Ombudsman Idea And The Welfare State

In the field of law, politics and governance, the 20th century would always be remembered for the emergence of the Welfare State. Such a political institution, by definition, would work for the benefit of its citizenry and in doing so, would endeavour to bring about social and economic change in the state. By its inherent nature, the welfare state has set up an elaborate administrative machinery to deal with various aspects of governance both on a macro and a micro level. For an individual, dealing with such a complicated system of governance has often been impossible leading many to question whether the term is a misnomer. As Professor Wheare as observed, “It is not eccentric to conclude that if there is more administration, there will be more maladministration." [1] Of the control mechanisms available to check administrative action, legislative interference is rarely resorted to. First, the legislature is mainly involved in framing broad policy decisions which are then executed by the administration. Therefore, the legislature often lacks the manpower and the expertise to deal with administrative action. The judiciary has always been the primary institution which has often reined in administrative hegemony. However, even the judiciary cannot be called an efficacious forum for redressal of all grievances relating to administrative functioning. While there is always a presumption of bona fides in any administrative action, courts often refrain from going into the merits of any administrative action unless it is arbitrary or based on mala fides. Moreover, a legal remedy in a court of law is often a cumbersome process and quite beyond the reach of an ordinary citizen. In such a situation, the system of an Ombudsman has been formulated as an effective control-mechanism for executive action. [2] While the Scandinavian countries were the first to try out this concept, amongst the common law countries, New Zealand opted for it in 1962 while England and Australia established the system in1966 and 1976 respectively [3] . The Indian parliament still has not passed a comprehensive legislation on this aspect but many individual states have formulated their own legislations which have provided for an ombudsman-like system in the states. The Lokpal and the Lokayuktas as they are known in the Indian context, do differ fundamentally from Western notions of an ombudsman. This has occurred due to the combination of the uniqueness of Indian politics and its colonial administrative machinery. In this project, I will attempt to draw a comprehensive sketch of how an ombudsman would and does work in India. In the process, I would deal with the history of the Lokpal bill in Chapter I. In Chapter II, I would analyse the provisions of the most recent avatar of that bill and point out the uniqueness and deficiencies alike. In Chapter III, I would look at how individual state ombudsman systems are functioning.

Chapter I: A Historical Analysis of the Ombudsman Idea through various legislative proposals

