Indian Ombudsman: A Critical Appraisal

1 Ombudsman in India: A Critical Appraisal

ADMINISTRATIVE LAW

GROWTH OF THE INSTITUTION OF OMBUDSMAN IN INDIA: A CRITICAL APPRAISAL

ARPIT RAJ

B.A., LL.B. (HONOURS)

ROLL NO. 999

ABSTRACT

“The existing devices for checks on elected and administrative officials have

not been effective as the growing instances of corruption cases suggest. The Central

Vigilance Commission (CVC) is designed to inquire into allegations of corruption by

administrative officials only but cannot punish the guilty The CBI, the premier

investigating agency of the country, functions under the supervision of the Ministry

of Personnel, public grievances and pensions (under the Prime Minister) and is

therefore not immune from political pressure during investigation it can be

said,―the CVC is independent but does not have powers while CBI has power but is

not independent‖. As a result the first cannot punish while the latter cannot

investigate fairly.

All these have necessitated the creation of an independent and high powered

Lokpal with its own investigation team. Unfortunately for last four decades, no

effective act or institution was developed. As a result, a nation-wide movement could

take place with the leadership of a Gandhian social activist. Most importantly, this

was the time when the nation witnessed many corruption cases at various level and

the intervention of media has helped in taking to its heights and made it national

movement. Hence, while analysing the historical perspectives of Lokpal, this study

would attempt to answer the most pertinent question whether the mainstream

media or social media helped in giving shape for a huge movement. Secondly this

Administrative Law Assignment National Law University,Jodhpur


study will also find out the nature of media‘s contribution for establishing an

effective Lokpal in India.”

TABLE OF CONTENT

I. INTRODUCTION................................................2

II.DEFINITION OF THE TERM “OMBUDSMAN”............................4

III. MEANING AND IMPORTANCE......................................5

IV. CHARACTERISTICS AND OBJECTIVES OF OMBUDSMAN INSTITUTION...........6

V. LOKPAL—AN INDIAN OMBUDSMAN....................................7

[A] LOKAYUKTAS IN STATE.........................................7

[B] RATIONALE FOR AN INSTITUTION – LOK PAL............................7

VI. HISTORICAL ASPECTS..........................................8

[A] LOKPAL.................................................10

VII. JAN LOKPAL BILL...........................................10

[A] FEATURES OF THE JAN LOKPAL BILL.................................11

1. Lokpal and its role...................................11

2. Structure.............................................11

3. Process of selection..................................12

4. Jurisdiction..........................................12

5. Other significant features of the Bill................12

VIII................................ANALYSIS OF THE JAN LOKPAL BILL

13

[A] A NAIVE APPROACH..........................................13

[B] EXTRA CONSTITUTIONAL.......................................13



[C] SCOPE..................................................14

[D] CRITICISM FROM THE CBI DIRECTOR................................14

IX. CRITICAL OBSERVATIONS ON OMBUDSMAN SCHEME.....................14

X. CONCLUSION.................................................15

[A] INTRODUCTION

Years ago, Mahatma Gandhi said that “Corruption and hypocrisy

ought not to be inevitable products of democracy, as they undoubtedly are today.”

Now days Corruption has its deep roots in Indian Society.

People who work on right principles are unrecognized and

considered to be foolish in the modern society. Earlier,

bribes were paid for getting wrong things done, but now bribe

is paid forgetting right things done at right time. In today’s

scenario, if a person wants a government job he has to pay

lakhs of rupees to the higher officials irrespective of

satisfying all the eligibility criteria. In every office one

has either to give money to the employee concerned or arrange

for some sources to get work done. There is not a single forum

or organizations of the citizens of India unaffected from

Corruption.

A 2005 study conducted by Transparency International in

India found that more than 62% of Indians had first-hand

experience of paying bribes or influence peddling to get jobs

done in public offices successfully.1 In its 2008 study,

1 “Transparency International – the global coalition againstcorruption”.



Transparency International reports about 40% of Indians had

first-hand experience of paying bribes or using a contact to

get a job done in public office.2 In 2012 India was ranked 94th

out of 176 countries in Transparency International’s

Corruption Perceptions Index.3 The basic idea of the Lok Pal is

borrowed from the office of ombudsman, which has played an

effective role in checking corruption and wrong-doing in

Scandinavian and other nations.4 A Lokpal is a proposed

ombudsman (Legal Representative) in India. The word is derived

from the Sanskrit word “lok” (people) and “pala”

(protector/caretaker), or “caretaker of people.”

