PESA Act (The Panchayats Extension to the Scheduled Areas)

Context:

One Day National Conference was organized on the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) to celebrate 25th year of PESA Act, as part of Azadi Ka Amrit Mahotsav.

Background to PESA Act

PESA is a law enacted by Government of India to cover the “Scheduled Areas”, which are not covered in the 73rd Constitutional amendment.

This particular act extends the provisions of Part IX to the Scheduled Areas of the country. PESA brought powers further down to the Gram Sabha level.

The Gram Sabha in the Panchayat Act were entrusted with wide ranging powers starting from consultation on land acquisition to that of ownership over minor forest produces and leasing of minor minerals.

PESA became operative at a time when Indian economy was opening up all its frontiers to foreign direct investment. The mining sector, which is mostly located in the scheduled areas of the country where PESA operates, were made open to MNCs and the Indian Corporate sector for exploitation of mineral resources at a throwaway price.

One of the highlighting features of PESA is its suggestion that, every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution

The salient features of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA):

• Legislation on Panchayats shall be in conformity with the customary law, social and religious practices and traditional management practices of community resources.
• Habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs shall have a separate Gram Sabha.
• Every Gram Sabha should be empowered to safeguard and preserve the traditions and customs of their people, their cultural identity, community resources and the customary mode of dispute resolution.
• The Gram Sabhas have roles and responsibilities in approving all developmental works in the village such as identifying beneficiaries, issuing certificates of utilization of funds, powers to control institutions and its functionaries in all social sectors and local plans.
• Gram Sabhas or Panchayats at appropriate level shall also have powers to manage minor water bodies; mandatory consultation in matters of land acquisition; resettlement and rehabilitation and prospecting licenses/mining leases for minor minerals; power to prevent alienation of land and restore alienated land; regulate and restrict the sale/ consumption of liquor; manage village markets, control money lending to STs; and ownership of minor forest produce.
• The provisions of Panchayats with certain modification and exceptions have been extended to the Schedule V areas viz. the ten States where the Panchayats exists in the country including Andhra Pradesh. A list of ten States has been annexed.
• Gram Sabhas have been constituted in every State as per the Panchayat Raj Act/PESA Rule of the concerned State. Only four States have framed their Rules for implementation of PESA. These are, Andhra Pradesh, Himachal Pradesh, Maharashtra and Rajasthan.

FEATURES OF THE ACT

• A state legislation on the Panchayats in the Scheduled Areas shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources.
• A village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs.
• Every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level.
• Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.
• Every Gram Sabha shall–
• Approve of the plans, programmes and projects for social economic development before they are taken up implementation by the Panchayat at the village level;
• Be responsible for the identification of beneficiaries under poverty alleviation and other programmes.
• Every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds for the above plans, programmes and projects.
• The reservation of seats in the Scheduled Areas in every Panchayat shall be in proportion to the population of the communities for whom reservation is sought to be given under Part IX of the Constitution. The reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats. Further, all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes.
• The state government may nominate such Scheduled Tribes which have no representation in the Panchayat at the intermediate level or the Panchayat at the district level. But such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat.
• The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas. However, the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the state level.
• Planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate level.
• The recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas.
• The prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of concession for the exploitation of minor minerals by auction.
• While endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with–
• the power to enforce prohibition or to regulate or restrict the and consumption of any intoxicant
• the ownership of minor forest produce
• the power to prevent alienation of land in the Scheduled A and to take appropriate action to restore any unlawfully alien land of a Scheduled Tribe
• the power to manage village markets
• the power to exercise control over money lending to Scheduled Tribes
• the power to exercise control over institutions and functionary all social sectors
• the power to control local plans and resources including tribal sub-plans
• The State Legislations shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha.
• The State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.
• Any provision of any law (relating to Panchayats in the Scheduled Areas) which is inconsistent with the provisions of this Act shall cease to be in force at the expiry of one year from the date on which this Act receives the assent of the President .
• However, all the Panchayats existing immediately before such date shall continue till the expiry of their term, unless dissolved by the State Legislature sooner.

