Chanderprabhu Jain College of Higher Studies

&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

E-Notes

Class : B.A.LL.B IV Sem A+B+C

Paper Code : LLB-208

Subject : Administrative Law

Faculty Name : Ms. Arpita Sehgal

Unit-4
a. Need for Devolution of Adjudicatory Authority on Administration
Due to the complexity of socio-economic conditions which the administration in modern times
has to contend with, it is realized that a government having only ministerial duties with no
discretionary functions will be extremely rigid and unworkable and that, too some extent,
officials must be allowed a choice as to when, how, and whether they will act. The reason for
this attitude is that, more often than not, the administration is required to handle intricate
problems which involve investigation of facts, making of choices and exercise of discretion
before deciding what action has to be taken. Therefore, the modern tendency is to leave a large
amount of discretion with various authorities. Statute books are now full of provisions giving
discretion of one kind or the other to the government or officials for various purposes. The need
for ‘discretion’ arises because of the necessity to individualize the exercise of power by the
administration, i.e. the administration has to apply a vague or indefinite statutory provision from
case to case. Following are some good reasons for conferring discretion on administrative
authorities : (a) The present day problems which the administration is called upon to deal with
are of complex and varying nature and it is difficult to comprehend them all within the scope of
general rules; (b) Most of the problems are new, practically of the first impression. Lack of any
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

previous experience to deal with them does not warrant the adoption of general rules; (c) It is not
always possible to foresee each and every problem but when a problem arises it must in any case
be solved by the administration in spite of the absence of specific rules applicable to the
situation; (d) Circumstances differ from case to case so that applying one rule mechanically to all
cases may itself result in injustice. However, from the point of view of the individual, there are
several disadvantages in the administration following the case to case approach as compared to
with the adoption of a general rule applicable to all similar cases. First, whereas case to case
decisions operate on the past facts, a general rule usually avoids retroactivity and operates in
future so that one has prior notice of the rules and thus may regulate his conduct accordingly. In
case to case approach, the individual may be caught by surprise and may not be able to adjust his
affairs in the absence of his ability to foresee future administrative action. Second, the case to
case approach involves the danger of discrimination amongst various individuals; there arises a
possibility of not getting like treatment under like circumstances. Third, the process is time
consuming and involves decision in a multiplicity of cases. Moreover, there is a danger of abuse
of discretion by administrative officials. In view of these disadvantages, a general rule is to be
preferred to the case to case approach and ought to be adopted wherever possible. It is desirable
to have administrative uniformity to the extent possible, because, as a matter of general principle,
substantial lack of uniformity would lead not only to administrative chaos but also to collapse of
public confidence in administrative fairness. In any individual case, it is highly relevant to take
into account what has been done in other cases of a similar nature, otherwise a decision may
result which could be regarded as being improper or discriminatory. This objective can be
advised by several ways. First, law conferring discretion may itself seek to lay down the
elements and standards which the authority has to apply in exercising its discretion and selecting
a course of action. This means that the degree of discretion should be restricted by law itself as
far as possible, or, in other words discretion should be properly “confined and structured”.
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

Second, if a statute leaves a large amount of discretion in the hands of administration, the
administration itself lay down criteria with respect to which the discretion is to be exercised. It
would help in predicting administrative decision in individual cases, making individual’s rights
somewhat certain and reducing chances of abuse of administrative discretion. It would also help
in uniform application of the law in a large number of cases which may have to be handled,
especially when a number of parallel and co-equal administrative authorities have to cope with
cases arising under a particular scheme. Third, on a lower plane, to some extent administrative
discretions and norms of practice can be used, instead of the rules, for the purpose of achieving
uniformity in discretionary decisions, but these should be resorted to only when the scheme is
too much in an experimental stage and constant adjustment may have to be made for some time
to come otherwise rules are preferable to directions as they can be enforced judicially. But it
needs to be emphasized that while laying down standards make the discretion somewhat less
than absolute, no amount of rules or directions can really eliminate the need for discretion
because administration functions in a very broad area and individual cases and situations are
bound to arise which may fall outside the guiding norms and the administration will have to take
some decision therein. Not all acts of the administration can be bound by fixed rules. Many a
times, it may not be possible to prescribe it intelligible standards for the administration to follow.
All these factors make it inevitable that discretion be vested in the administration to take care of
individual cases. But it also brings in the question of judicial and other control over discretionary
powers.
b. Judicial Review of Administrative Action and Grounds of Judicial Review
There has been tremendous growth in the administrative process. This is quite natural in a
welfare state as a welfare state is basically an administrative state. So expansion in the
administrative power is a consequence of the concept of welfare state., according to Professor
Wade, ' All legal power as opposed to duty, is inevitably discretionary to a greater or lesser
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