The term “access to justice” cannot be given any precise

meaning. Its meaning is intricately intertwined with the

meaning of the term ‘justice’. On its turn, the definition of

justice depends on the context it is being used. For every

society the term has a different significance. For some it may

be fairness whereas others might term it as advantage of the

stronger. The notion of justice evokes the cognition of the

rule of law, of the resolution of conflicts, of institutions

that make law and of those who enforce it; it expresses

fairness and the implicit recognition of the principle of

equality.5 However, a concept common to all definitions of

justice is its intrinsic nexus with the dispute resolution.

Source: www.Transparency.org.2 Centre for Media Studies, India Corruption Study 2005: To ImproveGovernance: Volume I – Key Highlights, New Delhi: TransparencyInternational India, 30 June 2005.3 Source: www.Transparency.org.4 Ombudsman in India by Aamna. Published on: August 4, 2011


http://www.Transparency.org/

http://www.Transparency.org/


The primary goal of a dispute resolution mechanism is to do

justice, yet dispute resolution and justice cannot be used

interchangeably. The dispute resolution mechanism chosen by a

society reflects the concept of justice in that society.

It is the duty of a state to perform the functions of

legislative, executive and judiciary. The Constitutions of

democratic set up clearly define these functions. The

legislature has to make the laws. The executive has to execute

or implements these laws and the judiciary interprets and

applies these laws. Judiciary has authority to pertain the

office of a judge and this authority relates to hearing and

determining the questions in controversy. Further, this

judicial authority includes Court and appellate Court.

[B] DEFINITION OF THE TERM “OMBUDSMAN”

The term “Ombudsman” is Scandinavian, meaning something

in the nature of “entrusted person” or “grievance

representative”. The part word “man” is taken directly from

the Swedish (the old Norse word was “umbodhsmadr”) and does

not connote any necessity that the holder be of the male

gender. Indeed, if one was to survey the present Ombudsman

community worldwide, it would be seen that there are many

women Ombudsman. My tracing of the office will start with the

Scandinavian “grievance person” since this model is said to

set a standard. I do acknowledge, however, that there are5J. Rawl, A Theory of Justice, Cambridge, Cambridge Universitypress, Edition 1997, at 11.



several precedents from Asian (and other) settings of people,

in former times, undertaking office to provide relief and

redress to citizens adversely affected by government action.

In earlier times it is also recorded that the Romans

installed an officer called the “tribune” to protect the

interests and rights of the plebeians from the patricians.

There are also writings in both China and India, which suggest

that three thousand and more years ago, special officials were

designated to function in the manner of Ombudsmen. In China

during the Yu and Sun dynasties it was the duty of the

incumbent, who was called the “control yuan”, to “report the

voice of the people to the Emperor and to announce the

Emperor’s decrees to the people”. In India today there are

Ombudsmen appointed in twelve of the Indian states, though not

at Federal level. The term for them is“Lokayukta”, an ancient

word revived so as to make it meaningful in a local sense in

that country.

In 1809 Sweden appointed an official entitled the

“justitieombudsman” to enquire into actions of the government

administration, including the military, and the courts. The

establishment of this office was said to be a reaction to

state absolutism and an assertion of individual rights and

dignities of the citizen. Nearly 100 years later, Finland

appointed a similar person and Denmark followed likewise in

1954.



The Ombudsman Committee of the International Bar

Association has described the office thus:

“An Office provided for by the Constitution or by action of the Legislature or

Parliament and headed by an independent, high-level public official, who is

responsible to the Legislature or Parliament, who receives complaints from

aggrieved persons against Government agencies, officials and employees, or

who acts on [his] own motion, and who has the power to investigate,

recommend corrective action, and issue reports.”6

This contemporary definition of the term“Ombudsman”is not

agreed to universally, but it does serve as a starting point

in defining the role.

[C] MEANING AND IMPORTANCE

Ombudsman offices are form of watchdog on government,

investigating and resolving citizen’s complaints. Ombudsman

means “a public official who acts as an impartial intermediary

between the public and government or bureaucracy, or an

employee of an organization who mediates disputes between

employees and management”7. An indigenous Danish, Norwegian and

Swedish term, Ombudsman is etymologically rooted in the Old

Norse word umboðsmaðr, essentially meaning “representative”.

