OMBUDSMAN - Veeresh Sangolli

7/29/2019 OMBUDSMAN - Veeresh Sangolli

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OMBUDSMAN

Presentation by,VEERESH SANGOLLI


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DEFINITION & ORIGINOmbudsman is a Scandinavian word, meaning a delegate or an agent

etymologically.

Ombudsman is an officer of the Parliament to investigate the misuse of

administrative power of the Executive and safeguard the citizens.

Garner in his Administrative Law defines Ombudsman as, an officer of

Parliament, having his primary function, the duty of acting as an agent for the

Parliament, for the purpose of safeguarding citizens against abuse or misuse ofadministrative power by the executive.

The institution of Ombudsman was created for the first time in Scandinavia.

This institution was established in Sweden in 1809, in Finland in 1919, in

Denmark in 1953, in Norway in 1963, in England in 1966, in New Zealand in

1962. In Australia, its been established at both centre and state.

In India it has been established in some states and not at Centre.


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CREATIONThe institution of Ombudsman is created because of the failure of the

Judiciary, Parliament and the Executive to control the misuse of

administrative power.

Main reasons for its creation are,

Courts do not review the facts decided by the administrative authorities.

The burden of proof lies on the individual challenging the administrativeaction. It is very difficult for him to prove, since the Government enjoys certain

privileges.

The discretionary powers conferred on the Ministers enable them to escape

from the judicial review.

To have an internal administrative check, the institution Ombudsman hasbecome a necessity.

Objective of creating the Institution of Ombudsman is to control mal-

administration.


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SALIENT FEATURES

The complainant shall not give evidence or prove the allegation before the

Ombudsman. As the Ombudsman himself acts as petitioners lawyer, and willmake an enquiry without publicity and formalities.

The Complainant need not pay court fee.

Ombudsman has no power to make an order or decision, but can only

recommend the concerned department to take follow-up action. This

restriction makes Ombudsman a watch dog, which barks but cannot bite.

If the concerned department doesnt take actions, the Ombudsman can

report the matter to the Parliament.

Ombudsman is called the Parliamentary Commissioner in England and

Lokpal or Lokyuktain India.

LOKPAL looks after Central level affairs whereas LOKYUKTA after State level.

Under the supervision of Lokyukta there maybe an UPA LOKYUKTA.


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THE INDIAN OMBUDSMAM Recommendation by Administrative Reforms Committee dated 20/10/96 for

creation of OmbudsmanThe LOKPAL.

In pursuance of above, Lokpal Bill was introduced andpassed,

in the Loksabha in 1968 and later in Rajya Sabha. But the house dissolved.

In May 1968, by the congress government headed by Indra Gandhi.

In April 1971, again by the congress government headed by Indra Gandhi.

In July 1977, by the Janata government headed by Morarji Desai.In August 1985, by the congress government headed by Rajiv Gandhi.

In December 1989, by the National Front Government headed by V.P.Singh.

In September 1996, by the United Front Government headed by Deve Gowda.

In August 1998, by the BJP-led coalition government headed by AB Vajpayee.

In August 2001, by the NDA government headed by A.B.Vajpayee again.

However, none of the bills mentioned above were passed by the parliament dueto one or other reasons.


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The first four bills lapsed due to the dissolution of Lok Sabha, while the fifth one

was withdraw by the government.

The sixth and seventh bills also lapsed due to the dissolution of the 11th and12th Lok Sabha.

Again, the eighth bill in 2001 lapsed due to the dissolution of the 13th Lok

Sabha in February 2003.

In 2004 Lokpal Bill was again introduce in the parliament but failed to

see the light of the day.

New Bill was again introduce in 2005.

This Bill proposes to include Prime Minister also within the orbit of the Bill.

Hence, the institution of Lokpal has not yet come into existence in our country,

though its need was felt long ago.


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LOKPAL CONSTITUTION The institution of Lokpal consists of one Chairman and two members.

They are appointed by the President in consultation with the Chief Justice ofIndia.

Only the Judges of Supreme Court are eligible to be appointed as the

members of the Lokpal.

The term of office is 5 years.

The procedure for removal is the same as in the case of Supreme Court

Judge ( that is by the way of impeachment in the Parliament).

Now a highlight to different outlooks towards the Lokpal Bill in India:

The Governments Lokpal version gives less power to Lokpal, but at the sametime gives it more immunity from any action against the institution itself.

The Jan Lokpal version gives more power to Lokpal but less immunity if its

own actions are found unaccountable.


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JAN LOKPAL GOVERNMENTs LOKPAL

Any Citizen can go and complaint to

Supreme Court to remove a Lokpal

if the Lokpal is not found to be

accountable in their actions.

Complaints of corruption against

Lokpal members will be heard by an

independent authority.

Lokpal will have the power to

investigate into allegations of

corruption by Members in

Parliament like MPs taking bribe.

Lokpal can act on complaintsagainst ANY government officer.

Only Government has the power to

remove a Lokpal.

Lokpal itself will hear complaints

of corruption against its members!

Lokpal will have no right to

investigate into allegations of

corruption by MPs in the

Parliament!

