2 Punchayat Ombuds Man Project.docx

Contents

1. Introduction

2. International concept of Ombudsman

3. Panchayat Ombudsman 3.1.

Appointment of Panchayat Ombudsman

3.2.

The powers and functions of Panchayat Ombudsman

3.3.

Provisions relating to complaints and investigations

3.4.

Powers of Panchayat Ombudsman to investigate and take evidence

3.5.

Matters not subject to investigation

3.6.

Reports of Panchayat Ombudsman

4. Conclusions

5. References

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Punchayat Ombudsman

1. Introduction: The Ombudsman has long been one of the world’s most prominent grievance redressal institutions. Originally from Sweden, it has been widely adopted by other countries over the past five decades. Today, Ombudsman’s offices have been established in the United States, Canada, most EU nations, New Zealand, the Philippines, Australia and many other countries. In India, the concept of Ombudsman was introduced by the Administrative Reform Commission of 1966 which recommended the setting up of an Ombudsman both at the Center (Lokpal) and the State (Lokayukta) with varying degrees of Power. Since then, 17 states have set up Lokayuktas headed by retired judges. However, the Lokpal is still to be introduced at the Center. In 2001, Kerala became the first, State in India, to set up an Ombudsman office for local governments (district and below). Like others around the world, The Punchayat Ombudsman considers only complaints against local self government institutions (LSGIs) and therefore tends to focus on service delivery and the interaction between local government and citizens. Despite being unique in India, the institution has received scant academic attention. This study attempts to begin a conversation about the Punchayat Ombudsman by presenting a detailed account of its powers, functions, strengths and weaknesses, as well as raising a few specific points of critical analysis. Under the National Rural Employment Guarantee Act (NREGA) efforts are underway to create a nation wide system of Ombudsmen tasked with resolving complaints related to NREGA work projects. On the eve of such a massive project, it is urgent that we consider what can be learnt from the only other comparable Indian institution. The Ombudsman is originally a Swedish institution. The “Special Parliamentary Commissioner for Judiciary and the Civil Administration” (Justitie ombudsman na ambetet)

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was first instituted by the Swedish constitution of 1809. 1 The Ombudsman reflected the then-novel idea that institutions, rather than solely broad political structures like the separation of powers, were needed to protect the rights of the individual.2 The Swedish Ombudsman enforces “the observance of laws and statutes as applied in all other matters by the courts and by public officials and employees” and can prosecute “those who, in the exercise of their official duties, have through partiality, favouritism, or other cause committed any unlawful act or neglected to perform their official duties properly.”3 To do so, Ombudsmen can attend the deliberations of any Swedish court, inspect public institutions, and are given access to the records of all courts, boards, and public offices.4 The Swedish Ombudsman was the model for what is now known as the “classical” Ombudsman. This designation is important because there are many institutions today that use the name “Ombudsman” that have little in common with the original Swedish institution. While the classical Ombudsman has varying definitions that emphasize different features,5 there appears to be a settled core of meaning. The classical Ombudsman must be: 1. Established and independent. Must be formerly enshrined in law and operationally independent and autonomous. 2. Powerful. Must have the ability to investigate complaints in full, and must be able to meaningfully use the findings of the investigation. For instance, by initiating prosecution or issuing recommendations. 3. Fair and impartial in attitude. Must not be anti-administration, nor anti-citizen. Must simply seek to find the truth of the matter and act on its findings.

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Jagerskiold, Stig. “The Swedish Ombudsman.” 8 University of Pennsylvania Law Review . 109 (1961) Ibid., 1080. Regeringsformen, article 96 via Jagerskiold, Stig, 1082. Jagerskiold, Stig. 1079. Larry B. Hill’s book Model Ombudsman (12) and “Essential Characteristics of a Classical Ombudsman”, a reference document available through the United States Ombudsman Association at: http://www.usombudsman.org/en/references/more_references/.

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2. International concept of Ombudsman: The classical model of the Ombudsman has been adopted in many countries. Denmark instituted an Ombudsman in 1954.6 An Ombudsman was created in New Zealand in 1962.7 In 1969 Hawaii became the first American state to create an Ombudsman, and today they exist in five states and various urban areas.8 By 1996 most Canadian provinces had an Ombudsman.9 In the 1980s and 1990s Latin American countries such as Nicaragua, Guatemala and Peru created Ombudsman offices - locally called a Procurador de Derechos Humanos.10 However, implementation methods and success vary greatly even among classical Ombudsmen. This section examines Ombudsman’s offices in three places: Sweden, the American state of Hawaii, and Latin America. Swedish Ombudsman aims to hold public officials accountable, according to relevant laws and regulations.11 The Ombudsman’s jurisdiction is broad: he or she can investigate complaints against local, regional or central government.12 Citizens access the Ombudsman by submitting written complaints to the Ombudsman directly, although the Ombudsman can initiate his or her own investigations based on media reports or other sources. 13 All complaints submitted by citizens are investigated, as long as they are signed, although about half turn out to be outside of the Ombudsman’s jurisdiction. For example, the Ombudsman cannot investigate the actions of a private citizen.14 Complainants receive initial feedback on their case, frequently on the same day it is submitted.15