In its most frequent modern usage, an ombudsman is an

official, usually appointed by the government or by parliament

but with a significant degree of independence, who is charged

6 International Bar Association7 Source: www.Legal-dictionary.thefreelegaldictionary.com


http://www.Legal-dictionary.thefreelegaldictionary.com/


with representing the interests of the public by investigating

and addressing complaints reported by individuals.8

The institution of ombudsman originated in Scandinavian

countries. The institution of ‘Ombudsman’ first came into

being in Sweden in 1713 when a ‘Chancellor of Justice ‘was

appointed by the King to act as invigilator to look into the

functioning of war-time government. Thereafter, a new

beginning was made in 1809, when it was laid down that the

Ombudsman would be made thereafter by the legislature.9 Other

Scandinavian countries followed the model of Sweden almost

after a century. Amongst other countries, New Zealand was the

first country outside Scandinavian to institute an Ombudsman

in 1962.10 It has been adopted in a number of countries, such

as Finland,1919; Denmark, 1954; Norway, 1960; Mauritius,

1966;Guyana, 1966; United Kingdom, 1967; Australia,

1976.11Today there are Ombudsman offices in over 80 countries

at the national provincial and local level.12

Office of Ombudsman was established under the provisions

of constitutional law in Austria, Burkina Faso, Denmark,

Finland, the Netherlands, Poland, Portugal, Spain and Sweden.

While in other countries13 belonging to Anglo-Saxon legal

8 Source: www.http://en.wikipedia.org/wiki/Ombudsman9 Triloknath Mishra, Lokpal in India-An Analysis, 201110 Standing Committee on Home Affairs eighty fourth Report onLokpal Bill, 200111 J.J.R. Upadhaya, Administrative Law (2004) p. 38212 PUBLIC ADMINISTRATION AND PUBLIC POLICY vol. II-TheOmbudsman Office-S. E.Aufrecht:E1-34-05-08.pdf


http://www.http://en.wikipedia.org/wiki/Ombudsman


traditions, the office is generally regulated under ordinary

statute law.14

[D] CHARACTERISTICS AND OBJECTIVES OF OMBUDSMAN INSTITUTION

With the spread of ombudsman concept and its utility,

several surrogate institutions have emerged in the private

sector, which claim the title of ombudsman. Some scholars drew

distinction between, “classical” ombudsman and other kinds of

“quasi” or “executive ombudsman”. However, Gellhorn made clear

distinction between classical and other agencies performing

the ombudsman function. Professor Larry B Hill has enumerated

the following characteristics of the pure ombudsman:

i. Established as separate entity that is functionally

autonomous.

ii. Operationally independent of both the legislature and

the executive.

iii. Ombudsman is a legally established governmental

official.

iv. A monitoring specialist.

v. Administrative expert and professional.

vi. Nonpartisan.

vii. Normatively universalistic.

viii. Client centred, but not ant administration.

13 Great Britain, Iceland, Ireland, Israel, New Zealand,Norway, Slovenia, South Africa, Zambia14 Standing Committee on Home Affairs eighty fourth Report onLokpal Bill, 2001



ix. Popularly accessible and visible.

x. High status institutions

xi. Have extensive resources to perform his mission.

[E] LOKPAL—AN INDIAN OMBUDSMAN

The Indian Lokpal is synonymous to the institution of

Ombudsman existing in the Scandinavian countries (Sweden,

Finland, Denmark etc). The office of the Ombudsman originated

in Sweden in 1809 and has been adopted by many nations. The

Swedish word Ombudsman means ―a procurator or agent of civil

affairs which may be interpreted as ―the people advocate‖.

Ombudsman is a government official who investigates citizen‘s

complaints against the administrative and judicial action.

Though appointed by the legislature he is an independent

functionary – independent of all three organs of the state,

but reports to the legislature. The Ombudsman can act both on

the basis of complaints made by citizens or suo moto-that is,

on his own initiative. He can look into allegations of

corruption as well as maladministration.15

[F] LOKAYUKTAS IN STATE

Even after a lapse of so many years nothing has been done

substantially at the central level for implementing the

institution of Lokpal. But at the state level, many states

have adopted this institution in the name of Lokayukta. There

are as many as 17 states where the institution of Lokayukta15 C. Rowat Donald, The Ombudsman: Citizen's Defender, 1965. Pp. 348,University of Toronto Press, Toronto.



has been constituted, beginning with Orissa in 1971. However,

the power, functions of jurisdiction of Lakayuktas are not

uniform in the country. In some state, it has been applicable

to the entire elected representative including CM. on the

contrary, in some other state legislators have been

deliberately kept out of his purview. Lokayuktas have not been

provided with their independent investigating machinery making

them dependent on the government agencies. As a result there

lies enough scope for the politicians and the bureaucrats to

tinker with the process of investigation.

