LLM Group 1 Constitutional and Administrative Law Public Authorities and Power Holders 2016 Question Paper with Solutions

Origin: the office and the four features

The word and the office are Swedish. The Instrument of Government of 1809 created the office of Justitieombudsman, an officer appointed by the Riksdag to supervise the observance of the law by judges, officials and civil servants. The word ombudsman means a representative or agent, and the original conception is that of an agent of the legislature placed inside the administration.

Four features define the classical office and they are the measuring rod for the rest of this answer. He is appointed by and reports to the legislature, which makes him independent of the administration he examines. His subject matter is maladministration: bias, neglect, inattention, delay, incompetence, ineptitude, perversity and arbitrariness, none of which need amount to an offence. His procedure is informal, inquisitorial and free, so a citizen needs no lawyer, pays no fee and files no pleading. And his power is recommendation with publicity: he cannot quash an order or award compensation, and his authority rests on being believed to be right.

The spread, and what each jurisdiction changed

Finland, 1919, adopted the Swedish model on independence.

France created the Médiateur de la République in 1973 and replaced it in 2011 with the Défenseur des droits, an office written into the Constitution with a broad mandate covering discrimination, children's rights and the conduct of security forces, which is the strongest constitutional entrenchment of the institution anywhere.

The European Union created its Ombudsman in 1995 under the Maastricht arrangements, appointed by the European Parliament, with jurisdiction over maladministration in Union institutions.

The United States took a different route altogether, and the contrast is instructive. It has no national ombudsman. The Inspector General Act, 1978, placed an Inspector General in each major federal agency, with a dual reporting line to the agency head and to Congress, and with audit and investigative powers over that agency alone. It is a distributed, insider model rather than a single external officer, and the Indian Chief Vigilance Officer network resembles it far more closely than it resembles the Swedish ombudsman.

The States moved first, and this is the part of the development most often omitted. Odisha enacted the first statute, the Odisha Lokpal and Lokayuktas Act, 1970, and brought it into operation only in 1983. Maharashtra, under the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971, was the first State to bring the office into operation and has the oldest working Lokayukta in the country. The State statutes diverge widely: some cover grievances as well as corruption, some include the Chief Minister and some exclude him, and some provide for an Upa-Lokayukta for the lower ranks.

A State institution produced the strongest Indian demonstration that the model works. The Karnataka Lokayukta, Justice N. Santosh Hegde, reported in July 2011 on illegal iron ore mining, naming serving ministers and officials, and the report was followed by the resignation of the Chief Minister. At that date the Union had no Lokpal at all.

Second, and most important, the subject matter. Sweden, Denmark, New Zealand and the United Kingdom all give the office maladministration. Section 14 of the Indian Act gives the Lokpal offences under the Prevention of Corruption Act, 1988. Delay, arbitrariness, bias and discourtesy are therefore outside the Lokpal's jurisdiction altogether. This is the single largest divergence, and it means that the Indian institution answers a different question from the one the First Administrative Reforms Commission asked in 1966.

Third, procedure. The classical office is informal and free. The Lokpal requires a complaint in the prescribed form, conducts a preliminary inquiry under section 20, and its process leads to a criminal trial before a Special Court under section 35. A false or frivolous complaint is punishable, which protects officials and deters complainants.

Fourth, powers, where India goes far beyond the model. No Scandinavian ombudsman has an Inquiry Wing and a Prosecution Wing of its own, as sections 11 and 12 provide; nor power to grant sanction for prosecution under section 23; nor power to provisionally attach the proceeds of corruption under section 32 with confiscation under section 31; nor superintendence over an investigating agency in referred cases under section 25. India built a prosecutor with an ombudsman's name.

Seventh, jurisdiction over the judiciary, which is presently unresolved in India. The Swedish office covers judges; the Danish does not. In India, by an order dated 27 January 2025, the Lokpal held that Judges of High Courts established by Acts of Parliament fall within section 14 and entertained a complaint against a sitting Additional Judge. The Supreme Court took suo motu cognisance and on 20 February 2025 a Bench of Gavai, Surya Kant and Oka JJ stayed the order, observing that the matter was of great significance concerning the independence of the judiciary. An amicus curiae has been appointed and the matter is pending, so the position is that the order does not operate and the question is open. Article 121, which forbids Parliament itself from discussing a judge's conduct except on a removal motion, is the constitutional background against which it will be decided.

Where an Indian citizen actually meets an ombudsman

Because the Lokpal handles corruption rather than grievances, the classical function is performed in India by other bodies, and a comparative answer must name them. The Central and State Information Commissions under the Right to Information Act, 2005, adjudicate on the denial of information and function in practice as grievance authorities with informal procedure and no fee. The Reserve Bank of India's Integrated Ombudsman Scheme, 2021, consolidated the earlier banking, non-banking finance company and digital transaction schemes into a single scheme with one point of complaint and no fee. The Insurance Ombudsman does the same for policyholders, and there are analogous authorities in telecommunications, electricity and taxation. These are much closer to the Danish and New Zealand model than the Lokpal is, and they are the reason an Indian citizen's experience of the institution is sectoral rather than general.

And Centre for Public Interest Litigation v. Union of India, (2011) 4 SCC 1, supplies the standard by which such an appointment is judged. The Government had appointed as Central Vigilance Commissioner an officer against whom a charge sheet in the Palmolein import case had been pending since 1999, over the recorded dissent of the Leader of the Opposition. The Court quashed the recommendation as non est, holding that the selecting committee must consider the integrity of the institution and not merely the personal integrity of the candidate, because an incumbent facing a corruption charge cannot credibly supervise corruption investigations. For an authority whose only weapon is its credibility, that reasoning applies with even greater force than it did to the Commission.

Comparatively, India departed from the model at almost every point that matters: an executive appointment mediated by a committee rather than a parliamentary one; jurisdiction over corruption rather than maladministration; formal procedure leading to a criminal trial rather than informal inquiry; and powers of prosecution, sanction and attachment that no classical ombudsman possesses. The Indian institution is therefore best described not as an ombudsman that works badly but as a different institution wearing the name, and the classical function of redressing the citizen's grievance against bad administration has been left to the Information Commissions and the sectoral schemes.