The Ombudsman idea in India is unique and quite removed from western conceptions. First, the Ombudsman, or the Lokpal, would have to work in an environment which is quite different from the Western world. A huge population coupled with extreme diversity in the kinds of people would make the task of a Lokpal so daunting that having a single machinery such as that might always remain a pipe dream. The Lokpal idea was first explicitly stated by the Administrative Reforms Commission headed by Morarji Desai, in 1966 through its Interim Report on the Problem of Redress of Citizen’s Grievances [4] . However, even before eminent lawyers like the former Attorney General Motilal Setalavad and L.M. Singhvi had strongly advocated the idea of an ombudsman [5] . The ARC also brought a draft bill on Lokpals and envisaged that a similar model legislation could be drafter for Lokayuktas as well. The ARC described the Lokpal as an institution which was analogous to that of Ombudsman for India and equivalent in status to the Chief Justice of the Supreme Court [6] . The institution of the Lokpal had many procedural similarities with the Ombudsman of the Scandinavian and other common law countries according to the draft bill. Making informality a feature in the Lokpal’s work procedure, the Bill sought to expedite matters which were all of inherent public importance. However, in some respects the Lokpal did differ from those of the common law countries in the sense that it did not have to wait for any complainant to initiate proceedings but could start suo motu proceedings on its own based on the information that it had received [7] . The other radical change was that the Lokpal could investigate matters relating to the Ministers in the Cabinet and Secretaries in the Government [8] . While this naturally would have offered the Lokpals immense power to check abuse, the problem was that this was a top-heavy approach which made no inroads into administrative actions of lower government servants. However, the Commission did recommend that individual Lokayuktas could look into administrative action by officials other than secretaries. Then again, such action of Lokpals would have been inevitably politicised as any adverse comment against a minister would invite the wrath of the ruling party who in turn could accuse the very independence of the institution. Even back then the emphasis was on mala fides that is on ‘nepotism’, ‘personal gain’ and ‘maladministration’. However, some commentators mistook maladministration to be administration based on abuse of power which clearly it was not. ‘Maladministration’ was mistakenly taken to mean corruption which was incorrectly criticised by many legal luminaries [9] . In actuality, however, what the Commission really meant by ‘maladministration’ was deficiency in carrying out administrative action properly and had nothing to do with mala fides. Therefore, it is clear that at least the draft model bill created by the ARC did envisage an institution of the Lokpal which would encompass all areas of public life. The Government of India, by and large, accepted most of the recommendations of the ARC and a bill was placed before Parliament in 1968. However, the Lok Sabha was dissolved and the Bill subsequently lapsed. A fresh Bill was introduced in 1971 and this Bill promised to effectuate the principles governing the Ombudsman idea in an extensive manner. The institution of Lokpal would provide for a Lokpal and several Lokayuktas who would be working under the Lokpal. Even though the Lokayuktas were under the administrative control of the Lokpal, the latter could not normally question the decisions made by the Lokayuktas [10] . The Lokpal was given security of tenure like a judge of the Supreme Court. One of the primary features of this Bill was that the grievances of an individual member of the public was not only limited to allegations of corruption but also extended to grievances against ‘maladministration’ [11] . Here, the word ‘maladministration’ was used in the proper sense of the term and meant action which was ‘unreasonable’, ‘unjust’, ‘oppressive’ or ‘improperly discriminatory’ and also ‘negligent’ and ‘any action which caused inordinate delay’. The Lokpal could not investigate the Prime Minister but could investigate other members of the Central cabinet [12] . By giving priority to administrative efficiency, the Bill was a true embodiment of the Ombudsman idea. However, this Bill too lapsed as the Lok Sabha dissolved. It was not before 1977 that a new Bill was proposed in Parliament. However, this time the nature and objectives of the institution of the Lokpal had also changed dramatically. The Janata Party had come to power after two turbulent years of the Emergency and the single objective of the Lokpal was envisaged to be dealing with charges of corruption against public men. Thus instead of administrative efficiency, the focus was on administrative propriety and this was a natural consequence of an essentially political legislation made during turbulent political climes. This change in stance marked a major shift in the perception of an Indian Ombudsman. While one might attribute this to India’s peculiar political exigencies, one cannot disagree with the fact that the very nature of an Ombudsman would be to look into administrative inefficiency. Such an institution was never designed to solely investigate matters of corruption. The 1977 Bill was also criticised for its obliviousness to ground realities [13] . Indeed, the Bill provided that severe fines be imposed if any complaint was found ‘frivolous or vexatious’ [14] . Moreover, the complaint was always to be made in a prescribed form [15] . Giving precedence to form over substance, the Bill undermined the very raison d’etre of setting up such an institution, namely, access to justice for people who did not have the necessary means. The public persons against whom a complaint could be made, include inter alia, ministers of the Central Cabinet, Member of Parliament, members of the State Cabinet including the Chief Minister and a Member of the Legislative Assembly. However, the list did not include any government servant who would form the real strength of the bureaucracy and thus no action could be taken against them under the provisions of the Bill [16] . As mentioned earlier, the Bill was a political device to ensure that politicians remained in check but for all it’s worth it could not be regarded as an embodiment of the Ombudsman system in India. This bill lapsed as the Janata Government fell and fresh elections were called. In 1985, a new Bill was proposed by the then Congress Government [17] . This, too, was criticised as providing nothing more than a cardboard institution which would only facilitate pre-trial inquiry into corruption by the Joint Committee of both Houses of Parliament [18] . Successive attempts to pass the bill (albeit, with minor modifications) also failed in 1989, 1993 and 1996. In 2001, a new bill was put forward for discussion before both Houses of Parliament [19] .

Chapter II: Analysis of the 2001 Lokpal Bill.

The latest Bill had a three member commission in mind which would constitute the Lokpal consisting of a chairman and two other members. The chairman would have to be a present or former Chief Justice or judge of the Supreme Court while the members had to present or former judges of the Supreme Court or the High Court. The ambit of the Lokpal was even more narrowed down in the Bill which described that the Lokpal’s power to investigate would have to be in relation with a complaint which in turn would only mean an allegation that a public functionary had committed an offence described by the Prevention of Corruption Act, 1988. Thus, taking the same route as the 1977 Bill, the latest Lokpal Bill too had altered the very characteristics that were germane to an institution such as the Lokpal.