[G] RATIONALE FOR AN INSTITUTION – LOK PAL

The mechanisms available in the regular process of

government, are inadequate to check corruption in

administrative department, for example, and any decision of an

official can be appealed to a higher official all the way up

to the head of a department. However this mechanism has

inherent flaws. Though officers enjoy departmental fraternity

with those against whom complaints are made, and both sail the

same boat. Therefore their impartiality in judging appeals is

always doubted. On the legislative side, an individual can

approach the member representing his constituency for his

demands but given the absence of easy access of an ordinary to

his representative, this has more remained a myth than

reality. Other than this politics is now ridden with nepotism

and favouritism, criminals have easy access to legislature,

political corruption is mounting this is more dangerous than

bureaucratic corruption.



Among the organs of state, the judiciary has proved

itself to have highest credibility in protecting individual

right. However, due to procedural complexities involved in the

court cases– right from the filing a case to the delivery of

final verdict – there are inevitable delays of justice, which

often are considered as denial of justice. The existing

devices for checks on elected and administrative officials

have not been effective as the growing instances of corruption

cases suggest. The Central Vigilance Commission (CVC) is

designed to inquire into allegations of corruption by

administrative officials only but cannot punish the guilty The

CBI ,the premier investigating agency of the country,

functions under the supervision of the Ministry of Personnel,

public grievances and pensions (under the Prime Minister) and

is therefore not immune from political pressure during

investigation it can be said, the CVC is independent but does

not have powers while CBI has power but is not independent‖.

As a result the first cannot punish while the latter cannot

investigate fairly. All these have necessitated the creation

of an independent and high powered Lokpal with its own

investigation team.

Therefore there is a need for a mechanism that would

simple, independent, speedy and inexpensive means of

delivering justice by redressing the grievances of the people.

Examples from various countries suggest that the institution

of ombudsman has very successfully fought against corruption



and unscrupulous administrative decisions by the person held

high offices.

[H] HISTORICAL ASPECTS

After independence when increasing practice of

corruption, maladministration and misuse of authority and

resource couldn’t be curbed by existing measures under the

Indian Penal Code, 1860 and the Prevention of Corruption

Act,1988, need for an agency independent of the executive,

legislative and judiciary, to look into citizens’ grievances

and cases of corruption have been widely felt.16

The Lokpal Bill provides for constitution of the Lokpal

as an independent body to enquire into cases of corruption

against public functionaries, with a mechanism for filing

complaints and conducting inquiries etc.17 Dr. L.M. Singhvi

moved a resolution in the Lok Sabha on 3 April1964,

reiterating his demand for setting up an officer of Parliament

known as People’s Procurator. The resolution was discussed in

detail by all sections of the House but was withdrawn on the

assurance of the Government that it would look into the

matter. In pursuance of this assurance, the Government

constituted a Special Consultative Group of Members of

Parliament on administrative reforms, in early 1965, which

favoured a high powered inquiry commission on administrative

16 Triloknath Mishra, Lokpal in India-An Analysis, 201117 Second Administrative Reforms Commission: Twelfthreport,February, 2009, pg. no. 3



reforms. Accordingly, an Administrative Reforms Commission

(ARC) was appointed in January 1966, for making

recommendations on their organization of the administrative

system of the country.18 First Administrative Reforms

Commission in its report submitted in 1966 suggested that:

“The special circumstances relating to our country can be fully met by

providing for two special institutions for their dress of citizens’ grievances.

