Ombudsman: Sweden, UK and India

Ombudsman is a Swedish word meaning a representative or agent of the citizen. The Ombudsman is an independent official, usually appointed by the legislature, who investigates complaints against administrative action (maladministration) and recommends remedies, without being a court. The institution protects citizens against bureaucratic injustice, arbitrariness, delay and corruption.

Essential features:

• Independence from the executive and being appointed by (and accountable to) the legislature.

• Impartiality and non-partisan nature.

• Accessibility to citizens: low-cost, informal, simple procedure.

• Investigative power: access to files and officials.

• Recommendatory power: most Ombudsmen cannot overturn decisions or enforce remedies; they rely on persuasion, publicity and reporting to the legislature ("sunlight as a disinfectant").

• Jurisdiction over maladministration rather than merits of policy; exclusion of matters before courts and policy decisions.

• Reports to the legislature: annual and special.

Types: classical/parliamentary Ombudsman; executive Ombudsman; hybrid (human rights and administrative); organisational and sectoral Ombudsman (banking, insurance, police, military, children, consumer).

Global spread: Sweden (1809); Finland (1919); Denmark (1955); Norway (1962); New Zealand (1962), the first in the Commonwealth, with Sir Guy Powles as the first Ombudsman; the UK (1967); Tanzania; Canada's provinces from 1967; and many others. The International Ombudsman Institute was founded in 1978.

• Origins: The idea traces to King Charles XII (1713), who created the "Highest Ombudsman" (Högste Ombudsmannen) while in exile in Bender (Turkey) after the Battle of Poltava, to supervise officials. It was later renamed the Chancellor of Justice (Justitiekanslern) in 1719 (an executive office appointed by the Government that continues today).

• Modern Parliamentary Ombudsman (JO – Justitieombudsmannen): created by the Instrument of Government of 1809 (after the deposition of Gustav IV Adolf) as an officer of the Riksdag (Parliament), independent of the king, to supervise the application of laws by courts and officials. The first JO was Lars August Mannerheim (1809–10).

• Appointment: elected by the Riksdag. At present there are four Parliamentary Ombudsmen, one of whom is the Chief Parliamentary Ombudsman, for a term of four years (a legal provision in the Instrument of Government, Chapter 13, and the Act with Instruction for the Parliamentary Ombudsmen).

• Jurisdiction: the Ombudsmen supervise public authorities, courts, civil servants and employees of the State and municipalities, including the military and the police, to ensure that they observe laws and fulfil their obligations; the Ombudsmen do not usually supervise Members of Parliament and the Government ministers (who are subject to the Committee on the Constitution), or the Chancellor of Justice.

• Powers: to act on complaints or on their own initiative (suo motu); to carry out inspections of authorities; to have access to files and officials; to issue statements and opinions (criticism, advice); to initiate disciplinary action and prosecute officials for criminal offences in office (rarely used). They cannot overrule decisions; the effect rests on prestige and publicity.

• Public access to documents (offentlighetsprincipen) and the Freedom of the Press Act of 1766 (the world's oldest freedom of information law) give strength to the system.

• Other Swedish Ombudsmen: the Equality Ombudsman, Consumer Ombudsman, Children's Ombudsman, and the Data Protection Authority have separate mandates (executive ombudsmen).

• Significance: it is a model for the world; the Scandinavian model is parliamentary, investigative and informal.

• Background: The Whyatt Report (1961), by JUSTICE, recommended an Ombudsman-style institution for the UK. The Parliamentary Commissioner Act, 1967 created the Parliamentary Commissioner for Administration (PCA); the first PCA was Sir Edmund Compton (1967–71). It is now combined with the Health Service Commissioner as the Parliamentary and Health Service Ombudsman (PHSO) (the Health Service Commissioner was created in 1973).

• Appointment: by the Crown (on the recommendation of the Prime Minister, and the House of Commons has a say through select committee scrutiny); security of tenure like a High Court judge (removal by an address of both Houses).

• Jurisdiction: complaints about maladministration by central government departments and bodies listed in Schedule 2; Schedule 3 excludes certain matters, such as civil and criminal proceedings, personnel and contract matters, foreign affairs, and extradition. The Act does not define "maladministration"; the famous Crossman catalogue (Richard Crossman, Leader of the House of Commons, 1966) lists "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on".

• MP filter: the traditional rule that a complaint reaches the PCA only through a Member of Parliament (the "MP filter"), designed to preserve MPs' role; critics argue it limits accessibility, and reforms have been proposed.

• Procedure and powers: investigates in private; powers similar to the High Court in respect of summoning witnesses and the production of documents; injustice caused by maladministration is the test; reports to the MP and the department; can make recommendations but cannot compel; a special report may be laid before Parliament if the Government does not comply; the Public Administration Select Committee (PASC) scrutinises the work.

