An ombudsman is a government-appointed official who investigates complaints (usually made by private citizens) against businesses, financial institutions, government departments, or other public entities, and attempts to resolve conflicts or concerns raised through mediation or recommendations.
Ombudsmen are also referred to as public defenders or national defenders. In India, the offices of National and State Ombudsman are referred to as Lokpal and Lokayuktas, respectively.
HOW AN OMBUDSMAN WORKS?
• An ombudsman's decision may or may not be legally binding, depending on the jurisdiction. Even if the decision isn't legally binding, it usually carries a lot of weight.
• The ombudsman is typically paid through levies and case fees after being appointed. An ombudsman usually has a broad mandate that allows him or her to address broad concerns in the public and private sectors.
• However, an ombudsman's mandate can sometimes be limited to a single sector of society—for example, a children's ombudsman may be tasked with protecting the rights of a nation's youth, whereas in Belgium, each linguistic and regional community has its own ombudsman.
• Members of Congress in the United States act as national ombudsmen, representing the interests of their constituents and maintaining staff tasked with advocating for constituents facing administrative difficulties, particularly those caused by maladministration.
• Ombudsmen exist in a wide range of countries and organisations within those countries. They can be appointed at the national or local level, and they're also common in large corporations.
• They may specialise in and handle complaints about a specific organisation or government agency, or they may have a broader scope.
• An industry ombudsman, such as a consumer or insurance ombudsman, for example, may deal with consumer complaints about unfair treatment by a private company operating within that industry.
• An ombudsman will often seek to identify systemic issues that can lead to widespread human rights violations or poor quality public service by the government or institution in question, especially at the government level.
• An ombudsman may be appointed by a large public entity or other organisation. (The California Department of Health Care Services, for example, has its own ombudsman.)
• An ombudsman may investigate specific complaints about services or other interactions a customer has had with the entity in question, depending on the appointment; an ombudsman within an organisation may also have the primary function of dealing with internal issues (such as complaints by employees, or, if an educational institution, complaints by its students).
HISTORICAL BACKGROUND REGARDING THE OFFICE OF OMBUDSMAN
• The institution of ombudsman was officially established in Sweden in 1809. After WWII, the Ombudsman as an institution developed and grew significantly in the twentieth century. This system was adopted by New Zealand and Norway in 1962, and it was instrumental in spreading the concept of the ombudsman.
• Great Britain adopted the institution of the ombudsman in 1967, following the recommendations of the Whyatt Report of 1961, and became the first large democratic country to do so. Guyana was the first developing country to adopt the concept of an ombudsman in 1966. Mauritius, Singapore, Malaysia, and India were among the first countries to adopt it.
• In India, the concept of a constitutional ombudsman was first proposed in parliament in the early 1960s by then-law minister Ashok Kumar Sen. Dr. L. M. Singhvi coined the terms Lokpal and Lokayukta.
• The First Administrative Reforms Commission recommended the establishment of two independent authorities, one at the federal level and the other at the state level, to investigate complaints against public officials, including MPs, in 1966.
• The Lokpal bill was passed in the Lok Sabha in 1968, but it lapsed with the dissolution of the Lok Sabha, and it has been reintroduced several times since then. Until 2011, eight attempts to pass the bill were made, all of which failed.
• The Commission to Review the Working of the Constitution, led by M.N. Venkatachaliah, recommended the appointment of the Lokpal and Lokayuktas in 2002, as well as the exclusion of the Prime Minister from the authority's purview.
• The Second Administrative Reforms Commission, chaired by Veerappa Moily, recommended in 2005 that the Lokpal office be established as soon as possible. In 2011, the government formed a Group of Ministers, chaired by Pranab Mukherjee, to propose anti-corruption measures and examine the Lokpal Bill proposal.
• The "India against Corruption Movement," led by Anna Hazare, exerted pressure on the United Progressive Alliance (UPA) government at the Centre, resulting in the Lokpal and Lokayuktas Bill, 2013, being passed by both Houses of Parliament. It received the President's assent on January 1, 2014, and went into effect on January 16, 2014.
• The Lokpal and Lokayukta Act of 2013 establishes the Lokpal for the Union and the Lokayukta for the States. They act as an "ombudsman" and investigate allegations of corruption against certain public officials, as well as other matters.
Constitution and Structure
1. The Lokpal is a multi-member body with one chairperson and up to eight members.
2. The Lokpal's Chairman should be either a former Chief Justice of India or a former Supreme Court Judge, or an eminent person of impeccable integrity and exceptional ability with a minimum of 25 years' experience in anti-corruption policy, public administration, vigilance, finance, including insurance and banking, law, and management.
3. At least half of the maximum eight members will be judicial members, and at least half of the members will be from SC/ ST/ OBC/ Minorities/ Women.
4. The Lokpal's judicial member must be a former Supreme Court judge or a former Chief Justice of a High Court.
5. The non-judicial member should be an eminent person of impeccable integrity and exceptional ability, with special knowledge and expertise in anti-corruption policy, public administration, vigilance, finance, including insurance and banking, law, and management, with a minimum of 25 years of experience.
