The Ombudsman

Point 7 is the one that surprises students and it is essential. The Ombudsman does not quash, order or punish. That is what makes the office quick and cheap, and it is also its weakness.

The Indian history

The Administrative Reforms Commission, in its interim report of 1966, recommended a two tier institution: a Lokpal at the Centre, dealing with complaints against ministers and secretaries, and a Lokayukta in each State and at the Centre for complaints against other officials. The names are Sanskrit coinages, Lokpal meaning protector of the people.

Bills to create a Lokpal were introduced repeatedly from 1968 onwards and lapsed each time. Meanwhile the States moved first: Maharashtra was among the earliest, enacting the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971, treated in [Lokayukta in Maharashtra: the 1971 Act, and the 2023 Act awaiting commencement].

The Union institution was finally created by the Lokpal and Lokayuktas Act 2013, and section 63 of that Act provides that every State shall establish a body to be known as the Lokayukta for the State, if not already established, by a law made by the State Legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of the Act. That section is why the State institutions were revisited after 2014, and it is the reason for the Maharashtra Lokayukta Act 2023.

How the Indian institutions differ from the classical model

An answer that describes the Ombudsman and then says India has one has missed the most examinable point. There are four differences.

1. The jurisdiction is corruption, not maladministration. The Lokpal and Lokayuktas Act 2013 is directed at offences under the Prevention of Corruption Act 1988. The classical Ombudsman inquires into maladministration generally, which is far wider and covers the delay and incompetence that most citizens complain of.

2. The powers are stronger, not weaker. The Indian bodies have powers of search and seizure, provisional attachment and confiscation of assets, a prosecution wing and the power to grant sanction for prosecution. That is a criminal investigation machinery rather than a grievance office.

3. The relationship with the legislature is weaker. The classical Ombudsman is the legislature's officer. The Indian bodies are established by statute with a selection committee including the Prime Minister, the Speaker, the Leader of Opposition and the Chief Justice or his nominee, and they report to the President.

4. There is no general Ombudsman for maladministration in India. The gap the office was invented to fill is still substantially unfilled, and it is filled in part by grievance portals, citizens' charters, consumer forums, sectoral ombudsman schemes and the Right to Information Act 2005: [Informal Settlement of Disputes: Conciliation and Mediation].

Advantages and criticisms

Advantages. Free and accessible; informal, needing no lawyer; able to see the file, which a citizen cannot; able to address bad administration that is not illegality; able to recommend systemic change rather than deciding one case; and quick compared with litigation.

Criticisms. Recommendations are not binding and may be ignored; the office can be overwhelmed by volume; without adequate staff it cannot investigate; its independence depends on the appointment and removal process; where it is confined to corruption it does not reach the grievances most citizens have; and vacancies have repeatedly disabled these bodies in India.

A worked example

Sudha Naik applied for a building permission fourteen months ago. Her file has been moved between three officers, she has received no reply to four letters, and the officer dealing with it has twice told her to come back next month.

What a court gives her. A mandamus to decide the application. It will cost her more than the permission is worth, take time, and say nothing about how she was treated.

What a classical Ombudsman would give her. He would call for the file, find that it sat for seven months without action, report that this was maladministration, recommend that the application be decided within a fixed period, and recommend a systemic change to the department's file movement system. He would also publish the finding.

What the Indian institutions give her. If she alleges that an officer demanded a bribe, the Lokayukta or the Lokpal has jurisdiction, because that is corruption. If her complaint is simply that the department is slow and rude, the corruption jurisdiction does not fit, and she is left with the grievance portal, the citizens' charter, a request under the Right to Information Act 2005 for the file notings showing where the delay occurred, and a writ petition.

That gap is the point of this chapter.

What it does NOT mean

It does not mean the Ombudsman is a court. He investigates and recommends; he does not adjudicate or punish.

It does not mean India has a general Ombudsman. The Lokpal and the Lokayuktas are directed at corruption, not at maladministration generally.

It does not mean recommendations are worthless. A published finding, reported to the legislature, has real force even without a power to order.

It does not mean the office is a substitute for judicial review. It is a complement: the Ombudsman reaches what the courts cannot, and the courts decide the questions of law he cannot.

