Around the world, currently, there is an increasing interest in the institution of Ombudsmanship and its working. An official appointed to investigate the complaint by individuals against mal-administration, especially by public authorities is introduced in Sweden in 1809, in Denmark in 1954 and Norway in 1962 and spread to other countries from 1960’s. Truly speaking, it is being treated and employed as an Alternative Dispute Resolution Forum. In many UNO Member-States, it is used, successfully as an efficacious Redressal Forum.
In quest for an effective and efficient mechanism to control the administration attention of the administrative authorities, institutions and organisations, including the legal fraternity has been attracted by the Scandinavian Institute of Ombudsman.
Now, the Government Corporations, Undertakings, Universities, leading Newspapers and many public institutions have started to adopt the system. An Ombudsman enjoys the power to investigate complaints and pronounce verdicts. Obviously, the efficacy depends on the extent of such powers. In some countries, like Scandinavian countries, the office of Ombudsman has enough powers to intervene and get Government decisions altered pursuant to public complaints, adjudged valid. In some other countries like Britain, the office caries only limited authority. Unfortunately, in India, the experience does not seem to be very encouraging. At Centre, the office of Ombudsman known as ‘Lokpal’ is still in embryo. The office of Ombudsman, known and called ‘Lokayukt’ has started functioning in some States.
It is felt that the office of ‘Lokayukt’ is not equipped with requisite machinery and powers. It is, therefore, said that their verdicts are always, not respected by the authorities. If the disputes are resolved without the intervention of the Court, at the level of such institution, whatever the name be given to it, the burden of existing traditional system of Civil Justice will be reduced. In view of the existing heavy workload in the system of Civil Justice, in various countries, the concept of Alternative Dispute Resolution has been accepted. In India, the Draconian Docket Explosion, high expenses, astronomical arrears and slow motion in disposal, an effective mechanism of Alternative Disputes Resolution is not a call, but should be a creed.
It is imperative. It is, in this context, the institution of Ombudsman needs to be examined and established as a part of Civil Justice Reform Strategy. Civil Justice reform and reorganisation of Civil Courts should be taken on priority basis in order to efficaciously meet the public criticism that justice is too slow, inaccessible, very expensive and extremely complex in its process.
There have been many changes in the organisation of English Civil Courts. Changes in rules governing civil court have a substantial nature. Following the recommendations of Civil Justice Review which was initiated in 1985, to speed up the process and improve access to justice review was undertaken by Lord Chancellor’s Department. It has been revealed in the report pursuant to Civil Justice Review that civil courts are flooded with cases involving insignificant, avoidable and petty disputes. Such disputes for civil issues against the public administration could be thrashed out and resolved at the level of Ombudsman without going to the litigative process in the courts.
“Too many cases of relatively low importance, substance and complexity were being handled and tried at an inappropriately high level. This is wasteful of High Court resources.”
The findings and recommendations were implemented by the courts and Legal Services Act, 1990,in England. No doubt, in India, the Legal Services Authorities Act, 1987, and as amended by the Legal Services Authorities (Amendment) Act 1994, and 2002 has been, now, introduced and legal functionaries are working there under. Notwithstanding that, in view of the heavy backlog and new cases coming to the civil courts with limited resources and number of judicial functionaries, the concept and philosophy of institution of Ombudsman as an additional idea will help to reduce the overburdened civil courts, if implemented, seriously and satisfactorily by the public functionaries and authorities. In the recent past, it has been noticed that there is a remarkable evolution and growth world-wide interest in the Ombudsmanship, since it has proved to be an effective idea or mechanism.
The office of Ombudsman in so far as its main working is concerned, is known by different names and nomenclatures indifferent countries with varying extent and powers. It is known as :-
1. Ombudsman in Scandinavian countries.
2. Parliamentary Commissioner in UK,
3. Custodian of Public Interest,
4. Citizen Defender in some Countries,
5. Protector of Rights.
6. Mediator or Arbitrator
7. Protector of Little Man and watchdog of people.
The concept of Ombudsman is, in reality, one of the ideas which could be accepted and the flower of freedom will blossom only in the garden of virtues, has not been unfortunately, successfully observed in many countries like, India. If the concept of Ombudsman is established and implemented in Government Departments, Public Undertakings, Banking and Insurance Sectors, a large number of issues and disputes could be resolved at that level resulting into the relief and less pressure of work on the civil justice system.
