Ombudsman (Lokpal and Lokayuktas) | Law Optional Notes for UPSC PDF Download

Introduction

An ombudsman is an official appointed by the government to look into complaints, typically filed by individuals from the private sector, against various entities such as businesses, financial institutions, government agencies, or other public organizations. Their role involves investigating these complaints and working towards resolving conflicts or addressing concerns through mediation or recommendations.
Ombudsmen are alternatively known as public defenders or national defenders. In the context of India, the positions corresponding to the National Ombudsman and State Ombudsman are termed Lokpal and Lokayuktas, respectively.

How an Ombudsman Operates

• An ombudsman's rulings may or may not carry legal binding force, depending on the jurisdiction. Regardless of legal binding, their decisions often hold significant weight.
• Typically, ombudsmen are funded through levies and case fees once appointed. They generally possess a broad mandate that enables them to address wide-ranging concerns in both public and private sectors.
• However, an ombudsman's jurisdiction can sometimes be restricted to a specific societal sector. For instance, a children's ombudsman might focus solely on safeguarding children's rights. In Belgium, each linguistic and regional community has its distinct ombudsman.
• In the United States, members of Congress often serve as national ombudsmen. They represent their constituents' interests and maintain staff dedicated to assisting constituents facing administrative challenges, especially those stemming from mismanagement.
• Ombudsmen can be found in numerous countries and organizations, spanning national or local levels. They are also prevalent in large corporations.
• Their roles can be specialized, handling complaints about a particular organization or government agency, or they may have a more comprehensive purview.
• For instance, an industry-specific ombudsman like a consumer or insurance ombudsman may address consumer grievances regarding unfair treatment by private companies operating within that sector.
• Ombudsmen often aim to identify systemic issues that could result in widespread human rights violations or subpar public services, particularly at the governmental level.
• Appointments of ombudsmen can be made by significant public entities or other organizations. For instance, the California Department of Health Care Services has its own ombudsman.
• Depending on their appointment, ombudsmen may investigate specific complaints related to services or other interactions between a customer and the relevant entity. Those within an organization may primarily handle internal matters, such as employee grievances or, in educational institutions, student complaints.

Historical Context of the Ombudsman Office (Lokpal and Lokayuktas)

• The establishment of the ombudsman institution dates back to 1809 in Sweden. Following World War II, the concept of the ombudsman gained prominence and underwent significant development in the 20th century.
• New Zealand and Norway adopted this system in 1962, playing a pivotal role in propagating the ombudsman idea.
• In 1967, Great Britain embraced the institution of the ombudsman, becoming the first major democratic nation to do so. Guyana was the inaugural developing country to adopt the ombudsman concept in 1966. Early adopters also included Mauritius, Singapore, Malaysia, and India.
• In India, the notion of a constitutional ombudsman was initially proposed in the early 1960s by then-Law Minister Ashok Kumar Sen. Dr. L. M. Singhvi introduced the terms "Lokpal" and "Lokayukta."
• The First Administrative Reforms Commission, in 1966, suggested the establishment of two independent bodies at the central and state levels to investigate complaints against public officials, including Members of Parliament (MPs).
• The Lokpal bill was passed in the Lok Sabha (House of the People) in 1968 but lapsed due to the Lok Sabha's dissolution. Subsequently, it has been reintroduced multiple times, with eight unsuccessful attempts until 2011.
• The Commission to Review the Working of the Constitution, led by M.N. Venkatachaliah in 2002, recommended the appointment of Lokpal and Lokayuktas, along with the exclusion of the Prime Minister from their purview.
• In 2005, the Second Administrative Reforms Commission, chaired by Veerappa Moily, urged the expeditious establishment of the Lokpal office.
• In 2011, a Group of Ministers, headed by Pranab Mukherjee, was formed by the government to propose anti-corruption measures and review the Lokpal Bill proposal.
• The "India against Corruption Movement," spearheaded by Anna Hazare, exerted pressure on the United Progressive Alliance (UPA) government, leading to the passage of the Lokpal and Lokayuktas Bill, 2013, in both Houses of Parliament. It received presidential assent on January 1, 2014, and came into effect on January 16, 2014.

Lokpal (Ombudsman) Overview

• The Lokpal and Lokayukta Act of 2013 established the Lokpal for the Union and Lokayukta for the States. These bodies function as ombudsmen, investigating corruption allegations against certain public officials and addressing related issues.