6. The Lokpal Chairman and Members serve for five years or until they reach the age of 70.
7. On the recommendation of a Selection Committee, the president appoints the members.
8. The Prime Minister, who chairs the committee, is joined by the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a Judge nominated by him/her, and one eminent jurist.
9. A search panel of at least eight people is formed by the selection committee to select the chairperson and members.
LOKPAL SEARCH COMMITTEE
1. The DoPT is required by the Lokpal Act of 2013 to compile a list of candidates interested in serving as the Lokpal's chairperson or members.
2. This list would then be sent to the proposed eight-member search committee, which would shortlist names and present them to the Prime Minister's selection panel.
3. The selection panel has the option of accepting or rejecting names suggested by the search committee.
4. In September 2018, the government formed a search committee led by Justice Ranjana Prakash Desai, a former Supreme Court judge.
5. The 2013 Act also mandates that all states establish a Lokayukta office within one year of the Act's implementation.
LOKPAL JURISDICTION AND POWERS
1. The Prime Minister, Ministers, Members of Parliament, Groups A, B, C, and D officers, and officials of the Central Government are all subject to Lokpal's jurisdiction.
2. With the exception of allegations of corruption relating to international relations, security, public order, atomic energy, and space, the Lokpal's jurisdiction included the Prime Minister.
3. In the case of anything said in Parliament or a vote given there, the Lokpal has no jurisdiction over Ministers and MPs
4. Any person in charge (director/manager/secretary) of anyone/society established by central act or any other body financed/ controlled by central government, as well as any other person involved in abetting, bribe giving, or bribe taking, is subject to its jurisdiction
5. The Lokpal Act requires all public officials to disclose their assets and liabilities, as well as those of their dependents.
6. It has the authority to supervise CBI and to give it direction. When Lokpal refers a case to the CBI, the investigating officer cannot be transferred without Lokpal's permission.
7. The Lokpal's Inquiry Wing has been given the authority of a civil court.
8. In exceptional circumstances, Lokpal has the authority to seize assets, proceeds, receipts, and benefits derived or obtained through corruption.
9. Lokpal has the authority to recommend the transfer or suspension of a public servant accused of corruption.
10. During the preliminary investigation, Lokpal has the authority to issue orders to prevent the destruction of records.
THE LOKPAL AND LOKAYUKTAS (AMENDMENT) BILL, 2016
a. The Lokpal and Lokayukta Act, 2013, was amended by this Bill, which was passed by Parliament in July 2016
b. In the absence of a recognised Leader of Opposition, it allows the leader of the single largest opposition party in the Lok Sabha to serve on the selection committee
c. It also amended section 44 of the 2013 Act, which requires public servants to provide details of their assets and liabilities within 30 days of joining the government service.
d. The bill eliminates the 30-day time limit, requiring public employees to declare their assets and liabilities in the form and manner prescribed by the government.
WHAT HAS CHANGED?
• A public servant is required by the Lokpal Act to declare his or her assets and liabilities, as well as those of his or her spouse and dependent children.
• Within 30 days of taking office, such declarations must be submitted to the appropriate authority. Furthermore, by July 31st of each year, the public servant must file an annual return of such assets and liabilities.
• By August 31 of that year, the Lokpal Act requires that statements of such declarations be published on the relevant Ministry's website. These provisions are replaced by the Bill, which states that a public servant must declare his assets and liabilities.
• The central government will, however, prescribe the form and manner in which such a declaration must be made.
• It also extends the deadline for trustees and board members to declare their assets and those of their spouses if they receive more than Rs. 1 crore in government funds or more than Rs. 10 lakh in foreign funding.
LIMITATIONS OF THE OFFICE OF LOKPAL
1. The Lokpal institution has attempted to bring about much-needed change in the fight against corruption in India's administrative structure, but there are still loopholes and flaws that need to be addressed.
2. The Lokpal and Lokayuktas Act 2013 was passed by parliament five years ago, but no Lokpal has been appointed since then, indicating a lack of political will. States were also required to appoint a Lokayukta within a year of the Lokpal Act taking effect. However, the Lokayukta has been established in only a few states.
3. Because the appointing committee is made up of members from political parties, the Lokpal is not immune to political influence.
4. Because there is no criterion for determining who is a "eminent jurist" or "a person of integrity," the appointment of Lokpal can be manipulated.
5. The Whistle-blower Protection Act of 2013 did not provide specific immunity to whistle-blowers. The provision for an investigation into the complainant if the accused is found not guilty will only deter people from filing complaints.
6. The most significant flaw is the Lokpal's exclusion of the judiciary.
7. There is no constitutional backing for the Lokpal, and there is no adequate procedure for challenging the Lokpal.
8. The specifics of the appointment of the Lokayukta have been left entirely up to the states.
9. To some extent, the CBI's need for functional independence has been met by a change brought about by this Act in the selection process for its Director.
10. After a period of seven years from the date on which the offence mentioned in the complaint is alleged to have been committed, the complaint against corruption cannot be registered.