Significance

• It aimed to decentralise power and empower indegneous communities, paving the way for participatory democracy & envisaged that each tier of the local governance is independent.
  • It is based on the cardinal principle of governance that human communities are the best agency to handle most of their survival challenges, manage their affairs and progress towards growing emancipation through the instrumentality of participatory deliberative democracy.
• It also calls for creating the appropriate levels of Panchayats similar to 6^th Schedule Area, where the administrative boundaries are autonomous enough for self-rule.
• The act is constructed around the Gandhian concept of Gram Swaraj which was included in the Constitution as Article 40 (organisation of village panchayats) and came alive only when PESA was adopted.
• While the 73^rd Amendment, which inserted Article 243, made the terms Gram (village) and Gram Sabha (village assembly) a part of the Constitution for the first time, PESA gave shape to the concept of self governance, by devolving power and authority to them.
• Hence the first substantive section of PESA begins with the legal presumption that the ‘Gram Sabha’ is ‘competent’ and calls upon the state governments to ensure legal, procedural and administrative empowerment as a means of deepening democracy.
• The principle that underlies PESA has two corollaries in relation to development namely
  • Any community can best decipher advancement and modernity when it is grounded in the strength of its own culture and way of life.
  • Any community can negotiate both advancement and modernity only when it is founded on the bedrock of its own culture and way of life.
• Its provisions appeared to come as a saviour that is designed to erase the historical injustice done to the tribal community and was perceived as restoration of their dignity and tradition of self-governance.

PROBLEMS WITH PESA Act

• Dilution of role of Tribal Advisory Councils:PESA comes under the Fifth Schedule, which mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra constitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised.
• However, the councils, with the CHIEF MINISTER as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments’ policies.
• The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses.
• Lack of coordination at Centre:Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of PANCHAYAT RAJ and the Ministry of Tribal Affairs, have an overlapping influence on the implementation of PESA and they function almost without any coordination.
• Lack of operationalization:In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests that the state governments are reluctant to operationalize the PESA mandate.
• Ignoring the spirit of PESA:The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realised. For instance, the premise in PESA that state legislations on Panchayats shall be in consonance with customary laws and among other things traditional management practices of community resources is ignored by most of the state laws.
• Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books. The states in their conformity legislations have also not defined the term leading to ambiguity and scope of interpretation by the bureaucracy.

Challenges

• The act has now been termed “toothless” with the erosion of its spirit.
• Till now 40 per cent of States have not formulated necessary rules regarding PESA which highlights the apathetic attitude of the state governments towards it.
  • Four states (Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha) have not even framed the rules for the implementation of the act yet.
  • Not a single state has currently amended the Panchayat Raj Act as required as per PESA.
  • Even in the states where the rules were formulated, they performed quite poorly on ensuring their implementation.
• After enacting PESA, the Union Government brought several other legislations and included many provisions of PESA into these laws, shadowing its purpose and significance.
  • For instance, the Land Acquisition Act, 2013 empowered Gram Sabhas immensely.
  • Similarly, the Forest Right Act, 2006 has provisions of PESA and now when people need to protect their rights and resources, they look up to these laws.
• Violations of the self-governance aspects of the Gram Sabhas with respect to customary resources, minor forest produce, minor minerals, minor water bodies, selection of beneficiaries, sanction of projects and control over local institutions continue.
  • Currently, no Gram Sabha can function without going through revenue officers at various levels and in a majority of cases, required sanctions are denied by inordinate delays or outright refusals.
  • No stretch of common property can in any way be rightfully owned and controlled by any village, communities, groups, or people.
  • And the gram sabha’s power to accord such ownership is never recognised.
• While the constitution of Gram Sabhas was made mandatory in states, the powers and functions of the Gram Sabhas have been left to the discretion of the state legislatures. As a result, different states have developed powers and functions for this body differently.
  • From the land acquired and the clearing of villages for the Statue of Unity in Gujarat, where 121 villages were notified for the project in a blatant disregard for PESA.
  • Another example was the criminalisation of the Pathalgadi movement, wherein Adivasis erected stone slabs to demarcate the area of their villages.
• PESA laws of maintenance of autonomy and tribal culture remained obscure.
  • The infringement of the provisions of PESA outlined with it a disregard for the rights of forest-dwellers, mostly tribal communities which constitute around nine per cent of India’s population.
• Violations of the Act and its dilution highlights a pattern of developments which show the Centre and states’ lack of commitment towards strengthening of gram sabhas. 
  • Instead there has been a push for corporate entry and control of resources, making it easier to surpass gram sabha consent.
• The biggest challenge is the degradation of the spirit of PESA as the formulation of rules did not take place for varied reasons giving rise to increased conflict.
  • The traditional Gram Sabhas and the State structured Panchayats are in conflict with one another.

Way Forward

• PESA, if it is implemented in letter and spirit, will rejuvenate the dying self-governance system in the tribal area.
• This will also give an opportunity to correct the loopholes in the traditional governance system and make it a more gender-inclusive and democratic space.

Source: PIB

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