• Landmark examples: the Barlow Clowes affair (1988–89) (compensation to investors after the PCA's report found maladministration by the Department of Trade and Industry); the Debt of Honour (2005) (Second World War Far East prisoners); the Equitable Life report (2008, Equitable Life: A Decade of Regulatory Failure); and the Channel Tunnel Rail Link matter.

• Judicial attitude: R v Parliamentary Commissioner for Administration, ex p Balchin (1997) – the courts reviewed the Ombudsman's findings in respect of the Department of Transport; R (Bradley) v Secretary of State for Work and Pensions (2008) – the Government cannot reject the Ombudsman's findings without a rational and cogent reason; R (Equitable Members Action Group) v HM Treasury (2009) – the Government's decision to reject some recommendations was subject to review.

• Other UK Ombudsmen: Local Government Ombudsman (Local Government Act, 1974), now the Local Government and Social Care Ombudsman; Scottish Public Services Ombudsman (2002); Public Services Ombudsman for Wales (2005); Northern Ireland Ombudsman; Financial Ombudsman Service (2000); and other sectoral schemes.

Background

• The concept entered Indian discourse in the early 1960s. Dr. L.M. Singhvi coined the terms "Lokpal" and "Lokayukta" (1963). The Administrative Reforms Commission (ARC, 1966–70), chaired first by Morarji Desai and then by K. Hanumanthaiya, recommended in its report on Problems of Redress of Citizens' Grievances (1966) the creation of two special authorities: Lokpal (at the Centre) and Lokayuktas (in the States), for complaints against ministers and administrators.

• The Lokpal Bill was first introduced in 1968 (Lok Sabha) and lapsed; it was reintroduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005, 2008 and 2011 without success. The 2011 India Against Corruption movement (Anna Hazare) accelerated its passing.

• The Lokpal and Lokayuktas Act, 2013 received Presidential assent on 1 January 2014, and came into force on 16 January 2014.

Key Provisions of the Lokpal and Lokayuktas Act, 2013

• Composition: a Chairperson and up to eight members, of whom 50% must be judicial members; 50% of members must be from the SC, ST, OBC, minorities and women.

• Chairperson: a former Chief Justice of India, or a former Supreme Court judge, or an eminent person with impeccable integrity and outstanding ability, with at least 25 years of expertise in anti-corruption policy, public administration, vigilance, finance, law and management.

• Selection Committee: the Prime Minister (Chairperson); the Speaker of the Lok Sabha; the Leader of Opposition in the Lok Sabha; the Chief Justice of India (or a judge nominated by him); and an eminent jurist nominated by the President on the recommendation of the other four.

• Term: five years or till the age of 70, whichever is earlier.

• Jurisdiction: the Prime Minister (with exceptions for allegations relating to international relations, external and internal security, public order, atomic energy and space; and a special procedure requiring a full bench and a two-thirds majority for inquiry; proceedings in camera), Ministers, Members of Parliament, Group A–D officials and officers of the Central Government, and persons in entities funded or controlled by the Government or receiving foreign contributions above a threshold under the FCRA. The judiciary is not covered.

• Wings: an Inquiry Wing (preliminary inquiry) and a Prosecution Wing; the Lokpal can superintend the CBI in cases referred by it; the preliminary inquiry must usually be completed in 90 days; the investigation in six months; special courts are to try cases within a time limit; there is provision for attachment of assets from corruption; a complaint should be made within seven years of the alleged offence.

• Lokayuktas: the Act requires States to establish Lokayuktas within one year of commencement (Section 63), but allows States to determine the structure and the powers; so the structure varies.

• First Lokpal: Justice Pinaki Chandra Ghose (a retired Supreme Court judge) was appointed the first Chairperson in March 2019, five years after the Act. The 2016 amendment relaxed the requirement of public servants to declare assets. (Justice A.M. Khanwilkar was later appointed Chairperson in 2024.)

State Lokayuktas

• Maharashtra was the first State to establish the institution (Lokayukta and Upa-Lokayuktas Act, 1971, operational from 1972). Orissa passed an Act in 1970, but it lapsed and was not in force at the time. Others: Rajasthan (1973), Bihar (1974), Uttar Pradesh (1975), Madhya Pradesh (1981), Karnataka (1984 – considered strongest), Gujarat (1986), Delhi (1996), Kerala (1999), etc.

• Variation: in appointment, jurisdiction (whether the Chief Minister is covered), and powers (investigative or advisory). The Karnataka Lokayukta has police powers and is considered effective.

Related Institutions in India

• Central Vigilance Commission (CVC): set up in 1964 on the recommendation of the Santhanam Committee; statutory since the CVC Act, 2003.

• CBI (Delhi Special Police Establishment Act, 1946); Central and State Information Commissions (Right to Information Act, 2005); Banking Ombudsman Scheme (1995) (now integrated under the RBI's Integrated Ombudsman Scheme, 2021); Insurance Ombudsman (1998); Income Tax Ombudsman; National and State Human Rights Commissions (Protection of Human Rights Act, 1993).