OMBUDSMAN

Presentation by, VEERESH SANGOLLI

DEFINITION & ORIGIN

Ombudsman is a Scandinavian word, meaning a delegate or an agent etymologically. Ombudsman is an officer of the Parliament to investigate the misuse of administrative power of the Executive and safeguard the citizens. Garner in his Administrative Law defines Ombudsman as, an officer of Parliament, having his primary function, the duty of acting as an agent for the Parliament, for the purpose of safeguarding citizens against abuse or misuse of administrative power by the executive. The institution of Ombudsman was created for the first time in Scandinavia. This institution was established in Sweden in 1809, in Finland in 1919, in Denmark in 1953, in Norway in 1963, in England in 1966, in New Zealand in 1962. In Australia, its been established at both centre and state. In India it has been established in some states and not at Centre.

CREATION
The institution of Ombudsman is created because of the failure of the Judiciary, Parliament and the Executive to control the misuse of administrative power. Main reasons for its creation are, Courts do not review the facts decided by the administrative authorities. The burden of proof lies on the individual challenging the administrative action. It is very difficult for him to prove, since the Government enjoys certain privileges. The discretionary powers conferred on the Ministers enable them to escape from the judicial review. To have an internal administrative check, the institution Ombudsman has become a necessity. Objective of creating the Institution of Ombudsman is to control maladministration.

SALIENT FEATURES
The complainant shall not give evidence or prove the allegation before the Ombudsman. As the Ombudsman himself acts as petitioners lawyer, and will make an enquiry without publicity and formalities. The Complainant need not pay court fee. Ombudsman has no power to make an order or decision, but can only recommend the concerned department to take follow-up action. This restriction makes Ombudsman a watch dog, which barks but cannot bite. If the concerned department doesnt take actions, the Ombudsman can report the matter to the Parliament. Ombudsman is called the Parliamentary Commissioner in England and Lokpal or Lokyukta in India. LOKPAL looks after Central level affairs whereas LOKYUKTA after State level. Under the supervision of Lokyukta there maybe an UPA LOKYUKTA.

THE INDIAN OMBUDSMAM

Recommendation by Administrative Reforms Committee dated 20/10/96 for creation of Ombudsman The LOKPAL. In pursuance of above, Lokpal Bill was introduced andpassed, in the Loksabha in 1968 and later in Rajya Sabha. But the house dissolved. In In In In In In In In May 1968, by the congress government headed by Indra Gandhi. April 1971, again by the congress government headed by Indra Gandhi. July 1977, by the Janata government headed by Morarji Desai. August 1985, by the congress government headed by Rajiv Gandhi. December 1989, by the National Front Government headed by V.P.Singh. September 1996, by the United Front Government headed by Deve Gowda. August 1998, by the BJP-led coalition government headed by AB Vajpayee. August 2001, by the NDA government headed by A.B.Vajpayee again.

However, none of the bills mentioned above were passed by the parliament due to one or other reasons.

The first four bills lapsed due to the dissolution of Lok Sabha, while the fifth one was withdraw by the government. The sixth and seventh bills also lapsed due to the dissolution of the 11th and 12th Lok Sabha. Again, the eighth bill in 2001 lapsed due to the dissolution of the 13th Lok Sabha in February 2003.

In 2004 Lokpal Bill was again introduce in the parliament but failed to see the light of the day.
New Bill was again introduce in 2005. This Bill proposes to include Prime Minister also within the orbit of the Bill. Hence, the institution of Lokpal has not yet come into existence in our country, though its need was felt long ago.

LOKPAL CONSTITUTION
The institution of Lokpal consists of one Chairman and two members. They are appointed by the President in consultation with the Chief Justice of India. Only the Judges of Supreme Court are eligible to be appointed as the members of the Lokpal. The term of office is 5 years. The procedure for removal is the same as in the case of Supreme Court Judge ( that is by the way of impeachment in the Parliament). Now a highlight to different outlooks towards the Lokpal Bill in India: The Governments Lokpal version gives less power to Lokpal, but at the same time gives it more immunity from any action against the institution itself. The Jan Lokpal version gives more power to Lokpal but less immunity if its own actions are found unaccountable.

JAN LOKPAL

GOVERNMENTs LOKPAL

Any Citizen can go and complaint to Supreme Court to remove a Lokpal if the Lokpal is not found to be accountable in their actions. Complaints of corruption against Lokpal members will be heard by an independent authority. Lokpal will have investigate into corruption by Parliament like MPs the power to allegations of Members in taking bribe.

Only Government has the power to remove a Lokpal.

Lokpal itself will hear complaints of corruption against its members! Lokpal will have no right to investigate into allegations of corruption by MPs in the Parliament!

Lokpal can act on complaints against ANY government officer.

Lokpal can act on complaints against only Group A level government officers.

