OMBUDSMAN/LOKPAL/LOKAYUKTA AND CENTRAL

VIGILANCE COMMISSION

1. NEED FOR OMBUDSMAN

It becomes clear from the previous discussion that, in modern times, two tendencies have
become manifest in democratic countries. One, large powers have been, and are being
conferred on the Administration with the result that a huge administrative machinery having
vast discretionary powers has come into existence. The Administration has come to play a
decisive role in influencing and shaping the socio-economic order in to-day's society. The
Administration enjoys a vast reservoir of powers to order and effect the daily lives of the
people over a wide canvas.1

Two, a feeling has arisen in the public mind that vesting of such vast powers in the
Administration has generated possibilities and opportunities of abuse or misuse of power by
administrative functionaries resulting in maladministration and corruption. 2 In the flush of
power, the Administration very often exhibits a tendency to disregard individual rights and
interests in the name of public good. As WHEARE observes: 3

"It is not eccentric to conclude that if there is more Administration, there will be more
maladministration."

A few examples of maladministration may be cited here to bring home the point:
 1) An order to acquire a large tract of land belonging to several persons was issued
by the government. Later, it exempted a piece of land belonging to one family from
the purview of the order. The Supreme Court held in Chandra Bansi Singh v. State
of Bihar4that the release of this piece of land was "a pure and simple act of
favouritism without there being any legal or constitutional justification for the
same."

The Court held the release bad and non est under Art. 14. An interesting aspect of
the case is that while the petitioner sought striking down the entire notification so
that his land would also be released from acquisition, the Court, on the other hand,
upheld the entire notification as originally issued as valid after cancelling the
notification exempting the piece of land in question.

1) Allotment of petrol pumps for retail sale of petroleum products were made to a
large number of persons. A newspaper carried news of political patronage in the
allotments. The Government of India issued an omnibus order cancelling all
allotments made without examining individual cases to ascertain tainted
selections. The order was quashed by the Supreme Court as an arbitrary exercise
of power. The Court itself appointed a committee to examine controversial cases
of allotment.5
1) Administrative orders are often challenged on the ground of mala fides but such a
plea rarely finds acceptance in the courts. The reason is that the burden of
establishing mala fides rests on the person who alleges it. The courts insist on
proof.6

It is clear from the above stray examples of misuse/abuse of administrative power that
greater the power given to the executive, the greater the need to safeguard the citizens against
its arbitrary or unfair exercise. Therefore, a pressing problem of the day is to evolve an
adequate and effective mechanism to contain these dangers by controlling the Administration
in exercising its powers, safeguarding individual rights, and creating procedures for redressal
of individual grievances against the Administration.
In the common-law world, the courts have traditionally exercised control over administrative
action. In recent years, the courts have expanded somewhat their supervision over the
Administration as has been discussed in the previous pages. 7 But it also becomes evident from
the previous discussion on judicial control over administrative action that, as a control-
mechanism over the Administration, the courts play only a peripheral role. The courts do not
provide for a review in depth of the entire administrative field. Quite a few aspects of
administrative functioning fall outside the scope of judicial review. The courts do not
substitute their discretion for that of the official on whom the power is conferred by law. 8 This
by itself is a limitation of some consequence.

The efficacy of judicial review of administrative action is diluted by several significant

restrictive factors, e.g., by and large judicial review at present does not comprehend the
merits of administrative decisions. A number of aspects of administrative functioning fall
outside the judicial purview; the legislature does not often lay down articulately the norms
and guide-lines for exercising the vast powers which are conferred on the Administration;
failure of the Legislature to lay down procedures which the Administration must follow while
exercising its powers.

As already explained, the courts may compel the exercise of power by an administrative
authority if it is mandatory for it to act, but not when the power is merely enabling or
permissive, howsoever harmful its non-exercise may be to an individual. The courts have set
before themselves the limited task of overseeing that the Administration functions according
to law, and not outside the law. The courts can therefore quash administrative action on such
grounds as ultra vires, mala fides, exercise of power for an improper purpose, or on irrelevant
or extraneous considerations, or after failing to take into account relevant considerations or
when there is a patent error of law. Further, the courts do not ordinarily review facts as
decided by administrative authorities except to the limited extent as explained earlier. 9

But even in the available limited area of judicial review, it is not always easy to get the relief
sought and have the administrative action quashed. The major hurdle is one of proof of such
grounds as mala fides,improper purpose etc. It is not easy to secure evidence on the issues
involved as the courts are extremely reluctant to order the concerned administrative
authority to produce the relevant departmental files so that they may look into them to satisfy
themselves that the administrative action in question was not in any way vitiated and that
there did not exist any grounds on which the courts could quash it. The courts have repeatedly
refused to examine government records to find out the real reasons underlying an
administrative action. Even if the courts may like to direct the government to produce its
record, the government can claim privilege from producing the same and thus get away
without producing it in the court.10

The burden of establishing the case lies wholly on the individual challenging the specific
administrative action and it is not easy for him to do so as he has no access to the government
record. The court's reluctance or inability to look into departmental files remains a major
hindrance in the way of challenging an administrative action at the present moment and this
saps the efficacy and vitality of judicial review to a considerable extent. 11

Further, in writ petitions, which is the most common technique of challenging administrative
action, the courts mostly go by the affidavits filed by the parties concerned. They do not
usually call for oral testimony or permit cross-examination or the persons filing affidavits. 12 In
most of the cases involving challenge to the administrative action, the courts have nothing
more to go by than the order in question and the affidavits filed by various parties. At times,
the affidavits may be detailed and informative, but quite often they are laconic and elusive and
seek to hide more than what they reveal.

As already pointed out,13 there is no rule yet requiring the Administration to give reasons for
its decisions outside the sphere of natural justice. 14 It may be that a statute under which an
action is being taken may obligate the Administration to give reasons for its action. This, of
course, is quite rare. In such cases, the courts may be in somewhat better position to
scrutinise the validity of the administrative action in question. 15 Even when the statute
prescribes the purposes for which, and the grounds on which, the power can be exercised, the
authority concerned is under no obligation to reveal the reasons or the facts which in its view
warrant the action in question.
In a good many cases, orders are issued repeating verbatim the statutory language without
giving any clue to the facts on which the authority proceeded to take action. 16 In such cases,
the court could give relief on the basis of defects in the order and/or in the affidavits filed on
behalf of the concerned administrative authority.17 It is only rarely that the party challenging
the action succeeds in presenting some evidence in support of his contentions against the
validity of the administrative action in question and get relief from the court on that basis. Till
recently, if the obligation to give reasons was not imposed under the statute, the courts did
not impose the obligation to give reasons unless there was a provision for an administrative
appeal.18 In recent years, however, the Supreme Court has been exhibiting a tendency to insist
upon the Administration to disclose reasons for its action to the court through its affidavits. 19
To the extent the courts are able to do so, their review power would become more meaningful.

While Administrative Law may provide legal remedies for many grievances and complaints
against the Administration, there do arise many grievances which lie beyond the reach of legal
remedies. A democratic system must provide some mechanism to assuage such grievances as
well. As has already been seen, judicial review has a limited range and that there is much
which lies beyond this range.

On the whole, as things stand today, the contest between the government and the individual is
a very unequal one and the dice is heavily loaded against the individual. The result of the
present situation in actual practice is that out of a large number of cases which are filed in the
courts against the Administration, it is only in a very few cases that the courts are able to give
relief and a large number of public grievances against the Administration thus go unrectified.
The judicial control of the Administration is helpful to the extent it is available, but the point
to note is that judicial review does not go far enough and does not cover many facets of the
working of the Administration.

Further, judicial proceedings are dilatory, formal, time-consuming and expensive as court fees
have to be paid and lawyers have to be engaged to prosecute individual grievances and this
makes it beyond the resources of many persons to seek judicial redressal of their grievances
against the Administration.
Besides the judicial control, the Administration itself has its own control mechanism to set
right its lapses and faults. But internal administrative checks have been found to be
inadequate in practice, and these provide no guarantee of good behaviour on the part of the
Administration. Pointing out the inadequacies of administrative review of its own decisions,
the New Zealand Ombudsman20 has stated in one of his reports that while dealing with the
large number of complaints against discretionary administrative action, it has often become
clear to him that an oft repeated review of a decision within the department is no guarantee of
the wisdom and fairness of the ultimate decision.21 What usually happens is that the first
decision is made at a lower level of Administration, and, as it goes up to a higher level for
review, it starts building up its own defences within the department--a process of
rationalization generally brings out arguments in favour of the original decision that may not
have been known even to the person who took the original decision. The official bias is
towards maintaining and supporting the original decision by inventing fresh arguments in its
support. In this atmosphere, only representation of a good case by a responsible and
independent person can generally ensure a genuine review by the Administration. It has,
therefore, been felt that some external agency, falling outside the administrative hierarchy, is
absolutely necessary to detect and check administrative lapses and faults and to supervise the
Administration so that the rights of the individuals are not unduly jeopardised.

Then there is the Legislature whose traditional function in a democracy is to oversee the
Administration.22 But, as the Legislature functions at present, it can hardly be effective in
policing the Administration. With the development of the party system, instead of the
Legislature controlling the Executive, it is the other way around--it is the executive which
largely controls the Legislature.23

The Legislature is always faced with paucity of time and pressure of work. It is a big body and
is usually engaged in discussing policy matters and proposals for legislation and taxation. A
number of bills always remain pending before the Legislature for enactment. The legislative
procedures are such that there is not much room for ventilating individual grievances on the
floor of the House. The Legislature acts more as a grand forum of the nation, or rather in the
nature of grand inquest, but is hardly suited to espousing, ventilating and rectifying individual
grievances. The Legislature has no mechanism at its disposal to probe into administrative
faults and lapses in individual cases. Raising of a matter on the floor of the Legislature soon
acquires political overtones, receives a lot of publicity, and may even become a matter of
confidence in the government, and, consequently, redressal of individual grievances through
the Legislature becomes a far cry.

From the above discussion, it becomes clear that the traditional organs in a democracy do not
provide an adequate and effective control mechanism over the Administration. Lack of such a
mechanism may negate democratic values. In this connection, the following warning
administered by the Supreme Court of India in Sadanandan24must be kept in mind:

"... continuous exercise of the very wide powers conferred by the rules on the several authorities is
likely to make the conscience of the said authorities insensitive, if not blunt, to the paramount
requirement of the Constitution that even during the emergency, the freedom of Indian citizens
cannot be taken away without the existence of the justifying necessity specified by the (Defence of
India) Rules themselves. The tendency to treat these matters in a somewhat casual and cavalier
manner which may conceivably result from the continuous use of such unfettered powers, may
ultimately pose a serious threat to the basic values on which the democratic way of life in this
country is founded."

In these circumstances, the quest for an effective control-mechanism over the Administration
has led the people to the institution of Ombudsman which has been in operation for long in
the Scandinavian countries.25 Sweden was the first country to adopt this institution as early as
in 1809; Finland adopted it in 1919; Denmark in 1953; and Norway in 1963. Amongst the
common law countries, with a parliamentary form of government, New Zealand was the first
country to opt for the Ombudsman system in 1962; next was Britain which established the
system in 1966. Australia established the Ombudsman system at the Centre in 1976. The
institution has been adopted in all these countries with the basic idea to control effectively the
activities of, and prevent abuses by, public officials after it came to be realised that the existing
procedures and mechanism for the purpose were hardly adequate and efficacious.
Ombudsman functions as an external agency, outside the administrative field to probe into
administrative faults. Ombudsman's main task is to remedy individual grievances against the
Administration. In achieving this objective, Ombudsman also makes suggestions for the
improvement of administrative procedures practices, rules and even law. The investigation of
individual cases may prove to be a catalyst for discovering general administrative deficiencies.

The modus operandi of the Ombudsman system may be illustrated by referring to the
functioning of the institution in the three common-law countries--New Zealand, Britain and
Australia. All these countries, like India, have parliamentary form of government. Australia,
like India, is a Federal country. The experiences of these countries may be useful in devising
the institution for India as and when it is sought to be established here.

2. OMBUDSMEN IN NEWZEALAND

As already stated, the Ombudsman system was adopted in Newzealand in 1962 when the
Parliamentary Commissioner (Ombudsman) Act, 1962 was enacted.

In 1975, the 1962 Act was replaced by the Ombudsmen Act, 1975. The 1975 Act extended the
jurisdiction of the Ombudsman to many more governmental agencies and also to local
governments. To cope with the increased quantum of work, the Act provides for one or more
Ombudsmen. One of them is to be designated as the Chief Ombudsman for co-ordination and
allocation of work among the Ombudsmen.26

Each Ombudsman is appointed by the Governor-General on the recommendation of the House

of Representatives. The Ombudsman thus is a nominee of the House and gets support from all
sections of the House. This is very important for if he does not get support from all sections,
his work will not command respect and credibility. His appointment by the House has much to
commend itself for this shows that he is independent of the government whose actions he
investigates. If he is a nominee of the executive, he may be mistaken to be a part of the
executive itself.
Although, a nominee of the House, efforts are made to make him independent of Parliament in
his day to day work. The Ombudsman has a security of tenure as he holds office for a term of
five years and can be re-appointed. He can be removed from his office by the Governor-
General upon an address from the House of Representatives on certain grounds, viz.,
disability, bankruptcy, neglect of duty or misconduct.27

A person feeling aggrieved by an administrative action may make a complaint to the

Ombudsman. He can undertake investigation suo motualso. The basis on which an
Ombudsman decides whether to embark on an "own motion" investigation is a matter entirely
for his discretion. The Act contains no guidelines for the purpose. A committee of the House
may refer any petition to him for investigation. With the consent of the Chief Ombudsman, the
Prime Minister may also refer a matter to an Ombudsman for investigation and report. The
Ombudsman has power to investigate any action, decision, recommendation or inaction
relating to a matter of Administration on the part of a department or organisation placed
under his jurisdiction affecting any person in his personal capacity. These bodies are listed in
Schedule I to the Act. The Schedule can be modified by an Order-in-Council. He can refuse to
look into trivial, frivolous or vexatious complaints, or those not made in good faith, or a
complaint where the complainant does not have sufficient personal interest.

He can review an act even if it is declared final by the statute concerned. He cannot, however,
review an act of the Administration if from it an appeal on merits is available to a court or
tribunal under the concerned statute. But the Ombudsman may investigate even such a matter
if by reason of special circumstances, it would be unreasonable to expect him to resort to the
appeal. The Ombudsman may refuse to investigate any complaint if it appears to him that,
having regard to all the circumstances of the case, any further investigation is unnecessary. In
case of doubt about the Ombudsman's jurisdiction in any matter, he has power to refer it to
the Supreme Court for a declaratory order determining the question.

The Ombudsman can give relief in the following situations: if the administrative action,
decision, recommendation or omission complained of-- (a) appears to him to have been
contrary to law; or, (b) was unreasonable, unjust, oppressive, improperly discriminatory; or,
(c) was if it based on a mistake of law or fact; or, (d) was it wrong; or, (e) if discretionary
power was exercised for an improper purpose, or on irrelevant grounds, or irrelevant
considerations; or, (f) if the action is not supported by reasons where reasons ought to have
been given; or, (g) if the law or practice under which the action was taken is itself
unreasonable, unjust, oppressive or improperly discriminatory.

These grounds of review of administrative action by the Ombudsman are rather broad. The
word 'wrong' is of wide import as it may give rise to considerations of the applicability of the
rules of natural justice. Ombudsman's right to intervene in the discretionary area on a broad
basis has been explicitly recognised. This is of great importance otherwise the Ombudsman
would not be effective in resolving many justifiable complaints.

In modern times, expansion of governmental activities has resulted in transferring large areas
of policy-making and discretion to officials. The Ombudsman can recommend any of the
following courses: (1) the matter be referred to the appropriate authority for further
consideration; (2) the omission be rectified; (3) the decision be cancelled or varied; (4) any
practice on which the decision was based should be altered; (5) any law on which the decision
was based should be reconsidered; (6) reasons should have been given for the decision: (7)
any other steps should be taken.

It is clear that the Ombudsman's responsibility to examine the basic reasonableness of a law is
of great significance. Even if an administrative action be in accordance with law, it may not put
an end to the work of the Ombudsman as he has to further satisfy himself that the law in
question is itself fair and just.

It is a firm rule of procedure that the department and the official in whose activity the
Ombudsman initiates an investigation must be informed. The Ombudsman can make such
inquiries, and may hear or obtain information from such persons, as he thinks fit.

The investigation is held in private and not under the glare of publicity. He can summon and
examine persons on oath. No person can claim to be heard by the Ombudsman as of right. He
has access to the departmental records and premises. But when the Attorney-General certifies
that the evidence may prejudice the security, defence or international relations of New
Zealand, or may affect investigation of offences, or may involve disclosure of deliberations or
confidential proceedings of the cabinet or its committee, such evidence need not be produced.
If any department or any official is going to be affected adversely by the Ombudsman's report,
then the department or the official concerned must be given an opportunity of being heard.

The Ombudsman has to communicate to the complainant the result of his investigation.

The Ombudsman first reports to the concerned department his recommendation in the matter
as to the action to be taken. If the department does not the action, the Ombudsman may then
report to the Prime Minister and thereafter may report to the House of Representatives on the
matter as he thinks fit.

The Ombudsmen make an annual report to the House of Representatives on the exercise of
their functions.

The reports made by the Ombudsman to Parliament throw interesting light on the comments
made by him regarding the various aspects of the working of the Administration. He has
underscored the need to publicize administrative procedures; he has criticised the issue of
defective and confusing circulars and giving of wrong information to the people. He has given
relief for departmental mistakes, has criticised unjustifiable delay in deciding matters, and has
pointed out lacunae in administrative procedures, e. g., lacking in justice or in courtesy or
being offensive to the individuals concerned, or failure to give a hearing when it needs to be
given.

He has found that many a time decisions are taken by the Administration without having full
facts before it. He has held many discretionary decisions as unjust, unfair, unreasonable,
oppressive, improperly discriminatory, or not supported by law, and has, accordingly, given
relief to the complainants. He has awarded damages against the department when a person
has suffered injury by maladministration. He has even suggested ex grandpayment to the
complainant when the department was found to have moral, rather than legal, responsibility
for the injury caused to him.

The Ombudsman does not review an administrative decision merely on merits, or when there
is a difference of opinion between him and the department concerned, unless it suffers from
some defect mentioned earlier. He exposes cases of administrative inertia or laxity. He has
criticised the method of exercising discretion by the Administration. At times, officers having
discretionary powers adopt a firm rule of practice or a rule of thumb and apply it to each and
every case coming before them without looking into its special facts or circumstances and
applying discretion accordingly. The Ombudsman has criticised such an official attitude and
has emphasized that discretion should be exercised in individual cases on merits instead of
being submerged in a firm rule of practice.

The Ombudsman has been able to exercise a good deal of influence upon the Administration.
For example, the government has accepted his assertion that it must always act honestly, and
thus honour all promises, howsoever bare and unsupported by consideration on the other
side. Thus, full effect has been given to the doctrine of promissory estoppel. A promisee is
entitled as a matter of morality to succeed in enforcing the full effect of any promise made by a
department. Thus, in practice, in New Zealand, parties are entitled to rely upon promises, and
where appropriate, to base claims against the government upon them. 28 In some cases, the
Ombudsman even suggests amendment of the law or regulations. An administrative action
may be in accordance with a statutory provision or a regulation but the same may be
unreasonable, unjust, oppressive, or improperly discriminatory.

Section 13(1) defines Ombudsman's jurisdiction thus:

"to investigate any decision or recommendation made, or any act done or omitted relating to a
matter of administration and affecting any person or body of persons in his or its personal
capacity."

Thus, the jurisdiction of the Ombudsman extends to "a matter of administration" and this
phraseology excludes "matters of policy" from his purview. 29 No statutory test has, however,
been laid down to decide whether the governmental action in question is a 'policy' matter or
merely an 'act of administration'.
Many a time, questions of policy and administration are inextricably mixed up. In such a
situation, there may be arguments between the Ombudsman and the department concerned
but the final decision in the matter rests with the Ombudsman and, therefore, only his self-
restraint keeps him out of the area of policy. The underlying theory for drawing a distinction
between policy and Administration is that the Legislature and the Government, and no one
else, are responsible for policy matters.

Further, Ombudsman's purview does not extend to a decision by a Minister. This restraint has
been placed on him in order to keep the theory of parliamentary form of government intact.
The Ombudsman, however, has the right to investigate the recommendation made by the
department concerned to the Minister (S. 13(2)) and through such a review he can indirectly
express his views on the expediency or propriety of the Minister's decision. If the Minister
disagrees with the departmental recommendation made to him, and the Ombudsman later
holds the recommendation to be justified, then it indirectly amounts to saying that the
Minister's decision in not accepting the departmental recommendation was not right. On the
other hand, if the Minister accepts the departmental recommendation, and if the Ombudsman
later holds the recommendation to be wrong, then it amounts to saying indirectly that the
Minister's decision was also wrong.

The decisions of the Ombudsman are not challengeable or reviewable in a court of law except
on the ground of lack of jurisdiction. An interesting provision in the Ombudsman Act is that
the Act is in addition to any other enactment or any rule of law under which any remedy or
right of appeal is provided. Nothing in this Act limits or affects any such remedy or right of
appeal.

A study of the Ombudsmen's annual report to Parliament reveals that all Ombudsmen
combined receive quite a large number of complaints from the people. Of these, nearly 25
percent fall outside their jurisdiction either because the department concerned was not one
over which they had jurisdiction, or there existed a right of appeal to a formal tribunal, or the
complaint was trivial, or the complainant lacked sufficient personal interest in the matter. In
about 20 per cent complaints investigated by the Ombudsmen, investigations were dropped
by the Ombudsmen but in a large number of these, the department took steps to resolve the
complaint. Out of the complaints fully investigated by the Ombudsmen, nearly 20 per cent
were found to be justified necessitating some corrective action on the part of the department
concerned.