There should be one authority dealing 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 for dealing with complaints against the administrative acts of

other officials. The setting up of these authorities should not, however, be

taken to be a complete answer tithe problem of redress of citizens’

grievances. They only provide the ultimate set-up for such redress as has not

been available through the normal departmental or governmental machinery

and do not absolve the department from fulfilling its obligations to the citizen

for administering its affairs without generating, as far as possible, any

legitimate sense of grievance. Thus, the administration itself must play the

major role in reducing the area of grievances and providing remedies where

necessary and feasible. When this machinery (in-built departmental

machinery) functions effectively, the number of cases which will have to go to

an authority outside the Ministry or the Department should be comparatively

small in number”19

The ARC while preparing its report had three ends in view:

18 Triloknath Mishra, Lokpal in India-An Analysis, 201119 Administrative Reforms Commission Report submittedin 1966:Quoted from Para 6



i. Evolution of a suitable grievance procedure for the

individuals to invoke in complaints of

maladministration;

ii. Creation of a mechanism which would reduce corruption

in the administrative services; and

iii. Setting up a mechanism which would take cognizance of

complaints of favouritism and nepotism against Central

and State Ministers.20

[A] LOKPAL

The Lokpal Bill was for the first time presented by Mr.

Shanti Bhushan during the fourth Lok Sabha in 1968, and was

passed there in 1969. However while it was pending in the

Rajya Sabha, the Lok Sabha was dissolved, and so the bill was

not passed at that time. Subsequently, Lokpal bills were

introduced in 1971, 1977, 1985 (again by Ashoke Kumar Sen when

serving as Law Minister in the Rajiv Gandhi cabinet), 1989,

1996, 1998, 2001, 2005 and in2008, yet they were never

passed.21 Each time, after the bill was introduced to the

house, it was referred to some committee for improvements a

joint committee of parliament, or a departmental standing

committee of the Home Ministry and before the government could

take a final stand on the issue, the house was dissolved

again.22

20 Interim Report of the Administrative Reforms Commission onProblems of Citizen’s Grievances, 1966, p.8-15.21 Source:http://www.hindu.com/thehindu/holnus/002200804051550.htm22 Source: http://en.wikipedia.org/wiki/Lokpal


http://en.wikipedia.org/wiki/Lokpal

http://www.hindu.com/thehindu/holnus/002200804051550.htm


In 2002, the report of the National Commission to Review the

Working of the Constitution urged that the Constitution should

provide for the appointment of the Lok Pal and Lokayuktas in

the states but suggested that the Prime Minister should be

kept out of the purview of the authority.23 In 2004, the UPA

government’s National Common Minimum Programme promised that

the Lok Pal Bill would be enacted.24 The Second Administrative

Commission, formed in 2005, also recommended that the office

of the Lok Pal be established without delay.25 In January 2011,

the government formed a Group of Ministers, chaired by Shri

Pranab Mukherjee to suggest measures to tackle corruption,

including examination of the proposal of a Lok Pal Bill.26

[B] JAN LOKPAL BILL

The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a

draft anticorruption bill drawn up by prominent civil society

activists, seeking the appointment of a Jan Lokpal, an

independent body that would investigate corruption cases,

complete the investigation within one year and conduct trials

for the case within the next year.23 “Executive and Public Administration,” Chapter 6 of theNational Commission to Review the Working of the Constitution(Chairperson: Shri M.N. Venkatachiliah),March 31, 200224 National Common Minimum Programme of the Government ofIndia, May 2004Source:http://pib.nic.in/archieve/upareport/upa_3_year_highlights.pdf)25 “Ethics in Governance,” Fourth Report of the SecondAdministrative Reforms Commission, Jan 200726 “GoM on Corruption to Firm up Lok Pal Bill at the Earliest,Outlook, January 21, 2011.


http://pib.nic.in/archieve/upareport/upa_3_year_highlights.pdf


Drafted by Justice Santosh Hegde, a former Supreme Court

Judge and former Lokayukta of Karnataka, Prashant Bhushan, a

Supreme Court Lawyer and Arvind Kejriwal, an RTI activist, the

draft Bill envisaged a system in which a corrupt person found

guilty would go to jail within two years of the complaint

being made and his ill-gotten wealth confiscated. It also

sought power for the Jan Lokpal to prosecute politicians and

bureaucrats without requiring government permission.

Retired IPS officer Kiran Bedi and others, like Anna Hazare,

Swami Agnivesh, Sri Sri Ravi Shankar, and Mallika Sarabhai are

also members of the movement, called “India Against

Corruption”. Its website describes the movement as “an

expression of collective anger of people of India against

corruption.” It goes on to state: “We have all come together

to force/request/persuade/pressurize the Government to enact

the Jan Lokpal Bill. We feel that if this Bill were enacted it

would create an effective deterrence against corruption.”