extent.' So, in order to maintain rule of law it is absolutely necessary to control this discretionary
element in the administrative power. The judicial control over the administrative action becomes
imperative. There are two types of remedies against the administrative wrongs – private law
remedy of suit and judicial review through writs. Civil law remedy could be effective if the
procedure is simple cheap and expeditious, which is not so in India. Therefore, this remedy is not
effective against the administration. There is tremendous scope For this remedy in administrative
matters since it lies at the door-step of a litigant. It is the public law remedy of judicial review
through writs which is very effective and expeditious, though it is costly as only High Courts and
the Supreme Court have the power to issue these writs. The power of judicial review is a
supervisory power and not a normal appellate power against the decisions of administrative
authorities. The recurring theme of the Supreme Court’s decision relating to nature and scope of
judicial review is that it is limited to consideration of legality of decision making process and not
legality of order per se. That mere possibility of another view cannot be a ground of interference.
Powers of the Supreme Court The Power of judicial review is a constitutional power since it is
the Constitution which invests these powers in the Supreme Court and the High Courts in the
States. So far the Supreme Court is concerned the relevant Articles are 32 with Articles 12 and
13 and Article 136. Article 32 empowers the Supreme Court to issue directions, orders or writs
(which are specifically mentioned therein) for the enforcement of fundamental rights. What is
unique about Article 32 is that the right to move the Supreme Court under this Article is itself a
Fundamental Right. Thus the Supreme Court is made guarantor or protector of the fundamental
rights. The Supreme Court has further expanded the scope of this Article even in cases where no
fundamental right is involved. In M.C.Mehta v. Union of India, it was held that where a person
manipulated facts in order to get a decree by a court to defeat the ends of justice, in such a
situation petition was held to be maintainable under Article 32. Though Article 32 is called
cornerstone of the democratic edifice, it becomes inconvenient for the Supreme Court to
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

entertain petitions under original jurisdiction since it could overload the court. Therefore,
sometimes the Supreme Court suggests that the petitioner should first approach the High Court
under Article 226 before coming to the Supreme Court under Article 32. Article 136-A Special
Power of Judicial Review Under Article 136, the Supreme Court may grant special leave to
appeal against any decision of a Tribunal. What is a Tribunal is not defined, but the Supreme
Court has interpreted it in a liberal way. A tribunal is a body or authority which is vested, with
judicial power to adjudicate on question' of law or fact, affecting the rights of citizens in a
judicial manner. Such authorities or bodies must have been constituted by the state and vested
with judicial as distinguished from administrative or executive functions. Article 136 does not
confer a right of appeal as such but a discretionary power on the Supreme Court to grant special
leave to appeal. The Supreme Court has held that even in cases where special leave is granted,
the discretionary power continues to remain with the court even at the stage when the appeal
comes up for hearing. Generally, the court does not, grant special leave to appeal, unless it is
shown that exceptional and special circumstance exist, that substantial and grave injustice has
been done and the case in question presents sufficient gravity to warrant a review of the decision
appealed against. It confers a very wide discretion on the Supreme Court to be exercised for
satisfying the demands of justice. Powers of the High Courts Article 226 (1) empowers the High
Courts in the States or Union Territories to issue to any person or authority including any
Government within their territories, directions, orders or writs for the enforcement of the
fundamental rights or for any other purpose. The power of judicial review of the High Court
under Article 226 is wider than the Supreme Court’s power under Article 32 of the Constitution.
The expression 'for any other purpose' enables the High Court to exercise their power of judicial
review for the enforcement of ordinary legal rights which are not fundamental rights. High Court
can issue a writ to a person or authority not only when it is within the territorial jurisdiction of
the court but also when it is outside its jurisdiction provided the cause of action wholly or partly
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