It needs to be underlined that the Ombudsman himself does not make an executive order or
decision. He only makes a recommendation to the department concerned, and it is for the
department to take the corrective steps recommended by him. The Ombudsman has broad
freedom as regards the nature of the recommendation he can make. If the department fails to
take adequate action within a reasonable time, the Ombudsman may send a copy of the report
to the Prime Minister. In the ultimate analysis, he may report the matter to Parliament.
However, the recommendations of the Ombudsman are invariably implemented by the
departments because of the fear of adverse publicity.

The Ombudsman is required to make an annual report to Parliament on the exercise of his
functions. These provisions show that the ultimate arbiter in case of difference of opinion
between the Ombudsman and the Administration is Parliament. This is in consonance with
the principle of parliamentary system of government and ministerial responsibility.

The Ombudsman can also undertake investigations against the police but subject to certain
riders. In the first instance, the inquiry is to be made by the police itself. If the complaint is not
investigated by the police, or if the complainant is dissatisfied with the result of the police
inquiry, the complainant may make the complaint to a superior police officer and then come
to the Ombudsman.

Responsibility has been entrusted to the Ombudsman to review decisions by government

agencies to refuse access to official information under the Official Information Act, 1982. 30 The
Ombudsman is also a member of the Human Rights Commission.

During the year 2000-2001, the Ombudsman's office received 3,679 complaints or requests
for an investigation.31

3. OMBUDSMAN IN BRITAIN
The Ombudsman in Britain, officially known as the Parliamentary Commissioner for
Administration (PCA) has been created by the Parliamentary Commissioner Act, 1967. 32

The British Ombudsman is appointed by the Crown on the advice of the Prime Minister, and
holds office during good behaviour until he reaches the age of 65. His salary is charged on the
Consolidated Fund. He is removable only on an address from both Houses of Parliament. Thus,
his tenure is protected in the same way as that of the superior judges.

The departments placed under his jurisdiction are listed in Schedule II to the Act, but this list
can be amended by an Order in Council. Thus, additional departments can be brought within
his purview without amending the statute as time passes on and experience of his functioning
is gained. Over a period of time, the number of bodies subject to his jurisdiction has been
expanded.33

A strong feature of the Act is that unlike the New Zealand model, the British Act expressly
includes Ministers along with their departments within the jurisdiction of the Ombudsman (S.
4(4)). The British Ombudsman therefore can therefore investigate and criticise a decision
taken by the Minister personally.

Certain matters involving dominant considerations of national or public interest, mentioned

in Schedule III, are excluded from his area of operation, viz., exercise of powers to preserve the
safety of the state; matters which a minister certifies as affecting relations with other
countries; grant of honours and titles, etc.; administration of colonies; exercise of powers in
relation to investigation of crimes; matters concerning extradition; exercise of prerogative of
mercy; actions taken in matters relating to contractual or other commercial transactions; or
actions taken in respect of appointments or removals etc., in the armed forces or civil service.

The Ombudsman does not normally investigate matters which fall within the competence of
the courts. He, however, has discretion to act if he thinks that the remedy available in the
courts is not one which the complainant could be reasonably expected to use, 34 but the right of
access to the courts is not affected thereby. He also does not investigate any matter in respect
of which the aggrieved person has a right of appeal, reference or review to or before a tribunal
constituted under a law or the CROWN'S prerogative. He has discretion to refuse to pursue a
case where he thinks that there are insufficient grounds for the complaint or where he does
not regard it as falling within his scope. Barring special circumstances, he does not investigate
a matter which is more than twelve months' old. In Re Fletcher's Application,35the court
declined to question the Parliamentary Commissioner's discretion whether or not to
undertake an investigation.

Complaints do not reach the Ombudsman directly. A restrictive feature of the system is that a
person complaining of any injury suffered by him by administrative action has to send his
complaint to the Ombudsman only through a member of the House of Commons.

There is no provision of direct access to the Parliamentary Commissioner by members of the

public and this has cut back the flow of complaints to the Ombudsman. A member of the public
may thus be deprived of redress for injustice caused by maladministration if the member of
Parliament chooses not to refer his complaint to the Ombudsman. The justification for this
restriction however is that there may be a preliminary screening of complaints by members
so that the Ombudsman is not unduly over-loaded with work, and also that the traditional role
of the members of Parliament is not weakened.

This provision is justified as being in recognition of the traditional function of the members of
Parliament to seek redressal of people's grievances. There is also the underlying idea that
members of the House of Commons may do a preliminary screening of the petitions so that
the Ombudsman is not overloaded with work. The architects of the 1967 Act entertained the
fear that the Ombudsman might be swamped with complaints and so a filter ought to be
provided to keep worthless complaints away from him. The lack of direct access of complaints
to the Ombudsman has cut back the flow of complaints to him. In this respect, the British
Ombudsman compares unfavourably with the New Zealand Ombudsman to whom the
complainants have direct access. Nor can the British Ombudsman actproprio motuas may the
New Zealand Ombudsman.

When the Ombudsman proposes to conduct an inquiry pursuant to a complaint, he is required

to afford to the department concerned, and to any person who has taken the action
complained of, an opportunity to comment on any allegations contained in the complaint. He
makes investigations in private and is free to adopt such procedure as he may consider
appropriate in the circumstances of the case. He has wide powers in relation to the obtaining
of evidence. S. 8 very much strengthens his power to investigate by authorising him to require
any Minister, officer or member of a department or authority concerned, or indeed anyone
else, to furnish information or produce documents relevant to his investigation. He has the
same powers as a court to compel the attendance and examination of witnesses. He may
determine whether any person may be represented by a counsel in the investigation.

No statutory restriction enjoining secrecy on any one is to stand in the way of disclosure of
evidence to the Ombudsman. The Crown can claim no privilege in respect of the production of
documents or giving of evidence which the Crown enjoys by law in legal proceedings. 36
However, cabinet proceedings cannot be divulged. Ministers have discretion to prevent
disclosure of information by the Ombudsman where the safety of the state or public interest
makes it necessary to do so.

Further, no person is compelled to produce before the Ombudsman any document or give any
evidence which he could not be compelled to give or produce in court proceedings.

The Ombudsman has to send a report of the results of his investigation to the department or
the authority concerned, as well as to the Member of Parliament who sponsored the
complaint. If the Ombudsman finds injustice caused by maladministration, he may
recommend to the department to provide redress to the complainant. Redress may be in any
form, e.g.ex gratia payment, apology, reversal of the impugned decision. However, the
Ombudsman by himself cannot alter or rescind any decision.

If after investigation, it appears to him that injustice has been caused to the complainant in
consequence of maladministration, and that it has not been, nor will it be, remedied, he may, if
he thinks fit, lay before each House of Parliament a special report upon the case.

Each year the Ombudsman is to lay before each House a general report on the performance of
his functions. The House of Commons has set up the Select Committee on the Parliamentary
Commissioner for Administration to give guidance to the Ombudsman and to examine his
reports and to report its own conclusions to the House. The Committee frequently examines
the Ombudsman and the officials of the departments which he criticises. Occasionally the
special reports made by the Ombudsman have been debated on the floor of the House of
Common. Ombudsman, receives a number of complaints every year. Of these, only about one
third fell within his jurisdiction, and in about 40 per cent of the cases he investigated, he found
maladministration meriting criticism and suggesting remedial action for redressal of the
grievances of the complainants.

The main task of the British Ombudsman is to remedy individual grievances against the
Administration. He is concerned with the function of investigating complaints from people
who claim to have sustained' injustice in consequence of maladministration' in connection with
action taken in exercise of administrative functions of government departments.
Administrative action includes failure to act. It is not for him to criticise policy, or to examine
the merits of a discretionary decision taken by a department without its involving elements of
maladministration. A distinction is thus drawn between "maladministration" and
"unmeritorious decision". The former lies, but the latter does not lie, within the ombudsman
purview. Further, it is necessary that the complainant should have suffered injustice.

The compendious terms 'maladministration' used in the statute has not been defined
therein.37 This means that the Ombudsman himself has to define this term and work out its
ramifications. It has thus been left to the Ombudsman to develop the concept of
'maladministration' from case to case. To a great extent, therefore, the extent of jurisdiction of
the Ombudsman is a matter of his own discretion.

The British Ombudsman has interpreted the term 'maladministration' in a broad sense as
including "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude,
arbitrariness, corruption, unfair discrimination, faulty procedure, harshness, misleading a
member of the public as to his rights etc." It does not include an unreasonable exercise of a
discretion, unless this has been due to faulty administration, e.g. not considering relevant
factors, or taking irrelevant matters into account, or adopting a wrong, unfair or ill-conceived
procedure.38
To these have also been added decisions "thoroughly bad in quality" or "clearly wrong". This
has been done by the Ombudsman on the advice of the Select Committee which recommended
that while it would not encourage the Ombudsman to substitute his decision for that of the
government, it thought "that if he finds a decision which, judged by its effect upon the
aggrieved person, appears to him to be thoroughly bad in quality, he might infer from the
quality of the decision itself that there had been an element of maladministration in the taking
of it, and ask for its review". Ombudsman now criticises discretionary decisions which are
simply-bad on their merits. "Bad decisions are bad administration and bad administration is
maladministration".39 Ombudsman now regards 'maladministration' as meaning simply bad
administration, i. e., any action or inaction by government departments which he feels ought
to be criticised, including anything which is unreasonable, unjust or oppressive.

As already noted, in New Zealand, a different model is followed. There, the various grounds on
which the Ombudsman can interfere with an administrative decision have been worked out in
the Act itself. The New Zealand Ombudsman can hold a decision to be 'wrong' or
'unreasonable'. The term 'wrong' is of broad import. Doubts were expressed whether the
British Ombudsman could also do so under the rubric 'maladministration'. In this way, in
theory at least, the British Ombudsman was regarded as exercising a narrower jurisdiction
than the New Zealand Ombudsman.

WHEARE also commended the New Zealand model where the relevant statute makes no
reference to administration or maladministration and thus avoids frustrating arguments
about definitions, but includes explicitly a 'bad' law. 40 But with the extension in Britain of the
concept of maladministration, as noted above, the position in Britain approximates the New
Zealand model.

The British Ombudsman also criticises a 'bad' rule. Apart from investigating individual
complaints of maladministration, another function of the British Ombudsman is "to draw
attention to lessons which should be learnt" from the cases investigated by him and to suggest
improving administrative practice generally.41 For instance, the annual report for 1977, points
out that "there have been changes in policies some involving legislation, during the last ten
years, which have come about as indirect results" of his investigations.
The Ombudsman system has now become a well established feature of the British
Government. It provides a viable method of investigation into complaints against government
departments and of assisting the individual to secure an appropriate remedy. The
Ombudsman helps to set and maintain standards of good administration for government
departments. He also discharges some other functions besides his main function of inquiring
into complaints, e. g.,he is also an ex-officio memberof the Council on Tribunals.42

On the mutual relationship between the Ombudsman and the courts, Bradley observes that
"many problems of administrative law which are in the course of receiving judicial answers
are at the same time coming before the Ombudsman, there to be answered for his own
purposes". He further says: "The two forms of procedure are in fact likely to remain very
different and so is the constitutional status of the two systems, although there may be a need
for a few key links between the two to be established. But it would be unfortunate if the
substantive rules and principles developed by the two systems of control were to differ
sharply. One hierarchy of broadly consonant norms is needed, rather than two separate
hierarchies of conflicting norms".43

As regards the relation between the courts and the Ombudsman, the Act [s. 5(2)(b)], provides
that the Ombudsman shall not investigate any administrative action in respect of which the
individual has or had a remedy in any court of law; but this rule is qualified by permitting the
Ombudsman to investigate where he is satisfied that it is not reasonable to expect the
individual to go to the courts. It is in fact rare for the Ombudsman to refuse to investigate a
complaint. There may at times be some interaction between investigation by the Ombudsman
and the courts.

An interesting example of this is provided by the Congreve case.44 In the matter of increased
T.V. license fee in 1975, the Home Office had threatened to revoke the licences of members of
the public who had taken them out before the current licences expired, in anticipation of an
increase in fee. The Ombudsman found that, on the assumption that the legal advice given to
the Home Office was correct, there had been serious maladministration in the procedure
within the Home Office; but he did not feel justified that the Home Office should provide the
remedy sought by the complainants, i. e., reconsider the decision to revoke the licences. One of
the complainants promptly instituted proceedings in the High Court against the Home Office,
claiming that the Home Office had been abusing its statutory powers. The Court of Appeal held
unanimously that the Home Secretary's threat to revoke the licences was wholly unlawful,
being an abuse of a power given to him for other purposes, and granted the complainant his
remedy. LORD DENNING pointed out that the conduct of the department had been found by
the Ombudsman to be maladministration, and continued: "I go further, I say it was unlawful." 45
Thus, the same incident amounted both to maladministration in the process and an ultra
viresact in the decision or action pursued. A certain overlap between the Ombudsman and the
courts is inevitable and this may be in public interest.

An important contribution made by the Ombudsman is to get compensation for any one who
has been misled and has thus suffered loss because of the wrong information or advice given
by officials. As already seen, English law is deficient in this respect. 46 In one case, the Customs
and Excise department wrongly advised a company that its product would not be liable for
purchase tax, and exaction of the tax drove the company into liquidation. The department
agreed to pay 6000 in compensation.47

Reference may be made to Barlow Clowes Affair.48 The Barlow Clowes investment business
licensed by the Department of Trade and Industry collapsed in 1988 causing substantial loss
to many investors. The Ombudsman investigated the matter and found that there had been
maladministration by the DTI. Although the government did not accept the Ombudsman's
findings, it did, however, provide ex gratia compensation upto 90% of the loss.45

On the whole, therefore, the Ombudsman has succeeded in achieving a notable improvement
in administrative justice. Also, a number of general reforms have resulted from exposure of
bad department practices.

In Ex parte Dyer49 the court has laid down the following propositions as regards the
functioning of the British Ombudsman: (1) he is susceptible to judicial review but the court
would not readily be persuaded to interfere with his discretionary powers given their width
and high degree of subjective judgment involved; (2) he is entitled to limit the scope of his
investigation by choosing one of a number of complaints to investigate; (3) he is not required
to hand over a copy of the draft investigation report to the complainant for his comments; (4)
once he sends his report, after investigating a complaint, to the sponsoring member of
Parliament, he becomes functus officio and, therefore, cannot reopen the complaint.

Several suggestions have been made to make the Ombudsman system in Britain more
efficacious. His appointment merely on the advice of the Prime Minister was criticised. It was
argued that the Ombudsman was an official of Parliament, not a servant of the Executive, and
so Parliament ought to be consulted in his appointment. Now, the Prime Minister consults the
Chairman of the Select Committee before making an appointment.

It has been suggested that complainants should have direct access to the Ombudsman instead
of through the members of Parliament. Neither in Australia nor in New Zealand there is any
such restriction and complainants have direct access to the Ombudsman there. The present
system makes him too remote from the public and keeps the number of complaints to him
rather low.50

It has also been suggested that the Ombudsman should have power to suggest changes in
administrative procedures as well as in law and also that he should be able to carry out
inspection of bodies within his jurisdiction, and be able to draw Parliament's attention to any
unforeseen injustices resulting from legislation.

But the most important criticism that is raised against the present system is that the
Ombudsman is working within a very restricted frame of reference, viz., 'maladministration
causing injustice'. This phrase is regarded as a very narrow basis for Ombudsman's
jurisdiction. He cannot question the merits of a decision, taken by a department in the exercise
of a discretion vested therein, if it was taken without maladministration. It has been suggested
that there should be a sharper definition of Ombudsman's jurisdiction so as to enable him to
give relief for unreasonable, unjust. oppressive action. This was the suggestion made by
Justicein 1977.51 It has also been suggested that the concept of maladministration should be
interpreted broadly so as to include a wrong administrative decision. In this connection, the
New Zealand model has been commended. The British Ombudsman commenting on the
Justice report in his report for the year 1977 stated that the limitations found on his powers
by Justicewere more theoretical than practical, and as it was there was no difficulty in his
powers to investigate complaints involving "unjust, oppressive or unreasonable"
administrative action.

Criticism has been directed against the restriction on the Ombudsman's jurisdiction that
nationalised industries, complaints regarding government contracts and those relating to
maladministration in personnel matters, e. g. appointments, dismissal and superannuation, lie
outside his purview.

The Select Committee on the Parliamentary Commissioner for Administration 52 has expressed
the view that in principle all areas of government administration should be investigable by the
Ombudsman unless in particular cases a compelling argument can be made out for their
exclusion. Accordingly, government's commercial activities should not be exempt from his
examination. "The Government has a duty to administer its purchasing policies fairly and
equitably, and if those policies are the subject of complaint then the complaints should be
investigated; this is particularly important if any future Government were again to use the
award of contracts as a political weapon."

The Ombudsman is not to question a bona fide commercial decision to purchase goods or
services from one firm rather than another, but if decisions of this kind are taken with
maladministration then it is right that they should be reviewed. 53 As regards personnel
matters, this committee has said, "...the exclusion of complaints from serving public
employees about matters of discipline, promotion, rates of pay and terms of service is
justified, but we do not consider that...bringing within jurisdiction other purely administrative
acts of Government Departments in their capacity as employers would cause any harm to any
one." The government has not so far accepted these recommendations. 54

The concept of Ombudsman has been criticised by some scholars on the ground that what
Britain really needs is a reform of Administrative Law, as such, and that Ombudsman is a mere
palliative and does not deal with the central problem in the British system, namely, lack of a
comprehensive body of Administrative Law.55
The fact however remains that quite a large number of cases involving some degree of
maladministration is found.56

In course of time, the Ombudsman system has also been established in the area of health
services to investigate complaints against the administrative actions of health authorities.
Thus, three Health Service Commissioners have been appointed for this purpose.

Another Ombudsman system has been established to deal with complaints against
administrative actions of local authorities.57 These bodies come in touch with the people a
great deal. A local commissioner can investigate a complaint of maladministration against a
local government. If the local commissioner reports that a complainant has suffered injustice
through maladministration, the local authority must notify the commissioner within three
months of the action taken or proposed to be taken in response to the report. 58 Justice has
commended this development: ".this trend towards specialized Ombudsman is desirable in a
country as populous as the United Kingdom. To combine all types of Ombudsman function in
one office would produce an unwieldy bureaucracy."59

4. AUSTRALIAN OMBUDSMAN

Australia has also opted for the Ombudsman system. Being a federation, Australia has a two
tier Ombudsman system; practically, each state has its own separate Ombudsman and there is
the Ombudsman system at the Centre.

The Commonwealth Ombudsman system was established by the Ombudsman Act, 1976. The
1976 Australian Act has been amended several times, the last Amendment Act having been
passed in 1994. Most of the provisions in the Australian Act correspond with the New Zealand
Act.

The Ombudsman system consists of the following:

1a) a Commonwealth Ombudsman;

 1b) 3 Deputy Commonwealth Ombudsmen; and
1c) a Defence Force Ombudsman.

The Commonwealth Ombudsman also acts as the Defence Force Ombudsman.

The Ombudsman (including the Commonwealth Ombudsman and the Deputy Commonwealth
Ombudsman) holds office for seven years and is eligible for re-appointment. He is appointed
by the Governor-General and he retires at the age of 65 years. To ensure his independence, he
cannot be removed from his office except on an address by the two Houses of Parliament
praying his removal on the ground of misbehaviour or physical or mental incapacity'. Thus,
the Ombudsman in Australia is an executive government appointee and Parliament plays no
role in his appointment.

The Ombudsman has jurisdiction to investigate complaints against action taken by several
major government departments and prescribed authorities. The Ombudsman's primary
function is to investigate, either on a complaint or suo motu,into a 'matter of administration'
taken by a department or a prescribed authority. A complaint can be made to the Ombudsman
orally or in writing, but the Ombudsman can require the complainant to reduce his complaint
to writing.

'Taking of action' includes a reference to--(a) the making of a decision, or recommendation or

the formulation of a proposal; and (b) failure or refusal to take any action. Thus, the positive
"taking of action" includes the negative "failing to take action".

The Act does not define a 'matter of administration' into which the Ombudsman can enquire
"not only because of the inherent difficulty of so doing, but also by reason of a definition
resulting in the establishment of doubtful dichotomies, for example, as between a matter of
administration and a matter of policy."60 Thus, Ombudsman has flexibility and he can take a
wider view of his functions. He can investigate matters arising from business activities of
governmental bodies within his jurisdiction.

Ombudsman also has power to certify that there has been an unreasonable delay in the taking
of a decision. This amounts to a decision not to do the thing or act concerned and the
interested person then becomes entitled to seek review of that action.
Several types of action fall outside the Ombudsman's jurisdiction, e. g., he cannot investigate
into an action taken by a Minister, but an action taken by a delegate of a Minister is within his
jurisdiction. He may also investigate into departmental advice to a Minister.

The Ombudsman may not investigate a complaint which is frivolous or vexatious, or has not
been made in good faith, or where the complainant became aware of the action complained of
more than 12 months before making complaint to the Ombudsman, or if an alternative
remedy is available to the complainant. The complainant should have sufficient interest in the
subject-matter of the complaint. The Ombudsman can therefore refuse to investigate a
complaint on the ground that the complainant does not have sufficient interest in the subject
matter of the complaint. The Ombudsman does not investigate a complaint where the
complainant has a right of access to a court or tribunal unless he is of the opinion, that in all
the circumstances of the case, the failure to exercise the right is not unreasonable. Also, the
complainant should seek to have his complaint resolved by the concerned authority before
coming to the Ombudsman.

Both the Ombudsman and the department concerned can refer to the Federal Court for
determination of any question relating to the exercise of a power or function by the
Ombudsman. Thus, any doubt about the jurisdiction or power of the Ombudsman can be
resolved judicially.

Unlike the British Act, the Australian Act dose not use the term 'maladministration'. But, like
the New Zealand Act, it lays down a catalogue of circumstances in which the Ombudsman may
consider an administrative action to be defective. The crucial provision is section 15. The
Ombudsman has to look for the following faults: that the action (action means decision,
recommendation, act or failure or refusal to take any action or to make a decision or
recommendation):

1i) appears to have been contrary to law;

1ii) is unreasonable, unjust, oppressive, or improperly discriminatory;
 1iii) is in accordance with a rule of law, a provision of an enactment or a practice, but
the rule, provision or practice is or may be unreasonable, unjust, oppressive 61 or
improperly discriminatory;
1iv) is based either wholly or partly on a mistake of law or of fact; or
1v) is based either wholly or partly on improper motives, irrelevant grounds or
irrelevant considerations;
1vi) reasons for a decision were not given but should have been given; or otherwise, in
all circumstances, wrong.

