institutions, and… the important role that these institutions can play, in
accordance with their mandate, in support of national complaint resolution’. In line with the general
principles outlined above, the resolution highlights the importance of the autonomy and independence of
ombudsman offices, and their role in promoting good governance in public administration. Besides
according them with strong constitutional and legislative frameworks, Member States are also encouraged
to provide sufficient financial means for the effective functioning of ombudsman structures.

CAG of india
The comptroller and auditor general of India is an authority established by the constitution of India who
audits all receipts and expenditure of the government of India including those bodies and authorities
substantially financed by the government.
These audits are reviewed by the public accounts committees of the parliament of India and state
legislative bodies. The CAG is the head of the Indian audits and accounts department and is appointed by
the president and can hold his office for 6 years or up to the age of 65 years whichever is earlier.
Article 149 to 151 of the constitution prescribes a unique role for the CAG for assisting the parliament to
enforce the accountability of the government departments. The CAG shall perform such duties and
exercise such powers in relation to the accounts of the union, states and of any other authority or body as
may be prescribed by the law.

UNIQUE POSITION OF CAG

The CAG of India has the unique position because unlike most countries the CAG has been assigned both
accounting and auditing functions. He is not an officer of the Parliament even though he serves the
Parliament and the State Legislature. Thus, CAG is the dignitary who occupies a unique place in Indian
Democracy. CAG’s office has been given a dual role one as the agency that functions along with the
Legislature and ensures that the executive obeys the laws passed by the Legislature and enhances the
 8

executives accountability towards the Legislature, another as an agency that ensures obedience by sub-
ordinate authorities with respect to regulations
CAG as a regulatory authority: CAG is an authority established by the Constitution of India Article 148
who audits all the Receipts and Expenditure of the Government of India and State Government including
various bodies and authorities sustainably financed by the Government. CAG is ranked 9 in India and
enjoys the same status as the Judge of Supreme Court in Indian order of precedence is appointed by the
President of India following the recommendation by the Prime Minister. He is also the External Auditor
of the Government owned Companies.

Duties of CAG:
The duties of the CAG as defined by the duties, powers and conditions of service (DPC) act 1971 are to
audit and report upon: CAG of India shall perform such duties as given and such powers with regard to
the accounts of the union and of the states and of any other authority as may be prescribed by or any
under law made by the Parliament (Article 149). All receipts and expenditure from the consolidated fund
and contingency fund of India and of the state and union territory having legislative assembly. Trading,
manufacturing, profit and loss accounts and balance sheets, and other subsidiary accounts kept in any
government departments, accounts of stores and stock kept in government offices or departments.
Government companies as per the provisions of the companies act, 2013. He shall also report upon the
accounts of corporations established by or under laws made by the parliament in accordance with the
provisions of the respective legislation. Authorities and bodies substantially financed from the
consolidated funds of the union and consolidated fund. Audit the grants and loans given by the
government to the bodies and authorities for specific purposes. He is entrusted with audit of Panchayat
Raj Institutions and Urban Local Bodies under Technical Guidance and Support. The reports of the CAG
of India relating to accounts of the union shall be submitted to the President and of the states shall be
submitted to the Governor
To sum up, CAG of India plays a very unique role as a regulatory authority by upholding the constitution
and the laws in the field of financial administration. CAG is the principal auditor who acts as a watchdog
to ensure that various authorities function in accordance with the constitution and the laws of the
parliament with regard to financial matters. He plays an essential role in making the government more
transparent and accountable to the legislature as well as the society. In essence the CAG acts as a
custodian and trustee of public money, exercises his powers in consonance with the constitution and
within the rules framed by the government from time to time, to ensure that there is no loss, leakage of
revenue, avoidable expenditure and embezzlement.
 9

Thesis
The CAG of India shares similar duties, role and position as an ombudsman .since the concept of CAG
has been introduced in India .there has been a lot of benefits such as scams have been exposed like 2G
spectrum case, Commonwealth Games scam.
Since the courts of India are overburdened, it seems right that India adopts the institution of ombudsman
The appointment, powers vested in him, procedure to be followed will be similar in nature as mentioned
above.
The articles which are mentioned above will be amended in the constitution which will create some
incidental and consequential changes.
Since India is a very vast country in terms of culture and religion, each state should have an office of
ombudsman. Each ombudsman will be appointed by the president. The president will have full discretion
on the appointment of each ombudsman
Each ombudsman will have a council of bureaucrats which be chosen by himself. This will provide for
expertise in each sector. the ombudsman will only seek advice from this council and this advice will not
be binding on the ombudsman.
To have consistency in the law and judicial pronouncements, there should be a system of check and
balance between the legislative, judiciary, executive and the office of ombudsman. This will also
eliminate any chances of misuse of power

conclusion
Every Ombudsman should stand high in public respect and at the same time the office of
Ombudsman can be a valuable institution, then it will no good when governmental authorities do
not follow the recommendations made by the Ombudsman. Because when Ombudsman makes
recommendations for a particular matter, always apply the principles of natural justice and
administrative fairness consisting with statutory mandate given. The office of Ombudsman
should be given more statutory jurisdictions. The more independent, the Ombudsman is, the
more effective the Ombudsman may be. It will either help prevent the reoccurrence of
maladministration in a particular situation that led to its creation. Therefore, Ombudsman can
conduct meaningful investigations and find a good solutions for maladministration occurred
because the office of Ombudsman is treated as the last resource. If these standards were
developed to provide advice and guidance to the public, so the Ombudsman would better fulfil
the functions of the position. Moreover, to ensure the office’s accountability Ombudsman should
issue a report summarizing the findings and recommendations given, then it will more gain
public confidence about the office. The object of the office of Ombudsman is to assist in good
governance, to inspire public confidence and transparency in government actions affecting the
public.