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OMBUDSMAN[1]
QUESTION BANK
Q.1. Explain Ombudsman in India.
Q.2. Critically examine the Institution of Ombudsman.
Q.3. Write a full-dressed note on ‘Ombudsman’.
SHORT NOTES
- Ombudsman.
SYNOPSIS
- Introduction: –
- Ombudsman means: –
III. History: –
- Appointment & Qualification
- Power and Duties
- Criticisms
VII. Ombudsman in India
VIII. Provisions of Lok-Pal Bill
- A) Appointment and tenure of Lok-Pal and Lok–ayukta
- B) The functions of Lok-Pal or Lok-ayukta
I. Introduction: –
The increase of power in the hands of the administration has created various problems, like corruption, maladministration, inaction, delay in action and abuse or misuse of power[2]. The traditional legislative and judicial control mechanism fell short to some extent in controlling this menace.
Therefore, additional control devices were needed to be created for administration. Such a control device should be an outside agency strong enough to prevent injustice to the people. Such a device must provide adequate freedom to enable the administration to carry on government effectively. Therefore, learning from the experience of countries like Sweden, Finland, New Zealand, and the United Kingdom, it is felt that the office of the ombudsman may play a vital role in investigating and correcting a citizen’s grievance in the modern set-up.
II. Ombudsman means: –
‘Ombudsman’ means a delegate, agent, officer or commissioner.[3]. According to Garner, “ombudsman is an officer of the parliament, having as his primary function, the duty of acting as an agent for parliament to safeguard citizens against abuse or misuse of administrative power by the executive”.
III. History: –
The Ombudsman institution first originated in Sweden in 1809. Thereafter, it has been accepted in several countries, such as Denmark, Finland, New Zealand, and the U.K. (England), as a ‘Parliamentary Commissioner’. In India, the institution of the ‘Ombudsman’ has been accepted as ‘Lokpal’ and ‘Lokayukta’.
IV. Appointment and Qualification: –
The Parliament appoints him; the following qualifications are required to be an Ombudsman-
(a). Generally, the Ombudsman is a judge, a lawyer (of a higher Court) or a high officer.
(b). He should possess high character, reputation and integrity.
(c). He should not belong to any political party.
(d). He should be independent of any interference, even of parliament.
(e). He should not belong to the administrative hierarchy.
V. Power and Duties: –
It is the primary duty of the Ombudsman to inquire and investigate a complaint made by citizens against abuse of discretionary power, maladministration[4] or administrative inefficiency[5] and to take appropriate action. In other words, he acts as the ‘watchdog’ or ‘public safety valve’ against maladministration and the protector of people.
Therefore, he is conferred with wide powers. For example, he has access to departmental files, can act suo moto, can grant relief to the aggrieved party, and has other powers of civil Courts.
VI. Criticisms: –
As important, the ‘Ombudsman’ institution also suffers from some defects. He is criticised by various jurists on the following points: –
- The institution of an Ombudsman may prove successful in countries with a small population, but it may not prove equally effective in countries with a big population like India, the U.S.A., etc., because the number of complaints may be too large to be decided by a single person.
- The success or failure of the Ombudsman institution largely depends upon the character, reputation, and integrity of ‘the Ombudsman’ as a person. The development and success of the Ombudsman institution owe a great deal to the personality of its first Ombudsman, Prof. Hurwit, in Sweden.
- According to Justice Mukharjee: –The Ombudsman institution is unsuitable in India. He describes it as an accusatorial and inquisitorial[6] institution, a combination unprecedented in democracy with the tradition of an independent judiciary. It would be an ‘impracticable and disastrous experiment’ which would not fit the Indian Constitution.
VII. Ombudsman in India–Lok–Pal, Lokayukta[7]: –
In 2011, popular social activist Anna Hazare led the massive movement to introduce the ‘Jan-Lokpal’ bill, i.e., the bill suggested by the team Anna Hazare. The government assured the enactment of the Bill into law. However, the Congress party government brought a bill which, according to other parties, was not tough to tackle the corruption problem. Therefore, the bill could not be passed in Parliament. There seems to be no strong political will to bring a strong Lok-pal Act.