The intention underlying category (vii) is to enable the Ombudsman to question the propriety
of an action by an official where the impropriety might not fall within the other defined
categories. The Ombudsman is not to canvass the merits of an administrative action where
there is no element of maladministration, but the power in category (vii) appears to be wide
enough to allow the Ombudsman to canvass the merits of a decision in the course of reaching
a conclusion that the action was wrong.

Category (ii) authorises the Ombudsman to condemn an action as unreasonable. The concept
of 'unreasonableness' here appears to be broader than the judicial view thereof. 62 The
Ombudsman applies an objective standard of reasonableness to the conduct in question. 63 The
Ombudsman can also find that a discretionary power has been exercised for an improper
purpose or on irrelevant grounds. Where the action complained of involved a decision to
exercise a discretionary power in a particular manner, or not to exercise it at all, the
Ombudsman may find that irrelevant considerations were taken into account, or that reasons
should have been given for taking or not taking the decision, but no reasons were given.

The Ombudsman has no power to set aside a decision of an administrator, or to require an

action to be taken or not taken, nor can he substitute his own decision for that of the decision-
maker. He may suggest any of the following remedial actions:

2i) The defective action should be referred to appropriate authority for further
consideration;
 2ii) some particular action should be taken to rectify, mitigate or alter the effects of
the defective decision;
2iii) a decision should be cancelled or varied;
2iv) a rule of law, provision of an enactment or practice on which a defective decision
was based should be altered;
2v) reasons should have been, but were not, given for a decision to which this section
applies; or
2vi) some other thing should be done in relation to a defective decision.

The Ombudsman gives reasons for his opinions.

When the Ombudsman is investigating action taken under a statutory discretionary power, he
may require the department to refer a specified question relating to the taking of that action
or exercising the power to the Administrative Appeals Tribunal. If so, reference has to be
made and the Tribunal then gives an advisory opinion on that question.

The functions of the Ombudsman do not seek the resolution of a complaint as an end in itself. 64
A complaint may indicate a defective administrative practice or procedure. Investigation of a
complaint may reveal that though a practice or procedure is not in itself defective, there is,
nevertheless, room for improvement with a view to achieve a higher level of departmental
efficiency and to avoid similar complaints in future. "The Ombudsman's operations should at
all times be of assistance to good management."65 The Ombudsman can also take a critical
view of the law under which administrative action complained of has been taken.

The Ombudsman has to make an annual report to Parliament of his operations, and may, from
time to time, make reports to Parliament during parts of a year. In addition, he may also make
a special report to the Houses of Parliament.

The Ombudsman thus enjoys a very wide jurisdiction to investigate official administrative
action with a view to helping a citizen. If a department does not take action as recommended
by the Ombudsman within a reasonable time, he can report to the Prime Minister. In addition,
he may also make a special report to the Houses of Parliament. This is the ultimate means of
making the Ombudsman's role effective. But this provision lies dormant most of the time; the
Ombudsman does not find it necessary either to report to the Prime Minister or make a
special report to Parliament, because most of the time the departments concerned accept his
recommendations.

The Commonwealth Ombudsman also has functions under the Complaints (Australian Federal
Police) Act, 1981. Complaints against the police can be made to the Ombudsman. Most of these
complaints relate to individual behaviour of members of the Australian Police Force.

The Commonwealth Ombudsman also has functions under the Freedom of Information Act
1982 (FOIA). The Act accords to the Commonwealth Ombudsman a review role firstly in
entertaining complaints about an agency's delay in dealing with a request for documents. The
Act also explicitly states that the investigative powers of the Commonwealth Ombudsman
apply fully to complaints made about an agency's decision under the FOIA, e. g.,to refuse to
produce a document.66

The Commonwealth Ombudsman receives quite a large number of complaints, both written
and oral. A large number of cases are completed without the Ombudsman resorting to the
formal technique of investigation. In evaluating the work of the Ombudsman, it has been said
that he deals effectively with a number of complaints and that he provides very useful
assistance to ordinary citizens who are in conflict with the Administration. His activities have
led to several procedural reforms within the administrative structure.

The Australian Prime Minister has said that the institutions of Ombudsman has helped the
government administration to be "responsible, adaptive and sensitive" to the needs of the
citizens. According to the Prime Minister, the institution has neither come in the way of
ministerial responsibility nor has prejudiced in any way the role of the members of
Parliament.67

5. EVALUATION OF THE INSTITUTION

From the brief description of the Ombudsman system as it functions in common-law

countries, it is possible to develop a synthetic view of the essential features of the institution.
Keeping in view the fact that in the common-law countries, parliamentary system prevails, the
first important element of the Ombudsman's office is that he is an agent of Parliament and
functions on its behalf. Traditionally in a parliamentary system, government is responsible to
Parliament, and it is one of the functions of Parliament to supervise the Administration as
each Minister is individually responsible to Parliament. As Parliament, in view of its structure,
procedure and work, cannot effectively discharge this important task, so Ombudsman is
appointed to perform that task on behalf of Parliament. From this point of view, Ombudsman
cannot be regarded as anything foreign to, or incompatible with, the parliamentary form of
government.

Some crities did assert that the Ombudsman will supplant the parliamentary system and
undermine ministerial responsibility to Parliament. The Australian Ombudsman has refuted
this view as follows:68

"Experience has shown that far from eroding such traditional systems, the institution of
Ombudsman has reinforced and supported their functions. It is, I think, significant that on more
than one occasion government Ministers as private Members have chosen to lodge complaints with
my office on behalf of constituents. Similarly, it is noteworthy that in a number of cases Ministers
have, as a result of investigations by my office of official actions, reviewed decisions in the light of
information not previously known to them. On the other hand, I quite often receive complaints
under the Ombudsman Act where it is apparent to me that report to the political process might
well have a better chance of achieving a result the complainant would like".

Efforts have been made in all countries to make Ombudsman independent of the Executive as
well as of Parliament in his day to day work. Adequate precautionary provisions have been
made in the law for the purpose. For example, his tenure is fixed and he can be dismissed only
by following a special procedure and on specified grounds only.

The primary function of the Ombudsman is envisaged to be redressal of individual grievances

against the Administration. He has jurisdiction to investigate into complaints by individuals
against action taken by government departments and public authorities.
Complaints are thus made to Ombudsman by individuals. He takes cognizance of such
complaints. In New Zealand and Australia, persons can directly complain to the Ombudsman,
while in Britain, complaints are routed through members of House of Commons. In New
Zealand and Australia, he can even move suo motu to inquire into a matter. Thus, the primary
purpose underlying his office is to provide a forum in addition to the courts, to redress the
grievances of the individuals against the Administration. This has been found necessary
because, as already stated, the present-day judicial review has not been found effective
enough to redress individual grievances.

Basically, the Ombudsman concerns himself with 'bad' administration or 'maladministration'.

In Britain, the compendious term 'maladministration' has been used leaving it to the
Ombudsman himself to work the nuances of this term from case to case. In New Zealand and
Australia, specific grounds have been mentioned in the respective law.

As regards the sanctions at his disposal, the Ombudsman cannot himself quash any offending
administrative action or to himself give relief to the complainant. He has power to recommend
to the concerned department as to what relief may be given to the specific complainant when
his grievance is found to be justified. Ombudsman can also report to Parliament on the results
of his investigation into individual grievances. This is a power of consequence, for no
department wants to get adverse publicity in the press or be discussed on the floor of the
Parliament. Because of this ultimate sanction of reporting to Parliament, the
recommendations made by the Ombudsman are given due weight and are invariably accepted
by the department concerned, and individual grievances redressed.

Ombudsman is in a very strong position to redress individual grievances arising out of bad
administration. A major difficulty, as pointed out above, in the present dispensation for
getting relief against the Administration through the courts is the difficulty of obtaining
sufficient evidence of the impropriety committed by it. The strong point of Ombudsman is that
he has access to departmental files. On a complaint being made to him by an individual against
the Administration, the Ombudsman satisfies himself by looking into the relevant papers
whether there was any fault or lapse on the part of the Administration. The complainant is not
required to lead any evidence, or to prove his case, before the Ombudsman. It is for the
Ombudsman to find out whether the complaint is justified or unjustified. No court fees are
payable for filing a complaint with the Ombudsman; no lawyer need be engaged because the
Ombudsman himself is the complainant's lawyer. A probe by him into administrative
functioning does not involve much publicity; he works silently and discreetly and the
Administration gets a chance of rectifying its mistakes without much loss of face. The
Ombudsman can give relief to an individual on many such grounds on which the courts are
not able to give relief. The proceedings of the Ombudsman are not formalised or routinised
and do not take long to be completed. The work of the Ombudsman is complementary to the
work of the courts.

From a survey of the working of the Ombudsman systems in New Zealand, Britain and
Australia, one thing stands out, viz.,the purpose of the Ombudsman is to control the
Administration and thus give protection to the citizen against injustice brought about by
faulty administration. The Ombudsman is closely concerned with the correct functioning of
the administrative machine. His function is to locate 'maladministration' or faults in the
administration. He does not upset an administrative decision in the absence of an element of
maladministration even though he takes a different view of a decision on merits from what
the Administration has taken. The Ombudsman has a 'frontier' with the law; in some respects
an 'overlap'; but his criteria for judging maladministration or injustice are not co-extensive
with those of the law courts. Ombudsman can thus deal with many facets of administrative
action with which the courts may not concern themselves, e. g. Ombudsman can give relief to
the individual for delay in administrative action, or when the complainant has not received
any answer to his communication from a department, or when he complains of departmental
bias in making a decision and so on. Ombudsman also helps in gradually improving
administrative procedures by making recommendations for modifying these procedures.
Ombudsman thus can help in developing by his observations and suggestions a body of
principles of administrative due process. His functioning leads to setting and maintaining
standards of good administration for government departments which he does from case to
case. An Ombudsman is a statutory watchdog over the Administration. He acts as an external
agency, outside the administrative hierarchy, to probe into administrative faults.
Ombudsman provides a valuable method of investigating individual complaints against
government departments. Citizens' complaints against the administration are investigated by
experienced staff who are not members of the departments concerned. His findings of fact and
his reasoned conclusions in a complaint may ultimately be published and thus errors and
mistakes committed by government officials in handling citizens' affairs are exposed.
Ombudsman assists an individual to secure an appropriate remedy from the department. The
remedy may take several forms, e. g., apology, fresh decision, payment of ex
gratiacompensation; any other financial benefit (as for example, waiver of arrears of tax,
payment of interest or refunding of expenses), departmental review of his case and similar
other cases, review of relevant departmental policy, or review of delegated legislation
contributing to injustice to the citizen. The costs of his office are borne by the taxpayer and
not by the complainants. A complainant need not establish a breach of law; maladministration
causing injustice is enough. On the whole, Ombudsman seeks to hold the balance between the
citizen and the state and thus he contributes to the greater efficiency and humanity of the
administrative process.

It needs to be emphasized that while basically the function of Ombudsman is to redress

individual grievances against the Administration, the value of the Ombudsman is not only
curative but also preventive. He not only gives relief to the aggrieved party in certain
situations, but he also induces more care in the Administration while taking decisions, and,
thus, many potential grievances are minimised and rights of the people protected and
preserved from infringement. His reports result in improving the quality of administration.
Also, investigations by him lead to modifications in departmental procedures which help to
remove potential complaints at their source, Also, to the extent the Ombudsman holds a large
number of complaints against the Administration as unsubstantiated, he helps in vindicating
the Administration, raising its credibility, dispelling doubts about its fairness, and improving
its image in the public eyes. Removal of individual grievances keeps the public satisfied. Even
when no relief is given by the Ombudsman in a specific case, the mere fact that an
independent authority has reviewed the matter, and given reasons for the administrative
action complained of, removes the sense of dissatisfaction from the complainant's mind and
thus keeps the people satisfied. The Ombudsman thus helps in removing the crisis of
confidence between the Administration and the public which otherwise could be the negation
of good administration. It is a sign of public satisfaction with the functioning of the
Ombudsman that the Ombudsman idea has come to be applied to many more fields than
originally thought of.

A few basic differences between the courts and the Ombudsman may be noted: unlike the
courts, Ombudsman does not have power to quash or reverse an administrative decision. He
can however suggest various types of remedies to the aggrieved individual which the court
may not be able to provide. The Ombudsman does not follow any elaborate court procedure.
Action by him is fast and inexpensive. Courts do have advantage over the Ombudsman in one
respect, viz., courts are able to intervene very swiftly to prevent the recurrence or continuance
of wrongful acts, as they can grant declarations, injunctions, writs and stay orders. But the
Ombudsman has no such power. He makes a report after the event has taken place, However,
on many administrative matters, Ombudsman's inquisitorial procedure is a much more
efficient way to establish the truth than the adversary system followed by the courts. On the
other hand, there are disputes between citizens and the Administration which may be better
resolved by an authoritative application of law to the facts as established by an adversary
procedure. Both institutions are complementary to each other as both are seeking to evolve
and elaborate in their own ways principles of good administration and trying to enforce them.

The fact remains that wherever the Ombudsman system has been introduced, he has come to
be regarded as a positive weapon in the citizen's armoury against arbitrary administrative
action. Individual grievances against administrative authorities are redressed by him.

In New Zealand, before reporting to Parliament, the Ombudsman should refer the matter to
the Prime Minister. In Britain, he has to refer the same to the Minister concerned.

In all the countries, publicity in the press and an enlightened and vigilant public opinion are
major sanctions behind the Ombudsman's recommendations. No department wants to get an
adverse press or public criticism by refusing to accept what the Ombudsman wants, unless
and until it is absolutely necessary or inevitable.
As regards the scope of activity of the Ombudsman, it may generally be said that he shares in
common in all countries the function of controlling the administration and thus protects the
rights and liberties of the people. Generally speaking, he concerns himself with faults in the
administration. He serves as a general grievance-man, hearing and rectifying complaints. He
seeks to improve departmental procedures. His value is not only curative but preventive as
well. He gives not only relief to the aggrieved citizen, but also induces a general element of
care in the Administration in taking decisions, and to that extent many potential grievances
are eliminated and rights of the people protected and preserved from infringement.

The competence of the Ombudsman vis-a-vis ministerial actions is not uniform in all countries.
In New Zealand, the Ombudsman can scrutinise a department recommendation to the
Minister but not a decision by the Minister. In England, ministerial action would be outside the
scope of his work.

As regards matters of discretion of the Administration, generally, it may be true to say that the
Ombudsman does not recommend a change in a decision merely because if he were to take
the decision himself in the facts and circumstances on record, he would have taken a different
view from what the administration has taken in the particular instance. However, within
certain limits, he can probe into discretionary decisions as well. In Britain, he will interfere if
the element of fault is present. In New Zealand, he has somewhat wider choices, as even a
wrong decision may be called in question, but there the grounds on which he can make a
recommendation have been laid down in the Act itself. He makes a recommendation only
when a statutory fault is present and not merely because there is an honest difference of
opinion between him and the Administration.

It may be noted that much against the popular belief in India, Ombudsman is not directly
concerned with fighting corruption in the ranks of the civil servants. The main function of the
Ombudsman in every country is to give relief to the individual complainant if there is fault in
the Administration. He is not concerned with undertaking the follow up measures with a view
to impose disciplinary sanctions against a civil servant. One of the important facts of life in all
these countries where the Ombudsman functions at present is that the element of corruption
in government services is extremely low. If one were to look at the Ombudsman's reports in
New Zealand, he would be surprised that there is no mention anywhere of corruption as a
ground for a wrong decision in any case. But things are different in India, and that element has
to be considered and given due weight in devising a scheme for the Ombudsman to operate. It
may, however, be noted that to the extent the lapses and faults of the Administration are
exposed by the Ombudsman, he will help in reducing corruption in the Administration.

On the whole, from a review of the working of the Ombudsman system in the common law
countries, it appears that Ombudsman has neither been found to be inconsistent with the
system of judicial review nor with that of parliamentary form of government. The
Ombudsman, in reality, strengthens the latter and supplements the former. As the
Ombudsman acts as the eyes and ears of the Parliament, it is enabled to exercise its traditional
role of controlling the Administration more effectively. Ombudsman supplements the judicial
review because there are many aspects of the Administration which lie outside the purview of
the courts. The Ombudsman can reach them and make adequate recommendations.

It would also appear that to the extent the system of administrative tribunals is strengthened,
Ombudsman's jurisdiction can be curtailed. Administrative tribunals can look into
administrative decisions on merits and thus give a wider protection to the people. But even
with an extension and improvement in the tribunal system, certain aspects of the public
administration would still fall outside the tribunal system, and so Ombudsman never becomes
redundant. The experience of Britain is very relevant in this respect. After taking steps to
reform the tribunal system recently on the recommendations of the Franks Committee, it was
found necessary to establish the system of Ombudsman as well. The Ombudsman and
tribunals are complementary to, but can never supplant, each other.

Unlike the courts, Ombudsman has no power to quash or reverse an administrative decision
and, therefore, he does not interfere with the responsibility of the administrators. He follows
no elaborate court proceedings. His action is fast and comparatively inexpensive as compared
to the court proceedings. The Ombudsman has greater capacity, opportunity and power to get
at the facts of a case. He can deal with many facets of the actions of the Administration with
which the courts may not concern themselves and thus be able to give any relief, e.g., delay, no
answer to the applications, tardiness, bias in making decisions, not giving sufficient
information or reasons for a decision etc. Through his observations and suggestions, the
Ombudsman may gradually develop a body of principles of administrative due process. The
mechanism of judicial review is not able to do that in a coherent fashion. The courts have a
load of work to do. The Ombudsman, as an independent external control agency, is much more
effective than any control-mechanism which the bureaucracy can provide within itself.
Because of his overall perspective and view of procedures as followed by the various
departments of the Administration, he can transmit his specialised experience and knowledge
to the Government and the Administration so that all departments benefit, and move towards
an integrated and uniform approach in administrative matters. Thus, in all the countries
reviewed here, a view has been expressed that the Ombudsman system has led to an
improvement of administrative standards and efficiency.

In none of the countries reviewed here, the Ombudsman was adopted because of any very
serious criticism against the Administration, or that injustice was frequently perpetrated by it
against the individuals. To take the example of Britain, the Ombudsman has been established
even when it has been asserted that the Administration maintains traditions of integrity and
impartiality. The Ombudsman can therefore be regarded as the manifestation of the society's
respect for rule of law, social justice, equality before the law and democratic ideals. The
feeling that there might be isolated cases of injustice going unremedied under the present
dispensation of things was the raison d'etre for establishing the system. Also, the Ombudsman,
by its mere existence, counteracts the tendencies of the Administration towards transgression
of authority and misuse of its powers. Besides, the Ombudsman is not merely to control the
Administration, he also has a number of other positive aspects as well. He works for the
improvement of administrative procedures and practices, and of law, for the benefit of the
general public. He also helps in increasing public confidence in the Administration. Complaints
about administrative action are fully and impartially investigated by him. The existence of a
non-political agency, independent of the administration, duty-bound to investigate and
examine charges of wrong and negligence against administrative organs, and whose
investigations can be verified and criticised by anybody, must necessarily help in maintaining
the confidence of the general public in the Administration. If a grievance is justified, and thus
he helps to keep the Administration in the narrow path of rectitude. But that is not all.
Because many complaints against the Administration, on investigation, are found to be
unjustified and unsubstantial, to that extent the image of the Administration improves in the
public eye; Administration stands vindicated and the faith of the public in it is strengthened.
This is a great advantage accruing to the administration and the government.

In a democracy, co-operation between the Administration and the public is very essential for
the effective functioning of the Administration, but it becomes difficult to promote such co-
operation if there is an element of district and lack of faith on the part of the people in the
Administration. In India, today, people have an apathy towards the Administration and this is
one major reason for the ineffectiveness of the Administration. The Ombudsman helps in
relieving this situation to a great extent. The public remain satisfied because a channel is open
to it for redress of its grievances against the administration. Even if no relief is given in a
particular case, the mere fact that an independent authority has reviewed the matter gives
satisfaction to the complainant. Many complaints arise, as the experience shows, because the
Administration fails to communicate reasons, and the complainant fails to appreciate the
reasons, lying behind an administrative decision. If the same are explained to the complainant,
often he would feel satisfied that, after all the administration had not acted in an arbitrary
fashion.69 The Ombudsman therefore servas an important public relations aspect; he acts as a
bridge on the gulf which usually exists between the people and the administration. The crisis
of confidence between the Administration and the public can be the negation of good
administration and the Ombudsman helps in relieving this situation. The New Zealand
Ombudsman brings out this aspect of his work in the following words:

"It would be incorrect to look upon my office as being 'anti-administration'. The Ombudsman is not
concerned to try to find fault if no fault exists; and it has proved necessary to advise a few
complainants, in quite forceful terms, that they should cease groundless attacks on departments or
officials. In so far as thorough and independent investigation of allegations of malpractice
establishes that those allegations are unfounded, the office acts as a valuable shield to the
administration, while at the same time members of the public can be assured that any such
allegations, if reasonably supported by evidence or inference, will be carefully investigated. In fact,
up to the present time, no such allegations have been found to be justified". 70
Wherever the Ombudsman institution functions, it has come has come to be accepted by the
administration and there is no hostility, apathy or antipathy against it. In earlier stages, the
civil servants might have felt some apprehension that the Ombudsman might turn out to be a
kind of witchhunt, but by and large this apprehension has now been dispelled by the way the
system has worked so far. Ombudsman tells the administrators as to where they have gone
wrong so that matters can be improved. If a department were to take the view that whatever
it has been doing is the only way to do a thing, and if it starts defending its position in every
case, then difficulties might arise. But if a department were to do some objective, positive and
constructive thinking, then it should welcome suggestions made by the Ombudsman because
in this way the working of the department may improve.

