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Study of Ambudsman

Any developing system of administration gives importance to the existence of a mechanism for handling the results of the administrative faults, and the recognition of a right of every member of the society to know what happens in the government files. For that, the study of Ombudsman, Right to know, Discretion to disobey, Central Vigilance Commission topics are important. And now in this article the researcher has confined the research to the topic of Ombudsman his importance in the field of administration and origin &development of Ombudsman. The researcher has also had made a comparative study of Ombudsman in different countries like England, USA, India, and the working of the office of Ombudsman in those countries. History has shown as many instances of corruption, abuse of power and nepotism in public administration. The system of modern administration is no exception to these problems. Complaints of maladministration, corruption, inefficiency delay, bias, in public administration etc, have now started increasing. The concentration of power in a single individual leads to tyranny and dictatorship. The judicial control is weak and the discretionary power, delay of the administrators cannot be questioned in the court of law. To solve these problems, countries like Sweden, USA, England, Australia has created the office of Ombudsman. Even though there are advantages there are some arguments against setting up of the office of Ombudsman so the researcher has also dealt with the defects of Ombudsman as the last discussion. And conclude by expressing her opinion in the institution of Ombudsman.

Any progressive system of administration presupposes the existence of a mechanism for handling grievances against administrative faults, and the recognition of a right of every member of the public to know what passes in the government files. The search has produced the idea of ‘ombudsman’ which in terms of utility means a ‘watchdog of the administration’ or ‘the protector of the little man’. This institution was first developed in Sweden in 1809. Ombudsman is Scandinavian word. It is taken to mean officer or commissioner. In its special sense, it means a commissioner who has the duty of the investigating and reporting to Parliament on citizens’ complaints against the Government. Generally the Ombudsman is to a Judge or Lawyer or a high officer. He investigates the complaints from clients against the administrators and tries to find out the remedies. An Ombudsman, or his equivalent, has become a standard part of the machinery of any modern government. In the 21st century, almost all countries have witnessed a change from laissez-faire to regulation. Under the effect of new economic policy state has assumed the role of a facilitator, enabler and regulator. Therefore the chances of misunderstanding between a government official and private citizen have multiplied to a great extent. In these circumstances, because of progress and development, individual right against administrative faults are given very less importance. To overcome these shortcomings the institution like Ombudsman to protect the ‘little man’ against administrative faults has developed and given importance. The purpose of the Ombudsman is to control the administration and thus given protection to the citizen against injustice brought about by faulty administration. His function is to locate maladministration or faults in the administration. The main characteristics are Ombudsman is an independent man non-partisan officer of the Legislature and his function is to supervise the administration.

He deals with the specific allegation or complaints from the public against administrative injustice and maladministration. Ombudsman may proceed on his own information in the similar circumstances. Ombudsman can investigate, criticise and report back to the legislature but he cannot reverse the administrative action.

Development In England
In England first Ombudsman is establishes in 1967 by parliamentary commissioner act of 1967 and it is called as Parliamentary Commissioner. He appointed by the government on the advice of the prime minister and hold office for sixty five years. The Parliamentary Commissioner envisaged under the act is a permanent appointee with the security of the High Court Judge. Since 1994 Ombudsman has entertained responsibility for enforcing the open government code of practice on access to government information. He investigates the complaints made before him by the parliamentary members against the government and other bodies which come under his jurisdiction and the official who fails to comply with the provision of the code. If there is a absence of enforcement provision, the select committee of the members of parliament plays an important role in bringing pressure on the department to accept Ombudsman’s report. There are times when Ombudsman reports have not been selected it can be overcome by the existence of the select committee thus it has strengthened this institution. The ombudsman can be dismissed on the complaint of both house of Parliament. The department that has been placed under his jurisdiction has been listed in schedule II to the Act. This list can be order in the council. Thus, the Parliamentary Commissioner Act, 1967, confers on the Parliamentary Commissioner jurisdiction only on the Central Government and only over the department stated in the Second Schedule to the Act. This Act expressly includes the Ministers along with their departments. Several matters have been excluded by his Act and they are not subject to the Commissioner’s investigation. Such matters are specified in Scheduled III. Complaints against the administration cannot be made to the Ombudsman directly. It can be made to the Ombudsman only through the members of the House of Commons and only sent through them. The reports are given by the Ombudsman to the members who had made the complaint. When the enquiry starts opportunity must be given to comment on the allegation contained in the complaint for both the departments.

Development In USA
In the United States, there is no unified federal ombudsman service. The role of handling complaints against federal authorities has to some extent been unofficially incorporated into the role of the US Member of Congress. This informal job has become increasingly time consuming. It is subject to criticism on the grounds that it interferes with a legislator's primary duty, namely to read and be knowledgeable about a bill before casting his or her vote. Though there is a lot of ‘Ombudsmania’ in USA no ‘Ombudsman’ has infiltrated the administration except in the three states of Hawaii, Nebraska and Oregon for local government agencies. Since 1963, in every session the of the congress a bill has been introduced to establish an institution akin to Ombudsman is considered by the members of the Congress as a drag on their status and power for they consider it their sole prerogative to represent their constituencies and to handle the grievances of the people. However , the congressional investigation and grievances cells established in various departments, like the police review Boards, discharged the work of Ombudsman.

Ombudsman In India
The functions of the ombudsman which were successful in the other countries inspired the established of Lokpal and Lokayuktas in India also. Lokpal is the Indian Ombudsman and Lokayuktas is the State Ombudsman.

In 1962, M.C. Setalvad suggested the idea of establishing an Ombudsman at the All India Lawyers’ Conference.