Constitution and Structure

• The Lokpal comprises a multi-member body with a chairperson and up to eight members.
• The Lokpal's Chairperson must be a former Chief Justice of India, a former Supreme Court Judge, or an eminent individual with impeccable integrity and at least 25 years of experience in fields including anti-corruption policy, public administration, vigilance, finance, law, and management.
• At least half of the maximum eight members should be judicial members, and at least half of the members must come from specific categories such as SC/ST/OBC/Minorities/Women.
• Judicial members of the Lokpal must be former Supreme Court judges or former Chief Justices of High Courts.
• Non-judicial members should possess exceptional expertise, integrity, and a minimum of 25 years of experience in fields like anti-corruption policy, public administration, finance, law, and management.
• The term of service for the Lokpal Chairman and Members is five years or until they reach the age of 70.
• Members are appointed by the President based on recommendations from a Selection Committee chaired by the Prime Minister. The Committee includes the Lok Sabha Speaker, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a nominated judge, and one eminent jurist.
• A search panel of at least eight individuals is formed by the selection committee to identify potential candidates for the Chairperson and Members.

Lokpal Search Committee

• As per the Lokpal Act of 2013, the Department of Personnel and Training (DoPT) compiles a list of individuals interested in serving as Lokpal Chairperson or Members.
• This list is then forwarded to a proposed eight-member search committee, which shortlists candidates and presents them to the Prime Minister's selection panel.
• The selection panel has the discretion to accept or reject names recommended by the search committee.
• In September 2018, a search committee led by former Supreme Court judge Justice Ranjana Prakash Desai was established by the government.

Lokpal Jurisdiction and Powers

• The Lokpal's jurisdiction extends to the Prime Minister, Ministers, Members of Parliament, and various officers and officials of the Central Government.
• Exceptions to the Lokpal's jurisdiction include allegations of corruption related to international relations, security, public order, atomic energy, and space.
• The Lokpal lacks jurisdiction over matters related to statements made or votes cast in Parliament.
• Anyone in charge of organizations or societies established by central acts, bodies financed/controlled by the central government, and individuals involved in abetting, giving, or receiving bribes fall within its jurisdiction.
• The Lokpal Act mandates that all public officials, as well as their dependents, must disclose their assets and liabilities.
• The Lokpal can oversee the Central Bureau of Investigation (CBI) and provide it with directions. When a case is referred to the CBI by Lokpal, the investigating officer cannot be transferred without Lokpal's permission.
• The Lokpal's Inquiry Wing possesses the powers of a civil court.
• In exceptional cases, the Lokpal has the authority to seize assets, proceeds, receipts, and benefits acquired through corrupt means.
• Lokpal can recommend the transfer or suspension of a public servant accused of corruption.
• During preliminary investigations, Lokpal can issue orders to prevent the destruction of records.

The Lokpal and Lokayuktas (Amendment) Bill, 2016

• The Lokpal and Lokayukta Act of 2013 underwent an amendment through this Bill, which received parliamentary approval in July 2016.
• In cases where there is no recognized Leader of the Opposition, this Bill allows the leader of the single largest opposition party in the Lok Sabha to serve on the selection committee.
• Section 44 of the 2013 Act was also amended by this bill, eliminating the 30-day time limit for public servants to provide details of their assets and liabilities upon joining government service.
• Instead, the bill mandates that public employees declare their assets and liabilities in the form and manner prescribed by the government.

Changes Introduced

• The Lokpal Act requires public servants to declare their assets and liabilities, as well as those of their spouse and dependent children, within 30 days of assuming office. They must also file an annual return of these assets and liabilities by July 31 each year. 
• The Act further mandates that statements of such declarations be published on the relevant Ministry's website by August 31 of the same year. The Bill replaces these provisions by stating that a public servant must declare their assets and liabilities, with the central government prescribing the form and manner of such declarations.
• Additionally, the Bill 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 Lokpal Office

• Despite its efforts to combat corruption in India's administrative structure, the Lokpal institution has shortcomings that need addressing.
• The Lokpal and Lokayuktas Act of 2013 was passed five years ago, but no Lokpal has been appointed during this time, suggesting a lack of political will. Few states have established a Lokayukta as required.
• Political influence can affect the Lokpal due to its appointing committee's composition of members from political parties.
• The appointment of the Lokpal can be manipulated as there are no clear criteria for defining an "eminent jurist" or "a person of integrity."
• The Whistle-blower Protection Act of 2013 doesn't offer specific protection to whistle-blowers, and the provision for investigating complainants if the accused is found not guilty could discourage complaints.
• The Lokpal does not have jurisdiction over the judiciary, which is a significant limitation.
• Lack of constitutional backing and a proper procedure for challenging the Lokpal's decisions are issues.
• The specifics of the Lokayukta's appointment are left to the discretion of the states.
• While the selection process for the Director of the CBI has been modified to enhance its functional independence, it doesn't fully address the issue.
• Complaints of corruption cannot be registered after seven years from the date the alleged offence occurred.

