PESA Act: Origins, Workings and Challenges 26 years after its enactment, implementation still inadequate
24, Aug 2022 | CJP Team
The Panchayat Extension to Scheduled Areas (PESA) Act, 1996, is a landmark legislation with respect to self-governance in India. But the Act that aims to empower some of the most marginalised citizens of the country, is yet to be implemented properly, 26 years after its enactment.
PESA and Panchayati Raj
The origins of the Panchayati Raj system can be traced back to the ancient Indian self-governing villages with Sabhas in them. However, a constitutional sanction was only granted after the 73rd Constitutional Amendment that added Part IX to the Constitution, in 1992.
Part IX of the Constitution states that panchayats should be constituted at village, intermediate and district levels with the state government being empowered to make laws related to panchayats. It also defines Gram Sabha as a “body consisting of persons registered in the electoral rolls relating to a village within the area of Panchayat at the village level and empowers the State to make laws related to Gram Sabhas.”
While Part IX of the Constitution deals with Panchayats, Part X exclusively deals with Scheduled and Tribal Areas. Article 243M states that Part IX does not apply to areas mentioned in Article 244. Article 244 of the Constitution states that provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram, to which provisions of Sixth Schedule apply. The fifth schedule of the Indian Constitution states that the union’s executive power i.e. the power to govern the areas, extends to giving directions to the states as to how to administer those areas mentioned in the fifth schedule i.e. Scheduled Areas.
While the Constitution exclusively provides for administration of scheduled and tribal areas in Fifth and Sixth schedules, Part IX of the constitution that deals with Panchayats does not extend to scheduled areas because of Article 243M. To solve this gap, a committee led by parliamentarian Gopal Singh Bhuria was constituted and on the basis of committee’s recommendations, a new act was enacted the Panchayats Extension to Scheduled Areas Act, 1996 (PESA Act)-to extend Part IX to the areas in Fifth Schedule.[1]
The PESA Act, a distant ancestor of the Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 (FRA), was the first to give powers to the institution of Gram Sabha within the Scheduled Areas.
PESA Act is a pioneer in the pro-Adivasi legislation in the country, especially after a phase of conservation centric government policy. Immediately after the independence, forests were seen as a resource that is meant to serve the nation and therefore were consequently exploited. From the 1970s, the trend reversed and there was a greater emphasis on conservation until the late 1980s. In the early 90s came the push for decentralisation of power and governance. In that push came the 73rd and 74th constitutional amendment followed by the PESA Act. While the constitutional amendments aimed at a more decentralised governance, PESA Act provided the special provisions needed for the governance of scheduled areas in the country.[2]
What does the PESA Act entail?
Section 3 of the act extends Part IX of the Indian Constitution to the areas in the Fifth Schedule. This fulfils the objective of decentralising the power in scheduled areas.
The section states– “The provisions of Part IX of the Constitution relating to Panchayats are hereby extended to the Scheduled Areas subject to such exceptions and modifications as are provided in section 4.”
As stated above, Part IX of the constitution empowers the state government to formulate laws that govern panchayats and Gram Sabhas. Section 4 of the PESA Act, provides exceptions for these powers of the state government. It is in this section the significance of the Gram Sabha is achieved and different powers are given to the Gram Sabha. In a way, the Bhuria Committee recommendations and the importance given to Gram Sabha in Section 4 of this act translated into Gram Sabha’s prime role under the Forest Rights Act, 2006.
Powers given to Gram Sabha under Section 4 of the PESA Act
The following are the powers given to the Gram Sabha under PESA Act-
(i) Gram Sabha shall approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level [Section 4(a)]
(ii) It shall be responsible for the identification or selection of persons as beneficiaries under the poverty alleviation and other programmes [Section 4(e)]
(iii) It shall have the power to issue certification of utilisation of funds by panchayat for the activities stated above. [Section 4(f)]
(iv) A recommendation from Gram Sabha (or) Panchayats at the appropriate level is mandatory prior to grant of prospecting licence or mining lease for minor minerals; for grant of concession for the exploitation of minor minerals by auction. [Section 4(k) & 4(l)]
(v) For the purposes of acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas-the Gram Sabha or the Panchayats at the appropriate level shall be consulted [Section 4(i)].