The very expression “democracy’ is two Greek words “demos” (by the people)and “kratos” (rule) in the Assembly of Athens, first regarded democracy, citizens voted directly on laws. In modern democracies, people vote periodically to elect representatives to run the Government. Those who take Governmental decisions and identity of those whose interest are served by the decisions are the yardsticks used to assess the nature, the status and the prestige of the democracy. Political democracy aim to equity before law and equity of law, free speech, freedom of Press and protection from arbitrary administrative decisions. It also involves checks and balances to ensure proper functioning of the system. With all that the democracy is fraught with acknowledged viles and weaknesses. In functioning democracies and inherent contradiction in the system is that the majority rule principle with inevitable emphasis on mediocrity often runs into conflict with the freedom of the talented.
Therefore, the concept of meritocracy as distinct from democracy and gets entrapped by the concept of mediocrity. In many Asian and African democratic countries, one party, though contradiction in terms, becomes strong, as a result of which, the element of mal-administration increases, internal power struggles even in a Ruling Party in democracies lead to neglect of governance and the victims are the governed. In established Western democracies, the system is often misused by the special interest groups, over-ambitious politicians and affluent class of people. It is, in this context, for effective check and restraint on the mal-administration, in a democratic set up becomes imperative and therefore the concept of Ombudsman for resolving the disputes increasingly needs recognition and acceptance. In many countries, not only in public and Government set up but also in Universities, Media Groups. Insurance Companies have also adapted this concept.
It was also learnt that this concept is extended, at times, at the level of schools, college Unions, college libraries, as an important re-dressal of grievances of mechanism. Therefore, it has been said that the role and the job of Ombudsman, at times, is like a Leader of Opposition. When mal-administration, misadministration and subjective administration is on increase, so that there will be restraint and check on such governance.
The idea of Ombudsman is gaining popularity since it gives citizen a safeguard against mal-administration, which is in addition to the traditional system of court and Tribunal. A further check on abuse of power by the Government Departments is created by the appointment of Parliamentary Commissioner for administration (Ombudsman) under the provisions of Parliamentary Commissioner Act, 1967, an English Administrative mechanism. The Commissioner is appointed by the Crown and have the security of tenure as a Judge of the Supreme Court. He is also a member of the Council of the Tribunals. His main function is to investigate complaints relating to exercise of administrative powers.
However, investigation of Central Government Department is made only at the Member of Parliament requests and a citizen who decides to have a complaint investigated must bring up to the notice of the MP. Most of the complaints involved Government department in constant contact with the public, more complaints, being levelled against the Department of social security, followed by internal reforms like any other department. In this connection, therefore, there is now a revenue adjudicator to whom tax payers can complain. Those who are not satisfied with the adjudicators decision may still ask their MPs to take up complaints with the Parliamentary Ombudsman.
In Australia and New Zealand, this institution is gaining popularity. In Switzerland the Commissioner of Society proposes the appointment of both civil and military Ombudsman. This institution was, strongly, recommended for Cylonin 1966 in colloquium on rule of law which was attended by about 100 jurists from Asean and Pacific Region. Latin Americans have concurred that such institutions suit their conditions. Therefore, in July 1967, the Jamaican section of International Commission of Jurists proposed plan for Jamaica for such an institution. It has also been proposed for Hong Kong and it has been implemented in Malaysia.
It will be significant to mention that a comprehensive Ombudsman scheme was proposed in by the Federal Administrative Reforms Commission. The Ombudsman idea is being discussed in India since several years and the proposal in setting up such institution is gaining dust. No doubt. at the level of centre the creation of offer Chief Vigilance Commission (C.V.C.) is nothing but a step in this behalf and it is, really, encouraging.
