What Makes an Ombudsman an Ombudsman

Five: jurisdiction over administrative action. The subject matter is the administration. Whether the judiciary and the legislature are inside is a design choice: Sweden says yes to the courts, everybody else says no.

Six: access that costs nothing and needs nobody. A complaint on plain paper, no lawyer, no fee, no prescribed form in most systems, and a power to take up a matter on his own motion when nobody complains. The suo motu power matters most where the victims are least able to complain.

Seven: powers of investigation, and no power of decision. He may call for any file, examine any officer, enter any office and require any explanation. He may not quash, modify, substitute or order. This combination is the institution's signature and it is what distinguishes it from a court and from a tribunal.

Eight: publicity as the sanction. He reports, and the report goes to the legislature and to the public. A department that ignores a recommendation must explain itself in a forum it cannot control.

A ninth, and whether it belongs

Some writers add a ninth attribute: that the ombudsman investigates and reports, and does not prosecute. On the classical model that is correct. But Sweden began with a power to prosecute and India's Lokpal has a Prosecution Wing and can attach and confiscate property, so a criterion that excludes both the original and the largest modern example is a poor criterion.

The better way to put it in an answer is this. The classical ombudsman recommends. A statute may add prosecution powers, and where it does the body becomes a hybrid: an ombudsman in appointment, independence and access, and an anti-corruption prosecutor in output. India's Lokpal is exactly that hybrid, and saying so is worth more than saying it is or is not a true ombudsman.

Ombudsman, court and tribunal

The row that carries the most marks is the fourth. A court asks a question about legality. An ombudsman asks a question about treatment. That is why an act can survive judicial review and still be maladministration, and it is why the two institutions are not substitutes.

The row that carries the second most is the sixth. A citizen cannot see the file that decided his case; the ombudsman can. Most maladministration is invisible from outside the department, and this is the power that makes it visible.

A worked example

Two people are refused the same benefit on the same day by the same officer.

Mr Rao goes to the High Court under article 226. The Court asks whether the officer had the power, whether he followed the prescribed procedure, and whether the decision is so unreasonable that no reasonable officer could have reached it. The answer to all three is that the refusal was in order. The petition is dismissed. Mr Rao has spent eighteen months and a lawyer's fee to be told that a decision he believes was unfair was lawful.

Mrs Fernandes goes to the Lokayukta. She writes a letter. The Lokayukta calls for the file, and the file shows that the officer decided on a departmental note she was never shown, that her own representation was never put before him, and that he took nine months. None of that makes the refusal unlawful. All of it is maladministration.

The outcome for Mrs Fernandes. A report recommending that the case be reconsidered after showing her the note. She may still be refused, and this time she will know why and will have been heard.

The outcome for everybody else. The report names the practice. If the department keeps deciding on notes it does not disclose, the next report will say so, and a legislature will read it.

What the example proves. The two institutions are answering different questions. A student who writes that an ombudsman is a cheap substitute for a court has not understood either.

What an ombudsman is NOT

Not an appellate authority. He does not sit above the officer and re-decide. If he could, he would be a tribunal.

Not a court of law. He does not follow the Evidence Act, does not sit in public, and issues no order that can be executed.

Not a prosecutor, on the classical model. Where a statute makes him one, as India's does, that is an addition to the model and should be identified as such.

Not a grievance cell of the department. The whole point is that he is outside the department. An internal complaints officer, however diligent, fails attributes two, three and four.

And not, by himself, a cure. An ombudsman with no staff, no budget and no publicity is a letterhead. Several Indian State Lokayuktas have been exactly that, and chapter 240 sets out which.

Quick revision

Eight attributes: created by law; appointed by or on the advice of the legislature; security of tenure and salary; independence from the executive; jurisdiction over administrative action; free, direct, informal access plus a suo motu power; full investigative powers with no power to decide; publicity through a report to the legislature.

The signature combination: he can see everything and order nothing.

Against a court: a court asks whether the decision was lawful, an ombudsman whether the citizen was treated properly.

Against a tribunal: a tribunal re-decides on the merits and binds; an ombudsman reports and recommends.

The hybrid point: prosecution powers do not disqualify a body, they make it a hybrid. Sweden had them in 1809 and India's Lokpal has them now.

Test yourself

1. List the essential attributes of an ombudsman. Creation by constitution or statute; appointment by or on the advice of the legislature; security of tenure and of salary, with removal only for cause; independence from the executive, including own staff and budget and a bar on later government employment; jurisdiction over administrative action; free, direct and informal access for any aggrieved person together with a power to act on his own motion; full powers of investigation with no power to quash or substitute a decision; and publicity through a report to the legislature.

2. Distinguish an ombudsman from a court on three grounds. The court acts only when a case is filed and by a person with standing, at cost and through lawyers, whereas the ombudsman may act on a letter or on his own motion at no cost. The court asks whether the decision was lawful; the ombudsman asks whether the citizen was properly treated. The court's judgment binds and is executable; the ombudsman's report recommends and is enforced by publicity and by the legislature.

3. Does a power to prosecute disqualify a body from being an ombudsman? No. The original Swedish office of 1809 could prosecute, and India's Lokpal has a Prosecution Wing and powers of attachment and confiscation. The better analysis is that such a body is a hybrid: an ombudsman in its appointment, independence and access, and an anti-corruption prosecutor in its output.

4. Why is the power to call for the official file the most important investigative power? Because most maladministration is invisible from outside the department. A citizen refused a benefit cannot see the note on which the refusal was based, cannot know how long the file sat unattended and cannot know what was never put before the deciding officer. The ombudsman can see all of it as of right, which is why he can find wrongs that no court would ever discover.

5. Apply the list: is a departmental grievance cell an ombudsman? No. It may satisfy the criterion of accessibility, but it fails appointment by or on the advice of the legislature, fails security of tenure and salary, and fails independence from the executive, because it sits inside the department it examines and its officers answer to the officers it would have to criticise.