State Governments, as per the act, should endow the panchayats and Gram Sabhas with power to function as institutions of self-governance- they should endow both the institutions– specifically with the following [Section 4(m)]:
(i) The power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant;
(ii) The ownership of minor forest produce;
(iii) The power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe;
(iv) The power to manage village markets by whatever name called;
(v) The power to exercise control over money lending to the Scheduled Tribes;
(vi) The power to exercise control over institutions and functionaries in all social sectors;
(vii) The power to control over local plans and resources for such plans including tribal subplans.
The PESA Act also mandated that the reservation of seats in the Scheduled Areas at every Panchayat shall be in proportion to the population of the communities in that Panchayat for whom reservation is sought to be given under Part IX of the Constitution; that the chairperson at every level shall be a person belonging to the scheduled tribe and that the total reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats [Section 4(g)].
The PESA Act also has a provision by way of Section 5 which states that any state level laws that are inconsistent with the PESA Act will stay in force until the competent legislature or competent authority amends such laws or until one year after the PESA Act has received the assent of president.
Section 5 is an important characteristic of the PESA Act and also a missed opportunity. It is an important characteristic because it gives the PESA Act a deemed authority over the state level laws that run against it. A missed opportunity because it does not mandate the states to enact laws that will promote the objective of PESA Act.
PESA Act- Implementation and Challenges
No Specific delegation to make rules or a timeframe
The PESA Act was enacted by the Parliament and left the further rule making powers, rightly so, to the states. One of the important aspects of PESA Act was that the state government make laws related to Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources. To achieve this objective, it was in legislative wisdom to delegate the further law-making process to state level rather than the centre doing it.
For effective implementation of the act via rules at the local level- the act should have spelt out who are competent authority to frame rules under the act. Additionally, the act should have imposed a timeline on the state governments for them to adopt PESA rules in consonance with the act. Since the act does not do both of these, the implementation of PESA has been dependent on the intent of the state governments rather than a sanction from the centre.
Of the ten states- Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan- in which areas governed under the Fifth Schedules exist- Odisha and Jharkhand have not yet enacted PESA Rules. In the states where rules have been enacted, bureaucratic hurdles and domination by non-Adivasi sections still hinder the implementation of the act and in achievement of its objectives.
In a book prepared jointly by the United Nations Development Programme and the union Ministry for Tribal Welfare- it was pointed out that in states where Panchayat Raj Acts were amended to be in consonance with PESA Act and where rules were enacted, the control over institutions, functionaries and planning did not come to Gram Sabhas. [3]
Only consulting Gram Sabha is mandatory, not their approval
With respect to land acquisition in Scheduled Areas-the PESA Act states that the Gram Sabhas be consulted before the acquisition is made. The express inclusion of the word ‘consultation’ has been misconstrued repeatedly to imply that their approval is not needed for land acquisition, which forms an important part of projects affecting scheduled areas’ populace.
Laws relating to land acquisition, excise, forest produce, mines and minerals, agricultural produce market and money lending need to be amended. States like Andhra Pradesh and Telangana have not made changes to any of the six sectors mentioned above while Maharashtra has failed to do in five.[4]
Conclusion
PESA Act’s essence has been incorporated into the Forests Rights Act, 2006 and the Supreme Court in its landmark judgement of Orissa Mining Corporation versus Ministry of Environment, Forests and Climate Change upheld the power of Gram Sabhas to decide on whether Bauxite mining can take place when it violates their right to worship.[5]
The court stated “Section 4(d) of the Act says that every Gram Sabha shall be competent to safeguard and preserve the traditions, customs of the people, their cultural identity, community resources and community mode of dispute resolution. Therefore, Grama Sabha functioning under the Forest Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc.”
Despite this progressive reading of the PESA Act by the apex court, the implementation remains a high hanging fruit for the Scheduled Tribes of the country.
Related:
Tug of war between two ministries, Adivasi rights slip through the cracks
Gram Sabha Resolutions add vigour to Forest Rights movement
References:
[1] https://legislative.gov.in/sites/default/files/A1996-40.pdf
[2] Sanjoy Patnaik, PESA, the Forest Rights Act, and Tribal Rights in India, Proceedings: International Conference on Poverty Reduction and Forests, Bangkok, September 2007
[3] Land and Governances under the Fifth Schedule, UNDP, 2019
[4]PESA: The wait for reforms on the ground continues even after 25 years, Kundan Pandey, 4th March 2021, Accessed at https://india.mongabay.com/2021/03/pesa-the-wait-for-reforms-on-the-ground-continues-even-after-25-years/
[5] [2013] 6 S.C.R. 881