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Jagerskiold, 1077 Ombudsmen – History of the Office. Office of the Ombudsman (NZ). Web. 10 May 2010 8 Hill, Larry B. “The Ombudsman Revisited: Thirty Years of Hawaiian Experience” Public Administration Review vol 62(1) 2002: 24-41, 24 9 What is an Ombudsman? Forum of Canadian Ombudsman. Web. 10 May 2010 10 Uggla, 427 11 There is also a military Ombudsman in Sweden. However for the purposes of this paper, we will focus on the civil Ombudsman. 12 Rosenthal, Albert H. “The Ombudsman – Swedish ‘Grievance Man’” Public Administration Review vol 24(4) 1964: 226-230, 228. 13 Ibid. 14 Ibid., 228-229. 15 Ibid. 7

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Once a complaint is received, the Ombudsman begins an investigation. To do so he or she may compel any public official to assist in the investigation, and may request relevant documents. 16 Essentially, the Ombudsman speaks to relevant individuals – the accused administrator, those who work with him, his subordinates and superiors – and consults official records to determine the facts of a complaint.17 To resolve the case, the Ombudsman functions as a public prosecutor. He may initiate prosecution against the responsible official or institution, though he is also able to request corrective action or issue a formal warning.18 Rarely does the Ombudsman need to resort to prosecution to persuade an institution to change its behaviour or rectify a mistake.19 Contrast this with the far more informal office of the Hawaiian Ombudsman which allows citizens to make complaints by telephone, and the majority of complaints are submitted in that way.20 When a citizen calls to submit a complaint they first speak with the office receptionist who determines whether the caller has a complaint within the Ombudsman’s jurisdiction, or whether they need to be referred to another office.21 If the complaint is within jurisdiction, the call is passed on to an analyst. After the complaint is submitted, the analyst dictates the contents of the conversation to a tape recorder, and the tapes are later transcribed by secretaries. More recently, some investigators have begun recording the content of their conversations in a word processor.22The transcripts and other relevant documents are kept together in individual case files. The actual process of redressal is also highly informal. The Ombudsman’s office has generally employed eight analysts whose duty is to resolve complaints. On any given day, one analyst will have complaint duty, and all complaints submitted on that day are his or her responsibility.23 The rest of the working week is dedicated to investigating and resolving complaints. Most investigations are carried out over the telephone.

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Ibid. Jagerskiold, 1084. 18 Rosenthal, 228. 19 Ibid., 229. 20 Hill, 25. Between 1997-2002, 95% of complaints were submitted by phone, 4% were submitted through letters, and 1% visited the office in person 21 Ibid., 27. 22 Ibid., 25. 23 Ibid., 26. 17

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Weekly staff meetings allow analysts to present the complaints they’re presently working on and receive advice from other analysts and the Ombudsman.24 It also enables the Ombudsman to hold his staff accountable by monitoring their progress. 25 Whenever official correspondence with complainants or bureaucrats is required, the Ombudsman reviews it before it is mailed. While the Ombudsman does not have legal power to compel a bureaucracy to reverse a decision or take specific action, nonetheless it appears to be effective. The Latin American Ombudsman offers yet another experience. Ombudsmen were created in Guatemala (1985), Mexico (1990), Columbia (1991), El Salvador (1991), Honduras (1992), Argentina (1993), Peru (1993), and Bolivia (1994). 26Though of course there are variations between each country, some experiences have been broadly shared by all of the Ombudsmen in Latin America and for this reason can be discussed as a group. Like the original Swedish institution, the Ombudsmen are designed to function as public prosecutors and can bring a case before the courts, although it is of course the courts which decide the matter. 27 Though they lack independent legal power, they are able to issue resolutions based on their findings when investigating government offices.28 The institution is said to exercise a ‘moral power’, the effectiveness of which depends on whether or not the office in question accepts the legitimacy of the Ombudsman’s resolutions.29 These examples illustrate the variety of ways that a single institution can function in different contexts. The Swedish and Hawaiian Ombudsman, both lacking coercive power, set about investigating cases and making recommendations, and are generally successful in resolving the complaints. Latin American Ombudsmen, though similar in institutional structure, concern themselves more with broad human rights issues than individual complaints, and seek to resolve them through public advocacy rather than solely through investigation.

