Panchayats (Extension to the Scheduled Areas) Act (PESA)
2022 AUG 19
Polity > Local Self Government > Tribal affairs
- Arvind Kejriwal declared a six-point "guarantee" for tribals, including the "strict implementation" of the Panchayats (Extension to the Scheduled Areas) Act for tribals in Gujarat’s Chhota Udepur district.
PANCHAYATS (EXTENSION TO THE SCHEDULED AREAS) ACT:
- The provisions of Part IX of the constitution relating to the Panchayats are not applicable to the Fifth Schedule areas. However, the Parliament may extend these provisions to such areas, subject to such exceptions and modifications as it may specify.
- Hence, the Parliament has enacted the “Provisions of the Panchayats (Extension to the Scheduled Areas) Act”, 1996, popularly known as the PESA Act.
- Ten states — Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana — have notified Fifth Schedule areas that cover (partially or fully) several districts in each of these states.
SALIENT FEATURES OF PESA:
- PESA extends the provision of three-tier Panchayati Raj system to fifth Schedule areas with certain modifications and exceptions.
- Every village shall have its own Gram Sabha. It shall competent to safeguard and preserve the:
- Traditions and customs of the people, and their cultural identity
- Community resources
- Customary mode of dispute resolution
- Reservation of seats in every panchayat in the Scheduled Areas, in proportion to the population of the communities.
- However, 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.
- Gram Sabha has mandatory executive functions to:
- approve plans, programmes and projects for socio-economic development.
- identify beneficiaries under the poverty alleviation and other programmes.
- Issue a certificate of utilisation of funds by the Panchayat for the plans, programmes and projects.
- The gram Sabha is given the power:
- To decide about land acquisition, resettlement and rehabilitation of displaced persons.
- Plan and manage minor water bodies
- Recommend about license or lease regarding mines and minerals.
- Ownership of minor forest produce
SIGNIFICANCE OF PESA:
- Promote grassroot level self-governance:
- The administrative systems during colonial period and after independence had ruined the traditional tribal governance system. PESA tries to undo this historical injustice and bring back the system within the democratic framework of the country.
- Preserve tribal way of living:
- The Act empowers the Gram Sabha as the competent authority to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.
- Sustainable livelihood to tribes:
- The Act has the potential of sustainably protecting forest through traditional ways along with providing tribes means of livelihood.
- Eg: The recommendations of the Gram Sabha or the Panchayats at the appropriate level is mandatory for grant of prospecting license or mining lease for minor minerals in the Scheduled Areas.
- Reduce influence of left-wing extremism in tribal areas:
- Providing administrative powers and control over land to tribal population will help in tackling the spread of extremist ideologies among them.
- Eg: The appropriate Gram Sabha or Panchayats shall be consulted before making the acquisition of land in the Scheduled Areas for development projects.
- Prevent exploitation of resources:
- The Act gives power to the gram sabhas over management of resources over jal, jangal, zameen (water, forest and land). This ensures that people get to manage the land and forest on their own, which will regulate exploitation of these resources.
- Improves accountability:
- The Act empowers the Gram Sabha to authorise fund utilisation by Panchayats. This will ensure that corruption is prevented and funds are used effectively for developmental activities desired by the people.
Success story: Cancellation of Bauxite mining in Niyamgiri Hills
- In 2013, referring to the PESA, the Supreme Court of India, in a landmark case, had asked the Odisha government to go to the gram sabha to get permission for bauxite mining in Kalahandi and Rayagada district of Odisha.
- 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.
CHALLENGES IN IMPLEMENTATION OF PESA:
- Limited implementation:
- PESA remains disempowered as 40% of the states under its purview have not framed their rules for its implementation.
- Eg: Jharkhand was separated as an independent state from Bihar in the name of tribal welfare, but the rules have not yet been framed.
- Poor implementation of the Act:
- According to Indian Institute of Public Administration’s study, in the Khunti district of Jharkhand, 65% of people whose land was acquired said they were not asked about it. It is from the same Khunti district, the Pathalgadi movement began.
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, including the right to sovereign territory. Pathalgadi literally translates to 'carving a stone'. On these stones orders would be carved by the tribals, such as restricting the entry of outsiders.
- No changes in supporting legislations:
- State laws relating to land acquisition, excise, forest produce, mines and minerals, agri produce market and money lending need to be amended to comply with PESA. However, states have not taken measures to make the necessary changes.
- Violating the spirit of the law:
- Governments have often used other legislations to bypass the gram sabha’s permission for land acquisitions and mining lease.
- For instance, in Korba district of Chhattisgarh, the government is acquiring land using the Coal Bearing Act of 1957 – something that experts argue is illegal and against the spirit of PESA.
- Colonial attitude of officials:
- There is a huge resistance from authorities like the forest department. Hence, even when gram sabhas are organised, officials continue to play an upper hand and give the final verdict in matters.
- Eg: In November 2020, the Statue of Unity Area Development and Tourism Governance Authority (SoUADTGA) was empowered to administer villages around the Sardar Vallabhbhai Patel statue in Narmada, a tribal district. This gave SoUADTGA powers to override panchayat decisions.
- No deadlines:
- Unlike the 73rd amendment Act, PESA failed to achieve its desired target because it does not provide a time period by which the States have to frame rules.
- Presence of competing legislations:
- The Union government brought other legislations which included many provisions of PESA. For instance, the Land Acquisition Act, 2013 and the Forest Right Act, 2006 has provisions of PESA. Hence, when people need to protect their rights and resources, they look up to these laws instead of PESA.
- Frame appropriate rules: States must shed the lethargy and formulate the rulesand operationalise PESA.
- Training of representatives: Training of representatives and personnel in the gram sabhas should be regarded as a continuing activity.
- Devolution of Powers and Responsibilities: State governments should follow the principle of subsidiarity and devolve more powers to the grassroot level. The Union Government should incentivize states to encourage effective devolution.
- Evaluation of Performance of Local Bodies: Local bodies have to be evaluated in terms of efficiency, effectiveness and resource mobilisation. Efforts like Social audits must be promoted for ensuring the same.
Q. Though perceived as an effort to restore the dignity and tradition of self-governance among tribal population, Panchayats (Extension to the Scheduled Areas) Act (PESA) has not lived up to its expectation. Analyse?