Lokpal can act on complaints

against only Group A level

government officers.


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If a government officer delays the

work of a citizen beyond scheduled

time, then he will be deemedcorrupt by Lokpal and penalized

for that.

Lokpal will have the authority to

investigate allegations of

corruption against judges.

Lokpal will have the authority to

investigate allegations of

corruption against the Prime

Minister.

The Anti Corruption Branch of CBI

will be merged with Lokpal to give

it more independence.

There is no penalization ofgovernment officers who do not do

their duties.

Lokpal will NOT have the authorityto investigate allegations ofcorruption against judges.

Lokpal will NOT have the authorityto investigate allegations ofcorruption against the PrimeMinister.

The Anti Corruption Branch of CBIwill continue to remain with CBI,which means direct governmentcontrol over it, because CBI iscontrolled by government.


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Lokpal will have the power to

dismiss a corrupt public servant

from job.

Lokpal will impose fine to those who

make false complaints or ill

motivated complaints. Lokpal willdecide whether a complaint is false

or not.

Lokpal will have no power to

dismiss a corrupt public servant.

The concerned minister willdecide whether to dismiss a

corrupt public servant or not.

Lokpal will send those who make

false complaints to jail for a

period of two to five years! Theaccused can also go to court

against the complainant, and in

this case, the legal expenses of

the accused will be borne by the

government, where as the

complainant has to pay for the

legal expenses from his ownpocket.


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An independent search committee

which consists of retired

constitutional authorities (likejudges, eminent IAS officers) will

prepare the first list of eligible

candidates. Then an independent

selection committee comprising of

two politicians, four judges and

two retired constitutional

authorities will do the selection.So there is no scope for

government interference in the

selection process of Lokpal

members here.

Lokpal will give permission to tapphones of people suspected to be

involved in corruption.

A Panel of 10 members, 6 of whom

are politicians, 5 of whom are from

the ruling alliance/ruling partywill select the Lokpal members.

Even the search committee which

searches for eligible lokpal

members will be selected by the

above mentioned selection

committee. 5 members from ruling

alliance and totally 6 politicians ina group of 10 will ensure that

government will be able to appoint

its own people to Lokpal!

Home Secretary will give

permission to tap phones of peoplesuspected to be involved in

corruption!


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If Lokpal finds that business entitiesare involved in corruption, thenLokpal will have the right to ban such

companies from taking part in futuregovernment contracts and to black listthem.

Lokpal can setup special benches inHigh Courts to speed up hearing ofcorruption cases.

Lokpal will provide adequateprotection and security tocomplainants and whistle blowers.

There will also be Lokayuktasestablished at each state level with

powers similar to Lokpal. TheseLokayuktas will investigate intocorruption at a state government levelagainst ministers, MLAs and stategovernment officials.

No power to Lokpal to black list

any business entity found guilty of

corruption.

Lokpal has no power to setup

special benches like this. Which

means slow hearing of corruption

cases.

No mention about any protection

to those who complaint about

cases of corruption.

No establishment of any

Lokayuktas through Lokpal Bill.


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Enquiry will be done just like in

any other criminal case. After

preliminary enquiry FIR will be

registered, and after that

investigations will be done, and

then the trial will be held in the

courts.

After preliminary enquiry, before

filing FIR all evidence collected so

far should be presented to the

accused, and he should be asked

why an FIR should not be filed

against him based on that

evidence! After investigations,

before filing a case against the

accused, again all evidencescollected so far should be

presented to the accused, and he

should be asked again as to why a

case should not be filed against

him!


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THE STATE OMBUDSMAN

Several states in India passed the laws for creating the Institution of

Ombudsman called Lokyukta,as mentioned below,

Orissa: In 1970

Maharashtra: In 1971

Rajasthan: In 1973

Madhya Pradesh: In 1975

Uttar Pradesh: In 1975

Karnataka: In 1979 Andhra Pradesh: In 1983

Among the Lokyukta Acts passed by different states, only the acts of Orissa,

Karnataka and Himachal Pradesh, the Chief Minister is brought under the

jurisdiction of the Lokyukta.


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FEATURES

The lokayukta presents, annually, to the governor of the state, a consolidated

report on this performance.

The governor places this report along with a explanatory memorandum before

the state legislature.

The lokayukta is responsible to the state legislature.

Lokayukta takes the help of the state investigation agencies for conducting

Enquiries.

Lokayukta can call for relevant files and documents from state government

departments.

The recommendations made by the lokayukta are only advisory and binding

on the state government.


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STRUCTURAL VARIATIONS

The structure of the Lokyukta is not same in all the states. Some states like

Rajasthan, Karnataka, Andhra Pradesh, Maharashtra have created the

Lokayukta as well as UpaLokayukta, while some of the other states like Bihar,

Uttar Pradesh and Himachal Pradesh have created only the lokayukta ; there

being no provisions for Upalokayukta. There are still other states like the

Punjab and Orissa which have designated officials as Lokpal. This pattern

was not suggested by the ARC in the states.

APPOINTMENT

The Lokayukta and Upalokayukta are appointed by the governor of the state.