arises within its territorial jurisdiction. This power of the High Court under Article 226 is
concurrent with the power of the Supreme Court under Article 32 of the Constitution. Article 227
clause (1) confers the power of 'superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction. However, this power does not extend, like
Article 136, over any court or tribunal constituted under any law relating to the Armed Forces.
This power is in addition to the power conferred upon the High Court under Article 226 which is
of a judicial nature. Is this power of superintendence, administrative or judicial? Under the
Government of India Act, 1935 this power extended only to the courts and was of administrative
nature only. Under the Constitution it is extended to the tribunals and section 224 (2) of the
Government of India Act, 1935, which made it of administrative nature, was not retained in
Article 227. Therefore, the power of superintendence under Article 227 is of an administrative as
well as judicial nature. The parameters of this power are well settled and it is exercised on the
same grounds as the power of judicial review. They are: (i)It can be exercised even in those cases
where no appeal or revision lies to the High Court; (ii) The power should not ordinarily be
exercised if any other remedy is available even if it involved inconvenience or delay. (iii) The
power is available where there is want or excess of jurisdiction, failure to exercise jurisdiction
violation of principles of natural justice and error of law apparent on the face of the record; (iv)In
the exercise of this power the High Court does not act as appellate tribunal. It does not invest the
High Court with an unlimited prerogative to interfere in cases where wrong decisions have been
arrived at by judicial or quasi-judicial tribunals on questions of law or fact. There has to be grave
miscarriage of justice or flagrant violation of law calling for interference. Administrative
Discretion and fundamental rights: No law can clothe administrative discretion with a complete
finality, for the courts always examine the ambit and even the mode of its exercise for the angle
of its conformity with fundamental rights. The fundamental rights thus provide a basis to the
judiciary in India to control administrative discretion to a large extent. There have been a number
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

of cases in which a law, conferring discretionary powers, has been held violative of a
fundamental right. The following discussion will illustrate the cases of judicial restraints on the
exercise of discretion in India. Administrative Discretion and Article 14: Article14 prevents
arbitrary discretion being vested in the executive. Equality is antithetic to arbitrariness. Article
14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. Right to
equality affords protection not only against discretionary laws passed by legislature but also
prevents arbitrary discretion being vested in the executive. Often executive or administrative
officer or Government is given wide discretionary power. In a number of cases, the Statute has
been challenged on the ground that it conferred on an administrative authority wide discretionary
powers of selecting persons or objects discriminately and therefore, it violated Article 14. The
Court in determining the question of validity of such statute will examine whether the statute has
laid down any principle or policy for the guidance of the exercise of discretion by the
Government in the matter of selection or classification. The Court will not tolerate the delegation
of uncontrolled power in the hands of the Executive to such an extent as to enable it to
discriminate. Under Article 19: Article 19 guarantees certain freedoms to the citizens of India,
but they are not absolute. Reasonable restrictions can be imposed on these freedoms under the
authority of law. They cannot be contended merely on executive action. The reasonableness of
the restrictions is open to judicial review. These freedoms can also be afflicted by administrative
discretion. Such cases can be examined below. A number of cases have come up involving the
question of validity of law conferring discretion on the Executive to restrict the right under
Article 19(1) (b) and (e). The State has conferred powers on the Executive to extern a person
from a particular area in the interest of peace and safety in a number of statutes. Under Article
31(2): Article 31(2) of the Constitution provided for acquisition of private property by the
Government under the authority of law. It laid down two conditions, subject to which the
property could be requisitioned _1) that the law provided for an amount (after 25th Amendment)
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