In India, the institution of the Ombudsman is called ‘Lokpal’, ‘Lokayukta’. Indian Parliament has not enacted any Act so far, though the proposal to constitute an institution of Ombudsman (i.e. Lokpal) was made by the Administrative Reforms Commission in 1967. The Lok-Pal bill was first introduced in parliament in 1968 but failed due to the dissolution of parliament; thereafter, the same bill was introduced in parliament in 1971, 1977, 1997, and 2011 but could not be passed for one or other reasons. Therefore, no Act could exist to establish an Ombudsman, i.e. Lok-Pal, at the national level.
Nevertheless, several States have passed the ‘Lokayukta’ and ‘Up–Lokayukta’ Acts, bringing the institution of an Ombudsman into existence in their States; such States are Maharashtra, Andra-Pradesh, Karnataka, Madhya-Pradesh etc.[8].
VIII. Provisions of Lok-Pal Bill: –
Parliament has not passed any bill, and several forms of the Lok-Pal bill exist. One form is submitted by Team Anna Hazare, and others by different social activists. Recently, in 2011, the government at the centre introduced a bill that could not be passed. Therefore, we will discuss some of the provisions of the original Lok-Pal Bill introduced in Parliament.
A) Appointment and tenure of Lok-Pal and Lokayukta: –
The President shall appoint Lok-Pal after consultation with the Chief Justice of India, The chairman of the Rajya-Sabha and the speaker of the Loksabha. The Lokayuktas are appointed by the President after consultation with the Lok-Pal.
Generally, the Lokpal or Lokayukta shall hold office for a term of 5 years unless he resigns or is removed from his office.
B) The functions of Lok-Pal or Lokayukta [9]: –
The primary function of the Lok–pal / Lokayukta is to investigate the administrative action taken by or on behalf of a government or certain local and public authorities.
However, Lok-Pal or Lokayukta cannot investigate or invoke its jurisdiction in the following cases.
1) Matters relating to those specified in Schedule III, like foreign relations, extradition[10], security of the State, etc.
2) If the complainant has not invoked alternative remedies, other than approaching Lok-Pal or Lokayukta.
3) In case of pending enquiries before the Public Servant’s Enquiries Act or Commissions of Enquiries Act and if by notification, the Jurisdiction of Lokpal or Lokayukta is specifically barred.
- If the grievance is older than 12 months, and
- If the allegation is older than 5 years.
In B. J. Biwan V/s. State of Gujrat
(AIR 2002 Guj.99)
Facts: The Ombudsman was appointed to coordinate, help, and support the Government agencies in their long-range task of relief and rehabilitation for earthquake victims and to observe victims’ complaints. The question arose as to the functions of the Ombudsman.
Gujarat High Court observed that the “Ombudsman works as an institution for rectifying complaints made by individuals and organisations and to advise the government and its agencies against maladministration.”
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[1] लोकपाल
[2] भष्ट्राचार, वाईट प्रषासन, निश्क्रियता, कार्यवाहीस विलंब, अधिकाराचा गैरवापर [भ्रष्टाचार, कुशासन, निष्क्रियता, कार्रवाई में देरी, शक्ति का दुरुपयोग]
[3] प्रतिनिधी, आयुक्त, अधिकारी [प्रतिनिधि, आयुक्त, अधिकारी]
[4] वाईट प्रषासन [खराब प्रशासन]
[5] प्रशासकीय अकार्यक्षमता [प्रशासनिक अक्षमता]
[6] आरोप ठेवणारी आणि चैकषी करणारी [आरोपित और जिज्ञासु]
[7] लोकपाल विधेयकातील तरतूदी [लोकपाल बिल में प्रावधान]
[8] Orissa, Rajasthan, Uttar Pradesh, Himachal Pradesh and Gujrat
[9] लोकपाल, लोकायुक्तांची कार्ये [लोकपाल, लोकायुक्त के कार्य]
[10] प्रत्यार्पण