PRIME MINISTER UNDER LOKPAL
According to the Lokpal and Lokayukta Act 2013, the PM is subject to Lokpal's jurisdiction, but if the allegation of corruption is related to international relations, external and internal security, public order, atomic energy, or space, Lokpal will not investigate the PM. Furthermore, an allegation against the Prime Minister can only be investigated if the following two conditions are met:
1. The Lokpal's full bench, consisting of the Chairperson and all Members, considers the initiation of an investigation.
2. At least two-thirds of its members agree that such an investigation should be conducted.
3. Any investigation into the Prime Minister will be conducted in secret. The records of the inquiry shall not be published or made available to anyone if the Lokpal concludes that the allegation is false and the inquiry should be dismissed.
• In order to combat corruption, the ombudsman's institution should be strengthened, both in terms of functional autonomy and manpower availability.
• Greater transparency, greater right to information, and citizen and citizen group empowerment are required, as well as good leadership that is willing to be held accountable to the public.
• The appointment of a Lokpal is insufficient in and of itself. The government should address the issues that have led to people calling for a Lokpal. Increasing the size of the government by bolstering investigative agencies will increase its size but not necessarily improve governance.
• The government's slogan of "less government, more governance" should be followed to the letter and spirit.
• Furthermore, Lokpal and Lokayukta must be financially, administratively, and legally separate from those they are tasked with investigating and prosecuting.
• Appointments to the Lokpal and Lokayukta must be made in a transparent manner to reduce the chances of the wrong people being appointed.
• To avoid the concentration of too much power in any one institution or authority, there is a need for a diverse set of decentralised institutions with appropriate accountability mechanisms.
WHAT SPECIFIC STEPS CAN BE TAKEN TO REDUCE THE INCENTIVES FOR CORRUPTION?
1. The way the laws are enforced needs to be restructured. To achieve transparency, citizens' knowledge of the laws must be addressed.
2. In a broader sense, moral deprivation and increased consumerism should be addressed.
3. Wherever large public enterprises, large delivery systems, high technology, and foreign investments are involved, market forces with regulatory mechanisms should be brought into play.
4. Decentralized monitoring and vigilance should be implemented.
5. Shortages should be avoided at all costs.
6. Areas that affect the most vulnerable members of society should be prioritised. Citizen-focused services should be implemented. The use of outsourcing should be encouraged. Education, health, and other delivery systems should be re-engineered.
7. High-risk ministries should have a plan in place to review procedures in-house.
8. Village records should be available to the public.
9. The Head of Department's primary responsibility should be internal supervision.
10. Rather than focusing on financial auditing, transaction and process auditing should be prioritised.
11. The auditors are not held accountable in any way. The CAG's entire operation would have to be overhauled.
HOW TO MAKE ANTI-CORRUPTION INSTITUTIONS MORE EFFECTIVE?
1. State Vigilance Commissions/Lokayuktas may be given the authority to supervise the prosecution of cases involving corruption.
2. Investigative agencies should develop multidisciplinary skills and be well-versed in the operations of various offices departments. They should include representatives from various government departments.
3. Modern investigative techniques, such as electronic surveillance, video and audio recording of surprise inspections, traps, searches, and seizures, should also be used.
4. Investigative agencies should be given a reasonable time limit for investigating various types of cases.
5. The number of cases detected and investigated should continue to increase. Priorities must be redirected by concentrating on "big" cases of corruption.
6. Corruption cases should be prosecuted by a panel of lawyers assembled by the Attorney General or Advocate General in consultation with Lokpal or Lokayukta, as applicable.
7. Anti-corruption agencies should conduct systematic surveys of departments, paying special attention to those that are particularly prone to corruption, in order to gather intelligence and identify officers with questionable integrity.
8. The Lokpal should be given sufficient powers to deal with corruption cases.
A. Citizens' Charters should be made effective by stipulating service levels and the consequences if they are not met.
B. Citizens may be involved in the evaluation and upkeep of ethics in government institutions and offices.
C. Incentive schemes should be implemented to encourage citizen initiatives.
D. Awareness programmes in schools should be implemented, emphasising the importance of ethics and how to combat corruption.
ROLE OF MEDIA:
A. Norms and practises must be developed that require proper media screening of all allegations/complaints and action to put them in the public domain.
B. In order to adhere to a Code of Conduct as a safeguard against malafide action, the electronic media should develop a Code of Conduct and a self-regulating mechanism.
C. By regularly disclosing details about corruption cases, government agencies can aid the media in the fight against corruption.
All developmental schemes and citizen-centric programmes should include a social audit mechanism in their operational guidelines.
USING INFORMATION TECHNOLOGY:
1. Each government ministry, department, or organisation should develop a plan for using technology to improve governance. Use of Information Technology should be made only after existing procedures have been thoroughly re-engineered in any government process.
2. Offices with a lot of public interaction should have a complaint tracking system online. If at all possible, the task of tracking complaints should be outsourced.
3. In offices with a lot of public interaction, there should be an external, periodic mechanism for 'auditing' complaints.