ADMINISTRATIVE LAW

OMBUDSMAN: A CRITICAL APPRAISAL

TABLE OF CONTENT

I. INTRODUCTION..................................................................... Error! Bookmark not defined.

II. DEFINITION OF THE TERM “OMBUDSMAN”.................... Error! Bookmark not defined.

III. MEANING AND IMPORTANCE ........................................... Error! Bookmark not defined.

IV. CHARACTERISTICS AND OBJECTIVES OF OMBUDSMAN INSTITUTIONError! Bookmark not

defined.

V. INDIAN OMBUDSMAN ........................................................... Error! Bookmark not defined.

VI. LOKPAL IN INDIA.............................................................. Error! Bookmark not defined.

VII. HISTORICAL APPROACH.......................................... Error! Bookmark not defined.

VII. THE LOKPAL AND LOKAYUKTAS ACT,2013 ....... Error! Bookmark not defined.

IX. CONCLUSION ....................................................................... Error! Bookmark not defined.

X. BIBLOGRAPHY ..................................................................... Error! Bookmark not defined.

[A]
[B] FEATURES OF THE JAN LOKPAL BILL
1. Lokpal and its role1
The bill proposes to establish autonomous and independent institutions called Lokpal at the
central level and Lokayukta for states. These shall have powers of superintendence and direction
for holding a preliminary inquiry, causing an investigation to be made and prosecution of
offences in respect of complaints under any law for the prevention of corruption.

1
Anil Dharker, The Topiwala Camera, The Outlook, New Delhi, 2011
 2. Structure2
The Lokpal will consist of a chairperson and a maximum of eight members of which fifty
percent shall be judicial members. Fifty percent of members shall be from amongst Scheduled
Caste (SC), Scheduled Tribe (ST) and Other Backward Classes (OBC), minorities and women. It
has an inquiry wing for conducting the preliminary inquiry and a separate independent
prosecution wing. Officers of the Lokpal will include the secretary, director of prosecution,
director of inquiry and other officers.

3. Process of selection3
The selection of chairperson and members of Lokpal shall be through a selection committee
The Selection Committee shall comprise of the Prime Minister, Speaker of the Lok Sabha,
Leaders of the Opposition in both houses, a Union Cabinet Minister nominated by the Prime
Minister, one sitting judge of the Supreme Court, and one sitting Chief Justice of the High
Court’s both nominated by the Chief Justice of India, an eminent jurist nominated by the central
government and a person of eminence in public life with knowledge of public administration,
policy making, anticorruption policy, vigilance and finance.

4. Jurisdiction4
Prime minister has been brought under the purview of the Lokpal with specific exclusions.
Lokpal cannot hold any inquiry against the prime minister if allegations relate to international
relations, external and internal security of the country, public order, atomic energy and space.
Any decision of Lokpal to initiate preliminary inquiry or investigation against prime minister
shall be taken only by the full bench with a 3/4th majority. Such proceedings shall be held in
camera. Its jurisdiction to include all categories of public servants including Group ‘A’, ‘B’, ‘C’
and ‘D’ officers and employees of government. On complaints referred by Lokpal, the Central
Vigilance Commission (CVC) will send its report in respect of Group ‘A’ and ‘B’ officers back
to Lokpal for further decision. With respect to Group ‘C’ and ‘D’ employees, the CVC will
proceed further in exercise of its own powers under the CVC act subject to reporting and review
by Lokpal. All entities receiving donations from foreign sources in the context of the Foreign

2
Ibid
3
Ibid
4
Ibid
Contribution Regulation Act (FCRA) in excess of Rs.10 lakh per year are brought under the
jurisdiction of the Lokpal. Lokpal will not be able to initiate suo moto inquiries.

5. Other significant features of the Bill5

No prior sanction shall be required for launching prosecution in cases enquired by Lokpal or
initiated on the direction and with the approval of Lokpal. There are Provisions for confiscation
of property acquired by corrupt means, even while prosecution is pending. Lokpal to be final
appellate authority on all decisions by public authorities relating to provision of public services
and redressal of grievances containing findings of corruption. Lokpal to have power of
superintendence and direction over any investigation agency including Central Bureau of
Investigation (CBI) for cases referred to them.