to be given to the persons affected, which was non-justifiable; and (2) that the property was to be
acquired for a public purpose. In an early case, where the law vested the administrative officer
with the power to acquire estates of food grains at any price, it was held to be void on the
grounds, inter alia, that it failed to fix the amount of compensation or specify the principles, on
which it could be determined. Since the matter was entirely left to the discretion of the officer
concerned to fix any compensation it liked, it violated Article 31(2). The property under Article
31(2) could be acquisitioned for a public purpose only. The Executive could be made the sole
judge to decide a public purpose. No doubt, the Government is in best position to judge as to
whether a public purpose could be achieved by issuing an acquisition order, but it is a justifiable
issue and the final decision is with the courts in this matter. Hence, in India the administrative
discretion may be reviewed by the court on the following grounds.
1. Abuse of discretion
These days, the administrative authorities are conferred wide discretionary powers. There is a
great need of their control so that they may not be misused. The discretionary power is required
to be exercised according to law. When the mode of exercising a valid power is improper or
unreasonable there is an abuse of power. The abuse of the discretionary power is inferred in the
following conditions: i) Use for improper purpose: - The discretionary power is required to be
used for the purpose for which it has been given. If it is given for one purpose and used for
another purpose. It will amount to abuse of power.
ii) Malafide or Bad faith: - If the discretionary power is exercised by the authority with bad faith
or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary
power is always bad and taken as abuse of discretion. Malafide may be taken to mean dishonest
intention or corrupt motive. In relation to the exercise of statutory powers it may be said to
comprise dishonesty (or fraud) and malice. A power is exercised fraudulently. If its repository
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

intends to achieve an object other than that for which he believes the power to have been
conferred. The intention may be to promote another public interest or private interest.
iii) Irrelevant consideration: - The decision of the administrative authority is declared void if it is
not based on relevant and germane considerations. The considerations will be irrelevant if there
is no reasonable connection between the facts and the grounds.
iv) Leaving out relevant considerations: - The administrative authority exercising the
discretionary power is required to take into account all the relevant facts. If it leaves out relevant
consideration, its action will be invalid.
v)Mixed consideration: - Sometimes the discretionary power is exercised by the authority on
both relevant and irrelevant grounds. In such condition the court will examine whether or not the
exclusion of the irrelevant or non-existent considerations would have affected the ultimate
decision. If the court is satisfied that the exclusion of the irrelevant considerations would have
affected the decision, the order passed by the authority in the exercise of the discretionary power
will be declared invalid but if the court is satisfied that the exclusion of the irrelevant
considerations would not be declared invalid.
vi)Unreasonableness: - The Discretionary power is required to be exercised by the authority
reasonably. If it is exercised unreasonably it will be declared invalid by the court. Every
authority is required to exercise its powers reasonably.
vii) Colourable Exercise of Power: - Where the discretionary power is exercised by the authority
on which it has been conferred ostensibly for the purpose for which it has been given but in
reality for some other purpose, it is taken as colorable exercise of the discretionary power and it
is declared invalid.
viii) Non-compliance with procedural requirements and principles of natural justice: - If the
procedural requirement laid down in the statute is mandatory and it is not complied, the exercise
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

of power will be bad. Whether the procedural requirement is mandatory or directory is decided
by the court. Principles of natural justice are also required to be observed.
ix) Exceeding jurisdiction: - The authority is required to exercise the power within the limits or
the statute. Consequently, if the authority exceeds this limit, its action will be held to be
ultravires and, therefore, void.
2. Failure to exercise discretion
In the following condition the authority is taken to have failed to exercise its discretion and its
decision or action will be bad.
i)Non-application of mind: - Where an authority is given discretionary powers it is required to
exercise it by applying its mind to the facts and circumstances of the case in hand. If he does not
do so it will be deemed to have failed to exercise its discretion and its action or decision will be
bad.
ii) Acting under Dictation: - Where the authority exercises its discretionary power under the
instructions or dictation from superior authority. It is taken, as non-exercise of power by the
authority and its decision or action is bad. In such condition the authority purports to act on its
own but in substance the power is not exercised by it but by the other authority. The authority
entrusted with the powers does not take action on its own judgment and does not apply its mind.
iii) Imposing fetters on the exercise of discretionary powers: - If the authority imposes fetters on
its discretion by announcing rules of policy to be applied by it rigidly to all cases coming before
it for decision, its action or decision will be bad. The authority entrusted with the discretionary
power is required to exercise it after considering the individual cases and if the authority imposes
fetters on its discretion by adopting fixed rule of policy to be applied rigidly to all cases coming
before it, it will be taken as failure to exercise discretion and its action or decision or order will
be bad.
3. Illegality, Irrationality, Procedure Impropriety
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