Jurisdiction of the Prime Minister under Lokpal

• Under the Lokpal and Lokayukta Act of 2013, the Prime Minister (PM) falls within the Lokpal's jurisdiction. However, the Lokpal will not investigate allegations of corruption against the PM if they are related to international relations, external and internal security, public order, atomic energy, or space. Moreover, specific conditions must be met for an investigation into the Prime Minister:
• The Lokpal's full bench, comprising the Chairperson and all Members, must collectively decide to initiate an investigation.
• At least two-thirds of the members must agree to conduct such an investigation.
• Any inquiry into the Prime Minister must be conducted confidentially, and the records of the investigation will not be published or shared if the Lokpal determines that the allegations are false and the inquiry should be dismissed.

Recommended Actions

• To combat corruption effectively, it is essential to strengthen the ombudsman institution in terms of functional autonomy and manpower availability.
• Promoting greater transparency, right to information, and empowering citizens and citizen groups is necessary. Leaders must be willing to be accountable to the public.
• Appointing a Lokpal alone is insufficient; addressing the root causes that led to calls for a Lokpal is essential. Expanding investigative agencies may increase their size but may not necessarily improve governance.
• Ensuring financial, administrative, and legal independence of Lokpal and Lokayukta from the entities they investigate and prosecute is crucial.
• Transparent appointments to the Lokpal and Lokayukta can help prevent the wrong individuals from being selected.
• Establishing diverse decentralized institutions with appropriate accountability mechanisms can prevent excessive concentration of power.

Steps to Reduce Incentives for Corruption

• Restructuring the enforcement of laws to enhance transparency and citizens' understanding of the legal framework.
• Addressing moral degradation and consumerism at a broader societal level.
• Incorporating market forces with regulatory mechanisms, especially in areas involving large public enterprises, technology, and foreign investments.
• Implementing decentralized monitoring and vigilance mechanisms.
• Avoiding shortages that can create opportunities for corruption.
• Prioritizing areas affecting vulnerable populations, emphasizing citizen-focused services, and promoting outsourcing. Re-engineering delivery systems in sectors like education and health.
• Establishing review procedures within high-risk ministries.
• Ensuring public access to village records.
• Placing primary responsibility for internal supervision on the Head of Department.
• Prioritizing transaction and process auditing over financial auditing.
• Overhauling the operations of auditors, such as the Comptroller and Auditor General (CAG), and ensuring their accountability.

Enhancing the Effectiveness of Anti-Corruption Institutions

Ombudsman (Lokpal And Lokayuktas)

• Empower State Vigilance Commissions/Lokayuktas to oversee the prosecution of corruption cases.
• Develop the expertise of investigative agencies and ensure their understanding of various government departments' operations by including representatives from these departments.
• Utilize modern investigative techniques like electronic surveillance, video/audio recording of surprise inspections, traps, searches, and seizures.
• Set reasonable time limits for the investigation of different types of cases.
• Prioritize the investigation of significant corruption cases, focusing on "big" cases.
• Assemble panels of lawyers, in consultation with Lokpal or Lokayukta, for prosecuting corruption cases.
• Conduct systematic surveys of government departments, particularly those susceptible to corruption, to gather intelligence and identify officers with questionable integrity.
• Strengthen the powers of Lokpal to address corruption cases.

Citizens’ Initiatives

• Ensure effective Citizens' Charters by specifying service levels and outlining consequences for non-compliance.
• Engage citizens in evaluating and upholding ethics in government institutions and offices.
• Implement incentive programs to promote citizen initiatives.
• Introduce awareness programs in schools emphasizing ethics and anti-corruption efforts.

Role of Media

• Develop norms and practices mandating thorough media scrutiny of all allegations/complaints and the publication of actions taken.
• Create a Code of Conduct and self-regulation mechanisms for electronic media to safeguard against malicious actions.
• Government agencies can assist the media in combating corruption by regularly disclosing details about corruption cases.

Social Audit

• Incorporate a social audit mechanism into operational guidelines for all developmental schemes and citizen-centric programs.

Using Information Technology

• Establish technology adoption plans in every government ministry, department, or organization to enhance governance. Implement Information Technology only after thoroughly re-engineering existing procedures.
• Implement online complaint tracking systems in offices with significant public interactions. If feasible, outsource complaint tracking tasks.
• Introduce periodic external auditing mechanisms for complaints in offices with substantial public interactions.