The administrators are also conscious of, and appreciate very much, the public relations
aspects of the Ombudsman. To the extent the Ombudsman upholds the administration against
the individual, the Administration stands vindicated and is protected against unjustified
criticisms and its public image improves. To a very large extent, the inarticulate public feeling
that the bureaucrats act in an arbitrary fashion has been dissipated.

As a result of the institution of the Ombudsman, they administrators become somewhat more
careful in taking decisions. But this has not hampered their initiative. So long as they act
honestly, they have nothing to be afraid of.

Departments may be able to use the Ombudsman as a lever to improve things in the
department. The observations made by the Ombudsman from time to time help in improving
departmental procedures.

The way the Ombudsman has functioned has not in any way compromised the traditional
principle of anonymity of the civil service. The Ombudsman treats the department as a unit
and does not mention any specific administrator by name in his report. If there is anything
sensitive and not desirable to be published, the Ombudsman can be depended upon the
exercise of his judgment.

The departments of government are apt to develop a sense of righteousness and a routinised
and stereotyped outlook. A psychology takes hold of them that the way in which they handle
things is the only way to do them. The functioning of the Ombudsman does help in keeping
this feeling in check and at times the administrators are given choices to take decisions, and
sometimes the alternatives suggested may be better than what they have been doing all along.

Ombudsman thus promotes good governance in the country and helps the administrators
incultivating the sense of responsibility and accountability.

Considering the working of the Ombudsman-system in other countries, and especially in New
Zealand, and taking into consideration the mores of its working, and the reasons which led to
its adoption in those countries, the adoption of the system in India would appear to be a great
desideratum. In fact, the case in India to adopt the Ombudsman is much stronger than in many
countries where it has been adopted. If in those countries with a high and sophisticated sense
of administrative responsibility, nearly 25 per cent cases are found needing relief at his hands,
one wonders as to what would be the percentage of such cases in India. If Britain, with all its
liberal traditions, and great experience of administration, finds it necessary to go in for an
Ombudsman, there does not appear to be any less necessity for India to adopt the same. The
arguments regarding the parliamentary system and the court review procedures lose all their
significance and validity when we find New Zealand, Britain and Australia, three common law
countries, with well established traditions of parliamentary form of government, opting for it.

There is a much greater chance of administrative excesses in a country like India with
practically no established mechanism to redress individual grievances. In fact, the hang-over
from the British period still remains in the Administrative field and the Administration, at
least that part of it which comes in contact with the public, hardly feels that it owes any
responsibility to the people. This mental attitude of the Administration needs to undergo a
change. The gulf between the people and the Administration needs to be bridged. There is at
present a lot of talk of corruption in the administrative ranks and this has completely
undermined and corroded the moral authority and the image of the administration.

The Ombudsman would help in redeeming the situation in two ways. To the extent he fails to
discover "skeletons" in the administrative cupboards, to the extent he finds the complaints to
be unjustified, he will vindicate the Administration and help in improving its public image.
Secondly, he will inculcate a sense of responsibility in the administrators and make them take
more care in taking decisions.

A source of corruption may partially be traced to the existence of large discretionary powers,
not properly defined and articulated, and exercised by administrators without any effective
review procedure. If the administrator knows that each and every of his decisions is subject to
a review by the Ombudsman, he will undoubtedly be more cautious in arriving at his
decisions, and will be slow in discriminating among people, or showing undue favours or not
giving to one what is due to him.

Above all there is the argument of higher values in support of the institution, India swears by
the concept of social justice and equality before law. It, therefore, becomes an extremely
important matter that suitable methods and machinery are provided so that individuals may
have a fresh look into the working of the Administration and no one harbours a sense of
injustice. In a welfare state, justice should not only be done but seem to be done. Even a single
case of injustice would justify the institution of Ombudsman in the democratic society of India.
Needless to say that even good law badly administered may result in a denial of equality of
law and, therefore, it becomes absolutely essential not only to make good laws but also to
ensure that the administration functions without discriminating between one individual and
another.

However, there are certain 'musts' which need be fulfilled before the institution of
Ombudsman can attain success in its work. The Ombudsman should be a person of integrity,
free from political influences of the day, and one who enjoys prestige and confidence both
from the public and the Administration. He should be capable of cultivating a good public
relationship with the people coming to him for redress and with the Administration into
whose activities he will be probing. It is necessary that the Ombudsman, by his training and
background, should be capable of taking an objective, restrained and detached attitude; he
should work in the spirit not of finding faults with the departments, but as a guide,
philosopher and helper to the Administration in its difficult assignment.
 6. OMBUDSMAN IN INDIA

(a) Introductory

Needless to say that the need to establish an Ombudsman system is no less intense in India
than other countries having the same system for the considerations which led to the creation
of Ombudsman in those countries exist in ample measure in India as well. 71 Administrative
delay and discourtesy are proverbial. The mechanism and procedure to redress the
grievances of the individual against the administration are inadequate. The administration in
India has been acquiring vast powers in the name of socio-economic development and, thus,
chances for administrative excesses and abuse of powers abound. Therefore, close
supervision over the administration, and a mechanism for redressal of grievances become
essential. If in countries like New Zealand, Britain or Australia which have a high standard of
administration, cases of maladministration can be found, there is no gainsaying the fact that
many more such cases will be revealed here if there were a proper mechanism for
investigation. The procedures to redress individual complaints through the courts or the
legislature or the administration are as inadequate as in other common-law countries.

There is a peculiar element present in the Indian scenario which is not so much visible
elsewhere, viz., widespread public perception of administrative corruption which has very
much undermined public confidence in the administration and has very much corroded its
moral authority and image. Conferment of large administrative and discretionary powers
breed corruption and, therefore, if the administrator knows that his decisions are subject to
scrutiny by an independent authority, he will be more careful in arriving at his decisions and
be less tempted to misuse his powers an show undue favours to any one. Impelled by these
considerations, the Central Government took some steps in the past to create the Ombudsman
system but somehow all these steps proved abortive.

(b) Recommendations of the Administrative Reforms Commission

In its report dated the 20th October, 1966, the Administrative Reforms Commission, after
carefully evaluating the pros and cons, advocated the adoption of the Ombudsman-type
institution for redress of citizens' grievances.72 The redressal of citizens' grievances, the
Commission felt, is basic to the functioning of democratic governments, and will strengthen
the hands of the government in administering the laws of the land, its policies "without fear or
favour, affection or ill-will", and enable it to go up in public faith and confidence without
which progress would not be possible.

In the view of the Commission, an institution for the removal of prevailing or lingering sense
of injustice springing from an administrative act is the sine qua non of a popular
administration. In suggesting the Scheme, the Commission took note, on the one hand, of the
public feeling against the prevalence of corruption, wide-spread inefficiency and
administration's unresponsiveness to popular needs, and, on the other hand, of the necessity
to give protection to the Administration, to project its true image, and to dispell from the
public mind false notions and prejudices against the quality and character of the
Administration. The Commission thus pleaded the case for the Ombudsman in these words:

"In essence, therefore, the main issue before us is how to provide the citizen with an institution to
which he can have easy access for the redress of his grievances which he is unable to seek
elsewhere. In such cases, the fact remains that the individual himself has a feeling of grievance
whatever the nature of the grievance may be, and it is up to the State to try to satisfy him, after due
investigation, that the grievance is untenable in which case no action is called for, or is false in
which case he must answer for having made a baseless accusation. The fact that he has had a
reasonable opportunity of presenting his case before an authority which is in a different hierarchy
from the authority which passes the order and which is independent and impartial, would in itself
be a source of satisfaction to the citizen concerned even where the result of investigation is
unfavourable to him".

In present circumstances with the expanding activities of Government, the exercise of

discretion by administrative authorities, howsoever large the field may be, can neither be
done away with nor can it be rigidly regulated by instructions, orders or resolutions. The need
for ensuring the rectitude of the administrative machinery in this vast discretionary field is
not only obvious but paramount. Where the citizen can establish the genuineness of his case,
it is plainly the duty of the State to set right the wrong done to him. The need for giving this
approach a concrete form arises from the fact that parliamentary supervision by itself cannot
fully ensure to the citizen that rectitude over the entire area covered by administrative
discretion. Nor have the various administrative tiers and hierarchies proved adequate for the
purpose. A tendency to uphold the man on the spot, a casual approach to one's own
responsibilities, an assumption of unquestionable superiority of the Administration, a feeling
of the sanctity of authority and neglect or indiffernece on the part of a superior authority may
prevent a citizen from obtaining justice even at the final stage of the administrative system. It
is in these circumstances, or in instances where he is unable, for some compelling reasons, to
seek other remedies open to him that an institution for redress of grievances must be
provided within the democratic system of government. It has to be an institution in which the
average citizen will have faith and confidence and through which he will be able to secure
quick and inexpensive justice.73

While the scheme propounded by the Commission drew largely from the experiences of other
countries, nevertheless, it was sui generis in many respects and contained a number of
peculiar features of its own to meet the special circumstances of India. Some of these
circumstances mentioned by the Commission were:74

2) The experience of comparatively small countries like Sweden, Norway, Denmark,

and New Zealand, having small areas and containing small population, cannot be
necessarily a precedent for India with such a vast area and population. An
institution of the type of Ombudsman on the analogy of those countries would
require a very large staff and it would not be possible to maintain the private and
informal character of investigations which has been a prominent feature of the
institution in these countries.
2) Norway, Sweden, Denmark, New Zealand and the United Kingdom have
centralised administrations whereas India is a federation based on a division of
 functions between the Centre and the States. This would raise the problem of
separate jurisdiction of the Ombudsman and so many authorities with which he
would have to deal. If the Ombudsman's functions were to be the same as in those
countries, it might lead to a conflict of jurisdiction with the Central and State
Governments, with Parliament, with the State Legislatures and with the Judiciary.
There might be constitutional difficulties so far as its functioning in the State is
concerned, because the executive powers, in relation to the State matters, vest in
the State under Act. 162 of the Constitution.
2) There operate in India the principles of parliamentary form of government and
ministerial responsibility. In a parliamentary democracy, Ministers are
responsible to the Legislatures for the acts of permanent officials under them. It is
the Legislature which has the right as well as the duty to see that the Ministers and
the administration function on right lines. If a Minister or an administrator fails in
his duty, or acts improperly, unjustly or illegally, a corrective is available to the
citizen both in the courts and the Legislature. Even when commissions are
appointed to investigate into the conduct of Ministers, it is the Parliament or
Legislature which becomes seized of the matter and is the final authority which
takes action or to which action is reported.

Politically, it is possible to argue that if the Prime Minister acts on the advice of
another functionary, rather than on his own judgment, it would dilute the
responsibility of his colleagues to himself and weaken his authority over them.

Under the Constitution, the Ministers, speaking technically, are only advisers to
the President or the Governor who, in theory, is responsible for the executive
action of the government. No Minister has any authority to pass executive orders.
All enforceable orders are issued under the signature of the executive officers in
the name of the Head of the State though they act in accordance with the direction
of the Minister. No court can enquire into the question as to what advice has been
tendered by the Ministers to the Head of the State. An investigation into the advice
tendered by the Minister or by an outside authority would, therefore, be against
the spirit of the Constitution.
 1) As regards the permanent civil servants, Art 311(2) of the Constitution lays down
the requirement of a formal inquiry. An inquiry made by the Ombudsman would
not answer the requirements of Art. 311 and the executive government would
have to hold a separate inquiry to deal with the delinquent official. This would
only lead to long drawn investigations and inquiries, and it might, in the final
result, involve a conflict of findings between the Ombudsman and the
departmental inquiry.
1) The question of the rights of a citizen to have access to the Ombudsman vis-a-
visthe rights of a Parliament or Legislature to raise the same issue in the House by
other Parliamentary means such as interpellations, adjournment motions, etc., or
investigation by the committee on petitions, will have to be resolved.
1) Courts in India have extensive powers to correct actions of the administrative
authorities through writs and this would have to be taken into account and
provisions made to avoid any conflict of jurisdiction between the Ombudsman and
the courts and suitable procedures devised for the purpose.
1) Interested persons might misuse the institution of Ombudsman to make false or
baseless charges against the Administration either to discredit it or delay or halt
the implementation of various measures that might be undertaken in pursuance of
government policies and programmes.

In reply to the difficulties mentioned above in the way of setting up an Ombudsman in India,
the Commission struck an optimistic note and stated that if in formulating the details about
the functioning of the institution, care was taken to provide against the objections or
conditions mentioned above, "there need be no apprehension that an institution analogous to
that of Ombudsman for India would not be made to serve the same purpose as it has done in
the Scandinavian countries and in New Zealand or is intended to do in the United Kingdom." 75

The Commission's position on some of the difficulties pointed out above was as follows: 76
3) So far as constitutional difficulties are concerned, they can be resolved by
constitutional amendment, if necessary, and consequently they do not constitute
any insurmountable difficulty in bringing into force the proposed system.
3) The system of Ombudsman has been regarded as essential by some of the
enlightened democracies both of British and other parliamentary models.
3) The vastness of the country and its population need not deter us from establishing
an Ombudsman. The Indian judicial system already provides for the functioning of
the judiciary and administrative tribunals and for a hierarchy of appeals against
the orders of subordinate authorities to superior authorities. The Ombudsman-
system is not envisaged as coming into clash with these institutions. The
Ombudsman should function only in respect of those matters for which such
remedies are not available or where, in some cases, it might not be reasonable to
expect a citizen to take recourse to legal proceedings. This would substantially
reduce the number of complaints eligible for investigation and thus enable the
Ombudsman to devote its attention and energies only to those cases in which
prima facie the need for redressing an act of injustice or maladministration exists.
2) The institution of Ombudsman would not be overwhelmed by the number of
complaints it might be receiving. Over a period of years, when the public becomes
accustomed to the working of the system, it would realise the futility of
approaching it with cases which do not need its attention or in which the
complaints are not genuine. Apart from this, by a suitable division of functions
between the Ombudsman and other functionaries to deal with citizens' grievances,
it would be possible to distribute the work load in such a manner that all the
functionaries can do adequate justice to the complaints they receive.
2) The Commission has also refused to accept the validity of the argument that
regulatory check on the actions of the executive in the discretionary field will lead
to serious delays in developmental activities or will promote a feeling of
demoralisation in, or have a cramping effect on, the Administration. This malaise,
the Commission felt, mainly arises more from a sense of frustration or lack of
appreciation of good work done and from an exaggerated image of corruption,
 inefficiency and lack of integrity current in the public mind than from actual
investigation into complaints submitted by the citizens. The working of the
institution of Ombudsman will in the long run rectify and thus restore the correct
image of the Administration, create public confidence in its integrity, and thereby
promote, rather than impede, the progress of developmental activities.
2) The informal character of inquiries by the Ombudsman will save the public
servant from exposure to public gaze during the course of an enquiry, which often
has the effect of condemning him in the public eye before he is ultimately found
guilty or innocent, as the case may be. The institution will thus be a protection for,
and a source of strength rather than a discouragement to, an honest official, whose
susceptibilities alone are germane in this context.

It may be pointed out here that the Commission was justified in taking an optimistic view of
the institution and in making most of the assumptions as mentioned above. For, most of the
arguments which the Commission put forward in support of its thesis to have an Ombudsman-
type institution in India had already been put forward, and found to be valid in practice, in
foreign countries where such a system functions.

In the previous pages, it has been pointed out that the Ombudsman not only investigates into
the complaints made by the citizens against the Administration, but also seeks to create a
better image of thereof in the public mind, for a large number of complaints are in practice
found to be devoid of any substance, and to the extent the Ombudsman says so, the public is
assured that there is nothing fundamentally wrong with the Administration. A better
relationship is established between the people and the Administration. After all, a standing
suspicion in the public mind against the impartiality or objectivity or rationality in
administrative actions does no good to any body. The Ombudsman does help to remove such
suspicions and doubts in the public mind by its work. If, however, there is something bad, and
the Ombudsman unearths it out by his operations, then it should be advantageous to all
concerned--the public, the government and, above all, the Administration itself.

Presence of the Ombudsman makes the Administration more cautious in taking decisions. The
Administration looks twice and takes somewhat more caution, before it takes a particular
action. This is no mean gain. In fact, the efficacy of the Ombudsman lies not so much in
rectifying individual grievances which may not be many on paper; its value lies in the number
of cases which are averted from being transformed into complaints. Greater care taken by the
Administration means that rights and interests of the people are not interfered with in a
trifling manner but only after due and mature deliberation and consideration.

As regards the argument based on ministerial responsibility and Parliamentary form of

government, it has already been pointed out in the previous pages that the Ombudsman
system is not incompatible with the same; it in no way compromises the principle of
Parliamentary system. On the other hand, it goes to strengthen the same. The Ombudsman is a
representative of Parliament, acts on its behalf, and reports to it, and thus the Parliament can
act much more effectively as a controller of the executive than would be the case otherwise.

The very fact that first New Zealand, and Britain and Australia, all countries having
Parliamentary system, have opted for the Ombudsman, would show that the Ombudsman is
not regarded as incompatible with the Parliamentary system. The practical experience of New
Zealand is that the Ombudsman has in no way cut into the prerogatives of the Parliament, or
its members and that it fits admirably with the whole scheme. After the adoption of the
system by Britain there remains no scope for doubt on this point.

The Commission considered carefully the question whether ministerial decisions should come
within the purview of the Ombudsman or not. The position in other countries in this respect
has already been noted. The Commission recommended that these decisions should be
included within the jurisdiction of the Ombudsman. The reasons advanced by the Commission
for its position were as follows:77

4) Having regard to the manner in which democracy has been functioning in India,
both at the Centre and the States, cases of injustice at the ministerial level must be
dealt with.
4) It is only at the level of the Minister or the Secretary, subject to his instructions
and directions, that many of the important orders of the Government affecting the
 citizen acquire finality. At lower levels, correctives through appeals,
representations and personal access to various authorities are available, but at the
level of the Minister or his Secretary there is a finality from which, only in very
rare cases, there is any escape.
4) If the institution could deal effectively and expeditiously with matters at the
source of authority, it would have an exemplary effect on other officials and other
levels of official hierarchy and thereby it would induce a rise in the general level of
efficiency, propriety and justice.
3) It is true that it is open to the Parliament or the Legislature to deal with a Minister
when he goes wrong, or to deal with an officer, under him and for whom he is
answerable when he commits a wrongful act or is guilty of a culpable omission.
But these institutions are not, in the nature of things, easily accessible to the
common man, and the time at their disposal, their procedures, their conventions
and practices would not make for quick, speedy or effective action in a large
number or cases.78

In these circumstances, it is necessary that an opportunity be given to an

adversely affected citizen to ventilate his grievance against the order of a Minister
or his Secretary. The action of the Ombudsman in respect of a ministerial decision
need not be to the exclusion of legislative control. Thus, the ministerial
responsibility to the Legislature would not be diluted, but strengthened, by the
establishment of this institution.

3) The appointment of the Ombudsman cannot be regarded as a breach of the spirit

of the Constitution. In recent years, in a number of cases, commissions under the
Commissions of Inquiry Act have been appointed to enquire into ministerial
conduct.79 In essence, there is no difference between these and the enquiries which
the proposed institution would be conducting.
3) There is not much substance in the political argument either. The Prime Minister's
hands would be strengthened rather than weakened by the institution. Firstly,
recommendations of such an authority will save him from the unpleasant duty of
investigating against his own colleagues. Secondly, it will be possible for him to
 deal with the matter without the glare of publicity which often vitiates the
atmosphere and affects the judgment of the general public. Thirdly, it would
enable him to avoid internal pressures which often help to shield the delinquent.
What applies to the Prime Minister applies mutatis mutandisto the Chief Minister.

7. THE SCHEME

Syn. 7

The Scheme

The Commission suggested that the special circumstances relating to India can be fully met by
providing for two special institutions for the redress of citizens' grievances. One of these may
be designated as Lokpal and he should deal 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 to be designated as Lokayukta for dealing
with complaints against the administrative acts of other officials.

In working out other details pertaining to the offices of the Lokpal and Lokayukta, the
Commission sought to achieve the following objectives: that these officers should be
demonstrably independent of the Executive, Legislature and the Judiciary, and be impartial;
that their investigations and proceedings should be conducted in private and should be
informal in character; that their appointment, as far as possible, should be non-political, that
their status should compare with the highest judicial functionaries in the country; that they
should deal with matters in the discretionary field involving acts of injustice, corruption or
favouritism; that their proceedings should not be subject to judicial interference and they
should have the maximum latitude and powers in obtaining information relevant to their
duties; that they should not look forward to any benefit or pecuniary advantage from the
executive government.80

All these are unexceptionable ideals, and it has already been seen in the preceding pages as to
how in various countries efforts have been made to achieve them.
Keeping in view the above principles, the Commission sought to work out the details of the
functioning of the offices of Lokpal.

The Lokpal, as stated above, was to have within his purview investigation of complaints
against the Ministers and Secretaries, both at the Centre and in the States. The reason for
combining Ministers' and Secretaries' decisions and place them under one agency was that at
the level at which Ministers and Secretaries function, it often becomes difficult to decide
where the role of one functionary ends and that of the other begins. The line of demarcation
between the responsibilities and influence of the Minister and Secretary is thin; in any case,
much depends on their personal equation and personality and it is most likely that in many a
case the determination of responsibilities of both of them would be involved. 81

The Lokpal should be appointed by the President on the advice of the Prime Minister which
would be tendered by him after consultation with the Chief Justice of India and the Leader of
the Opposition in the Lok Sabha. If there was no such leader, Prime Minister will then consult
a person elected by the members of the Opposition in the Lok Sabha in such manner as the
Speaker might direct.

The Lokpal was to have the same status as the Chief Justice of India. His tenure was to be five
years subject to his eligibility for reappointment for another term of five years in accordance
with the same procedure. He could resign his office by writing to the president. He was not to
be removable from his office except in the manner prescribed in the Constitution for the
removal from office of a Judge of the Supreme Court, i.e. when a resolution passed by each
House of Parliament, by absolute majority of the membership in each House and by a majority
of not less than two-thirds of the members of that House present and voting, on grounds of
proved misbehaviour and incapacity is presented to the President. The salary and other
emoluments of the Lokpal would be the same as those of the Chief Justice of India.