Illegality A decision may be illegal for many different reasons. There are no hard and fast rules
for their classification, but the most common examples of cases where the courts hold
administrative decisions to be unlawful are the following:
• The decision is made by the wrong person (unlawful sub-delegation)
• Jurisdiction: Error of law or error of fact
• The decision maker went beyond their power: ultra vires
• Ignoring relevant considerations or taking irrelevant considerations into account
• Fettering discretion
Irrationality Under Lord Diplock's classification, a decision is irrational if it is "so outrageous in
its defiance of logic or of accepted moral standards that no sensible person who had applied his
mind to the question could have arrived at it.
Procedural impropriety A decision suffers from procedural impropriety if in the process of its
making the procedures prescribed by statute have not been followed or if the "rules of natural
justice" have not been adhered to.
c. Doctrine of Legitimate Expectations
Legitimate expectation as ground of judicial review The concept of legitimate expectation in
administrative law has nowadays, undoubtedly, gained sufficient importance. These days the
courts resort to legitimate expectation for the review of administrative action and this creation
takes its place besides such principles as the rules of natural justice, unreasonableness, the
fiduciary duty of local authorities and in future, perhaps, the unreasonableness, the
proportionality. Legitimate expectation gives the applicant sufficient locus standi for judicial
review. The doctrine of legitimate expectation is to be confined mostly to right of fair hearing
before a decision, which results in negative a promise, or withdrawing an undertaking is taken.
The doctrine does not give scope to claim relief straightaway from the administrative authorities
as no crystallized right as such is involved. The protection of such legitimate does not require the
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

fulfillment of the expectation where an overriding public interest requires otherwise. A case of
legitimate expectation would arise when a body by representation or by past practice aroused
expectation, which it would be within its powers to fulfill. The protection is limited to that extent
and a judicial review can be within those limits. A person, who bases his claim on the doctrine of
legitimate expectation, in the first instance, must satisfy that there is foundation and thus he has
locus standi to make such a claim. There are stronger reasons as to why the legitimate
expectation should not be substantively protected than the reason as to why it should be
protected. If a denial of legitimate expectation in a given case amounts to denial of right
guaranteed or arbitrary, discriminatory unfair or biased, gross abuse of power or violation of
principles of natural justice, the same can be questioned on the well known grounds attracting
Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso
facto give a right to invoke these principles. It can be one of the grounds to consider but the court
must lift the veil and see whether the decision is violative of these principles warranting
interference. It depends much on the facts and the concept of legitimate expectation for the
review of administrative action, must be restricted to the general legal limitations applicable and
binding the manner of the future exercise of administrative power in a particular case.
d. Evolution of Concept of Ombudsmen
Use of the term began in Sweden, with the Swedish Parliamentary Ombudsman instituted by the
Instrument of Government of 1809, to safeguard the rights of citizens by establishing a
supervisory agency independent of the executive branch. The predecessor of the Swedish
Parliamentary Ombudsman was the Office of Supreme Ombudsman ("Högste Ombudsmannen"),
which was established by the Swedish King, Charles XII, in 1713The Parliamentary
Ombudsman is the institution that the Scandinavian countries subsequently developed into its
contemporary form, and which subsequently has been adopted in many other parts of the world.
The word ombudsman and its specific meaning have since been adopted in various languages,
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