Quick revision

1. Ombudsman: a Swedish word meaning representative or agent. Origin, Sweden 1809. New Zealand 1962 was the first common law country; the United Kingdom created the Parliamentary Commissioner for Administration in 1967.
2. It exists to address maladministration: delay, incompetence, neglect, arbitrariness, rudeness and failure to follow procedure, none of which a writ court can readily address.
3. Seven characteristics: independence of the executive; answerability to the legislature; jurisdiction over maladministration; access on a citizen's complaint free of cost; wide investigative powers including access to files; informal and private procedure; and recommendation rather than adjudication.
4. India: recommended by the Administrative Reforms Commission in its interim report of 1966, as a Lokpal at the Centre and a Lokayukta in the States. Bills lapsed repeatedly from 1968.
5. The States acted first; Maharashtra enacted the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971.
6. Lokpal and Lokayuktas Act 2013, section 63: every State shall establish a Lokayukta by State law, if not already established, within one year from the commencement of the Act, to deal with complaints relating to corruption against certain public functionaries.
7. Four differences from the classical model: the jurisdiction is corruption rather than maladministration; the powers are stronger, including search, seizure, attachment and prosecution; the link to the legislature is weaker; and there is no general Ombudsman for maladministration in India.

Test yourself

1. What is an Ombudsman, and why was the office created? An Ombudsman is an independent officer, classically appointed by and answerable to the legislature, who investigates complaints by citizens of maladministration by public authorities. The word is Swedish and means a representative or agent, and the office originated in Sweden in 1809, spreading to the common law world with New Zealand in 1962 and the United Kingdom's Parliamentary Commissioner for Administration in 1967. It was created to fill a gap: a citizen aggrieved by delay, incompetence, neglect, rudeness or failure to follow procedure has no cause of action in a civil court, gets no help from a writ court which reviews legality only, cannot expect much from a departmental appeal decided by the same department, and cannot easily interest the legislature. The Ombudsman addresses precisely that class of grievance, free of cost and without formality.

2. State the characteristics of the classical Ombudsman. Independence of the executive, secured by an appointment process the executive does not control, fixed tenure, a salary charged on the Consolidated Fund and a difficult removal procedure. Answerability to the legislature, to which he reports. Jurisdiction over maladministration rather than illegality alone. Access by direct complaint from a citizen, ordinarily free and without a lawyer. Wide powers of investigation, including access to official files. Informal, inquisitorial and private procedure rather than an adversarial hearing. And the making of recommendations rather than binding orders, the force of the office lying in publicity and in the report to the legislature.

3. Trace the history of the Ombudsman idea in India. The Administrative Reforms Commission recommended the institution in its interim report of 1966, proposing a Lokpal at the Centre to deal with complaints against ministers and secretaries and a Lokayukta for other officials. Bills were introduced from 1968 onwards and lapsed repeatedly. The States acted first, Maharashtra among the earliest with the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971. The Union institution was created only by the Lokpal and Lokayuktas Act 2013, section 63 of which requires every State to establish a Lokayukta by State law, if not already established, within one year of the commencement of the Act, to deal with complaints relating to corruption against certain public functionaries.

4. How do the Indian Lokpal and Lokayukta differ from the classical Ombudsman? In four ways. Their jurisdiction is corruption, being directed at offences under the Prevention of Corruption Act 1988, rather than maladministration generally, so the delay and incompetence that most citizens complain of is outside them. Their powers are stronger rather than weaker, including search and seizure, provisional attachment and confiscation of assets, a prosecution wing and the power to grant sanction for prosecution, which makes them criminal investigation bodies rather than grievance offices. Their relationship with the legislature is weaker, since they are creatures of statute with a selection committee drawn from several branches and report to the President rather than being the legislature's own officer. And because their jurisdiction is corruption, India still has no general Ombudsman for maladministration, that gap being filled only partially by grievance portals, citizens' charters, consumer forums, sectoral ombudsman schemes and the Right to Information Act 2005.

5. What is meant by maladministration, and why does it matter that Indian institutions do not cover it? Maladministration means bad administration falling short of illegality: delay, incompetence, ineptitude, neglect, failure to follow the department's own procedure, failure to reply, arbitrariness, rudeness and inattention. It matters because it is what citizens actually experience. A court can quash an unlawful order but cannot address a file that has sat unattended for seven months, and a departmental appeal is decided by the same department. Since the Indian Lokpal and Lokayuktas are directed at corruption, a citizen whose complaint is delay rather than a demand for a bribe falls outside them, and must rely on grievance portals, citizens' charters and requests under the Right to Information Act 2005 for the notings that show where the delay occurred.