24 25

Ibid., 27. Ibid.

26

Uggla, 430. Ibid., 432. 28 Ibid., 424. 29 Ibid., 428. 27

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3. Panchayat Ombudsman: The Ombudsman was created as a response to the increased power given to local self government institutions (LSGIs) by the Karnataka Panchayati Raj Act of 1993 (‘1993 Act’). In 2010 the Act was amended to include provisions for the Ombudsman. 3.1. Appointment of Panchayat Ombudsman: Panchayat Ombudsman is appointed under section 296-A of Karnataka Panchayati Raj Act,1993.The section 296-A was inserted by amendment

in 2010. (1) The State

Government shall by notification appoint for each of the Zilla Panchayat, Taluk Panchayat, Grama Panchayat or for one or more of such Panchayats such number of officers of the State Government to be the Panchayat Ombudsman. (2) Where more than one officer is appointed for the same panchayat area the jurisdiction of each of the Panchayat Ombudsman shall be specified in the notification issued under subsection (1). (3) The Panchayat Ombudsman appointed under sub-section (1), shall be the competent authority to pass verdict after hearing the grievances and complaints received against any elected members, officers and officials of the Panchayat Raj Institutions within their respective jurisdictions. 3.2. The powers and functions of Panchayat Ombudsman: Karnataka Panchayati Raj Act,1993.The section 296-B was inserted by amendment in 2010. Which explains about the powers and functions of Panchayat Ombudsman. (1) The Panchayat Ombudsman shall have power to investigate any allegation or action taken by panchayaths and the panchayat institutions and the institutions funded by Panchayat elected members, the officers and officials of the panchayat institutions which are substantially controlled or funded by the Panchayaths. (2) The Panchayat Ombudsman shall submit a report to the Government on all the matters including allegations against elected members, officer or official of such panchayaths

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For the purpose of this section, the panchayat institutions include autonomous societies and associations such as Village Water and Sanitation Committees, Watershed Committees, Tank User’s Committees which enjoy certain degree of functional autonomy in their operations. Institutions funded by panchayat includes Banks and financial institutions, NonGovernmental Organisations and other institutions that have been advanced funds by the Zilla Panchayat or Taluk Panchayat or Grama Panchayat for providing certain services to the specified or general category of persons. 3.3. Provisions relating to complaints and investigations: Panchayat Ombudsman is empowered to investigate the complaints under section 296-C of Karnataka Panchayati Raj Act,1993.which is inserted by amendment in 2010. (1) Subject to the provisions of this Act, any person may make a complaint involving the action or grievance, or allegations to the Panchayat Ombudsman against elected members officer or officials of the Zilla Panchayat, Taluk Panchayat or the Grama Panchayat in respect of any matter,(i) in which there is omission to do any work entrusted to him under the Act or Rules made thereunder; (ii) for his failure of service, including negligence, improper performance, irregular actions, nepotism, favouritism and the like actions; (iii) the complaint may also include the delays or failure in respect of any or all of the following, namely:(a) disposal of applications/petitions/appeals; (b) payments due from the panchayats / panchayat institutions; (c) convening monthly meetings of the panchayats; (d) selection of beneficiaries in the panchayat / panchayat institutions (e) discharge of statutory functions conferred on the panchayat bodies under the Act or rules made there under; (f) such other functions as may be prescribed 8

(2) Every complaint or allegation made under sub-section (1) shall be in the form of statement supported by Affidavit and shall be in such form and in such manner as may be prescribed. (3) The Panchayat Ombudsman may after giving an opportunity of being heard to such elected member, officers or the official investigate in such manner as may be prescribed and send a report to the Government as the case may be which he considers appropriate in the circumstances of the case. 3.4. Powers of Panchayat Ombudsman to investigate and take evidence: Karnataka Panchayati Raj Act, 1993.The section 296-D was inserted by amendment in 2010. Which empower the Panchayat Ombudsman to investigate and take evidence.Panchayat Ombudsman has power of a civil court to make enquiry and take evidence (1) For the purpose of any investigation including the preliminary enquiry if any under this Act, the Panchayat Ombudsman may require any person, in his opinion, is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document. (2) For the purpose of any such investigation (including the preliminary inquiry), Panchayat Ombudsman shall have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matter, namely:(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or officer; (e) issuing commissions for the examination of witnesses or documents; (f) such other matters as may be prescribed. (3) Any proceeding before the Panchayat Ombudsman shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code.