including Spanish, Dutch and Czech. The German language uses Ombudsmann, Ombudsfrau and
Ombudsleute. Notable exceptions are French and Finnish, which use translations instead.
Modern variations of this term include "ombud," "ombuds," "ombudsperson," or
"ombudswoman," and the conventional English plural is ombudsmen. An ombudsman or public
advocate is usually appointed by the government or by parliament, but with a significant degree
of independence, who is charged with representing the interests of the public by investigating
and addressing complaints of maladministration or a violation of rights. In some nations an
Inspector General, Citizen Advocate or other official may have duties similar to those of a
national ombudsman, and may also be appointed by a legislature. Below the national level an
ombudsman may be appointed by a state, local or municipal government. Unofficial ombudsmen
may be appointed by, or even work for, a corporation such as a utility supplier, newspaper,
NGO, or professional regulatory body. The typical duties of an ombudsman are to investigate
complaints and attempt to resolve them, usually through recommendations (binding or not) or
mediation. Ombudsmen sometimes also aim to identify systematic issues leading to poor service
or breaches of people's rights. At the national level, most ombudsmen have a wide mandate to
deal with the entire public sector, and sometimes also elements of the private sector (for
example, contracted service providers). In some cases, there is a more restricted mandate, for
instance, with particular sectors of society. More recent developments have included the creation
of specialized Children's Ombudsman and Information Commissioner agencies. In some
jurisdictions an ombudsman charged with handling concerns about national government is more
formally referred to as the "Parliamentary Commissioner" (for e.g. the United Kingdom
Parliamentary Commissioner for Administration, and the Western Australian state Ombudsman).
In many countries where the ombudsman's responsibility includes protecting human rights, the
ombudsman is recognized as the national human rights institution. The post of ombudsman had
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

by the end of the 20th century been instituted by most governments and by some
intergovernmental organizations such as the European Union.
e. Lokpal and Lokayukta Act and other Anti corruption bodies and their Administrative
Procedures
Lokpal and Lokayukta
The Indian Lokpal is synonymous to the institution of Ombudsman existing in the Scandinavian
countries. The office of the ombudsman originated in Sweden in 1809 AD, and adopted
eventually by many nations as a bulwark of democratic government against the tyranny of
officialdom. Ombudsman is a Swedish word that stands for an officer appointed by the
legislature to handle complaints against administrative and judicial action. Traditionally the
ombudsman is appointed based on unanimity among all political parties supporting the proposal.
The incumbent, though appointed by the legislature, is an independent functionary-independent
of all the three organs of the state, but reports to the legislature. The Ombudsman can act both on
the basis of complaints made by citizens, or suo moto. It can look into allegations of corruption
as well as mal-administration. The existing devices for checks on elected and administrative
officials have not been effective, as the growing instances of corruption cases suggest. The
Central Vigilance Commission is designed to inquire into allegations of corruption by
administrative officials only. The CBI, the premier investigating agency of the country, functions
under the supervision of the Ministry of Personnel Public Grievances and Pensions (under the
Prime Minister) and is therefore not immune from political pressures during investigation.
Indeed, the lack of independence and professionalism of CBI has been castigated by the Supreme
Court often in recent times. All these have necessitated the creation of Lokpal with its own
investigating team in earliest possible occasion. Hence, there is a need for a mechanism that
would adopt very simple, independent, speedy and cheaper means of delivering justice by
redressing the grievances of the people. Working of Ombudsmam in various countries suggests
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

