PESA Act

Need to implement Panchayat Extension to Scheduled Areas (PESA) Act, 1996 in Letter and Spirit

Context:

The Adivasi self-governance system has disappeared from most of the areas in Jharkhand. The PESA Act, an acronym for Panchayats (Extension to Scheduled Areas) Act, which was supposed to uphold the traditional decision-making process, has so far not been fully implemented in its true spirit.

Probable Question:

1. The Panchayats (Extension to Scheduled Areas) Act (1996) have established a framework for local self-governance in scheduled areas, yet their full implementation is fraught with many challenges. Critically analyse these challenges and suggest ways to overcome them.

About Panchayats (Extension to Scheduled Areas) Act 1996:

● Terms of the 73rd Amendment Act were not applicable to the areas inhabited by the Adivasi populations (5th Scheduled Areas) in many States. In 1996, a separate act known as PESA Act, 1996 was approved extending the provision of the Panchayat system to these areas.

● A lot of Adivasi communities have their traditional customs of managing frequent resources such as forests and small water reservoirs, etc. Hence, the new act protects the rights of these communities to manage their resources in ways suitable to them.

● For this purpose, more powers are devolved to the Gram Sabhas of these areas and elected village Panchayats to have to get the consent of the Gram Sabha in many respects. Local traditions of self-government must be protected while introducing modern elected bodies is the main idea behind this act.

● At present Scheduled V areas subsist in 10 States viz. Andhra Pradesh, Gujarat, Chhattisgarh, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Rajasthan, Odisha and Telangana. All the ten states have enacted requisite compliance legislation by amending the respective Panchayati Raj Acts.

● State legislation on the Panchayats in the Scheduled Areas could be in harmony with the customary law, social and religious practices and traditional management practices of community resources.

● The reservation for the Scheduled Tribes might not be less than one-half of the total number of seats. Further, all seats of Chairpersons of Panchayats at all levels might be reserved for the Scheduled Tribes.

● Those Panchayats which have no representation in the Panchayat at the intermediate level or the Panchayat at the district level, the state government can nominate Scheduled Tribes to it. But such nominations might not exceed one-tenth of the total members to be elected in that Panchayat.

● The State Legislature could undertake to follow the pattern of the 6thSchedule to the Constitution of India while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.

● PESA authorizes Gram Sabha/Panchayat at the appropriate level with-

➢ Right to compulsory consultation in land acquisition, resettlement and rehabilitation of displaced Communities.

➢ Panchayat at an appropriate level is trusted with planning and management of minor water bodies.

➢ Mandatory recommendation by Gram Sabha or Panchayat at the appropriate level for prospective licenses or leases for mines and concessions for the exploitation of minor minerals.

➢ Regulate sale or consumption of intoxicants.

➢ Ownership of minor forest produce.

➢ Prevent land alienation and restore alienated land.

➢ Manage village markets.

➢ Control over money lending to STs.

➢ Control over institutions and functionaries in the social sector, local plans including Tribal sub plans and resources.

Challenges:

In recent years, many reports — The “Report of Expert Group of the Planning Commission on Development Challenges in Extremist Affected Areas” (2008), the “Sixth Report of the Second Administrative Reforms Commission” (2007), the “Bhalchandra Mungekar Committee Report”(2009), etc — have clearly underlined the dismal situation of the implementation of PESA.

● The status of implementation in many states is inconsistent and is lacking uniformity across the states. In some states, most of the PESA provisions have not been incorporated into state laws.

● Many states formulated rules according to PESA provisions and created a framework for the panchayat system in Schedule V areas, but some major provisions were not fully incorporated in these rules. For example, the central PESA states that the gram sabha or panchayat at the appropriate level shall be consulted before acquiring land. While the Andhra Pradesh act has made the provisions to consult the Mandal (block) Parishad before acquiring land, the Jharkhand act has no provision in this regard.

● Provisions related to the powers of gram sabhas regarding land acquisition have been rampantly violated by many states.  There are many such examples where land has been acquired through false or forced consent in Schedule V areas.

● State and Central subject laws relating to mines and minerals, forests, land acquisition etc. are not PESA compliant.

● There is no provision for appeal against the decision of the Gram Sabha, which is not in conformity with the democratic process and introduces an element of absolute power, rather than checks and balances on the power of institutions.

Recommendations:

● Incorporate PESA provisions and reduce contradictions:

➢ The compliance of state laws with the provisions of PESA is still incomplete especially related to the most crucial provisions sections such as land acquisition, mining of minor minerals, prevention of land alienation of Scheduled Tribes are yet to be incorporated.

➢ Compliance and harmonization of state laws with PESA provisions need to be completed at the earliest. There is a need to harmonise the various legislations and government policies being implemented in tribal areas with the provisions of PESA.

➢ The relevant Central (e.g. Land Acquisition, Mines, Forest) & State (e.g. Panchayati Raj, Money Lending, Forest, Mining, Excise) laws still need to be amended in conformity with PESA.

● As per Section 4(b) of the PESA Act, the definition of a village implies a community that manages its affairs according to its own traditions and customs. This definition relates to ‘village’ not in an administrative sense but in a socio-cultural sense of the community. It must be ensured that this specific definition of a village is used for Scheduled Areas and not that of a revenue village

● Powers should be clearly defined so that the autonomy of the Gram Sabha does not get affected by the powers of the Gram Panchayat.

● Land acquisition

➢ Only the Gram Sabha may have the power of consultation in matters of land acquisition, which may not be binding on the parties seeking the acquisition. The term consultation needs to be further clarified or replaced by the term ‘prior mandatory approval.‘

➢ Recommendations of the Gram Sabha on the types of rehabilitation and compensation to affected parties must be made binding.

➢ The state government may establish a grievance redress cell to address cases of violation of Gram Sabha recommendations of rehabilitation and compensation.

● Minor Forest Produce

➢ The Gram Sabha may chalk out an action plan about the use or exploitation of MFP in consultation with the Forest Officers concerned.

➢ The role of the Gram Sabha in fixing minimum prices should be made central. One or more Gram Sabhas together, in consultation with the Forest Department, should decide the minimum price for the purchase or exchange rates of MFP.

● Management of Community Resources

➢ Gram Sabha and the Panchayat should be given more control over land, water, and forest resources. Any overlaps or conflicts in terms of jurisdiction with other authorities (for instance forest committees) should be immediately examined, and except in exceptional cases, it should be ruled in favour of the Gram Sabha and the Panchayat.

● Legal Recognition of Traditional Methods of Managing Resources and Dispute Resolution

➢ It must be noted that within PESA, there is no clarity over traditional methods and traditions and customs.

➢ The traditional system of dispute resolution through the Gram Sabha must be encouraged and supported by the state government in the Scheduled Areas.

● General trust-building: Tribals have a special status, special history, culture and social values and historically they are inhabiting these areas which are rich in mineral and forest wealth. By different sets of rules and regulations, they are exploited economically, socially and culturally. Thus their trust deficit in the administration is present. The administration should take steps for trust-building.

Way Forward:

● PESA is the most powerful legislation which can play an instrumental role in recognizing the rights of the tribal population in Scheduled areas over natural resources thus transforming their quality of life.

● Implementation of PESA in its true spirit will help in countering the Naxal movement.

● The state government should follow the guideline issued by the central government to incorporate changes in the state Acts proposed by state-level study reports, take appropriate measures to amend state laws that are in conflict with the provisions of PESA, take initiatives to enhance the capacity of government machinery and stakeholders who play a vital role in the actual implementation of the Act at the ground level.