Anna Hazare, an anticorruption crusader, began a fast unto

death, demanding that this bill, drafted by Civil Society, be

adopted. The website of the India Against Corruption movement

calls the Lokpal Bill of the government an “eyewash”, and

hosts a critique of that government bill. It also lists the

difference between the bills drafted by the government and

civil society.



[A] FEATURES OF THE JAN LOKPAL BILL

[B] Lokpal and its role27

The bill proposes to establish autonomous and independent

institutions called Lokpal at the central level and Lokayukta

for states. These shall have powers of superintendence and

direction for holding a preliminary inquiry, causing an

investigation to be made and prosecution of offences in

respect of complaints under any law for the prevention of

corruption.

[C] Structure28

The Lokpal will consist of a chairperson and a maximum of

eight members of which fifty percent shall be judicial

members. Fifty percent of members shall be from amongst

Scheduled Caste (SC), Scheduled Tribe (ST) and Other Backward

Classes (OBC), minorities and women. It has an inquiry wing

for conducting the preliminary inquiry and a separate

independent prosecution wing. Officers of the Lokpal will

include the secretary, director of prosecution, director of

inquiry and other officers.

[D] Process of selection29

The selection of chairperson and members of Lokpal shall be

through a selection committee The Selection Committee shall

comprise of the Prime Minister, Speaker of the Lok Sabha,

Leaders of the Opposition in both houses, a Union Cabinet

27 Anil Dharker, The Topiwala Camera, The Outlook, New Delhi, 201128 Ibid29 Ibid



Minister nominated by the Prime Minister, one sitting judge of

the Supreme Court, and one sitting Chief Justice of the High

Court’s both nominated by the Chief Justice of India, an

eminent jurist nominated by the central government and a

person of eminence in public life with knowledge of public

administration, policy making, anticorruption policy,

vigilance and finance.

[E] Jurisdiction30

Prime minister has been brought under the purview of the

Lokpal with specific exclusions. Lokpal cannot hold any

inquiry against the prime minister if allegations relate to

international relations, external and internal security of the

country, public order, atomic energy and space. Any decision

of Lokpal to initiate preliminary inquiry or investigation

against prime minister shall be taken only by the full bench

with a 3/4th majority. Such proceedings shall be held in

camera. Its jurisdiction to include all categories of public

servants including Group ‘A’, ‘B’, ‘C’ and ‘D’ officers and

employees of government. On complaints referred by Lokpal, the

Central Vigilance Commission (CVC) will send its report in

respect of Group ‘A’ and ‘B’ officers back to Lokpal for

further decision. With respect to Group ‘C’ and ‘D’ employees,

the CVC will proceed further in exercise of its own powers

under the CVC act subject to reporting and review by Lokpal.

All entities receiving donations from foreign sources in the

context of the Foreign Contribution Regulation Act (FCRA) in

30 Ibid



excess of Rs.10 lakh per year are brought under the

jurisdiction of the Lokpal. Lokpal will not be able to

initiate suo moto inquiries.

[F] Other significant features of the Bill31

No prior sanction shall be required for launching

prosecution in cases enquired by Lokpal or initiated on the

direction and with the approval of Lokpal. There are

Provisions for confiscation of property acquired by corrupt

means, even while prosecution is pending. Lokpal to be final

appellate authority on all decisions by public authorities

relating to provision of public services and redressal of

grievances containing findings of corruption. Lokpal to have

power of superintendence and direction over any investigation

agency including Central Bureau of Investigation (CBI) for

cases referred to them.

[G] ANALYSIS OF THE JAN LOKPAL BILL

[A] A NAIVE APPROACH

The bill has been criticised as being naïve in its approach

to combating corruption. According to Pratap Bhanu Mehta,

President of the Centre for Policy Research Delhi, the bill

“is premised on an institutional imagination that is at best

naïve at worst subversive of representative democracy”.32 The

very concept of a Lokpal concept has received criticism from

31 Ibid32 Source: http://www.youtube.com/watch?v=kc5Ql00ftKg


http://www.youtube.com/watch?v=kc5Ql00ftKg


Human Resource Development minister Kapil Sibal in that it

will lack accountability, be oppressive and undemocratic.33

[B] EXTRA CONSTITUTIONAL34

The pro-bill activist Arvind Kejriwal rejects the claim of

Lokpal being extra constitutional with the explanation that

the body will only investigate corruption offences and submit

a charge sheet which would then tried and prosecuted through

trial courts and higher courts, and that other bodies with

equivalent powers in other matters exist. The proposed bill

also lists clear provisions for the Supreme Court to abolish

the Lokpal.