While appointing, the governor in most of the states consults (a) the chief

justice of state high court, (b) the leader of opposition in the state legislature

assembly. But , in Andhra Pradesh , the leader of opposition in the state

legislative assembly is not required to be consulted in this regard. InKarnataka, on the other hand, the chairman of the state legislative council,

the speaker of state legislative assembly and the leader of opposition in the

state legislative council are also required to be consulted on this matter.


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QUALIFICATIONS

Judicial qualifications are prescribe for Lokayukta in the state of Uttar

Pradesh, Himachal Pradesh, Andhra Pradesh, Gujarat, Orissa, Karnataka andAssam. But no specified qualifications are prescribe in the state of Bihar,

Maharashtra, and Rajasthan. Tenure: In most of the states, the term of office

fixed for Lokayukta is of 5 years duration or 65 years of the age, whichever is

earlier. He is not eligible for the reappointment for a second time.

INVESTIGATION

In most of the states, the lokayukta can initiate investigations either on the

basis of complaint received from the citizens against unfair administrative

action or suo moto . But he does not enjoy the power to start investigation on

hia own initiative in the states of Uttar Pradesh, Himachal Pradesh and Assam.

Scope of cases covered: The lokayukta can consider the cases of grievancesas well as allegation in the state of Maharashtra, Uttar Pradesh , Assam ,

Bihar , and Karnataka. But , in Himachal Pradesh , Andhra Pradesh ,

Rajasthan and Gujarat , the job of the lokayuktas is confined to investigating

allegations (corruption) and not grievances (maladministration).


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JURISDICTION

There is no uniformity regarding the jurisdiction of Lokayukta in all the states.

The following points noted in this regard are:

The chief minister is included within the jurisdiction of the Lokayukta in the

state of Himachal Pradesh, Andhra Pradesh , Madhya Pradesh ,and Gujarat,

while he is excluded from the purview of Lokayukta in the state of

Maharashtra, Uttar Pradesh , Rajasthan, Bihar and Orissa.

Ministers and higher civil servants are included in the purview of the

Lokayukta in almost all the states. Maharashtra has included former ministers

and civil servants.

Members of the state legislatures are included in the purview of the lokayukta

in the states of Andhra Pradesh, Himachal Pradesh, Gujarat, Uttar Pradesh

and Assam.

The authorities of local bodies, corporations, companies and societies are

included in the jurisdiction of the lokayukta in most of the states.


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APPROACHING THE LOKYUKTA

To file a complaint with the Lokayukta, the first and foremost thing a

citizen needs to remember is that the Lokayukta can catch only public

servants. This includes all the babus that do not push files to the next levelwithout chai pani(as it is called) and the ones who show attitude till you show

them money.

To get these people one needs to:

Download two forms (Form 1 and 2) from the Lokayukta website

(http://lokayukta.kar.nic.in/index.asp).Fill in details like your name, contact details, the reason for complaint and

other such information.

Attach two affidavits to the forms which are statements of notification that

you are complaining against an officer and attaching the documents to prove

your case. These affidavits will be examined by the judicial officers at the

Lokayukta office before the case is taken up.

The form and the affidavits should be submitted to the Registrar at theLokayukta office

Also enclose documents supporting your claim against the particular officer.
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Approaching the LOKYUKTA (contd)

All these documents and the forms should then be sent to the Lokayukta office

either by post or submitted online. Note also that the Lokayukta is bound todisclose the identity of the complainant to the opposite party, in accordance

with the law. The identity of the complainant cannot be kept hidden.

Filing a complaint through the Right to Information Act 2005:

The RTI can either be filed directly without going through the complaint

format or can be done after filing the complaint.

One can complain against an officer only if he has abused his position for

gain or favour for himself or for any other person, or has used his power to

harm someone.

One can also complain if the officer has corrupt motives while serving thepublic and also if he is guilty of favouritism, nepotism or lack of integrity in his

capacity as a public servant.


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CURRENT AFFAIR"The Lokayukta is not just looking into big scams including big

officers and lots of money. We are equally interested in catching the public

servants who are exploiting the masses at small levels," says Justice SantoshHegde, Lokayukta. Hegde was a Justice at the Supreme Court of India before

he took up the position to lead Karnataka's anti-corruption watchdog. He

explains by stating an example of a tailor from Bagalkot who once came to the

Lokayukta office with his infant.

The child did not have fully developed intestine when born. He

wanted to get his child treated in the government hospital of Bagalkot, wherethe doctor asked for Rs.80,000 from him, says Hegde. Not being in a state to

pay that amount nor in a state to fight with the doctor for the injustice, he

kept the infant in the Lokayukta office pleading for help.

The Lokayukta approached all the institutions that would help this

man. The Manipal Hospital, Bangalore later did the infant's operation with

Rs.8000 paid totally by the Lokayukta. "After the successful recovery of the

child, the government doctor who asked for a huge sum at the first place was

taken into account and disciplinary action was taken against him. The tailor

visits us till today to tell that his baby is healthy now," says Hegde with smile.


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Thank You

Documents

OMBUDSMAN - Veeresh Sangolli