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(4) No person shall be required or authorised by virtue of this Act to furnish any such information or answer any such question or produce so much of any document; (a) as might prejudice the affairs of the State of Karnataka or the security or defence or international relations of India (including India’s relations with the Government of any other country or with any international organisation); and (b) as might involve the disclosure of proceedings of the Cabinet of the State Government or any Committee of that Cabinet, For the purpose of this sub-section, a certificate issued by the Chief Secretary certifying that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b), shall be binding and conclusive. (5) For the purpose of investigation under this Act, no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a Court. 3.5. Matters not subject to investigation: Under section 296-E of Karnataka Panchayati Raj Act limits the Panchayat Ombudsman not to investigate any matter,(i) which the Lokayukta or the uplokayukta is investigating under the provisions of the Karnataka Lokayukta Act, 1984 (Karnataka Act 4 of 1985); or (ii) which is being investigated by a competent authority under any provisions of the Central Act or State enactments. 3.6 Reports of Panchayat Ombudsman: After investigation and enquiry, Panchayat Ombudsman will write report to the Government along with the relevant documents recommendations under section 296-F of Karnataka Panchayati Raj Act, 1993.The section 296-F was inserted by amendment in 2010. (1) If, after investigation of any action or allegation involving a grievance has been made, the Panchayat Ombudsman is satisfied that such action has resulted in injustice or undue hardship to the complainant or to any other person, he may by a report in writing, 10

recommend to the Government that such injustice or hardship shall be remedied or redressed in such manner and within such time as may be specified in the report. (2) If, after investigation of any action involving an allegation has been made, the Panchayat Ombudsman is satisfied that such action or allegation is substantiated either wholly or partly, he shall make specific report in writing to the Government communicating his findings and recommendations along with the relevant documents, materials and other evidence in support of his findings and recommendations 4.Conclusion: Ombudsman has been used by thousands of citizens to resolve their complaints. In comparison to a formal court it is cheap, accessible, and expeditious. The Ombudsman verifies that its orders are being carried out and that the substance of the grievance has actually been addressed. This much is clear from a casual investigation of the institution.

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6. References

List of Books: 

Galanter, Marc. Law and Society in Modern India. (Oxford University Press, Delhi, 1989).

List of Articles: 

Hill, Larry B. “The Ombudsman Revisited: Thirty Years of Hawaiian Experience” 62 (1) Public Administration Review 24(2002)



Jagerskiold, Stig. “The Swedish Ombudsman,” 109 (8) University of Pennsylvania Law Review1078 (1961)



Rosenthal, Albert H. “The Ombudsman – Swedish ‘Grievance Man’”24(4) Public Administration Review 228 (1964).



Sharma, Amita. Joint Secretary (NREGA). 7 “Ombudsman Instructions”11(2009).



Uggla, Frank. “The Ombudsman in Latin America.” 36(3) Journal of Latin American Studies 428 (2004)

List of Reports: 

“Annual report of Ombudsman for LSGI (2005-2006)”

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”Annual report and delay statement of Ombudsman for LSGI (2005-2006)”

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”Ombudsman for LSGI Thiruvananthapuram Annual report (2008-2009)”

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Das, Justice T.K. Chandrasekhara “Annual report of Ombudsman for LSGI (2004-2005)”

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Interview with Mr. Jawaharl, Secretary to the Ombudsman, May 4 2010.

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Karnataka Panchayati Raj Act of 1993 (amended-2010)

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Kerala Panchayati Raj (amendment) Act 1999

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Menon, Justice K.P. Radhakrishna, “Annual Report of Ombudsman for LSGI (2002-2003)”.



Mohammed, Shri. Justice P.A. “Ombudsman for LSGI First Annual Report” 2002, 1-3

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Nair, Justice M. R. Hariharan. “Annual report and delay statement of Ombudsman for LSGI (2007-2008)”

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Nair, Justice M.R. Hariharan. - Email interview Report. May 19, 28 and July 2 2010.

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Nair, Justice M.R. Hariharan. - Personal interview Report. April 28 and May 4 2010.

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

Vijayanand, SM. “Kerala: A Case Study of Classical Democratic Decentralization” prepared for submission to the 13th Finance Commission. Kerala Institute of Local Administration (KILA). 2009 List of Websites:



Ombudsmen – History of the Office. Office of the Ombudsman (NZ). Web. 10 May 2010



What is an Ombudsman? Forum of Canadian Ombudsman. Web. 10 May 2010 http://www.ombudsmanforum.ca/whatis_e.asp

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