On his appointment as Lokpal, the individual concerned would resign his membership of any
legislature if he was a member before his appointment. He would also resign from any post or
office of profit held by him prior to his appointment whether in or outside the Government. He
will also sever his connections with all business activities, if any, and also resign his
membership, if any, of a political party. After his retirement from the position of Lokpal, he
will be ineligible for any appointment under the Government (both Centre and State) or in a
Government Undertaking.82

The Lokpal was to be free to chose his own staff, but their number, categories and conditions
of service would be subject to the approval of the President. His budget would be subject to
the control of Parliament.

Generally speaking, the Lokpal would have the power to investigate an administrative act
done by or with the approval of a Minister or a Secretary to Government at the Centre or in
the State, if a complaint were made against such an act by a person who was affected by it and
who claimed to have suffered an injustice on that account. In this context, an 'act' would
include a "failure to take action". The complaint could be made either by an individual or by a
corporation. The Lokpal could, in his discretion, inquire into a complaint of maladministration
involving not only an act of injustice but also an allegation of favouritism to any person or of
the accrual of personal benefit or gain to the administrative authority responsible for the act,
namely, a Minister or a Secretary to Government at the Centre or in the States. In addition to
making investigations on the basis of complaints received by him, the Lokpal could also suo
motuinvestigate administrative acts of the types described above which could come to his
notice otherwise than through a complaint of an adversely affected person. In this respect, the
Lokpal would differ from the Ombudsmen in Britain and New Zealand but resemble more
nearly the Ombudsmen in the Scandinavian countries.

The following matters would be excluded from the purview of the Lokpal:

5) Action taken in a matter certified by a Minister as affecting the relations or

dealings between the Government of India and any foreign Government or any
international organisation of States or Governments.
5) Actions taken under the Extradition Act, 1962 or the Foreigners Act, 1946.
5) Action taken for the purpose of investigation of crime or protecting the security of
the State including action taken with respect to passports.
 4) Action taken in the exercise of power in relation to determining whether a matter
shall go to a court or not.
4) Action taken in matters which arise out of the terms of contract governing purely
commercial relations of the administration with customers or suppliers except
complaints of harrassment or delays in the performance of contractual
obligations.
4) Action taken in respect of appointments, removals, pay, disciple, superannuation
or other personnel matters.
2) Grants of honours and awards.
1 A decision made in exercise of his discretion by an administrative authority unless
the elements involved in the exercise of discretion are absent to such an extent
that no discretion has been exercised as all.
1) Any action in respect of which the person aggrieved has or had the right of appeal,
reference or review to or before a tribunal constituted by or under any enactment.
10) Any action in respect of which a person aggrieved has or had a remedy by way of
proceedings in any court of law. The Lokpal may, however, look into such a matter
if he is satisfied that in the particular circumstances it is not reasonable to expect
the complainant to take or to have taken proceedings in a court of law.
11) An administrative action which was taken more than twelve months before the
date of the complaint.

So the Lokpal, unlike that in New Zealand, was to have no discretion to investigate into any
complaint which was more than 12 months old. The Lokpal would, however, have discretion
to refuse to investigate or give up investigation if he was satisfied that (a) there existed a
remedy for the injustice alleged to have been caused and that the complainant should seek
this remedy accordingly, or (b) the complaint was trivial, frivolous, or was not made in good
faith, or (c) there was no sufficient ground for proceeding with his investigations. The
complainant was to be apprised of any such decision.

The procedure for investigating complaints by the Lokpal was to be as follows.

On receipt of a complaint from a person claiming to have suffered an injustice through an
administrative act for which a Minister or a Secretary to Government was finally responsible,
the Lokpal would scrutinise it and come to the conclusion as to whether he had jurisdiction to
deal with it and if so, whether the case was worth investigating. If he decided in the negative
on either of these two points, he would reject the complaint and inform the complainant
accordingly. If he decided to take up the complaint for investigation, he would take the
following steps:

6) He would communicate the complaint to the Minister or the Secretary concerned

and invite his comments thereon.
6) At this stage, it might be possible for the Minister or the Secretary concerned to
rectify, on his own, any faulty decision made by him, or he might seek to establish
the correctness or justice of the action taken.
6) The Lokpal on receipt of the comments as in (1) above, would decide whether the
complaint was actionable and inform the complainant in case the faulty decision
had been rectified or he had decided not to take any further action.
5) In case he decided to proceed with the investigation, he would send an intimation
of the same to the Minister/Secretary concerned and the complainant.
5) If on completion of the investigation, the Lokpal was satisfied that there was no
cause for grievance, he would inform the complainant accordingly and close the
case. If, however, he considered that an injustice had been done to the
complainant, he would suggest to the Minister/Secretary concerned remedial
action where it was possible for him to provide the remedy.
5) If Lokpal's recommendation was accepted and remedial action taken the case
would then be closed. If, however, the recommendation was not accepted, the
Lokpal might make a report on the case to the Prime Minister or Chief Minister of
the State as the case might be. The Prime Minister or the Chief Minister would
inform the Lokpal of the action taken in the matter within two months.
3) If the Lokpal was satisfied with the action taken, he would close the case. If he was
dissatisfied with the action taken, he might bring it to the notice of Lok Sabha or
the State Legislative Assembly, as the case might be, through a special report or
through the annual report. The Administration's explanation in its defene would
also be brought out in the report.
1) If, during his investigations, the Lokpal found that in a case the Minister Secretary
concerned had by his action shown undue favour to any person or secured any
personal benefit or gain to himself, he would report his conclusions to the Prime
Minister or the Chief Minister, as the case may be, who will take further action in
the matter within two months of the receipt of the Lokpal's report and inform the
Lokpal of the action taken.
2) If, as a result of his study of any case or cases, the Lokpal considered that an
amendment of the law would be justified, he could make appropriate
recommendations to the Prime Minister or Chief Minister as the case might be.
20) To enable the Lokpal to carry out his functions, he would be given powers of a
court with regard to the calling and enforcing attendance, of witnesses, examining
them on oath, discovery and production of documents, receiving evidence on
affidavits etc. In regard to information available with the Government or
subordinate authorities, he would have access to whatever information,
document, etc., he required and no privilege would be claimed for any such
information or document except when it might prejudice the security or defence
of the State or foreign relations or the investigation or detection of a crime or
involve the disclosure of proceedings of the cabinet or its committee.

he Commission, however, expressed the hope that the Lokpal would not find it
necessary to exercise the powers of a court and that his procedure would remain
as informal as possible. The Lokpal would conduct his investigation in private. He
would not publish anything relating to the investigation till the inquiry was
completed and his findings were communicated to the complainant, or to the
Legislature. Publication of any matter pending before the Lokpal or decided by
him save to the extent that it was included in the special or annual report or was
 permitted by the Lokpal would amount to contempt of court. This, however,
would not apply to the publication of any report of the Lokpal sent to the
complainant or to the Lok Sabha or to the State Legislature concerned. The Lokpal
and members of his staff were to be bound by the Official Secrets Act and they
were not to disclose any information obtained by them except for the purposes of
investigation, for making reports, for taking proceedings under the Official Secrets
Act, perjury and contempt of Lokpal.83 Likewise the information or document
could be communicated to any person if the Minister certified it to be against
public interest. Nor could the Lokpal or his staff be called upon to give any
evidence in any proceedings except under the Official Secrets Act, for perjuary or
contempt of Lokpal of matters coming to their knowledge during any
investigation. They were also not to be liable for anything done in good faith under
the Act.

21) Each year, the Lokpal was to submit a report to Parliament or the State Legislature
concerned on his activities during the previous year. Besides giving a summary of
the cases disposed of by him, he was to indicate the need for amending any law in
order to remove occasions for unintended hardship experienced as a result of the
administration of the existing law.
12) If any person without lawful excuse obstructed the Lokpal in the performance of
his functions or was guilty of any act or omission in relation to an investigation,
which, had the investigation been proceeding in a court of law, would have
constituted contempt of court, the Lokpal could certify the offence to the Supreme
Court. A person making a complaint of maladministration involving undue favour
having been shown or to the securing of a personal benefit, made a false statement
before the Lokpal knowing it to be such, would be guilty of an act constituting
contempt of court. When an offence was certified, as above, the Supreme Court
could enquire into the matter and dispose it of as if the matter related to a charge
of contempt of the Supreme Court itself.
 13) The procedure detailed above for being followed by the Lokpal in matters of
investigation of complaints, would be followed by him mutatis mutandisto
investigations taken up suo motu by him.

So far as the Lokayukta was concerned, it was envisaged that he would be concerned with
problems similar to those which the Lokpal would face in respect of Ministers and Secretaries
though, in respect of action taken at subordinate levels of official hierarchy, he would in many
cases have to refer complainants to competent higher levels. His powers, functions and
procedures could be prescribed mutatis mutandiswith those which had been suggested for the
Lokpal. His status, position, emoluments, etc. were, however, to be analogous to those of a
Chief Justice of a High Court and he should be entitled to have free access to the Secretary to
the Government concerned or to the Head of the Department with whom he would mostly
have to deal to secure justice in deserving cases. Where he was dissatisfied with the action
taken by the department concerned, he should be in a position to seek a quick corrective
action from the Minister or the Secretary concerned, failing which he should be able to draw
the personal attention of the Prime Minister or the Chief Minister as the case may be. The
procedure proposed to be followed by the Lokpal would apply mutatis mutandis to
investigations taken up by the Lokayukta.

Lastly, the Commission suggested that it would be necessary to give a constitutional status to
the office, powers and functions of the Lokpal in order to make him fully effective and to
bestow necessary powers on him without his coming into conflict with other functionaries
under the Constitution. But, it was not necessary for the government to wait till the necessary
constitutional amendment materialised. The Government could take steps to set up the office
of the Lokpal pending the constitutional amendment because it would be possible for the
Lokpal to function in a large number of cases without having his position defined under the
Constitution. The Government could proceed to appoint the Lokpal as well as the Lokayuktas
and they could commence their work to the extent they could without the constitutional
provisions. In course of time, the Government could undertake to effect amendment of the
Constitution and any consequential amendment of the relevant statute. By following this
course of action, the recommendations of the Commission may be implemented at an early
date.
(a) Comments on the above scheme

A few comments on the report of the Commission may be in order at this stage.

In drafting the outlines of its scheme to establish Lokpal and Lokayuktas in India, the
Commission undoubtedly drew largely from the experiences of other countries, nevertheless,
it may also be appreciated that it was sui generis and contained a number of features of its
own to meet the special circumstances prevailing in India, . e.g. much larger population than
other countries having the Ombudsman system, federal structure of the Indian polity,
parliamentary government, ministerial responsibility etc.

The recommendations of the Commission were evolved keeping in view three present-day felt
needs in India (i) evolving a suitable grievance procedure for individuals to invoke in
complaints of maladministration; (ii) evolving a mechanism to reduce corruption in the
administrative services; and (iii) creating a mechanism to take cognisance of complaints of
favouritism etc. against Ministers.

The whole tenor of the Commission's report shows that by and large the Commission was
motivated by a keen desire to improve the public image of the Administration, and to remove
from the public mind an exaggerated sense of corruption, inefficiency and lack of integrity in
the Administration.

The Commission's scheme can be characterised as defective in one essential aspect, viz.,it was
not compatible with the federal features of the Indian Constitution. The Lokpal, an appointee
of the Centre was to probe into the administration of the States. Similarly, the Lokayuktaswere
to probe into State Administration. This was a controversial aspect of the scheme. The States
could hardly be expected to fall in line to such a proposal which would impinge on their
autonomy.

According to the Commission's plan, Lokpal (as well as Lokayuktas) were to have jurisdiction
to give relief when a person suffered "injustice from maladministration". The term
maladministration was not concretised; it was left to the Lokpal to develop the norms
constituting maladministration. The Commission's scheme followed the British model rather
than the New Zealand or the Australian model.

According to the Commission, Lokpal was to be authorised to investigate any action "taken in
exercise of administrative functions". This formulation seemed to exclude matters of 'policy'
from his purview. The Commission did not however suggest any test to distinguish between
"administrative functions" and 'policy'. Thus, there was flexibility in this area.

Another commendable aspect of Commission's report was to make the Minister's

administrative action subject to Lokpal's scrutiny. If Minister's action are kept out of the
Ombudsman's purview, there is always a danger that the Administration may try to oust the
Ombudsman's scrutiny by having as many decisions of the department endorsed by the
Minister as may be possible. This would very much compromise the capacity and efficacy of
the Ombudsman to give relief in matters of injustice perpetrated by departmental decisions.

The Commission made another commendable suggestion, viz., to give a constitutional status,
rather than merely a statutory status, to the Lokpal and Lokayuktas. The Commission
observed that for the Lokpal to be fully effective and for him to acquire power, without
conflict with other functionaries under the Constitution, it would be necessary to give a
constitutional status to his office, his powers and functions. A statute can be repealed or
amended any time by the concerned Legislature so as to make Lokpal and Lokayuktas less
effective. A constitutional status would make Lokpal/Lokayuktas free from the political
vagaries of the government and the Legislature. In order to ensure the independence of his
office from political or executive pressures, and to generate public confidence in him, it is
absolutely necessary to create the office of the Lokpal through a constitutional provision.

(b) The Lokpal and Lokayuktas Bill, 1968

The Government of India accepted the recommendations of the Commission. The Government
took the definitive step towards the creation of the Ombudsman System in India when, in
1969, the Lok Sabha enacted the Lokpal anad Lokayuktas Bill, 1968.
By and large, the Bill followed the model suggested by the Commission with a few deviations.
One major deviation made by the Bill was to confine the jurisdiction of the Ombudsman to the
central sphere only leaving the States out of its purview whereas the Commission had
suggested one comprehensive scheme covering the Centre-State Administration as a whole.
But because of the objections raised by many states against a central functionary peeping into
their administrative affairs, the idea to bringing the State Administration within the purview
of the Lokpal was dropped. It was left to the States to establish their own Ombudsman
mechanism.

The chief feature of the Bill was to enable the Lokpal to initiate an investigation when a person
made a complaint that he had suffered injustice in consequence of maladministration or
corruption. Complaints about maladministration were characterised as "grievance" and a
complaint about corruption was termed as "allegation".

The Lokpal could initiate an investigation suo motuwithout a complaint being filed if in his
opinion an administrative action could have been the subject of a 'grievance' or, 'allegation'.

As the operations of the Central Government are huge, and as the envisaged mechanism was
to deal with cases not only of 'maladministration' but 'corruption' as well, the Act provided for
the appointment of one Lokpal and one or more Lokayuktas depending upon the volume of
work. Each of them was to function independently. The division of work among them was on
the lines suggested by the Commission, namely, Ministers and Secretaries were to fall within
the purview of Lokpal, and other officials to fall within the purview of the Lokayuktas.

Not much need be said on this Bill as the whole endeavour to enact it as an Act proved
abortive. The Bill could not be passed in the Rajya Sabha ,as the Lok Sabha was dissolved in
January, 1970, and, consequently, the Bill lapsed.84

A second attempt to enact the legislation to establish the Ombudsman system was made in
1971 when another Bill was introduced in the Lok Sabha.

A few words about the Bill of 1971 are said below.

(c) Bill of 1971

The Bill of 1971 referred only to the Central Administration and not to State Administration.

The Bill provided for the appointment, by the President of one Lokpal and one or more
Lokayuktas. The Lokpal was to be appointed after consultation with the Chief Justice of India
and the Leader of the Opposition in the Lok Sabha. If there was no such leader, a person
elected by the members of the Opposition in the Lok Sabha for this purpose was to be
consulted . The Lokayuktas were to be appointed after consultation with the Lokpal.
Presumably, the President would have acted in this matter, as he does in other matters, on the
advice of the Prime Minister in keeping with the theory of parliamentary form of government.

Before entering upon his office, the Lokpal/Lokayukta was to subscribe to an oath in the
prescribed form. He was not entitled to be a member of Parliament or any State Legislature or
to hold an office of trust or profit, or to be connected with any political party or carry on any
business. He was to hold office for five years. A complete ban was imposed on the re-
employment of the Lokpal/Lokayukta, after his retiring from his office in any capacity, by any
government, authority, government company, etc.

The Ombudsman was given a security of tenure just like a Judge of the Supreme Court. He
could be removed, before the expiry of his term, only on the ground of misbehaviour or
incapacity and no other ground. To remove him, an enquiry was to be held by a sitting or
retired Supreme Court Judge; the enquiry report was to be placed before both Houses of
Parliament and each House was to pass an address for his removal by a majority of its total
membership and a majorityof not less than two-thirds of its members present and voting. The
salary of the Lokpal/Lokayukta was fixed by the bill and was not to be varied to his
disadvantage after his appointment. These provisions made the Lokpal/Lokayukta immune
from executive and parliamentary influence, and guaranteed his independence, so that he
could exercise his function without fear or favour.

The Lokayuktas were to be subject to the administrative control of the Lokpal. The Lokpal
could issue general or special directions to the Lokayuktas for ensuring convenient disposal of
investigations by them, but the Lokpal was not to act as an appellate or revisory authority
over the Lokayuktas. The Lokpal was not to question any finding, conclusion or
recommendation of a Lokayukta. For reasons to be recorded in writing, however, the Lokpal
could himself investigate an action falling within the purview of the Lokayukta. A Lokayukta
was to officiate as Lokpal in case of vacancy in that office or inability of the to perform his
duties.

The function of the Lokpal was to investigate any action which was taken by, or with the
approval of, a Minister (other than the Prime Minister) or a Secretary, or any other public
servant belonging to that class which had been notified by the Central Government in
consultation with the Lokpal for that purpose. Such an investigation could be undertaken if a
person made a complaint involving 'grievance' or 'allegation'.

A "grievance" was a claim by a person that he had sustained injustice or undue hardship in
consequence of "maladministration." "Maladministration" meant action taken in exercise of
administrative functions in any case--(i) where such action or the administrative procedure or
practice governing such action was unreasonable, unjust, oppressive or improperly
discriminatory; or (ii)where there had been negligence or undue delay in taking such action,
or the administrative procedure or practice governing such action involved undue delay.

An "allegation" in relation to a public servant meant any affirmation that such public servant--
(i) had abused his position as such to obtain any gain or favour to himself or to any other
person or to cause undue hardship or harm to any other person; (ii) was actuated in the
discharge of his function as such public servant by personal interest or improper or corrupt
motives; or (iii)was guilty of corruption or lack of integrity in his capacity as such public
servant. This definition of "allegation" covered circumstances of political corruption as well.

"Action" had been defined broadly so as to mean action taken by way of decision,
recommendation or finding or any other manner and included failure to act.

The Lokpal could also initiate investigation suo motu without a complaint having been filed if
in his opinion an administrative action could be the subject of a "grievance" or "allegation".
From this point of view, the Lokpal was in a much stronger position than the British
Ombudsman. Similarly, a Lokayukta could investigate any action taken by or with the
approval of a public servant, other than the one who fell within the jurisdiction of the Lokpal,
if such an action amounted to "grievance" or "allegation" either on a complaint or suo motu.

Grievances arising from the following types of administrative action were exempt from being
investigated by Lokpal or Lokayukta--(i) action taken in a matter certified by a Secretary as
affecting the relations or dealings between the Government of India and a foreign government
or any international organisation of governments;

(ii) action taken under the Extradition Act, 1962, or the Foreigners Act, 1946; (iii)action taken
for the purpose of investigation of crime or protection of the security of the state including
action taken with respect to passport and travel documents; (iv) action taken in the exercise
of power in relation to determining whether a matter should go to a court of law or not: (v)
action taken in matters arising out of a commercial contract except where the complainant
alleged harassment or gross delay in meeting contractual obligations by the Administration;
(vi) action relating to service matters; and (vii) grant of honours and awards.

The entire judicial establishment also fell outside the scope of Lokpal/Lokayukta.

A "grievance" was not to be investigated if the complainant had a remedy available by way of
proceedings before a tribunal or court except where the Lokpal/Lokayukta was satisfied that
the complainant could not have recourse to such a remedy for some sufficient cause. He could
also sot investigate into a complaint in respect of any action which had been referred for
inquiry, with his consent, to a commission of inquiry under the Commissions of Inquiry Act,
1952.

The time-limit for making a complaint involving an "allegation" was five years from the date
on which the action complained against was alleged to have taken place. In the case of a
"grievance", the time was twelve months from the date on which the complainant came to
know of the action complained against, but this period could be relaxed if the
Lokpal/Lokayukta was satisfied that the complainant had sufficient cause for not making the
complaint within the period of twelve months.
In the case of a "grievance", Lokpal/Lokayukta would not question any administrative action
involving the exercise of discretion except where he was satisfied that the elements involved
in the exercise of discretion were absent to such an extent that the discretion could not be
regarded as having been properly exercised. A complaint involving a "grievance" could be
made by the person aggrieved or his legal representative or authorised agent. An "allegation"
could be made by any person other than a public servant. It is to be noted that the immunity
given to discretionary decisions from being questioned (except when discretion was not
properly exercised) was only in respect of complaints of maladministration but not with
respect to complaints of corruption. The reason for this is that most of the corruption cases
arise out of discretionary powers and exclusion of such decisions have provided an undue
protection to corrupt public servants.

Any letter written to the Lokpal/Lokayukta by a person in police custody, or in a goal or in an

asylum, had to be forwarded to the addressee unopened and without delay. This overrode any
law to the contrary.