The concept of Ombudsman evolved in Sweden, as early as, in 1809, is gaining now, momentum and importance, all over the world since ADR mechanism since Ombudsman functions as an arbiter or inter-mediator to redress the grievances against the Government or the authority public or private, without complexity of procedure and further higher tiers. It must receive serious attention in a democratic, republic, secular, socialist, welfare State like India. If this institution and concept is effectively established, it will, undoubtedly provide a great relief to the over-burdened civil legal system. It is. In this context, I could not resist the temptation of writing some of the basic characteristics of the office of Ombudsman in its historical text, context, content and character.
Recently, in England, under section 110 of the Courts and Legal Services Act, 1990 has extended the jurisdiction of the Commissioner to administrative acts of the administrative staff of courts and Tribunals. No doubt, this does not include review of the act of the judicial or tribunal members. Unfortunately, the Commissioner is very often limited to consideration of the administrative process followed and is powerless to act if the correct procedure has been observed even though the decision is wrong or bad. Again, he cannot investigate personal matters. Nonetheless, each year, there is steady rise in the number of complaints referred to him though the Commissioner and its functions are still not well enough known and he is at present less effective than his counter parts in other countries, like Denmark. Section 21 to 26 of the Courts and the Legal Services Act, 1990 in England has provided for the set up the office of the Legal Ombudsman. The underlying design and purpose is to help people who have genuine cause for complaints against the members of the legal profession, but have not been able to sort out their problem. The legal Ombudsman has power to investigate, handling of complaints by the Law society, the Board and the Council for licensed conveyancers to reinvestigate the complaint and recommend remedies including, payment of compensation. He reports only to the Lord Chancellor and the Parliament. Section43 of the Courts and Legal Services Act, 1990 also provides for conveyancing Ombudsman. Section 145 to 152 of the Pension Scheme Act, 1993 also provided for Pension Ombudsman to adjudicate any dispute between individual and pension scheme or provider. In addition to institutes of Chartered Accountants in England and Wales has appointed an Ombudsman called “receiver of complaints” to review the complaint against the members. There is also the investment referee who, investigates disputes against those in the investment business. A banking Ombudsman. Insurance Ombudsman and Building Society Ombudsman have been appointed to deal on a limited basis with disputes in those sectors and industries. The council of Stock Exchange has also appointed Ombudsman to mediate the disputes between the investors and stock brokers.
An Ombudsman should be regarded as an important new addition to the armory of democratic Government. Much water has flown after the publication of special report of the Indian Administrative Reforms Commission in October 1966proposing Ombudsman for India and despite unbreakable backlog of cases involving civil disputes and in civil justice system, no serious attention seems to have been given to this concept in our country. In various countries, the system of Ombudsman, has been, successfully, implemented reducing the burden on the civil legal system. In some countries like Finland and Sweden, office of Ombudsman is, successfully, working calling for needs and assistance because of large number of complaints received by such office. In Sweden also this system is very well functioning. In Canada two provincial Ombudsman are in operation since 1967.
With several more in the offing, particularly after the report of Ontario
Commission on Human Rights, the most remarkable burgeoning of interest in Ombudsmanship has occurred in United States. Indeed one might, almost, call it Ombudsmania. At the local level, of great significance has been, the recent developments in New York City since 1966. Thereafter, the Ombudsman idea has great momentum in United States and Ombudsman is, now, being proposed and appointed for Universities to hear complaints from students or professors and for students grievances, as it was approved and, successfully, employed by Berkley Senate of the University of California at the end of 1966. In India, the idea is, slowly, spreading to Universities and other academic organisations. There has also been a rapid growth of newspaper Ombudsman in United States. It will be interesting to mention here that the Former Chief Justice of India Mr Justice P. N. Bhagwati also came to be appointed as an Ombudsman by newspaper, “Times of India”.
Indubitably, the office of Ombudsmanship is a very effective mechanism of ADR which has, successfully, proved to be an efficient, important and effective defender of faceless and voiceless, illiterate and indigent, downtrodden and under-privileged, traumatised and tormented, stigmatised and tortured, mentally and physically challenged individuals. Therefore, this concept and philosophy of Ombudsmanship for the redressal of the disputes and grievances needs more attention and employment in service of redressal more so when unbreakable backlog is a great treat to the administration of justice in India. Let this caveat reach to right ears for early actions.
Devendra Pratap Singh
Advocate
Supreme Court of India