Despite these clarifications, critics feel that the exact

judicial powers of Lokpal are rather unclear in comparison

with its investigative powers. The bill requires “members of

Lokpal and the officers in investigation wing of Lokpal shall

be deemed to be police officers”. Although some supporters

have denied any judicial powers of Lokpal, the government and

some critics have recognised Lokpal to have quasi-judicial

powers.

The bill also states that “Lokpal shall have, and exercise

the same jurisdiction powers and authority in respect of

contempt of itself as a High court has and may exercise, and,

for this purpose, the provisions of the Contempt of Courts

Act, 1971 (Central Act 70 of 1971) shall have the effect

subject to the modification that the references therein to the33 Source: http://www.youtube.com/watch?v=QT5kB5Hm4Ys,34 Source: http://www.youtube.com/watch?v=S6rK-fLEuNA


http://www.youtube.com/watch?v=S6rK-fLEuNA

http://www.youtube.com/watch?v=QT5kB5Hm4Ys


High Court shall be construed as including a reference to the

Lokpal.” Review of proceedings and decisions by Lokpal is

prevented in the bill by the statement “no proceedings or

decision of the Lokpal shall be liable to be challenged,

reviewed, quashed or called in question in any court of

ordinary Civil Jurisdiction.” As a result, how the trials will

be conducted is unclear in the bill, although the bill

outlines requiring judges for special courts, presumably to

conduct trial that’s hould be completed within one year. The

critics hence express concern that, without judicial review,

Lokpal could potentially become an extra constitutional body

with investigative and judicial powers whose decisions cannot

be reviewed in regular courts.

[C] SCOPE

The matter of whether the Indian Prime Minister and higher

judiciary should or should not be prosecutable by the Lokpal

remains as one of the major issues of dispute. Anna’s own

nominee for co-chairing the joint panel Justice Verma, the

former Chief Justice of the Supreme Court, has expressed his

constitutional objections for including the Prime Minister and

higher judiciary under Lokpal. According to him, “this would

foul with the basic structure of the constitution”.35

35 Ministry of Law and Justice. “Government Issues Notification toConstitute a Joint Drafting Committee to Prepare Draft Lok Pal Bill.” PressInformation Bureau, Government of India.Source: http://pib.nic.in/newsite/erelease.aspx?relid=71560


http://pib.nic.in/newsite/erelease.aspx?relid=71560


[D] CRITICISM FROM THE CBI DIRECTOR36

The CBI Director, in a presentation before the Standing

Committee of the Parliament, has strongly argued against the

vivisection of the CBI and merger of its anticorruption wing

with the Lokpal, noting that this would seriously cripple the

core functioning of the CBI and reduce it to irrelevance. An

organization built over last 60years comprising competent

professionals should not be subsumed under Lokpal. CBI

officers concede that in some sensitive political cases there

is of course interference from the government, but in respect

of an overwhelming majority of cases CBI functions, unfettered

and uninfluenced by extraneous considerations. For this reason

there is an ever increasing demand for CBI investigation from

all over the country in respect of important cases.

[E] CRITICAL OBSERVATIONS ON OMBUDSMAN SCHEME

The most common criticism of the ombudsman system is that

the function is not generally well understood. There is

relatively limited documentation and information about their

work, often confusion and uncertainty about their role, and

with the proliferation of ombudsman offices in different

sectors, the confusion can be exacerbated. In spite of the key

characteristic of accessibility, ombudsman offices are

frequently noted for their inaccessibility. Few citizens are

aware of the different ombudsman schemes, how to reach them

and how to process a grievance. Inaccessibility is the chief36 Ibid



reason why ombudsman offices tend to be underutilised,

especially by the most disadvantaged who are less likely to

know of the existence of ombudsman and have more difficulty in

registering complaints or grievances. It seems that many

ombudsman schemes, particularly in Britain, are hidden by

bureaucracy and formality and lack a human face. The question

of visibility is linked to more general criticisms of the

operational mode of the ombudsman as too reactive, waiting for

complaints rather than taking the office to the public or

initiating investigations.

