Context: Recently, a Political Party has declared a six-point “guarantee” for tribals in Gujarat’s Chhota Udepur district, including the “strict implementation” of The Panchayats (Extension to the Scheduled Areas) Act (PESA Act).

PESA & tribal population in Gujarat

• Gujarat notified the State PESA Rules in January 2017. 

• It was applicable in 4,503-gram sabhas under 2,584 village panchayats in 53 tribal talukas in 14 districts.

• Gujarat is among the 10 states that have Schedule Areas, and accounts of 8.1% of the ST population. 

• The tribals are concentrated in the eastern districts, along the Rajasthan, Madhya Pradesh and Maharashtra borders.

• There are 11 major tribes in Gujarat, the largest being Bhil which is nearly 48% of the state’s total tribal population.

PESA Act

• The PESA Act was enacted in 1996 to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas.

• Other than Panchayats, Part IX, comprising Articles 243-243ZT of the Constitution, contains provisions relating to Municipalities and Cooperative Societies.

• Under the PESA Act, Scheduled Areas are those referred to in Article 244(1), which says that the provisions of the Fifth Schedule shall apply to the Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram.

• The Fifth Schedule provides for a range of special provisions for these areas.

How is the PESA Act, 1996 supposed to work?

• The PESA Act was enacted to ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas.

• It recognises the right of tribal communities to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources.

• In pursuance of this objective, the Act empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors.

Special powers accorded by PESA Act includes the

1. Processes and personnel who implement policies

2. Exercising control over minor (non-timber) forest resources

3. Minor water bodies and minor minerals

4. Managing local markets

5. Preventing land alienation and

6. Regulating intoxicants among other things

Key Issues

Implementation & performance by states

• Till now 40 percent 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 in ensuring their implementation.

Non-uniformity

• 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.

In conflict with other legislations

• 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.

Surpassing legislations

• There has been a push for corporate entry and control of resources, making it easier to surpass gram sabha's consent.

Road Ahead

For state governments

• Violations of the Act and its dilution highlight a pattern of developments that show the Centre and states' lack of commitment towards strengthening gram sabhas. 

• 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. 

For Civil society

• There is a need for involving civil society and NGOs doing good work in the area of tribals to ensure better implementation of PESA since they are better versed with the ground reality and issues faced by the tribal people. 

• PESA is good legislation in spirit but it will only make sense only if taken seriously and implemented well.