When the Lokpal/Lokayukta proposed to conduct an investigation, he was to forward a copy

of the complaint to the public servant concerned as well as to the "competent authority". The
public servant was entitled to offer his comments on the complaint. The Prime Minister was
the "competent authority" in the case of a Minister or Secretary, and in the case of any other
public servant, the "competent authority" was to be prescribed by the rules. The
Lokpal/Lokayukta was to conduct an investigation in private, but he had discretion to conduct
an investigation in public in the case of a matter of definite public importance if he, for
reasons to be recorded in writing, thought fit to do so. The Lokpal/Lokayukta could follow
such procedure for conducting an investigation as he considered appropriate in the
circumstances of the case. The identity of the complainant, or that of the public servant
concerned, was not to be disclosed to the public at any stage of investigation. He could refuse
to investigate any complaint if in his opinion it was frivolous or vexatious or was not made in
good faith, or there were no sufficient grounds for investigating, or the complainant should
avail of other remedies open to him. The reasons for not entertaining a complaint were to be
communicated to the complainant.
The Lokpal/Lokayukta was to have broad powers to collect evidence pertaining to an
investigation undertaken by him. He could require anyone to furnish information or produce
documents relevant to the investigation. He was to enjoy powers of a civil court in the matter
of summoning witnesses and requiring discovery of documents. No obligation imposed by law
to maintain secrecy, and no privilege allowed by any law to the government was to apply in
the matter of disclosure of evidence for purposes of any investigation by the
Lokpal/Lokayukta. However, this was subject to a few exceptions. No evidence was to be
produced which might prejudice the security or defence or international relations of India, or
detection of any crime, or which might involve disclosure of cabinet proceedings. For this
purpose, a certificate issued by a secretary certifying that any information, answer, or portion
of a document was of such a nature was tobe binding and conclusive. This was a very
restrictive provision as the Secretary of the concerned department could nullify an
investigation by withholding evidence from the Lokpal. Indeed, in Britain no privilege can be
claimed by the government against the Ombudsman in the matter of production of evidence.
No person was to give any evidence or produce any document in any investigation which he
could not be compelled to give or produce in court proceedings. This, therefore, meant that
the rule against self-incrimination was to be operative in an investigation before the
Lokpal/Lokayukta.85

If after investigation into "grievance", the Lokpal/Lokayukta was satisfied that the action in
question had resulted in injustice or undue hardship to the complainant or any other person,
he was to recommend remedial measures and fix the time for taking the same, and the
"competent authority" was to inform the Lokpal/Lokayukta of the action taken to comply with
his suggestions within a month of the specified time. Similarly, if he found that an "allegation"
could be substantiated wholly or partly, he was to report in writing to the "competent
authority" who was to report back to him the action taken. The Lokpal/Lokayukta would close
the case if satisfied with the action taken. If not so satisfied, he could make a special report to
the President and the report, along with an explanatory memorandum, was to be laid before
the Houses of Parliament. An annual report was also to be made to the President by the
Lokpal/ Lokayukta which was to be laid before Parliament along with an explanatory
memorandum. Provisions were made for punishing contempt of the Lokpal/Lokayukta.
The primary idea of the Ombudsman in the Scandinavian and the common law countries (New
Zealand, Britain and Australia) where the institution has been introduced is to oversee
maladministration, e. g., negligence, delay, inefficiency, bias, abuse of power (which may not
amount to corruption), and to make the Administration more humane and accountable.
However, the emphasis in India on Ombudsman has been both on maladministration as well
as corruption. The 1971 Central Bill assigned to the Ombudsman the twin tasks of corruption
(allegation) involving ministers (other than the Prime Minister) and government servants,
and maladministration b y these functionaries. In view of the prevailing situation in India, this
would have been an extremely heavy burden on the functionary. It would have meant in
practice that he would neglect one or the other function. It appears to be advisable to have
two separate institutions for the two functions--redressal of grievances and fighting
corruption.

Again, the Bill of 1971 could not be enacted as an Act. The Bill was aborted owing to the
dissolution of the Lok Sabha. Thereafter, a third attempt to establish the institution of
Ombudsman was made in 1977, when a new Bill, entitled the Lokpal Bill, 1977, was
introduced in the Lok Sabha. The Bill was referred to the Joint Select Committee of the two
Houses of Parliament. The Committee presented its report to the two Houses in July, 1978.
When the Bill was under consideration in the Lok Sabha, the House was dissolved and,
consequently, the Bill lapsed.

A few words on the Bill of 1977 are said below because it made a fundamental deviation from
the previous Bills and even from the Report of the Administrative Reforms Commission.

(d) Lokpal bill of 1977

The Central Bill of 1977 completely threw overboard the Western idea of Ombudsman. The
jurisdiction of the Central Lokpal was confined only to "public men" which term included
Central Ministers (including the Prime Minister), members of Parliament, members of the
legislative assemblies for the Union Territories and a few other categories of elected
functionaries.86 The government servants as such were beyond the purview of the Lokpal.
However, the Lokpal could inquire into the conduct of any other person only to the extent
necessary to inquire into any allegation of misconduct against a public man. Secondly, the
proposed Lokpal was not to be concerned with the cases of maladministration but only with
cases involving corruption. The task of the Lokpal was to inquire into allegations of
misconduct against a public man. A public man would commit misconduct if he was actuated
by corrupt motives in the discharge of his functions, or abused his position to cause harm to
any body or used his position to secure any valuable or pecuniary advantage for himself or his
relatives or associates or committed an act constituting corruption. In sum, the purpose of the
Lokpal Bill, 1977 was to control political corruption.

Many other provisions of the 1977 Bill were on the same lines as those of the 1971 Bill except
with the following major differences, apart from what is stated above. First, the Lokpal was to
be appointed by the President after consultation with the Chief Justice of India, the Chairman
of the Rajya Sabha and the Speaker of the Lok Sabha. The last two functionaries could consult
the leaders of the various parties and groups in their respective Houses before expressing
their views on the appointment of the Lokpal. Secondly, the Bill provided for the appointment
of Special Lokpal or Lokpals by the President if he considered it necessary on a report from
the Lokpal that it was necessary to do so for expeditious disposal of complaints under the Act.
Thirdly, the "competent authority" for the Prime Minister was the Speaker; 87 for a Minister,
the Prime Minister; and for members of the Parliament, the Chairman of the Rajya Sabha or
the Speaker of the Lok Sabha as the case may be. Fourthly, no matter in respect of which a
complaint could be made under the Act was to be referred for inquiry under the Commissions
of Inquiry Act, 1952, except on the recommendation, or, with the concurrence of the Lokpal;
and the Lokpal was not to inquire into any matter which had been referred for inquiry under
the Commissions of Inquiry Act, 1952 on his recommendation, or, with his prior concurrence.
Fifthly, power was given to the Lokpal to himself try summarily certain offences, that is, the
offence of giving false evidence before him and offences contained in ss. 175, 178, 179 and
180 of the Indian Penal Code committed in his view or presence. A person convicted by the
Lokpal could appeal to the High Court.
Maladministration which is the primary concern of the Ombudsman in other countries was
thus proposed to be kept out of the purview of the Indian Ombudsman under the 1977 Central
Bill. This was not proper. As stated in the previous pages, there is a great need for an
institution, independent of the executive, to supplement the system of judicial control over
administrative action in view of the limitation of judicial review so as to reduce the sense of
grievance presently nursed by the people against the Administration. The Administrative
Reforms Commission under the chairmanship of the Prime Minister at the time had suggested
the installation of such an institution in its very first report, but when he was himself the
Prime Minister he failed to implement what the Commission had recommended.

It has been suggested that, so far, the institution of Ombudsman has succeeded only in
countries with small population and that in a populous country like India, the Ombudsman
may be overwhelmed with complaints of maladministration and allegations against the
Administration. The appointment of one Lokpal and a number of Lokayuktas takes this factor
into consideration. Further, being a federal country, the Central Administration is not
concerned with the totality of governmental functions but only with a portion of these, the
other portion being discharged by the States, and each State may have its own Ombudsman
system. Specialized Ombudsmen for specific activities may also be thought of. 88 In the long
run, however, it is necessary to improve the tribunal system in India so that tribunals can
provide an effective review-mechanism of administrative decisions. 89 To the extent, tribunals
can provide such a review, the need to resort to the Lokpal would be reduced. Also, it has been
the experience of the Ombudsmen in other countries that many grievances against the
Administration arise because of the failure of the Administration to give reasons for the
decisions taken by it and that if reasons are given as a matter of course then the number of
complaints may be reduced .It will be a great advantage to the individual affected by an
administrative action if the Administration were to disclose to him the reasons for acting in
the way it is acting. He can then decide whether he should challenge the action or not in a
court of law. Many challenges to administrative action are made at present because the
individual affected, being ignorant of the reasons, does not know whether the action suffers
from some flaw or not. In the area of quasi-judicial adjudication, an obligation to make
speaking orders has come to be imposed on the concerned bodies.
A similar development is a desideratum in the area of administrative powers. The Conseil
dEtatin France has gone far in the direction of requiring administrative decisions to contain
reasons. In 1950, it annulled a decision in which no reasons were given. In Britain, the
Tribunals and Inquiries Act, 1958 imposes a statutory duty to give reasons, if requested, for
decisions by most tribunals and by Ministers required to hold statutory inquiries. In America,
the courts insist that administrative decisions must contain at least the findings upon which
they are based.90 In India as well such a rule should be promoted. Therefore, if the
Administration in India were made to adopt the practice of furnishing reasons for its decision
to a person feeling aggrieved by it, then the number of complaints flowing to the Ombudsman
may be reduced and become manageable. In any case, there is a great need to supplement the
existing mechanism to supervise Administration in India, and the experiment of the
Ombudsman is worth a trial. It is bound to result in the improvement of administrative
procedures affecting the individuals dealing with the Administration.

(e) Lokpal Bill of 1985

The Central Government again introduced the Lokpal Bill, 1985, in the Lok Sabha. The Bill
closely followed the model of the Lokpal Bill, 1977 which lasped because of the dissolution of
the Lok Sabha. The new Bill, like its 1977 counterpart, covered only allegations of misconduct.
Grievances were excluded from Lokpal's jurisdiction. The Bill provided for an institutionalised
framework for inquiry into charges of corruption in high places. The Bill did not provide for a
mechanism for redressal of grievances against the Administration which is usually the most
important function assigned to the Ombudsman in other countries.

The Lokpal was to be appointed by the President in consultation with the Chief Justice of
India. He was to be a person who was, or had been, or was qualified to be, a Supreme Court
Judge. Adequate provisions were made to ensure that the Lokpal was able to act
independently and without fear or favour. Thus, it was provided that the Lokpal could be
removed from his office only by an order made by the President on the ground of proved
misbehaviour or incapacity after an inquiry made by the Chief Justice of India.
The Lokpal was to inquire into complaints alleging that a public functionary has committed an
offence punishable under Chapter IX of the I.P.C., or under the Prevention of Corruption Act,
1947. The expression 'public functionary' covers Ministers, Ministers of State, Deputy
Ministers and Parliamentary Secretaries of the Union. The Lok Pal could also inquire into the
conduct of any person other than a public functionary, if this was considered necessary for the
probe of the main allegation. Thus, senior officials were also covered by the Bill, the reason
being that often irregularities are committed by Ministers in collusion with senior officials.

The President, Vice-President and the Prime Minister are outside the jurisdiction of the
Lokpal.

A complaint could be made to the Lokpal by any one other than a public servant. The Lokpal
was not to take up any complaint made after five years of the alleged offence. The Lokpal was
to present an annual report of his activities to the President who would then cause the same
to be laid before each House of Parliament.

The purpose of the Bill was to provide a convenient and effective forum for determining
complaints and thereby save the citizens from pursuing remedies through the courts which is
a dilatory and expensive process. To provide an incentive to the people to bring due
complaints to the Lokpal, it was provided that the Lokpal can recommend to the government
payment of some compensation or reward to a complainant if allegations made in his
complaint were substantiated either wholly or partially and having regard to the expenses
incurred by him in relation to the proceedings pertaining to his complaint, the Lokpal thought
that the complaint deserved to be compensated or rewarded. On the other hand, there were
provisions to discourage false or frivolous complaints. The Bill was referred to a Joint Select
Committee of the two Houses of Parliament for further consideration. During the course of
discussion on the Bill in the Lok Sabha, a significant question raised was whether or not the
Prime Minister ought to fall under the Lokpal's jurisdiction. But, ultimately, this Bill could not
also become a law.

The Bill of 1985 could not also be enacted into law.

(f) Lokpal Bill, 1989

Again, the Lokpal Bill, 1989, was sought to be introduced in Lok Sabha. This Bill made Lokpal a
three-member body, and even the Prime Minister was brought within the jurisdiction of the
Lokpal. The Bill lapsed with the dissolution of the Ninth Lok Sabha.

(g) Lokpal Bill, 1996

Thereafter, The Lokpal Bill, 1996, was introduced in the Eleventh Lok Sabha on 13-9-1996.
But this Bill also lapsed with the dissolution of the Lok Sabha.

(h) Lokpal Bill, 1998

The Lokpal Bill, 1998 was introduced in the Lok Sabha on 3-8-1998. But before the Bill could
be enacted, the Lok Sabha was dissolved and, consequently, the Bill lapsed.

(i) Lokpal Bill, 2001

Again, the Lokpal Bill, 2001 was introduced by the Central Government in Lok Sabha in
August, 2001. Some of the provisions contained in the Bill were quite different from the
provisions made in the previous Bills. The Bill made the following salient provisions:

S. 3(1) proposed to establish the institution of Lokpal consisting of a chairperson and two
members. The chairperson must be a sitting or retired Chief Justice or a Judge of the Supreme
Court. The other two members must be sitting or retired judges of the Supreme Court or the
Chief Justices of the High Courts.

All members of Lokpal were to be appointed by the President after securing the
recommendation of a committee consisting of the following members:
 1i) Vice-President of India;
1ii) Prime Minister;
1iii) Speaker of Lok Sabha;
1iv) Minister for Home Affairs;
1v) Leader of Opposition in the Lok Sabha;
1vi) Leader of Opposition in the Rajya Sabha;
1vii) Leader of the House other than the House in which the Prime Minister is a
member.

The chairperson or any member of Lokpal is not to be a member of Parliament or a State

Legislature; he shall not hold any office of profit, or be connected with any political party or
carry on any trade or profession.

The Chairperson or a member of the Lokpal holds office for a term of three years or until he
reaches the age of 70 years.

On retiring from the Lokpal, no member/chairperson is to hold any office of profit under any
government. The salaries and allowances of the chariperson/member are not to be varied to
his disadvantage after his appointment.

The chairperson/member cannot be removed from office except by an order made by the
President on the ground of proved misbehaviour or incapacity after an inquiry made by a
committee consisting of--(i) Chief Justice of India; and (ii) two other Judges of the Supreme
Court next to the Chief Justice in seniority and after giving the chairperson/member a
reasonable opportunity of being heard in respect of the charges levied against him.

The function of the Lokpal was to "inquire into any matter involved in, or arising from, or
connected with, any allegation made in a complaint". A complaint has been defined as "a
complaint alleging that a public functionary has committed an offence punishable under the
Prevention of Corruption Act, 1988".91

A "public functionary" falling under the purview of the Lokpal was defined as the Prime
Minister, Minister, Minister of State or Deputy Minister of the Union Government, or a past or
present member of a House of Parliament.
No enquiry was to be made into any matter connected with any allegation against the Prime
Minister "insofar as it relates to national security and maintenance of public order".

Any person other than a public servant may make a complaint under this Act. If the Lokpal
proposes to conduct an inquiry in the complaint, it must send a copy thereof to the public
functionary concerned and afford him to represent his case. The Lokpal has been given the
power of a civil court in respect of summoning withnesses, or receiving evidence on affidavits.
No obligation to maintain secrecy was to apply to the disclosure of information for the
purposes of any inquiry under this Act.

If the Lokpal were to find that the offence alleged in the complaint had been committed, then
it would send the report to the Speaker/Chairman of the House to be laid therein. A copy of
the report was also sent to the competent officer.

The competent officer was to inform the Lokpal within ninety days about the action taken on
the basis of the report.

The competent officer, in relation to--

2i) the Prime Minister, meant the Lok Sabha;

2ii) a Minister, meant the Prime Minister;
2iii) a member of a House, that House itself.

The Lokpal was to send an annual report to the President and he would cause the same to be
laid before each House with an explanatory memorandum.

Two significant features of the Lokpal Bill, 2001, may be mentioned here. One, the Lokpal was
envisaged to be a three-member body and not a single person.

Two, over a period of time the character of the institution of Lokpal has under gone a drastic
metamorphosis. In the first Bill passed by the Lok Sabha in 1968, the main focus of the Bill
was redressal of public grievances against the Administration. But now this purpose has been
lost. A complete go-by has been given to complaints of maladministration. This aspect of the
Lokpal's functioning has now been given a complete go-by. Emphasis in the Bill has come to
be laid on corruption in administration. The Lokpal has been confined to investigate
complaints concerning a public functionary committing a Corrupt Act. The term public
functionary means the Prime Minister, a Central Minister and members of Parliament.

(j) Special Courts Act, 1979

No regular mechanism has been put in place so far for investigation into charges of corruption
levied against Central Ministers from time to time.

Efforts were made during the Janata regime (1977-79) to strengthen the machinery to try
charges of misuse of power by the holders of high public or political offices and for this
purpose, the Special Courts Act, 1979, was enacted by Parliament. Its purpose was to institute
a machinery for the expeditious trial of such persons for abuse of power. Originally, the Bill
was designed to try persons holding high offices during the emergency (1975-77) for misuse
of power. The Bill was described by K. IYER J. of the Supreme Court as follows: 92

"... this measure is the embryonic expression of a necessitous legislative project, which, if full-
fledged, will work a relentless breakthrough towards catching, through the compulsive criminal
process, the higher inhabitants of Indian public and political decks, who have, in practice, remained
'untouchable' and 'unapproachable' to the rule of law".

At the discussion stage in Parliament, the Bill was converted into a permanent measure. In its
preamble, the Act stated the lofty ideal that "all powers being a trust, and holders of high
public or political offices are accountable for the exercise of their powers", "it is the
constitutional legal and moral obligation of the state to prosecute persons involved in the said
offences".

Provisions were made for special courts for the reason that ordinary criminal courts due to
congestion of work and other reasons could not bring the prosecutions to a speedy
termination, and that it was imperative for the efficient functioning of parliamentary
democracy and constitutional institutions that the commission of offences by persons holding
high public or political offences in the country be judicially determined with the utmost
dispatch.

The Act provided for the creation of special courts. Such a court was to consist of a sitting
Judge of a High Court nominated by the Chief Justice of the High Court. When the Central
Government made a declaration that it was of the opinion that there was prima facieevidence
of the commission of an offence alleged to have been committed by a person holding high
public or political office in India, a prosecution in respect of such offence was to be instituted
in a special court. The court was to follow the procedure prescribed for the trial of warrant
cases before a magistrate. An appeal from the special court's decision lay as of right to the
Supreme Court both on facts and on law. The purpose of the Act was thus to provide a
machinery for trial of cases of misuse and abuse of powers by high functionaries of the state.

The court though called a special court was not any kind of star chamber. It was an ordinary
court following the ordinary criminal procedure with a right of appeal to the Supreme Court.
The whole idea was to expedite trial but not short circuiting of procedures or rules of
evidence. Twice the question of the validity of the Act came before the Supreme Court. First, in
an advisory opinion, the Supreme Court upheld the constitutional validity of the original Bill
subject to some modifications being made therein.93 The Act enacted with these modifications
again came for scrutiny before the Supreme Court in State(Delhi Administration) v. V. C.
Shukla.94 The main point of contention was that the Bill designed for trial of emergency
offences was now made into a permanent statute and thus offended Art. 14 for lack of
classification. Upholding the validity of the Act, the Supreme Court stated that the main object
of the Act was to provide for the speedy trial of certain classes of offences committed by
persons holding high public or political offices as a trust. Such persons were placed in a
separate class. For maintaining democracy, administrative efficiency and purity, it is
necessary that, when such persons commit serious abuse of power and are guilty of a breach
of trust reposed in them, they form a special class of offenders. Quick disposal of such cases is
necessary, for if such cases are allowed to have their normal, leisurely, span before normal
courts, then the whole purpose in launching them may be frustrated. The term 'high public or
political office' is not vague; it bears a clear connotation as it means persons holding top
positions wielding large powers.

The Act was a wholesome piece of legislation. Some such machinery is needed for the offences
sought to be covered by the Special Courts Act were those which would not be caught by the
Prevention of Corruption Act, e.g. relating to abuse or misuse of power.95 But, because of
political considerations, the Act was repealed in 1980.

Lokpal Bill is therefore to be commended as it seeks to put in place a machinery for probing
into charges of corruption the against Central Ministers. But it needs to be emphasized that
while fight against corruption is indeed important, the function of redressal of grievances of
the people against the Administration is no less important. People suffer both from
administrative action as well as inaction. The amount of public interest litigation coming
before the Supreme Court and the High Courts is indicative of the need to install a mechanism
for redressal of individual grievances against the Administration. As early as 1967, the
Administrative Reforms Commission suggested the creation of such an institution.

A democratic polity cannot afford to ignore this significant aspect of administrative

responsibility to the people.

As stated above, the primary motivation in the Scandinavian and Common-law countries for
having the Ombudsman system has been redressal of individual grievances against the
Administration. Although these countries have a much higher standard of administration than
India, and although there was no public demand for it, it was still thought prudent to have an
Ombudsman to remove people's grievances against the Administration. Accordingly, it is
absolutely necessary to install in India a grievance redressal mechanism. This will go a long
way to promote rule of law, administration according to law, transparency in administration
and, above all, good governance in the country. It will instil a sense of responsibility and
accountability in the Indian bureaucracy which is lacking at present.
(k) Proposal for Litigation Ombudsman

The idea of an Ombudsman was again been revived by the Law Commission of India. 96 The
Commission argued as follows: Government is a party in a large number of cases coming
before the courts at the present moment. Parties approach the courts for redress against
government acts which constitute an infringement of their legal rights. In addition, parties
also seek redress from the courts in cases of 'maladministration', whether a legal right may or
may not be infringed. Official acts falling in this category "lie on the outer confines of
'illegality'." Some of these acts may not be legal wrongs and border rather on "impropriety",
outside the region of 'illegal acts'. "Official apathy, oppression, unimaginativeness, lethargy or
misunderstanding--these and similar factors are responsible for the parties seeking redress in
courts". In many instances, the motivation of the parties to go to courts is "to give vent to their
sense of injustice, than to obtain legal relief as such".