The ombudsman office is also criticized for the fact that

its effectiveness tends to depend upon the character and

personality of the ombudsman officer(s) themselves rather than

the system as a whole. Regardless of their organizational

framework they are a highly personalized institution and

success demands an individual or team who are perceived as

independent and impartial, with relevant qualifications and in

depth knowledge of the sector, and can command respect and

trust from all parties. Of course, such individuals are hard

to find.

Since the ombudsman’s powers lie essentially in

recommendation there is a genuine concern that the ombudsman

lacks ‘teeth’. For instance, the annual report (for many

ombudsmen the only public document issued) is often considered

an inadequate instrument for influencing administration

procedures and practice, informing mass media and educating

the public. Moreover, the ombudsman is generally powerless to



change or reverse decisions. In fact, some believe that the

ombudsman’s powers as critic and reformer must be strengthened

to influence changes in legislation and policy and not just

administrative procedure. The ombudsman should be concerned

not merely with laws or codes as they stand, but also as they

might be.

[F] CONCLUSION

India is a country where honesty and integrities in public

and private life have been glorified and upheld in great epics

such as Vedas, Upanishad and in the books and practices of

every religion practiced here. Yet, India today is one of the

most corrupt countries in the world. Bringing public servant

and public functionaries under a scanner which makes them

strictly accountable, is the start of a movement against

corruption in India. And one significant step in attacking the

spectrum of corruption in India will be the implementation of

the Lok Pal Bill. Realizing the need of such institution with

its immediate effect, a movement started by Anna Hazare with

the support of other volunteers and social activists. The

movement has also shown how media can effectively be used.

Though the propriety regarding active participation of news

media in a movement is debatable, it is true to an extent that

Indian media has voluntarily become a party, a sort of

participant, in this drive for Jan Lokpal Bill. There are

charges that elitist media groups that are mostly anti-



reservation and want to establish hegemony over institutions,

are behind this movement. No wonder that the ruling party

feels that this mass movement is a media creation.

The role of the media as an institutional limb of modern

democracy‖ was yet again amply demonstrated during the recent

phase of the Jan Lokpal movement that was unprecedented in

many ways. Projecting the anti-corruption Jan Lokpal movement

as a second freedom struggle was nothing short of a

masterstroke by Team Anna. The movement has seen all the

elements of the freedom struggle an insensitive government

disconnected with the pulse of the people, a Gandhian non-

violent protest with an indefinite fast, the waving of the

tricolour, slogans of Jail Bharo, Inquilab Zindabad, Jai Hind

and Vande Mataram and the over whelming participation of the

youth. Such was the impact that even the Indian Diaspora was

inspired. Many genuinely felt that since they were not there

during Mahatma Gandhi‘s freedom struggle, let‘s now be a part

of this movement for freedom from corruption.

The massive use of social media in Lok Pal movement is a

trend setter and can be seen as a successful experimentation

for good cause. People can use social media content to gauge

the status of a movement and to identify the goals it seeks to

attain. It is true that the movement which was initiated by

the social media geared up the main stream media. Main stream

media did not have any alternative as the visual popularity of

the movement has given a sharp rise in TRP rating of the issue

and main stream media had to depend on it because of its



revenue generation. Secondly this movement had its youth based

and could spread to the rural areas with huge middle class

audience and viewers. Thirdly this was an occasion where media

could project its role through intervention to claim for its

fourth pillar status and avoid the criticism of paid news. And

most importantly, people were disenchanted due to the number

of scams and political corruption for last one decade and

eagerly waiting for a platform to show their protest. Finally,

the strategic use of media in different format by the

volunteers could help in drawing the crowd manifold.

The main objective behind the institution of Lokpal is to

give strength to citizens so that they can raise their voice

against corruption without any fear. The existing devices like

CVC and CBI for checks on elected and administrative officials

have not been effective, as the growing instances of

corruption cases suggest. All these have necessitated the

creation of Lokpal with its own investigating team.

Therefore, there is a need for a mechanism that would adopt

very simple, independent, speedy and cheaper means of

delivering justice by redressing the grievances of the people.

But our Country is famous for its beautiful numerous laws and

its poor execution. Most of the laws have been proved fail to

achieve its goal. No law or institution would have been helped

to remove deep roots of corruption from our country without

its proper execution.



It is rightly said by Publius Comelius Tecitus that “the more

corrupt the state, the more laws”.


Indian Ombudsman: A Critical Appraisal

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