2019 Ankita Mam.docx

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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 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

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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 ........................................................................................................ 11 [A]

FEATURES OF THE JAN LOKPAL BILL ............................................................................ 11

1. Lokpal and its role .................................................................................................. 11 2. Structure .................................................................................................................. 12 3. Process of selection .................................................................................................. 12 4. Jurisdiction .............................................................................................................. 12 5. Other significant features of the Bill ..................................................................... 13 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. X.

CRITICAL OBSERVATIONS ON OMBUDSMAN SCHEME ................................................ 15 CONCLUSION ................................................................................................................... 16

I.

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

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Ombudsman in India: A Critical Appraisal

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 ororganizations of the citizens of India unaffected fromCorruption. 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, 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 2012India was ranked 94th out of 176 countries in Transparency International’s Corruption Perceptions Index.3The 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. 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 “Transparency International – the global coalition against corruption”. Source: www.Transparency.org. 2 Centre for Media Studies, India Corruption Study 2005: To Improve Governance: Volume I – Key Highlights, New Delhi: Transparency International India, 30 June 2005. 3 Source: www.Transparency.org. 4 Ombudsman in India by Aamna. Published on: August 4, 2011 5 J. Rawl, A Theory of Justice, Cambridge, Cambridge University press, Edition 1997, at 11. 1

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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.

II.

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”sincethis model is said to set a standard. I do acknowledge, however, that there are several precedents from Asian (and other) settings of people, in former times, undertaking office to provide relief and redress tocitizens 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 functionin 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 toannounce 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:

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Ombudsman in India: A Critical Appraisal “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.

III.

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 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;

6

International Bar Association Source: www.Legal-dictionary.thefreelegaldictionary.com 8 Source: www.http://en.wikipedia.org/wiki/Ombudsman 9 Triloknath Mishra,Lokpal in India-An Analysis, 2011 10 Standing Committee on Home Affairs eighty fourth Report on Lokpal Bill, 2001 7

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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 traditions, the office is generally regulated under ordinary statute law.14

IV.

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.

ix.

Popularly accessible and visible.

x.

High status institutions

xi.

Have extensive resources to perform his mission.

11

J.J.R. Upadhaya, Administrative Law (2004) p. 382 PUBLIC ADMINISTRATION AND PUBLIC POLICY vol. II-The Ombudsman Office-S. E.Aufrecht:E1-34-05-08.pdf 13 Great Britain, Iceland, Ireland, Israel, New Zealand, Norway, Slovenia, South Africa, Zambia 14 Standing Committee on Home Affairs eighty fourth Report on Lokpal Bill, 2001 12

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V.

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 [A]

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 Lokayukta 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. [B]

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 15

C. Rowat Donald, The Ombudsman: Citizen's Defender, 1965. Pp. 348, University of Toronto Press, Toronto. Administrative Law

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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.

VI.

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

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Triloknath Mishra, Lokpal in India-An Analysis, 2011

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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 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 aspossible, any legitimate sense of grievance. Thus, theadministration itself must play the major role in reducingthe area of grievances and providing remedies where necessary and feasible. When this machinery (in-built departmental machinery) functions effectively, the numberof cases which will have to go to an authority outside the Ministry or the Department should be comparatively smallin number”19 The ARC while preparing its report had three ends in view:

17

Second Administrative Reforms Commission: Twelfthreport, February, 2009, pg. no. 3 Triloknath Mishra,Lokpal in India-An Analysis, 2011 19 Administrative Reforms Commission Report submittedin 1966: Quoted from Para 6 18

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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 Centraland 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, andwas passed there in 1969. However while it was pending inthe Rajya Sabha, the Lok Sabha was dissolved, and so thebill was not passed at that time. Subsequently, Lokpal billswere introduced in 1971, 1977, 1985 (again by AshokeKumar Sen when serving as Law Minister in the RajivGandhi cabinet), 1989, 1996, 1998, 2001, 2005 and in2008, yet they were never passed.21 Each time, after thebill was introduced to the house, it was referred to somecommittee for improvements a joint committee of parliament, or a departmental standing committee of theHome Ministry and before the government could take afinal stand on the issue, the house was dissolved again.22 In 2002, the report of the National Commission to Reviewthe Working of the Constitution urged that the Constitutionshould provide for the appointment of the Lok Pal andLokayuktas in the states but suggested that the PrimeMinister should be kept out of the purview of the authority.23 In 2004, the UPA government’s National CommonMinimum Programme promised that the Lok Pal Bill wouldbe enacted.24 The Second Administrative Commission,formed in 2005, also recommended that the office of theLok Pal be established without delay.25In January 2011, the government formed a Group ofMinisters, chaired by

Interim Report of the Administrative Reforms Commission on Problems of Citizen’s Grievances, 1966, p.8-15. 21 Source: http://www.hindu.com/thehindu/holnus/002200804051550.htm 22 Source: http://en.wikipedia.org/wiki/Lokpal 23 “Executive and Public Administration,” Chapter 6 of the National Commission to Review the Working of the Constitution (Chairperson: Shri M.N. Venkatachiliah),March 31, 2002 24 National Common Minimum Programme of the Government of India, May 2004 Source: http://pib.nic.in/archieve/upareport/upa_3_year_highlights.pdf) 25 “Ethics in Governance,” Fourth Report of the Second Administrative Reforms Commission, Jan 2007 20

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Shri Pranab Mukherjee to suggestmeasures to tackle corruption, including examination of theproposal of a Lok Pal Bill.26 VII.

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. 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 1. 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 26 27

“GoM on Corruption to Firm up Lok Pal Bill at the Earliest, Outlook, January 21, 2011. Anil Dharker, The Topiwala Camera, The Outlook, New Delhi, 2011

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prosecution of offences in respect of complaints under any law for the prevention of corruption. 2. 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. 3. 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 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. 4. 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

28

Ibid Ibid 30 Ibid 29

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from foreign sources in the context of the Foreign Contribution Regulation Act (FCRA) in 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. 5. 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.

VIII. [A]

ANALYSIS OF THE JAN LOKPAL BILL

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 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 31

Ibid Source: http://www.youtube.com/watch?v=kc5Ql00ftKg 33 Source: http://www.youtube.com/watch?v=QT5kB5Hm4Ys, 34 Source: http://www.youtube.com/watch?v=S6rK-fLEuNA 32

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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 the 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 [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 Ministry of Law and Justice. “Government Issues Notification to Constitute a Joint DraftingCommittee to Prepare Draft Lok Pal Bill.” Press Information Bureau, Government of India. Source: http://pib.nic.in/newsite/erelease.aspx?relid=71560 36 Ibid 35

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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.

IX.

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 chief 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 Administrative Law

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Ombudsman in India: A Critical Appraisal

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.

X.

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 Administrative Law

Assignment

National Law University, Jodhpur

17

Ombudsman in India: A Critical Appraisal

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”.

Administrative Law

Assignment

National Law University, Jodhpur