The Administrative Reforms Committee made a proposal to the Government in 1968.

In 1971, the bill was again introduced, however to end up in failure.

Lokpal Bill Provision

In the Central Government, the President is empowered to appoint the Lokpal after consultations with Chief Justice of India and the Leader of Opposition in Lok Sabha. The Lokayuktas are appointed by the Governors in consultation with Lokpal. In a case the Supreme Court held that opinion of Chief Justice of High Court has primacy in appointments of Lokayuktas. The Lokpal or Lok Ayuktas hold office for a term of 5 years. They cannot be easily removed from political and judicial interferences. They can be removed from the office on the ground of misbehaviour, incapacity etc, by the President after following the procedure mentioned below
An enquiry must be conducted by a Judge of the Supreme Court.
The report of the judge must be placed before both the House of Parliament.
The President gives an address before both the Houses.
A resolution is passed in both in the House and is voted with not less than 2/3 members of the House present and voting.
The President must sign the resolution. Only then, the Lokpal or Lokayukta is removed from service.

Principles For Setting Up Lokpal And Lok Ayukta

The following must be followed while setting up Lokpal & Lok Ayuktas
He should be appointed in the non-political manner andhe should be independent and impartial.
The investigation held by him should be informal and in private
Matters involving acts of injustice, corruption, etc, should be dealt by him and his office.
He should be apart from judicial interferences.
No pecuniary benefit or advantage should come to him from the executives.

The president can appoint ‘Special Lokpal ‘ for fast disposal of complaints. Special Lokpal is appointed by the President after consulting the Chief Justice of India, Speaker of the Lok Sabha and Chairman of Rajya Sabha.

The following are the qualification for a Lokpal
He should not be a Member of Parliament or State Legislature.
If he is holding any office of trust or profit, he should resign from it.
He should severe relations with political parties. He should leave up any other profession he was attending.
He should leave up any trade or any other occupation.

The salary and pension of the Lokpal are equal to that of the Chief Justice of India. Complaints lodged for investigation will be taken up with the consent of the Lokpal. If he is biased in the matter, the President shall deal with it in consultation with the Chief Justice of India. Mal-administration means unreasonable, unjust or improper administration, undue delay or negligence in administrative procedure. If there is alternate remedy by way of proceeding before any Tribunal or Court of Law, then Lokpal will not investigate at grievance.

Under the following circumstances, the Lokpal will not investigate the complaint.
If the complaints is time barred.
If the complaints relates to any person who is not a public servant.
If the complaints is trivial or malafide.
If there is no sufficient ground for proceeding with the investigation.
Complaints can be filed only by any person who is not a public servant and it should be in the prescribed form, with prescribes fee, except for those who are poor and have no means to pay the fees.

The lokpal can take action against all public servants.
He can also investigate any complaint made by private person.
He can take decision against the erring public servants.
He can recommend his findings to be enforced into action.

Lok Ayukatas:

Some States have adopted the Ombudsman system called Lokayukta. The instruction of Lokayukta has been established in several States by enacting a Statues specifically for this purpose. In some States, Uplokayutkas has been appointed. The States in which Lokayuktas has been established by enacting Statues include the States of U.P., Bihar, State of H.P., Karnataka, Andra Pradesh, Maharashtra, Orissa, Rajasthan, Gujarat, etc. The provisions of the States, however, are not same. But in all the states, the Lokayuktas have been given jurisdiction over the Ministers, Public servants and officers in all States. In Karnataka, Himachal Pradesh and Orissa, Lokayutkta has been given jurisdiction over the Chief Minister also. In Maharashtra, Bihar, U.P. and Rajasthan, Lokayukta has not been given jurisdiction over ex-ministers and ex-secretaries.

Qualification And Function
The Lokayukta or UpLokayukta should not be member of any Legislative and should not be connected with any political party or carry on any business or profession. His terms of his office is 5 years. He shall investigate any complaint filed by an aggrieved person along with an affidavit. The complaint will not be taken up, if there is any alternate remedy. The procedure of investigation, etc, is the same as that of the Lokpal. The Lokayukta and Uolokayukta will present a consolidated report of their functions to the Governor.

Even though there are advantages, there are some arguments against setting up of the office of the Ombudsman.
It is said that this institution may be successful in the countries with low population, but countries with large population like India or USA with their large complaints it may be difficult for a single man to solve all those problems.

It is also said that the success of the institution of Ombudsman in Denmark owes its success to its first Ombudsman, Prof. Hurwitz. He took great interest to look into the complaints sent to him and solved it personally. Prestige will be lost if there a many such officers or if there is a single officer who has always to depend upon a large staff and subordinate officers.

According to Mukherjea J, in India this institution is not suitable. He describes ir as "an accusatorial and inquisitorial institution and a combination of unprecedented in democracy with tradition of independent judiciary". It is an "impractical and disastrous experiment" which will not fit into the Constitution.

In a democratic government, it is expected that the subjects have adequate means to solve the problems. Since the present judicial system is not sufficient to deal with all cases of injustices, an system like Ombudsman may help in solving the administration problems and give justice to aggravated person. But Ombudsman is not a "panacea for all the evils of bureaucracy" state. His success depends upon the existence of a reasonable well-administered state. He cannot cope with the situation where administration is riddled with patronage and corruption.Thus the researcher conclude that it’s a great system of control it may be applicable for the country which has less population and good working government but in the country like India or USA with this large population it is not that effective for check in administration as it is institution with a less persons to complaint or investigate and giving report to parliament and solve the issues.

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