The Commission thus felt that there was need for evolving some mechanism whereby the
pressure on the courts could be relieved and grievances of the people of a legal
natureredressed quickly and cheaply. "Such a mechanism would advance the cause of justice,
and also check the influx of cases into the higher courts". Litigation causes considerable
expense of time, money and labour in all quarters. There should be some apparatus so as to
avoid the possibility of unnecessary litigation against the government.

With this end in view, the Commission suggested the creation of an office of Litigation
Ombudsman to whom prospective litigants may(notmust) have recourse for their grievances
of a justiciablecharacter. The point to note was that the proposed office was to deal with cases
of a legal nature, not with cases of maladministration--cases of illegality rather than of
impropriety as stated above. The reason for this approach was that statistically cases of
illegality are larger in number and their number was bound to increase with the passage of
time. Such an office should be created by enacting a law by each government, State as well as
Central, for such of the ministries as might be specified by the concerned government.

The Litigation Commissioner should be a retired High Court Judge appointed in consultation
with the Chief Justice of India at the Centre, and the Chief Justice of the High Court in the State.
He should enjoy security of tenure (like a High Court Judge) for three years. He could have a
number of deputies if necessary. A member of the public seeking to initiate writ proceedings
against the government could approach the Ombudsman through a letter with his grievance.
No formal application for the purpose should be required. The Ombudsman could then make
his recommendation regarding the matter within two months and communicate the same in
writing both to the applicant and the government. The Litigation Ombudsman should have
power to make a recommendation with respect to any decision, act or omission of the
government or its officer, if he is satisfied that the same:

1a) was contrary to law; or

1b) was unreasonable, unjust, oppressive, or improperly discriminatory, or was in
pursuance of a rule of law or a provision of any enactment or a practice which
itself is unreasonable, unjust, oppressive, or improperly discriminatory, wherein
in the circumstances legal redress could have been claimed.
1c) was based wholly or partly on a mistake of law: or
1d) was wrong in law; or
1e) involved in the exercise of a discretionary power for an improper purpose, or
irrelevant grounds, or by taking irrelevant considerations into account, or omitted
to give reasons where reasons should have been given for the decision.

The Litigation Ombudsman, in his discretion, could refuse or cease to investigate a grievance
if--(a)it is trivial, frivolous or vexatious or is not made in good faith; or (b)the facts alleged
show no legal cause of action and no impropriety of the nature mentioned above. The
Litigation Ombudsman would present an annual report to the concerned legislature. The
government in its annual report was to state the action taken on the preceding year's report of
the Ombudsman. The above scheme was not to apply to a State where an Ombudsman
appointed under a State enactment would be functioning.

The Commission does not seek to make it compulsory for a citizen (seeking to sue the
government) to resort to the Litigation Ombudsman as a pre-requisite to the initiation of legal
proceedings against the government. "The object of the recommendation is only to provide to
the citizen a forum from which he may, if so advised, first seek relief. There should be nothing
mandatory in the scheme, for the citizen". The Commission hoped that the proposed
functionary will be able to furnish "Prompt, competent and honest advice" to the government
on matters likely to lead to litigation. The Commission hoped that if the recommendation was
carried out in its proper spirit, and not in a pedantic and bureaucratic manner it would
"advance the cause of substantive justice, improve the image of the Government and, to some
extent, reduce congestion in the courts".

The Commission realised that while a majority of cases reaching the proposed Ombudsman
would be such as raise "justiciable issues", some cases might be of the other type as well--
bordering on impropriety, rather than illegality. The Commission suggested that the
government should set up some other administrative machinery for the purpose of dealing
with cases of impropriety. As regards the State Ombudsmen, these could be adapted to deal
with cases envisaged here. The Commission feared that to have two functionaries in a State--a
Litigation Ombudsman as envisaged here and an Ombudsman (Lokayukta) might lead to
overlapping of functions and confusion to the citizen. The proposed legislation, the
Commission suggested, be enacted by Parliament. Such a law would fall, in part, within the
entries in the Seventh Schedule to the Constitution relating to "Civil Procedure" and
"Administration of justice" and, in part, within the entries relating to the substantive subjects
to which particular litigation may relate.

The proposal made by the Law Commission was very welcome and could, if implemented, lead
to expeditious justice, relieving pressure on the courts and improving the grievance redressal
machinery against the Administration. But, as the Commission itself accepted, its proposal did
not cover the entire gamut of complaints against the Administration. Complaints raising non-
justiciable issues may be as important, if not more important, as the complaints raising
justiciable issues, but the Commission's proposal left such such an important segment of
complaints out of the purview of the proposed Ombudsman. However, the Commission's
proposal was not implemented.

8. STATE LOKAYUKATAS
Syn. 8

State Lokayukatas

While the idea of establishing Ombudsman at the Central level has proved abortive and jinxed
so far, several States have adopted the system. These States are: Orissa, 97

Maharashtra,1 Rajasthan,2 Bihar,3 Uttar Pradesh,4 Andhra Pradesh, Karnataka,5 Madhya

Pradesh,6 Gujarat,7 Himachal Pradesh and Delhi.

The State Acts do not follow any uniform pattern. In some of the States, the task assigned to
the Lokayuktas is to look into cases of corruption as well as maladministration. These Acts
follow the model of the Central Bill of 1971. In other States, the task assigned to the
Lokayuktas is confined only to allegations of corruption involving Ministers (other than the
Chief Minister) and government servants.

To narrate briefly the main features of the system in Andhra Pradesh, 8 the Governor appoints
the Lokayukta after consultation with the Chief Justice. Only a Judge or a retired Chief Justice
of a High Court can be appointed to this office. The Governor also appoints one or more Upa-
Lokayukta from amongst the district judges. The term of office for each is five years but any of
them can be removed from office by the Governor for misbehaviour or incapacity after an
inquiry by a Supreme Court Judge or the Chief Justice of a High Court.

The function of the Lokayukta is to investigate any action taken by, or with the approval of, or
at the behest of--(a) a Minister or a Secretary; (b) a member of the State Legislature; or (c)a
mayor of a municipal corporation. All other public servants in the States fall under the
purview of the Upa-Lokayukta. The Chief Minister does not come within the purview of the
Lokayukta.

The accent of the system is on investigation of 'allegations'. i. e. complaints of corruption by

public servants and not on maladministration. The competent authority is bound to take
action on the report of the Lokayukta or Upa-Lokayuktawithin three months.
The Karnataka system9 closely follows the Andhra Pradesh model but with some differences.
In Karnataka, the Chief Minister falls within the purview of the Lokayukta. In appointing him,
the Governor is to have more pervasive consultation, i.e.,he has to consult the Chief Justice of
the High Court, the Chairman of the Legislative Council, the Speaker of the Assembly and the
leaders of Opposition in both the Council and the Assembly. Like Andhra Pradesh, in
Karnataka as well, provision is made for appointment of Upa-lokayuktas and only allegations
(i. e. charges of corruption) are to be investigated by the Lokayukta and not those of
maladministration.

In both the Acts, the statutory corporation owned or controlled by the government,
government companies, universities and even co-operative societies under the control of the
government fall within the purview of the Upalokayukta.

Under the Delhi Lokayukta and Up Lokayukta Act, 1995, the Lokayukta takes cognizance of
"allegations" only. Allegation is defined (as) that a public functionary--

3i) has failed to act in accordance with the norms of integrity and conduct "which
ought to be followed by the public functionaries or the class to which he belongs";
3ii) has abused or misused his position to obtain any gain or favour to himself or to
any other person or to cause loss or undue harm or hardship to any other person;
3iii) was actuated in the discharge of his functions as such public functionary by
improper or corrupt motives or personal interest;
2iv) is or has at any time during the period of his office been in possession of pecuniary
resources or property disproportionate to his known resources of income

'Public functionary' has been defined by s. 2(m) as "as person who is or has been at any time--

4i) Chief Minister or a Minister;

4ii) a member of the State Legislative Assembly (but not Speaker or Dy. Speaker);
4iii) a person having the rank of a Minister;
 3iv) chairman, vice-chairman, managing director or a member of the board of directors
of a co-operative society subject to the control of government, a government
company, local authority, corporation or a member of the municipal corporation.

In an interesting case Ram Nagina Singh v. S. V. Sohni,10the appointment of the Loktyukta in

Bihar was challenged through a writ petition for quo warrantounder Art. 226. Dismissing the
petition, the High Court made the important point that when a statute confers power on the
Governor to appoint the Lokayukta, the Governor is to exercise the power on the aid and
advice of the Council of Ministers.

The fact remains however that the Lokayukata(Ombudsman) institution in the states has not
been very successful so far. The reason is that each State Government seeks to install the
system for cosmetic purposes, as a populist measure, to give a sense of confidence to the
public that corruption is being fought or that one can have redress against maladministration,
while, in practice, the government does not take the institution seriously. Its reports are not
implemented. The reasons are primarily political; the ruling party does not wish to mar its
image by accepting the fact that there has been any corruption or maladministration while it
is in office. Examples abound when no action has been taken even when the Lokayuktas have
revealed specific instances of corruption or maladministration. 11

Information about the working of the State Ombudsmen is scarce. The Ombudsmen do not
inform the public about their functioning. Their annual reports are not released regularly.
Some Ombudsmen have criticised their governments for

delays in placing the reports before the Legislatures. The lack of public information indicates
that the Lokayuktas have encountered difficulties which have reduced their utility in
remedying individual grievances. They lack adequate resources. They have no investigatory
staff of their own and have to rely on public agencies to investigate complaints. The agencies
shuffle the task around administrative units, or put a low priority on furnishing information.
Many pending cases are carried over from year to year.

Furthermore, the Lokayuktas are often inaccessible to the public. Complainants lose heart or
become disinterested or abandon proceedings as soon as they are asked to file an affidavit or
to visit the Lokayuktas office to record the complaint or attend a hearing. The Maharashtra
Ombudsman remarked in his first annual report (1972-73) that this was particularly hard on
the rural poor. He also referred to jurisdictional problems which in effect give police
immunity from investigation and place the execution of public contracts beyond review.
Another serious limitation has been the requirement that complainants exhaust other
avenues of redress even if, in reality, those avenues are purely theoretical.

Although for political reasons, Ombudsman type institution is sought to be created in the
States, basically, the Executive does not welcome the idea of Ombudsman; it is hostile or
apathetic to the institution, and tries its best to make it an effete institution. The government
seeks to appoint pliable persons as Ombudsmen. 12 Their recommendations are not acted upon.
In July, 1976, the Maharashtra lokayuktafound two ministers guilty of malpractice, but the
ministers leveled a countercharge against the lokayuktahimself who incidentally was the ex-
Chief Justice of the Bombay High Court.13

The Bihar Government tried to prevent an investigation into the charge against a minister,
and ultimately the appointment of the lokayuktaitself was challenged (though unsuccessfully)
in the Patna High Court.14 Although the ostensible aim of the legislation is to enable the
lokayukta to probe charges of corruption against ministers, the statutory provisions are
drafted more to hide than to reveal. For example, under the Orissa Act, once a charge against a
minister is made, there is to be no public hearing; the proceedings are to be held in camera: no
lawyer is allowed to argue and only the Lokpal decides the case. S. 10(1) says:

"Every such investigation shall be conducted in private and in particular, the identity of the
complainant and the public servants affected by the investigation shall not be disclosed to the
public or the press, whether before, during or after the investigation."

Such provisions do not inspire public confidence that there will be impartial inquiry into
allegations of corruption against the ministers. Once a charge of corruption is made,
everything is shrouded in secrecy. Perhaps, because of the inaccessibility or executive
opposition, the number of complaints to the Ombudsmen has been small, given the large
population of the States and frequent contact between public agencies and residents.
Although Uttar Pradesh is the most heavily populated State, the Ombudsman there receives
the lowest number of complaints, less than two hundred in 1979 and less than one hundred in
1978. Other Ombudsmen have not fared much better. The Rajasthan Ombudsman has
accepted less than one-third of the complaints as being within his jurisdiction, and of the 494
complaints he accepted in 1973-74, he only disposed of 110; he had a somewhat better record
in 1975-76, of the 568 complaints, 213 were disposed of. In Maharashtra, between 1972 and
1975, an average of 840 complaints a year were received, of which seven hundred were
disposed of (including those beyond jurisdiction or not investigated). In Bihar, in recent years
about nineteen hundred complaints have been received annually, and 2,250 have been
disposed of as the office works off a sizable backlog, but these figures, are exaggerated by its
practice of recording complaints on which no action is taken.

Some aspects of the working of the Lokayukta in Maharashtra have been brought to light in
Vishwasrao v. Lokayukta, Maharashtra.15 Though the case refers specifically to Maharashtra,
yet it is of general interest as the legislation pertaining to Lokayukta in the States is mostly
common, using common ideas and phraseology.

The Maharashtra Lokayukta functions under the Maharashtra Lokayukta and Upa-Lokayuktas
Act, 1971. He has broad powers as he has jurisdiction to take cognisance of both--(i)
allegations of misconduct among civil servants; and (ii) grievances arising out of
maladministration. The High Court has pointed out that, in a given case, an action may
constitute both a grievance and an allegation. In some cases, the action may amount to
allegation and its consequences might result in grievance. The overlap is inevitable as in one
case the definition emphasizes the consequence of an act, in the other the motive for it.

The petitioner was appointed as honorary paediatrician in a District hospital through a

properly constituted selection board. Thereafter, his appointment was suspended because of
an interim stay granted by the Lokayukta on a complaint filed before him by one of the
candidates for the post. The petitioner through a writ petition in the Bombay High Court
under Art. 226 raised the question whether the Lokayukta had any jurisdiction to review his
appointment. The Lokayukta had taken the view that he could entertain and investigate the
matter. The interesting thing to note in the case is that the Government of Maharashtra
supported the petitioner in questioning the jurisdiction of the Lokayukta in the matter. The
Lokayukta was unrepresented before the High Court, as he could not engage a counsel to
represent his case because there was no budgetary provision for the purpose. The High Court
itself had to request a lawyer to appear on behalf of the Lokayukta as amicus curiae. On this
aspect of the matter, the court observed:16

"We are pained to observe that this is wholly an unsatisfactory state of affairs. The State
Government is obliged to treat the Lokayukta with dignity and decorum. As a matter of fact, the
State Government should have made proper arrangements for its representation, if it thought that
it cannot support the order passed by him".

The main question involved in the instant case was whether the jurisdiction of the
Ombudsman could be subjected to judicial review.

The contention of the petitioner was three fold : One, the grievance of the complainant related
to a matter of appointment and so was wholly barred by S. 8(1). Two, an alternate remedy by
way of a writ petition was available to the complainant and so the Lokayukta could not
entertain the complaint under s. 8(b). Three, the Lokayukta had no power to grant stay of
implementation of the order of appointment.

The High Court rejected all the contentions. The court explained the function of the Lokayukta
as follows:

"From the provisions of the Act it is quite clear that the Act empowers the Lokayukta to carry on
the investigation into a complaint and then make a final report on the basis of the finding, recorded
after the investigation. The final report of the Lokayukta is recommendatory in nature. Admittedly,
under the Act the Lokayukta has no jurisdiction to pass a binding order, which will operate on its
own force."
According to S. 8(1)(a) of the Act read with item (d) in the Third Schedule, the Lokayukta is
not to conduct any investigation in case of a "complaint involving a grievance" with respect to
appointments. Under s. 8(1)(b), a grievance is barred if the complainant has or had any
remedy by way of proceedings before any tribunal or court of law. The court however ruled
that the complaint covered the area and field of 'allegation' as well as 'grievance', and,
therefore, the complaint was not barred under Sections 8(1)(a) and 8(1)(b), as under these
provisions only 'grievances' were barred.

Apart from it, the High Court also took the view that the remedy by way of a writ petition
would not be a bar to presenting a grievance to the Lokayukta. As the court explained, there is
a difference between a 'direct' remedy and a 'collateral' remedy against an administrative and
quasi-judicial action. A remedy of statutory appeal or revision is "direct and vertical remedy".
It is a re-hearing in which the merits of the impugned decision can be considered. But a suit or
writ petition attacking the validity of the decision are 'collateral' attacks on it where not the
merits but its validity or legality is considered. Collateral attack on a decision by way of a suit
is always available. Therefore, if the interpretation as proposed by the petitioner is accepted,
then there will be no occasion for making any 'grievance' under the Act. Further, even when
an alternative remedy is available, the Lokayukta has authority [proviso to s. 8(1)(b)] to
conduct an investigation if he is satisfied that the complainant could not or cannot, for
sufficient cause, have recourse to such remedy. Further, said the court, once it is found that a
complaint covers both the areas, viz. that of an 'allegation' and a 'grievance' and is
overlapping, then it cannot be said that only because a part of it falls within the area of
grievance, the Lokayukta would have no jurisdiction to entertain the complaint. That would
amount to pre-judging the issue. The court explained the position further as follows:

"When the Lokayukta decides to investigate he is merely commencing the process, after satisfying
himself, prima facie, that the complaint raises issues within the ambit of his powers. It is only after
investigation, he can come to a definite finding. In the cases where the complaint is overlapping, if
he is prevented from investigating it, the whole purpose of the Act will be set at naught. Therefore,
taking any view of the matter, in the present case, it cannot be said that the Lokayukta had
assumed jurisdiction which was not vested in him by law."
In the instant case, the Lokayuktahad decided that he had jurisdiction to entertain the
complaint. The High Court commenting on this finding said: "This finding recorded by the
Lokayukta cannot be said to be unreasonable or perverse so as to call for any interference in
the extraordinary writ jurisdiction of this court under Art. 226 of the Constitution".

As regards the third contention, the court ruled that the power to make an interim
recommendation in consonance with this power to make a final report must be implied in the
Lokayukta. Otherwise, the very power to investigate, which may result in a recommendation,
would become barren or futile if, in the meanwhile, administrative action is taken or
implemented. In that case the report or the recommendation made by the Lokayukta will
amount to a post-mortem report. The court interpreted the Rules made under the Act to hold
that the Lokayukta is empowered to make an interim recommendation in time with in his
power to make a final recommendation.

The respondent raised the objection that the petitioner had no locus standi to challenge the
order of the Lokayukta. The court explained the position as follows: The complaint
contemplated under the Act is against a public servant and the beneficiary or a third party
does not come into the picture at all. "The lis, if any, is between the complainant and the public
servant". The final recommendation of the Lokayukta can also be qua the act of the public
servant and it has nothing to do with the beneficiary.

The High Court stated its general attitude towards writ petitions seeking to prohibit
investigations by the Lokayukta in administrative decisions in the following words:

"Generally the court will not arrest or prevent investigation under the Act. More so at the instance
of the beneficiary of a suspect administrative action as it can only have the result of his continuing
to enjoy the benefits, without an investigation as to whether it was improperly motivated or not.
Justice does not lie in favour of such a party. So far as public servants are concerned, they are
expected to participate in the inquiry or investigation and place before the Lokayukta all the
relevant materials They are not expected to raise technical objections to shield maladministration.
Therefore, normally this court will not entertain any challenge so as to throttle the investigation
itself. More so, at the instance of third party."
As the High Court emphasized, powers have been conferred on the Lokayukta "for the purpose
of purity of administration". If Lokayukta is prevented from investigating a complaint at the
instance of a third party, then the whole object of the Act will be frustrated.

But, in the instant case, the court conceded that the petitioner had standing to file the writ
petition as the Lokayuktahad issued her a notice of hearing on the question of his jurisdiction
and heard her views on the question.

In the instant case, the writ petition was dismissed. It is obvious that this pronouncement of
the High Court will go a long way to strengthen the institution of the Lokayukta in the States.
As the High Court emphasized in its judgment: "... the provisions of such an enactment, which
is enacted for the eradication of the evil of corruption and maladministration should be
liberally construed so as to advance the remedy."17

Some aspects of the Karnataka Lokayukta Act, 1984, has been considered by the Karnataka
High Court in Hottepaksha Rangaswamy v. Chief Secretary, Govt. of Karnataka.18 The Act
extends to both "grievances" and "allegations". Action can be initiated against a public servant
when guilty of corruption, favouritism, nepotism or lack of integrity.

Some stray matters coming before the State Lokayuktasmay be mentioned here. The
Lokayukta of Madhya Pradesh has observed about a particular ex-Minister that he is unfit for
holding any public office. The Lokayuktafound that he had flouted all the rules in appointing
his son-in-law to a government post. The Lokayukta has declared that a person like the ex-
Minister is not fit for a responsible post like minister and he should not be considered for any
public office in future.19

In the same report, the Lokayukta has lamented that the State Government is not taking
effective punitive action against officials found guilty by his establishment. The Lokayukta has
said very rightly that if a corrupt public servant is allowed to function after a simple
punishment or allowed to go scotfree, it not only encourages him to continue corrupt deeds
but also turns him into an enemy of the democratic system. Moreover, it also undermines the
credibility of the Lokayukta in the public eyes. He has cited several instances where
government officials have not co-operated with his establishment in probing corrupt officials.
Officials take a long time in sending replies to queries sent by the Lokayukta. At times, there is
a 'deliberate delay' by government officials in conducting inquiries so that the persons
involved retire from service.

The Andhra Pradesh Lokayukta has also held an ex-Minister guilty of accepting bribe and held
him "unworthy of holding any responsible position". The Lokayukta has said that "it would be
detrimental to administration if such persons hold responsible offices", and has recommended
that the person concerned be debarred from holding any elective post till such time as the law
permits.20

In some States, the office of the Lokayukta remains vacant for years. The most typical case is
that of Bihar where no Lokayukta has been appointed for years. On January 14, 1999, the
Supreme Court issued a notice to the Bihar Government asking it to explain why Bihar did not
have a Lokayakta for more than three years. According to the press report, the reason for not
appointing the Lokayukta was that the State Government was not in a position to ensure the
appointment of a nominee of its choice to the post. The name of the incumbent needs to be
cleared by a committee consisting of the Chief Minister, Leader of the Opposition and the Chief
Justice of the Patna High Court and the Government is not in a position to secure clearance for
its chosen person for the office.