Chapter III: Performance of the State Ombudsmen: Lokayuktas

While the dream of a Central Lokpal remains unfulfilled, the states have been pioneers in at least initiating and implementing these proposals. The first proposal of a State level Ombudsman institution was made by the H.C. Mathur Committee on Administrative Reform in Rajasthan in the year 1963. [20] The States of Maharashtra and Orissa was the first to come up with an extensive Lokayukta and Up-Lokayukta Act in 1971 with the first appointment being made the next year in Maharashtra while the latter had to wait till 1983 for the first appointment [21] . Clearly, this would suggest that though average efficiency in implementing the project was satisfactory, the variance in performance between some of the states was indeed, amazing. This was at a time when the Centre was still deliberating over the 1971 Bill. States like Rajasthan, Uttar Pradesh, Karnatka, Madhya Pradesh, Orissa, Bihar, Andhra Pradesh soon followed suit and within that decade, the institution of a state Ombudsman was up and running. In a State set-up, the appointment of a Lokayukta is made by the Governor in consultation with the Chief Justice of the High Court which has jurisdiction over that State and the Leader of the Opposition in the Legislative Assembly. Then again many Lokayuktas have performed their tasks admirably and in many states a substantial percentage of cases have been disposed of resulting in the redressal of the complainant’s grievances. In fact, some Lokayuktas have used innovative means to address those claims which were outside their jurisdiction. In these cases, they sent the complaint to the Head of the Department of the concerned which in turn would invariably result in some sort of an action from that authority [22] . Moreover, many Lokayuktas especially those of Bihar and Maharashtra have taken a keen interest in the overall administrative functioning of the state. Indeed, their work has in some sense vindicated the true position of an Ombudsman, that of the public’s representative to oversee the administrative machinery in a Welfare State. The Lokayuktas of Bihar, Maharashtra and Rajasthan have been quite instrumental in dealing with grievances relating to the police department and correctional homes [23] . Again, Lokayuktas have rendered immense help in cases of non-payment of retirement benefits. On the prodding of the Lokayukta of Rajasthan, the Government of that State set up a cell in the finance department with a special officer to deal with facilitation of retirement benefits [24] . In some situations, the Lokayuktas have taken suo motu cognisance of newspaper reports which have reported gross administrative violations [25] . One of the biggest innovations in the Lokayukta has been the establishment of a Lokayukta police assigned exclusively to the Lokayukta. In states like Karnataka where this system is in vogue, the Lokayukta police has become indispensable in carrying out investigative functions of the Lokayukta. In 2008, the Lokayukta police of Karnataka laid 272 traps and conducted 92 raids while in 2009, the police conducted 205 raids and 52 raids [26] . While it has been envisaged that the Central Lokpal should have an established judicial background, no such criteria was stipulated for a Lokayukta. Indeed, some of the earliest Lokayuktas were former civil servants like S.V. Sohoni who was the first Lokayukta of Bihar. This would raise serious doubts about the independence of the institution as these very personnel would be the one who would be investigating charges of corruption against the very institutions that they were once a part of. However, now most of the Lokayuktas have a judicial background but there needs to be strict uniformity in this respect. The lack of uniformity is also evident in the scope of the Lokayukta’s powers. While some legislations provide that the Chief Minister should be under the jurisdiction of the Lokayukta, others do not. Then again, some legislations bar the Lokayuktas from proceeding against former ministers and secretaries after they leave office. The Lokayukta has been seen as an alternative mechanism of grievance redressal. While the Lokayuktas should have been given preference over ordinary courts of law to redress grievances, the normal practice has been to bar the jurisdiction of the Lokayuktas if the citizen has a remedy in a tribunal or a court of law. This is a most cumbersome provision which defeats the very purpose of there being a Lokayukta. A Lokayukta should give an ordinary citizen an effective method of redressal so that the citizen does not have to face the litigation process. This in no way would have barred the jurisdiction of the High Courts or Supreme Courts as they would still exercise jurisdiction through the extraordinary writ jurisidiction. [27] By barring the jurisdiction on this count, the state legislations have gone against the very nature and purpose of a Lokayukta. The biggest roadblock to redressal of claims has been the legal formalities that citizens have been asked to do before a complaint case can be initiated. Many of the Lokayuktas have insisted on filing affidavits to support the complaint which in turn has left poor, rural people in the lurch who have absolutely no knowledge of how the system works. In many cases, the executive machinery has simply not co-operated with the Lokayukta to further the course of any investigation. Moreover, legislations like the Prevention of Corruption Act, 1988, impede speedy resolution of corruption cases. Section 19 of the said Act vests a discretion on the appointing authority to grant or refuse sanction for prosecution and it is not unusual for sanction to be refused. In Ram Nagina Singh v. S.V. Sohoni [28] , the petitioners had challenged the authority and appointment of the Bihar Lokayukta. This was done so as to hinder an investigation by the Lokayukta into an alleged act of corruption. While the High Court dismissed the plea, the Supreme Court stayed the proceedings on account of violations of principle of natural justice by the Lokayukta. In this way, even courts of law have been misused to hinder the work of the Lokayukta. The most recent incident has been the case of the Karnataka Lokayukta, former judge of the Supreme Court N. Santosh Hegde. He had tendered his resignation expressing his inability to continue in the position of a Lokayukta as his work in investigation the Bellary mining scandal was being actively hampered by the Government. Indeed, it was quite a shame for the Karnataka Government when such a public figure publicly gave vent to his frustrations and subsequently, the Karnataka Chief Minister requested him to take back the resignation. The controversy, however, has strengthened the office of the Lokayukta there as the Karnataka Government gave the power to the Lokayukta to take suo motu cognisance of all government officials including Class I officials and senior officials up to the chief secretary but as expected, ministers including the chief minister and individual MLAs were exempted. [29]