JAN LOKPAL

GOVERNMENTs LOKPAL

If a government officer delays the work of a citizen beyond scheduled time, then he will be deemed corrupt by Lokpal and penalized for that.

There is no penalization of government officers who do not do their duties.

Lokpal will have the authority to investigate allegations of corruption against judges.
Lokpal will have the authority to investigate allegations of corruption against the Prime Minister. The Anti Corruption Branch of CBI will be merged with Lokpal to give it more independence.

Lokpal will NOT have the authority to investigate allegations of corruption against judges.

Lokpal will NOT have the authority to investigate allegations of corruption against the Prime Minister. The Anti Corruption Branch of CBI will continue to remain with CBI, which means direct government control over it, because CBI is controlled by government.

JAN LOKPAL

GOVERNMENTs LOKPAL

Lokpal will have the power to dismiss a corrupt public servant from job.

Lokpal will have no power to dismiss a corrupt public servant. The concerned minister will decide whether to dismiss a corrupt public servant or not.

Lokpal will impose fine to those who make false complaints or ill motivated complaints. Lokpal will decide whether a complaint is false or not.

Lokpal will send those who make false complaints to jail for a period of two to five years! The accused can also go to court against the complainant, and in this case, the legal expenses of the accused will be borne by the government, where as the complainant has to pay for the legal expenses from his own pocket.

JAN LOKPAL

GOVERNMENTs LOKPAL

An independent search committee which consists of retired constitutional authorities (like judges, eminent IAS officers) will prepare the first list of eligible candidates. Then an independent selection committee comprising of two politicians, four judges and two retired constitutional authorities will do the selection. So there is no scope for government interference in the selection process of Lokpal members here. Lokpal will give permission to tap phones of people suspected to be involved in corruption.

A Panel of 10 members, 6 of whom are politicians, 5 of whom are from the ruling alliance/ruling party will select the Lokpal members. Even the search committee which searches for eligible lokpal members will be selected by the above mentioned selection committee. 5 members from ruling alliance and totally 6 politicians in a group of 10 will ensure that government will be able to appoint its own people to Lokpal!

Home Secretary will give permission to tap phones of people suspected to be involved in corruption!

JAN LOKPAL

GOVERNMENTs LOKPAL

If Lokpal finds that business entities are involved in corruption, then Lokpal will have the right to ban such companies from taking part in future government contracts and to black list them. Lokpal can setup special benches in High Courts to speed up hearing of corruption cases. Lokpal will provide adequate protection and security to complainants and whistle blowers. There will also be Lokayuktas established at each state level with powers similar to Lokpal. These Lokayuktas will investigate into corruption at a state government level against ministers, MLAs and state government officials.

No power to Lokpal to black list any business entity found guilty of corruption.

Lokpal has no power to setup special benches like this. Which means slow hearing of corruption cases. No mention about any protection to those who complaint about cases of corruption. No establishment of any Lokayuktas through Lokpal Bill.

JAN LOKPAL

GOVERNMENTs LOKPAL

Enquiry will be done just like in any other criminal case. After preliminary enquiry FIR will be registered, and after that investigations will be done, and then the trial will be held in the courts.

After preliminary enquiry, before filing FIR all evidence collected so far should be presented to the accused, and he should be asked why an FIR should not be filed against him based on that evidence! After investigations, before filing a case against the accused, again all evidences collected so far should be presented to the accused, and he should be asked again as to why a case should not be filed against him!

THE STATE OMBUDSMAN

Several states in India passed the laws for creating the Institution of Ombudsman called Lokyukta, as mentioned below, Orissa: In 1970 Maharashtra: In 1971 Rajasthan: In 1973 Madhya Pradesh: In 1975 Uttar Pradesh: In 1975 Karnataka: In 1979 Andhra Pradesh: In 1983

Among the Lokyukta Acts passed by different states, only the acts of Orissa, Karnataka and Himachal Pradesh, the Chief Minister is brought under the jurisdiction of the Lokyukta.

FEATURES
The lokayukta presents, annually, to the governor of the state, a consolidated report on this performance. The governor places this report along with a explanatory memorandum before the state legislature. The lokayukta is responsible to the state legislature. Lokayukta takes the help of the state investigation agencies for conducting Enquiries. Lokayukta can call for relevant files and documents from state government departments. The recommendations made by the lokayukta are only advisory and binding on the state government.

STRUCTURAL VARIATIONS
The structure of the Lokyukta is not same in all the states. Some states like Rajasthan, Karnataka, Andhra Pradesh, Maharashtra have created the Lokayukta as well as UpaLokayukta, while some of the other states like Bihar, Uttar Pradesh and Himachal Pradesh have created only the lokayukta ; there being no provisions for Upalokayukta. There are still other states like the Punjab and Orissa which have designated officials as Lokpal. This pattern was not suggested by the ARC in the states.