The matter came before the Supreme Court on a PIL writ petition. The Court also asked 15
other States to file affidavits specifying the steps taken up by them to set up/appoint
Lokayuktas.21

On the whole the Indian record so far has not been impressive in respect of the Ombudsman
institution.22 Given the large population, ubiquitous governmental regulation of private
activity, sprawling Administration, and general belief in widespread corruption and
maladministration, the number of complaints has been very low. The reasons are obvious--
illiteracy, lack of knowledge, inaccessibility, fear of offending authority, and a general feeling
that nothing will come out of Ombudsman's intervention. The Executive has been and remains
hostile to the Ombudsman idea. Public agencies do not exhibit good-will or co-operation
towards him. The Ombudsman cannot achieve much in the face of Administration's hostility
and apathy. In the absence of deep-seated democratic values in the policy and public
administration, the Ombudsman idea has resulted in merely a symbolic institution rather than
a real protector of the people.

If the institution has to have any semblance of success in the States, it is essential to fulfil at
least the following four minimum conditions:

2a) there should be a model law for the States to follow; at present there is too much
variety in the State laws;
2b) some autonomy will have to be granted to the Ombudsman through a
constitutional provision on the lines of the Election Commission;
2c) selection of a proper person as Ombudsman would have to be ensured and
necessary provisions for the purpose need to be drafted. The final decision as to
whom to appoint cannot be left solely in the hands of the State Government of the
day;
1d) the Ombudsman institution should be exclusively confined to removal of people's
grievances; charges of corruption against administrators will have to be probed by
some other high powered body; it cannot inspire any confidence if allegations of
corruption against the ministers are probed into by one appointed by the
Executive itself.

In July, 1999, Justice Mahendra Bhushan Sharma, former Lokayukta, expressed the view that
the Rajasthan Government should wound up the institution of Lokayukta. The institution
served no purpose unless teeth were given to it including powers to initiate disciplinary
action against corrupt bureaucrats and make Lokayukta into an independent investigating
agency to hold inquiries. Justice Sharma maintained that none of the recommendations made
by him as Lokayukta was accepted by the government. He has submitted about 70 to 80
reports to the government during his tenure, but no concrete action was taken thereon. This
reflects the uselessness of the institution.
(a) Ombudsman for Local Self-government Bodies

The State of Kerala has created a very interesting institution, viz. Ombudsman for Local Self
Government (LSG) bodies. The object of the Ombudsman is "to conduct a defailed inquiry
regarding any proceedings of the Local Self Government bodies and the public servants
holding office there under concerning corruption, maladministra-tion or defects in the
administration and settle such complaints."

The authority has been created under the Kerala Panchayat Raj Act, 1994 as amended in 1999.
The authority known as Ombudsman is to consist of seven persons as follows : (1) a person
who is or has been a High Court Judge as chairman; (2) two district judges; (3) two
government officials not below the rank of government secretary; (4) two "honest and
respectable" social service workers. Adequate provisions have been made to ensure their
independence and objectivity. Appointments are to be made by the State Governor on the
advice of the Chief Minister.

The institution has been created on the recommendation of the Sen Committee. The
committee suggested that while tribunals would adjudicate upon appeals from decisions
taken in exercise of regulatory authority, there should be an institution "to investigate the
field of administrative activity, i.e. to investigate independently complaints from individuals
and groups and even the government relating to defective administration by the local bodies".
In the words of the committee:23

"Ombudsman can go into the reasonableness of a decision. Ombudsman can follow up complaints
which relate to action or inaction. It can also take up matters relating to internal administration
which need not necessarily affect any individual's interest. The Ombudsman system goes beyond
the judicial process, as, after redressal of a grievance it can choose to monitor the behaviour of the
local authority concerned and it can point out systemic deficiencies and suggest improvements".

The Ombudsman system thus lies outside the court system. Its main objectives are two:
 7) redressal of grievances of people against the administration of the LSG bodies;
7) supervisory to spot systemic deficiencies and suggest improvements. 24

There is need for other States to emulate the Kerala System Local bodies which are
immediately in contact with the people and are in very bad shape. Their administration needs
to be improved if they have to serve the people well. The Kerala system may go a long way to
improve the administration by local bodies.

1 See, JAIN, A Treatise on Adm. Law, I, Chapter I.

2 On "Corruption", see, infra, Chapter XLIV.

3 WHEARE, Maladministration and Its Remedies, 3 (1973).

4 AIR 1984 SC 1767 : (1984) 4 SCC 316.

5 Onkar v. Union of India, AIR 2003 SC 2562: (2003) 2 SCC 673, supra, Chapter XXVII.

6 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555: (1974) 4 SCC 3 : 1974 (1) LLJ 172; Indian
Railway Construction Co. Ltd. v. Ajay Kumar, AIR 2003 SC 1843: (2003) 4 SCC 579, at 592 : 2003 (2) LLJ
150; State of Andhra Pradesh v. Goverdhanlal Pitti, AIR 2003 SC 1941: (2003) 4 SCC 739.
7 Supra, Chapters XXXI--XL.

8 JAIN, Treatise, I, Chapter XIX.

9 JAIN, Treatise, I, Chapter XIX.

10 Supra, Chapter XLI, under "Public Interest Immunity."

11 JAIN, Treatise, I, Chapter XIX.

12 Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295: (1966) 36 Comp Cas 639; supra,
Chapter XXXV.

13 JAIN, Treaties, I

14 JAIN, Treatise, I.

15 For example, see, State of Bombay v. K.P. Krishnan, AIR 1960 SC 1222, 1223: 1961 (1) SCR 227 : 1960
(2) LLJ 592. This becomes clear from the area of preventive detention where the grounds for detention
are given to the detenu and thus the courts are able to quash orders of preventive detention after
scrutinizing the grounds: JAIN, Treatise, I, Chapter XIX.

16 For example, see, Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740: 1966 CrLJ 608 : 1966 (1) SCR
709; JAIN, Treatise, I, Chapter XIX.
17 For example, G. Sadanandan v. State of Kerala, AIR 1966 SC 1925: 1966 CrLJ 1533 : 1966 (3) SCR 590;
Partap Singh v. State of Punjab, AIR 1964 SC 72: 1966 (1) LLJ 458 : 1964 (4) SCR 733.

18 JAIN, Treatise, I, Chapter XIX.

19 JAIN, Treatise, I, Chapter XIX., AIR 1964 SC 72 : 1966 (1) LLJ 458.

20 Infra,

21 Report of the New Zealand Ombudsman, dated 31 March, 1964, pp. 6-7.

22 For example, Art. 75(2) of the Constitution of India says: "The Council of Ministers shall be collectively
responsible to the House of the people." Also see, Art. 164(2) of the Constitution in respect of States.

23 See, on this point, JAIN, Indian Constitutional Law.

24 G. Sadanandan v. State of Kerala, AIR 1966 SC 1925: 1966 CrLJ 1533 : 1966 (3) SCR 590; supra.

25 For a detailed discussion of the Ombudsman institution in various countries. see M.P. JAIN, Lokpal--
Ombudsman in India, (1970).

26 In 1980, there were three Ombudsmen and two regional offices besides the head office. The Chief
Ombudsman handled complaints against the government departments, while the other Ombudsmen
handled complaints against the local authorities. The Chief Ombudsman is also a member of the Human
Rights Commission.
27 M.P. JAIN, The Ombudsman in Newzealand, 6 JILI 307 (1963). Also see, A.P. JOSEPH, Constitutional &
Admn. Law in New Zealand, 123, 130 (1993).

28 On "Promissory Estoppel", see, Chapter XXIII, supra.

29 The New Zealand Ombudsman has characterised such a view as "altogether too simplistic". The
Ombudsman Act makes no such distinction. According to the Ombudsman, it is impossible to separate
matters of "policy" from matters of 'administration' "in any definitive way". "In many instances the
resolution of a complaint requires action by a Minister, either by way of modification or reversal of one of
his decisions or by direction to a department to implement an Ombudsman's recommendation". See,
Report of the Chief Ombudsman, 37 (1984).

30 See, Chapter XLV, infra.

31 The Report of the Ombudsman for the year ended 30 June 2001, p. 27.

32 The office was created in 1966 in anticipation of the passage of the Act. The proposal to establish the
Ombudsman was made by Justice in its report in 1961, known as the Whyatt Report. A good deal of
material is available on the British Ombudsman, e. g.: M.P. JAIN, Lokpal, Ombudsman in India, 1970, M.P.
JAIN, The First Year of Ombudsman in England, 14 J. I.L. I. 159 (1972); FRANK STACEY, The British
Ombudsman; WADE, THE OMBUDSMAN: The Citizen's Defender, Law and the Commonwealth (1971);
JUSTICE, The Citizen and the Administration (1961); WHEARE, Maladministration and ItsRemedies (1973);
GEOFFREY MARSHAL, Maladministration, (1973) Pub. Law 32; JUSTICE, Our Fettered Ombudsman; D.W.
WILLIAMS, Maladministration : Remedies forInjustice; YARDLEY, Principles of Adm. Law, 205-32 (1981);
CRAIG, Adm. Law, 249-252 (1983); BEATSON & MATHEWS, Adm. Law : Cases & Materials, 832-871,
(1989); BAILEY, Cases & Materials in Adm. Law, 142-191 (1992); PATRICK BIRKINSHAW , Grievances,
Remedies & the State, 187-211 (1994); DE SMITH, WOOLF AND JOWELL, Jud. Rev. of Adm. Action, 41-58
(1995); WADE, ADM. Law, 87-112 (2000).
33 CRAIG, Adm. Law, 235 (2003).

34 This proviso has been used quite frequently by the Ombudsman in respect of tax complaints, for he
takes the view that it is unreasonable to expect the complainant to go through the cumbersome and
expensive process of litigating against the Inland Revenue. See, YARDLEY, Principles of Administrative
Law, 209 (1981).

35 (1970) 2 All ER 527.

36 Supra, Chapter XLI.

37 'WHEARE, Maladministration and its Remedies, (1973), gives the following examples of what, according
to him, may constitute maladministration:

37 (1) Transgression of law by the administrative authority.

37 This could arise from--(i) failure to carry out a duty imposed by law; (ii) action going beyond the
powers conferred by law; (iii) use of legal power for a purpose for which it was not intended; not
following a procedure laid down by law; making of arbitrary or unreasonable decisions in the application
of legal powers.

37 (2) Actions of officials actuated by bribery or corruption.

37 Influence may be used to persuade officials either to act or not to act in an area where they have
discretion.
37 (3) Maladministration though not necessarily illegal, such as: (i) delay in reaching a decision; (ii)
discourtesy or rudeness; (iii) unfairness; (iv) bias; (v) incompetence; (vi) ignorance; (vii) high-
handedness; (viii) mistakes; (ix) failure to answer a letter; (x) losing paper; (xi) giving misleading
statements to citizens about their legal position; (xii) getting the facts of a case wrong; (xiii) failure to take
into account the facts which the department ought to have taken into account; (xiv) negligence; (xv)
misconduct.

37 WHEARE emphasizes that bad law or bad rules necessarily produce maladministration. Here actions in
accordance with law will constitute maladministration. Law may be ambiguous, obscure, self-
contradictory, obstructive, or may embody in itself principles of discrimination, bias, injustice and all this
will inevitably produce maladministration. See, WHEARE, Maladministration and its Remedies, (1973), 6-
13.

38 See, Lord DENNING MR's judgment in R. v. Local Commissioner for Administration, 1979 QB 287ex
parte Bradford City Council,(1979) QB 287, where an attempt has been made to give a definition of
'maladministration'.

39 WADE, Adm. Law, 83 (1982).

40 WHEARE, Maladministration and its Remidies, (1973), 13-14.

41 Annual Report 1977, p. 7; CAROL HARLOW, Ombudsmen in Search of a Role, (1978) 41 M.L.R. 446.

42 JAIN, Treaties, I.

43 BRADLEY, The Role of the Ombudsman in relation to the Protection of Citizen Rights, (1980) CLJ 304.
44 Congreve v. Home Office, (1976) QB 629.

45 Congreve v. Home Office, (1976) QB 629 at 652.

46 Supra, Chapter XX.

47 Annual Report 1973.

48 R. GREGORY AND G. DREWRY, Barlow clowes and the Ombudsman, Part I, (1999) PL 192; Part II,
(1991) PL 408.

49 R. v. Parliamentary Commissioner for Administration, 1, 1994, 621, WLRex parte Dyer,(1994) 1 WLR
621.

50 JUSTICE, Our Fettered Ombudsman, 5, 16-19.

51 JUSTICE, Our Fettered Ombudsman, 7-8, 23-6 (1977). In 1971, Justice suggested certain principles of
good administration. Presumably, breach of any such principle could amount to maladministration to be
taken cognisance of by the Ombudsman.

52 HC 593, Session 1979/80.

53 JUSTICE has said on this point: ". there is no convincing reason why an individual or organisation
aggrieved by alleged maladministration by a public body in relation to a contractual matter should not be
enabled to have his complaint considered by an Ombudsman..." Op. cit., 14.

54 See GREGORY, (1982) PL 49 at 73-6.

55 J.D.B. MITCHELL, (1968) PL 201. Also see, JAIN, Treatise, I, Chapter I.

56 WADE, ADM. Law, 94 (2000).

57 JUSTICE, The Local Ombudsmen, (1980).

58 For details of this institution, see, Reg. v. Local Commissioner, 1979, 1, ELREx. parte Bradford Council,
(1979) 2 WLR 1; supra.

59 JUSTICE. Our Fettered Ombudsman, 6.

60 COMMONWEALTH OMBUDSMAN, First Annual Report, 1978, 20. But in his Fifth AnnualReport,at 24,
the Ombudsman noted that the Act did not exclude a matter from being a "matter of administration" on
the basis that it might also be "a matter of policy". He suggested that the Act might therefore authorise
him to investigate all actions of a department or a prescribed authority.

61 The Ombudsman has explained the significance of this term as follows:

61 "The word oppressive is... to be interpreted according to the plain dictionary meaning of describing an
action which is burdensome, harsh, intimidatory, merciless, cruel or tyrannical."
61 He says: "Oppressive conduct included an act or decision intended to bully a citizen or having the effect
of over burdening a complainant in the pursuit of his legal entitlement, e. g., where an authority requests
more information than it needs to make a decision. If an authority used its superior knowledge or position
to place the citizen at a substantial disadvantage it acts oppressively." VI Report 16 (1982-83).

62 JAIN, Treatise, I.

63 Third Annual Report, 18-19 (1979-80).

64 VI Annual Report, 16.

65 VI Annual Report, 16.

66 Infra, Chapter XLV.

67 VI Report, 121 (1982-83).

68 COMMONWEALTH OMBUDSMAN, Fifth Annual Report 5 (1981-82).

69 The Swedish Ombudsman has in fact made a suggestion that a legal obligation may be placed on the
administration to give reasons so that the number of complaints to him may be reduced.

70 Report, March 31, 1964, p. 5.

71 There is a good deal of literature in India on this subject. For instance, refer to M.P. JAIN, Lokpal--
Ombudsman in India, (1969); JAGANNADHAM AND MAKHIJA, Citizen,Administration and Lokpal, (1969);
S.K. AGRAWALA, The Proposed Indian Ombudsman, (1971); S.P. SATHE, Lokpal and Lokayukta: The Indian
Ombudsman, 38 Jl. of Univ.of Bombay 265 (1969); DONALD C. ROWAT, The Proposed Ombudsman System
for India,5 Jl. of Const. and Parl. Studies 284 (1971); R.L. NARASIMHAM, The Indian Ombudsman Proposal--
A Critique, Law and Commonwealth, (1971): ADMINISTRATIVE REFORMS COMM., Interim Report on
Problems of Redress of Citizens Grievances, (1966).

72 Para 3 of the Report. For outlines of the Commission's Scheme and its critique, see, M.P. JAIN , Lokpal:
Ombudsman in India, 126-157.

73 Administrative Reforms Commission's Interim Report (1966), para 8.

74 Administrative Reforms Commission's Interim Report (1966), para 17.

75 Administrative Reforms Commissioner's Interim Report, (1966), para 18.

76 Administrative Reforms Commissioner's Interim Report, (1966), paras 18 and 19.

77 Administrative Reforms Commission's Interim Report (1966), paras 20 and 21.

78 For a discussion on parliamentary control of the Executive, see JAIN, Treatise, I, JAIN, IndianConst. Law.

79 JAIN, Treatise, I.

80 Administrative Reforms Commission's Interim Report (1966), para 25.

81 Administrative Reforms Commission's Interim Report (1966), para 24.

82 On Government Undertakings, see, infra, Chapter XLVI.

83 On "Official Secrecy", see, Chapter XLV, infra.

84 For comments on this Bill, see, M.P. JAIN, Lokpal : Ombudsman in India, 158-194.

85 For discussion on "Self-Incrimination", see, JAIN, Indian Constitutional Law.

86 The Bill as originally introduced in Parliament had included a State Chief Minister within the purview
of the Lokpal. However, the Joint Committee of the Parliament recommended the deletion of this
provision as the Chief Minister was primarily answerable to his Legislative Assembly. An amendment
moved by the government on May 10, 1979 restored the original position. For details of the Bill, see, S.L.
VERMA, Lokpal, Bureaucracy after the Common Man, (1978) 24 Indian Jl. of PublicAdm., 1130-58, 1245-58;
RAJEEV DHAWAN, A Comment on the Lokpal Bill, 1977, 19 J. I. L. I. 257 (1977).

87 In the original Bill, the Prime Minister was the competent authority in respect of complaints against
himself. The Joint Committee substituted the Speaker as the competent authority in this matter. The
amendment moved by the government made the Prime Minister as the competent authority, except that
for a few matters the competent authority in respect of a complaint against the Prime Minister was the
Lok Sabha. The competent authority for the Chief Minister as suggested by the government amendment
was the Chief Minister himself. Further, under the aforesaid government amendment, any report of the
Lokpal in respect of the Chief Minister was to be forwarded to the Governor of the State concerned who
was to lay the same before the Legislature. The Chief Minister was also required to place before his
Council of Ministers a copy of the complaint against himself received from the Lokpal or any report of the
Lokpal concerning the Chief Minister.
88 Supra.

89 JAIN, Treatise, I.

90 WADE, Adm. Law, 464 (1977).

91 For discussion on this Act, see, Chapter XLV, infra.

92 In re, the Special Courts Bill, 1978, AIR 1979 SC 478, 520 : (1979) 1 SCC 380.

93 In re, the Special Courts Bill, 1978, AIR 1979 SC 478, 520 : (1979) 1 SCC 380.

94 AIR 1980 SC 1382 : 1980 CrLJ 945 : (1980) 2 SCC 665.

95 See, Chapter XLIV, infra.

96 Law Comm. of India: 100th Report on Litigation by andagainst the Government. Chapter 3.

97 The Orissa Lokpal and Lokayuktas Act, 1970.

1 The Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971.

2 The Rajasthan Lokayukta and Upa-Lokayuktas Act, l973.

3 The Bihar Lokayukta Act, 1973.

4 The U.P. Lokayukta and Up-Lokayuktas Act, 1975.

5 The Karnataka Lokayukta Act, 1984.

6 The Madhya Pradesh State Legislature passed the law in 1975.

7 The Gujarat Lokpal and Lokayukta Act. 1975.

8 The A.P. Lokayukta & Upa-Lokayukta Act, 1983.

9 The Karnataka Lokayukta, 1984.

10 AIR 1971 Pat 36.

11 One such typical case has been reported in the press. Several senior officials were allegedly involved in
the land grab scandal in Bhopal unearthed in 1982. The Madhya Pradesh Lokayukta brought out this
matter in his report submitted to the government. He said in his report that the evidence available gave
rise to the suspicion that the normal rules for the allotment of land had been violated by the Revenue
Department. He therefore suggested departmental inquiry against certain officials. But the Madhya
Pradesh Government did not take any action in the matter. The Overseas Hindustan Times, April 20, 85, p.
11.
12 In March, 1984, two public interest writ petitions were filed in the Orissa High Court challenging the
validity of the Lokayukta Act, the manner of appointing the Lokpal as well as his personal integrity. One
petition described the incumbent of the office of Ombudsman as a man in whom the "people do not repose
confidence of impartiality"; adding that he might be biased towards the government. Although a retired
High Court Judge, the allegation was that the government had conferred on him several favours since his
retirement from the High Court and such a person could not independently discharge his duties as the
Lokpal. See, India To-day, May 15,1984, p. 18.

13 R.K. DHAWAN in Public Grievances and the Lokpal says about the Maharashtra legislation:

13 "Though the Act created an impressive authority to deal with maladministration and graft complaints,
it proved to be a thoroughly hypocritical measure. The powers vested in this authority by one section of
the Act are so sharply eroded by other provisions, and the number of listed and unlisted 'sacred cows' is
so large that the sum total of the entire exercise under the Act worked out to an easily distinguishable
naught."

13 He goes on to point out that experience has shown that the object of the government was merely to
play to the gallery.

14 Ram Nagina Singh v. S.V. Sohni, AIR 1971 Pat 36.

15 AIR 1985 Bom 136.

16 Vishwasrao v. Lokayukta, Maharashtra, AIR 1985 Bom 136 at 138: 1985 Mah LJ 54 : 1985 (1) Bom CR
108.

17 Also see, BALRAM K. GUPTA, A Balance-sheet of State Lokayuktas, 26 JILI 122 (1984).
18 AIR 1998 Kant 383.

19 Third Annual Report presented to the Vidham Sabha On Dec. 10, 1985.

20 India To day, February 28, 1986, p. 28.

21 The Hindustan Times, Jan. 13, 1999, p. 7.

22 The Hindustan Times, July 8, 1999, p. 7.

23 For extracts from this report, see, Thoppil Sreekumar v. State of Kerala, AIR 2001 Ker 150-151.

24 The Kerala High Court has declared some aspects of the Act as unconstitutional in, Thoppil Sreekumar
v. State of Kerala, AIR 2001 Ker 140.