Ombudsman in India

Introduction

Modern democratic systems are characterized by welfare orientation. The resultant expansion of the bureaucracy increases scope of abuse of this power and discretion by civil servants and gives rise to citizen’s grievances with administration[1]. A balance must be struck between the administration and the public at large to protect the ordinary citizens against violation of their rights or abuse of power and address their grievance. Control over the executive is exercised through the judiciary, Parliament or and internal review. However, they often prove to be inefficient or insufficient. Thus, an independent body is required to check administrative excesses impartially.

Ombudsman is derived from ‘ombuds’, a Scandinavian word which means officer or commissioner particularly one who has the duty of investigating and reporting to Parliament on citizen’s complaints against the government[2]. The Ombudsman is an official appointed to receive and investigate complaints of citizens against the government and its officers[3].

Today, the ombudsman exists in over 120 counties albeit with structural variations[4]. They may operate on the national or central level, state or regional level and even municipal level. Generally, the ombudsman exists outside the administrative hierarchy. Its job is to identify instances of maladministration when there is a complaint or when he acts suo moto. Its functioning is discreet and inquisitorial, not adversarial thus allowing the executive body an opportunity to correct itself. The complainant does not lead evidence. Rather, the ombudsman enquires into the matter to determine whether the claims are justified since it has access to departmental files and communications. It doesn’t have the same powers as a court. Expenses are generally paid out of taxes with no fee for filing complaints. Thus, an Ombudsman may be functionally defined as an independent government official who receives complaints against government agencies and officials from aggrieved persons, who investigates and who if the complaints are justified, makes recommendations to remedy the complaints[5]. The Ombudsman is an institution essential to ensure Rule of Law and human dignity in a society[6].

Origin and development

Although some authors claim that ombudsman like institutions are an age-old phenomenon dating back to the Arab Mohtasib Rome’s Tribune or the Qin Dynasty’s version but the ombudsman we know today evolved in Europe.

The first ombudsman was a temporary post which was created in 1713 by Charles XII whose function was to ensure that various public officials followed the law and worked with fairness while the King was away at war. The office of the Hogsta Ombudsmannen was in operation for seventeen years. This mechanism was revived in 1809 which is often regarded as the first ombudsman. The parliamentary ombudsman’s office continues to this day. It allowed the Riksdag to monitor the executive and ensure that executive bodies complied with the law and avoid an all-powerful tyrannical King. The Chancellor of Justice, the Civil Ombudsman and Military Ombudsman acted independently communicating officially only to avoid overlapping duties. The Swedish Ombudsman and his deputy are appointed to office for four years by a special selection committee. He must supervise the observance of laws, prosecute those who improperly discharged public functions and inspect prisons and hospitals. He also acts as a prosecutor in some instances. He cannot reverse the decision of a court or administrative body.

Finland, whose administrative practices were similar to that of Sweden adopted Ombudsman 110 years later[7]. Norway established its own ombudsman for military affairs in 1952 and civil affairs in 1962.However, the institution gained attention and popularity in Europe only after Denmark adopted it in 1955.

It is often regarded that there are two versions of ombudsman, the Swedish and the Danish. In the Danish version, he is an investigator and reporter to the Parliament restricted to the central government and its programs. The Swedish version is one where he is a prosecutor as well and can examine the entire administration and courts too[8].

The Danish Ombudsman[9] is elected by the parliament to receive complaints about public administration. He may criticise authorities and recommend the reopening of any case or even persuade them to alter their Decision. However, he cannot make administrative decisions himself. He has jurisdiction to consider matters involving legal questions but not matters which require specialist knowledge. He makes visits to public institutions like prisons, psychiatric institutions and social care homes[10]. He consolidates parliamentary control over both ministers and officials unlike Sweden where the ministers are not under the control of the Ombudsman. His most important function however, is to protect the man on the street against injustice, arbitrariness and abuse of power.

Guyana was the first developing country to adopt it. In spite of being a former British Colony, it introduced the office of the Ombudsman in 1966 prior to its introduction in the United Kingdom. One of the primary reasons for its establishment was

The Ombudsman in England is known as the Parliamentary Commissioner whose office was created by the Parliamentary Commissioner Act 1967. He is appointed by the monarch and remains in office till the age of 65 years. The statute also states which departments lie or and outside its purview. Since several aspects of potential mal administration like government contracts, appointments dismissal and others lie outside its jurisdiction. He doesn’t investigate cases where the court may be approached. He has a discretionary power to refuse to investigate cases where there are insufficient grounds of mal administration shown. The Ombudsman has no power to enforce its decisions but only to report. The Parliamentary Commissioner for Administration (PCA) investigates complaints against central government and certain other bodies controlled by ministers to reports to the parliament and a complaint may be made only through a minister[11]. Thus, a citizen cannot reach the Ombudsman directly. He can compel the attendance and examination of witnesses the same way a court can. He is free to investigate in any manner he thinks is appropriate. He lays before each house a general report every year on his performance and a special report on his investigating on any case which so requires it.

The Australian Ombudsman system established in 1976 is a two tiered where most states have one Ombudsman and the Centre has one too. He is appointed by the Governor General. He cannot investigate into actions of Ministers but only his delegates and departmental advice given to him. He can investigate general administrative activities of the government and its business activities too. Ombudsman has no power to set aside or substitute an administrator’s decision. When he notices a defect in the system he may report the same through a special report to the House of Parliament.

Its presence in a large number of counties, although with substantial legal and governmental differences shows that it is a highly flexible system.

Reasons for Growth

The formation of a Welfare State in India lead to a proliferation of administrative agencies. The state took over a large gamut of functions in order to raise the standard of living of the people and incentivise economic growth. The government grew in size and extensive powers were given to government agencies. Existing mechanisms for adjudicating grievances are weak and ineffective to deals with the problems of administrative personnel accountability. It made necessary new protection against executive and administrative mistakes and abuse of power.

FOR MORE CONTACT AUTHOR

madhurika.ray.kls@gmail.com

FULL DOCUMENT IS ANALYTICAL

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s