that the institution of ombudsman has very successfully fought against corruption and
unscrupulous administrative decisions by public servants, and acted as a real guardian of
democracy and civil rights. The Lokpal In early 1960S, mounting corruption in public
administration set the winds blowing in favor of an Ombudsman in India too. The Administrative
Reforms Commission (ARC) set up in 1966 recommended the constitution of a two-tier
machinery of a Lokpal at the Centre, and Lokayukts in the states. The ARC while recommending
the constitution of Lokpal was convinced that such an institution was justified not only for
removing the sense of injustice from the minds of adversely affected citizens but also necessary
to instill public confidence in the efficiency of administrative machinery. Following this, the
Lokpal Bill was for the 1 first time presented during the fourth Lok Sabha in 1968, and was
passed there in 1969. However, while it was pending in the Rajya Sabha, the Lok Sabha was
dissolved, resulting the first death of the bill. The bill was revived in 1971, 1977, 1985, 1989,
1996, 1998, 2001 and most recently in 2004. Each time, after the bill was introduced to the
house, it was referred to some committee for improvements a joint committee of parliament, or a
departmental standing committee of the Home Ministry and before the government could take a
final stand on the issue the house was dissolved. The Lokpal was visualized as the watchdog
institution on ministerial probity. Broadly the provisions of different bills empowered the Lokpal
to investigate corruption cases against political persons at the Central level. The purpose of
Lokpal is to provide speedy, cheaper form of justice to people. Lokpal is to be a three member
body with a chairperson who is or has been a chief justice or judge of the Supreme Court; and its
two other members who are or have been judges or chief justices of high courts around the
country. In order to ensure the independence of functioning of the august office, the following
provisions have been incorporated:
• Appointment is to be made on the recommendation of a committee.
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

• The Lokpal is ineligible to hold any office of profit under Government of India or of any state,
or similar such posts after retirement.
• Fixed tenure of three years and can be removed only on the ground of proven misbehavior or
incapacity after an inquiry made by CJI and two senior most judges of SC
• Lokpal will have its own administrative machinery for conducting investigations.
• Salary of Lokpal is to be charged on the Consolidated Fund of India.
• PM relation to latters functions of national security and public order. Complaints of offence
committed within 10 years from the date of complaint can be taken up for investigation, not
beyond this period.
• Any person other than a public servant can make a complaint. The Lokpal is supposed to
complete the inquiry within a period of six months. The Lokpal has the power of a civil court to
summon any person or authority. After investigation, the ombudsman can only recommend
actions to be taken by the competent authority.
• He can order search and seizure operations.
• He shall present annually to the President the reports of investigation and the latter with the
action take report has to put it before the both houses of parliament.
• It may be noted that the Lokpal is supposed to investigate cases of corruption only, and not
address himself to redressing grievances in respect of injustices and hardship caused by
maladministration.

Lokayuktas in the States

The power, function and jurisdiction of Lokayuktas are not uniform in the country. In some
states it has been applicable to all the elected representatives including the CM. In some other
states legislators have been deliberately kept out of his purview. Lokayuktas have not been
provided with their independent investigative machinery making them dependent on the
 Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)

government agencies, which leaves enough scope for the politicians and the bureaucrats to tinker
with the processes of investigation. Central Bureau of Investigation The Central Bureau of
Investigation (CBI ) , functioning under Dept. of Personnel, Ministry of Personnel, Pension &
Public Grievances, Government of India, is the premier investigating police agency in India. It is
an elite force playing a major role in preservation of values in public life and in ensuring the
health of the national economy. It is also the nodal police agency in India which coordinates
investigation on behalf of Interpol Member countries. The CBI has to investigate major crimes in
the country having interstate and international ramifications. It is also involved in collection of
criminal intelligence pertaining to three of its main areas of operation, viz., Anti-Corruption,
Economic Crimes and Special Crimes. The Anti-Corruption Division of the CBI has handled
cases against Chief Ministers, Ministers, Secretaries to Government, Officers of the All India
Services, CMDs of Banks, Financial Institutions, Public Sector Undertakings, etc. CBI
investigations have a major impact on the political and economic life of the nation. The
following broad categories of criminal cases are handled by the CBI:
• Cases of corruption and fraud committed by public servants of all Central Govt. Departments,
Central Public Sector Undertakings and Central Financial Institutions.
• Economic crimes, including bank frauds, financial frauds, Import Export & Foreign Exchange
violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other
contraband items etc.
• Special Crimes, such as cases of terrorism, bomb blasts, sensational homicides, kidnapping for
ransom and crimes committed by the mafia/the underworld.
The CBI is headed by a Director. The other police ranks in CBI are Special Director/Addl.
Director, Joint Director, Dy. Inspr. General of Police, Inspector, Sub-Inspector, Assistant
Sub Inspector, Head Constable and Constable.