25 Years of PESA: Violations and Attempts at Dilution

Context: Recently, the Tilma gram sabha, Jharkhand has written a letter to the State Chief Minister seeking restoration of their rights guaranteed under the Panchayat Extension to Scheduled Areas (PESA) Act 1996.

• The Act completes 25 years in 2021.

About the Issue

• According to the Tilma gram sabha, the district administration and the police have encroached upon their Sarna Sthal (sacred place for tribal worship) and prevented the villagers from offering their worship.
• A large contingent of security forces levelled the land and fenced it in February 2021.
• Tilma and Turup are among the two villages where Pathalgarhi movement was not carried out.
• Pathalgadi movement refers to a practice where tribal villages erect a huge stone structure at the entry point of their villages notifying the power and rights of the gram sabhas.
• The police officials have held that the land was acquired by the administration and handed over to police and the plot, with construction going on, does not include any Sarna Sthal.
• An adjacent plot is the Sarna Sthal but the villagers wanted to carry out rituals inside the fencing, so they were stopped.

Background

• The 73rd and the 74th Amendments to the Indian Constitution passed in 1992 took the three-tier Panchayati Raj governance structure to rural and urban parts of the country and came into force in April 1993. 
• However, scheduled areas, predominantly inhabited by the tribal population, were exempted from the new amendments.
• Given low human development indicators, there was a huge demand to empower local governance in the scheduled area as well.
• Thus, the government of India constituted a committee in 1994 to look into the need for such law and modalities and how it can be extended. Chaired by Dilip Singh Bhuria, a parliamentarian from Madhya Pradesh, the committee highlighted the plight of the tribal communities and the exploitation they faced and submitted its recommendations in 1995.

Panchayat Extension to Scheduled Areas Act, 1996

• The Parliament enacted a special legislation called Panchayat (Extension to Scheduled Areas) Act (PESA) in 1996 and came into force on 24th December 1996.
• It is now applicable in the Fifth Schedule areas, which deals with the administration of the districts dominated by the tribal communities, and is in force in 10 states of the country.
• These states include Jharkhand, Chhattisgarh, Odisha, Andhra Pradesh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Rajasthan and Telangana.

Objectives

• To extend the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas with certain modifications.
• To provide self-rule for the bulk of the tribal population.
• To have village governance with participatory democracy and to make the Gram Sabha a nucleus of all activities.
• To evolve a suitable administrative framework consistent with traditional practices.
• To safeguard and preserve the traditions and customs of tribal communities.

The Gram Sabhas under PESA Act were entrusted with wide-ranging powers to

• Enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
• Ownership of minor forest produce.
• Prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe.
• Manage village markets by whatever name is called.
• Exercise control over money lending to the Scheduled Tribes.
• Exercise control over institutions and functionaries in all social sectors.
• Control over local plans and resources for such plans including tribal sub-plans.
• In 2013, while hearing a case, the Supreme Court of India referred to the PESA and asked the Odisha government to go to the Gram Sabha to get permission for bauxite mining in Kalahandi and Rayagada districts.
• Local forest dwellers were asked whether bauxite mining will affect their religious and cultural rights and they decided against the mining on Niyamgiri hills which led to the cancellation of a huge project.
• The case is considered a milestone that shows the power of the Gram Sabhas but this one of the rare achievements of PESA even as it underlines the possibilities the Act carries.

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 6th 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 73rd 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.

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.

Road Ahead

• Structures above Gram Sabha should be patterned on the Sixth Schedule. Scheduled areas should have had a structure where the powers of the State could be allocated in such a way that the Gram Sabha is not overridden but empowered.
• There is a need to pledge plausible and time bound actions to implement PESA in letter and spirit.
• The conflict and the inconsistencies between the Gram Sabhas and the Panchayats need to be ironed out.
• State governments need to change their laws in order to comply with PESA and laws relating to land acquisition, excise, forest produce, mines and minerals, agri produce market and money lending need to be amended. 

Conclusion

• PESA is good legislation but it will only make sense only if taken seriously and implemented well. It is hoped that in its 25th year of implementation, serious efforts would be pledged to identify the pitfalls and promote policies that pave the environment for establishment, prevalence and persistence of a system of tribal self rule in the Fifth Schedule Areas.