I. ANALYSIS OF THE JAN LOKPAL BILL

[A] A NAIVE APPROACH
The bill has been criticised as being naïve in its approach to combating corruption.
According to Pratap Bhanu Mehta, President of the Centre for Policy Research Delhi, the bill “is
premised on an institutional imagination that is at best naïve at worst subversive of representative
democracy”.6 The very concept of a Lokpal concept has received criticism from Human
Resource Development minister Kapil Sibal in that it will lack accountability, be oppressive and
undemocratic.7

[B] EXTRA CONSTITUTIONAL8

The pro-bill activist Arvind Kejriwal rejects the claim of Lokpal being extra constitutional
with the explanation that the body will only investigate corruption offences and submit a charge
sheet which would then tried and prosecuted through trial courts and higher courts, and that other
bodies with equivalent powers in other matters exist. The proposed bill also lists clear provisions
for the Supreme Court to abolish the Lokpal.

5
Ibid
6
Source: http://www.youtube.com/watch?v=kc5Ql00ftKg
7
Source: http://www.youtube.com/watch?v=QT5kB5Hm4Ys,
8
Source: http://www.youtube.com/watch?v=S6rK-fLEuNA
 Despite these clarifications, critics feel that the exact judicial powers of Lokpal are rather
unclear in comparison with its investigative powers. The bill requires “members of Lokpal and
the officers in investigation wing of Lokpal shall be deemed to be police officers”. Although
some supporters have denied any judicial powers of Lokpal, the government and some critics
have recognised Lokpal to have quasi-judicial powers.

The bill also states that “Lokpal shall have, and exercise the same jurisdiction powers and
authority in respect of contempt of itself as a High court has and may exercise, and, for this
purpose, the provisions of the Contempt of Courts Act, 1971 (Central Act 70 of 1971) shall have
the effect subject to the modification that the references therein to the High Court shall be
construed as including a reference to the Lokpal.” Review of proceedings and decisions by
Lokpal is prevented in the bill by the statement “no proceedings or decision of the Lokpal shall
be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil
Jurisdiction.” As a result, how the trials will be conducted is unclear in the bill, although the bill
outlines requiring judges for special courts, presumably to conduct trial that’s hould be
completed within one year. The critics hence express concern that, without judicial review,
Lokpal could potentially become an extra constitutional body with investigative and judicial
powers whose decisions cannot be reviewed in regular courts.

[C] SCOPE
The matter of whether the Indian Prime Minister and higher judiciary should or should not be
prosecutable by the Lokpal remains as one of the major issues of dispute. Anna’s own nominee
for co-chairing the joint panel Justice Verma, the former Chief Justice of the Supreme Court, has
expressed his constitutional objections for including the Prime Minister and higher judiciary
under Lokpal. According to him, “this would foul with the basic structure of the constitution”.9

[D] CRITICISM FROM THE CBI DIRECTOR10

The CBI Director, in a presentation before the Standing Committee of the Parliament, has
strongly argued against the vivisection of the CBI and merger of its anticorruption wing with the
Lokpal, noting that this would seriously cripple the core functioning of the CBI and reduce it to

9
Ministry of Law and Justice. “Government Issues Notification to Constitute a Joint DraftingCommittee to Prepare
Draft Lok Pal Bill.” Press Information Bureau, Government of India.
Source: http://pib.nic.in/newsite/erelease.aspx?relid=71560
10
Ibid
irrelevance. An organization built over last 60years comprising competent professionals should
not be subsumed under Lokpal. CBI officers concede that in some sensitive political cases there
is of course interference from the government, but in respect of an overwhelming majority of
cases CBI functions, unfettered and uninfluenced by extraneous considerations. For this reason
there is an ever increasing demand for CBI investigation from all over the country in respect of
important cases.