APPOINTMENT
The Lokayukta and Upalokayukta are appointed by the governor of the state. While appointing, the governor in most of the states consults (a) the chief justice of state high court, (b) the leader of opposition in the state legislature assembly. But , in Andhra Pradesh , the leader of opposition in the state legislative assembly is not required to be consulted in this regard. In Karnataka, on the other hand, the chairman of the state legislative council, the speaker of state legislative assembly and the leader of opposition in the state legislative council are also required to be consulted on this matter.

QUALIFICATIONS
Judicial qualifications are prescribe for Lokayukta in the state of Uttar Pradesh, Himachal Pradesh, Andhra Pradesh, Gujarat, Orissa, Karnataka and Assam. But no specified qualifications are prescribe in the state of Bihar, Maharashtra, and Rajasthan. Tenure: In most of the states, the term of office fixed for Lokayukta is of 5 years duration or 65 years of the age, whichever is earlier. He is not eligible for the reappointment for a second time.

INVESTIGATION
In most of the states, the lokayukta can initiate investigations either on the basis of complaint received from the citizens against unfair administrative action or suo moto . But he does not enjoy the power to start investigation on hia own initiative in the states of Uttar Pradesh, Himachal Pradesh and Assam. Scope of cases covered: The lokayukta can consider the cases of grievances as well as allegation in the state of Maharashtra, Uttar Pradesh , Assam , Bihar , and Karnataka. But , in Himachal Pradesh , Andhra Pradesh , Rajasthan and Gujarat , the job of the lokayuktas is confined to investigating allegations (corruption) and not grievances (maladministration).

JURISDICTION
There is no uniformity regarding the jurisdiction of Lokayukta in all the states. The following points noted in this regard are: The chief minister is included within the jurisdiction of the Lokayukta in the state of Himachal Pradesh, Andhra Pradesh , Madhya Pradesh ,and Gujarat, while he is excluded from the purview of Lokayukta in the state of Maharashtra, Uttar Pradesh , Rajasthan, Bihar and Orissa. Ministers and higher civil servants are included in the purview of the Lokayukta in almost all the states. Maharashtra has included former ministers and civil servants. Members of the state legislatures are included in the purview of the lokayukta in the states of Andhra Pradesh, Himachal Pradesh, Gujarat, Uttar Pradesh and Assam.

The authorities of local bodies, corporations, companies and societies are included in the jurisdiction of the lokayukta in most of the states.

APPROACHING THE LOKYUKTA

To file a complaint with the Lokayukta, the first and foremost thing a citizen needs to remember is that the Lokayukta can catch only public servants. This includes all the babus that do not push files to the next level without chai pani (as it is called) and the ones who show attitude till you show them money. To get these people one needs to: Download two forms (Form 1 and 2) from the Lokayukta website (http://lokayukta.kar.nic.in/index.asp). Fill in details like your name, contact details, the reason for complaint and other such information. Attach two affidavits to the forms which are statements of notification that you are complaining against an officer and attaching the documents to prove your case. These affidavits will be examined by the judicial officers at the Lokayukta office before the case is taken up. The form and the affidavits should be submitted to the Registrar at the Lokayukta office Also enclose documents supporting your claim against the particular officer.

Approaching the LOKYUKTA (contd)

All these documents and the forms should then be sent to the Lokayukta office either by post or submitted online. Note also that the Lokayukta is bound to disclose the identity of the complainant to the opposite party, in accordance with the law. The identity of the complainant cannot be kept hidden. Filing a complaint through the Right to Information Act 2005:

The RTI can either be filed directly without going through the complaint format or can be done after filing the complaint.
One can complain against an officer only if he has abused his position for gain or favour for himself or for any other person, or has used his power to harm someone. One can also complain if the officer has corrupt motives while serving the public and also if he is guilty of favouritism, nepotism or lack of integrity in his capacity as a public servant.

CURRENT AFFAIR
"The Lokayukta is not just looking into big scams including big officers and lots of money. We are equally interested in catching the public servants who are exploiting the masses at small levels," says Justice Santosh Hegde, Lokayukta. Hegde was a Justice at the Supreme Court of India before he took up the position to lead Karnataka's anti-corruption watchdog. He explains by stating an example of a tailor from Bagalkot who once came to the Lokayukta office with his infant.

The child did not have fully developed intestine when born. He wanted to get his child treated in the government hospital of Bagalkot, where the doctor asked for Rs.80,000 from him, says Hegde. Not being in a state to pay that amount nor in a state to fight with the doctor for the injustice, he kept the infant in the Lokayukta office pleading for help. The Lokayukta approached all the institutions that would help this man. The Manipal Hospital, Bangalore later did the infant's operation with Rs.8000 paid totally by the Lokayukta. "After the successful recovery of the child, the government doctor who asked for a huge sum at the first place was taken into account and disciplinary action was taken against him. The tailor visits us till today to tell that his baby is healthy now," says Hegde with smile.

Thank You