PESA Act

In News

• Recently, the PESA Act was in the news regarding its implementation in Gujrat.

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.

About Panchayat Extension to Scheduled Areas Act, 1996

• 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 
    • It 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 Parliament enacted special legislation called Panchayat (Extension to Scheduled Areas) Act (PESA) in 1996 
    • It came into force on 24th December 1996.
• 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.
• Applicability: 
  • It is now applicable in the Fifth Schedule areas, which deals with the administration of the districts dominated by the tribal communities. 
  • It is in force in 10 states of the country.
    • Six States namely Andhra Pradesh, Himachal Pradesh, Gujarat, Maharashtra, Rajasthan and Telangana have notified PESA Rules. 
    • The remaining four States namely Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha should also frame PESA Rules and start implementing them soon.
• 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.

Highlights of PESA implementation in 26 years:

• Significance:
  • Gandhian Philosophy:
    • 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.
  • Jal, Jungle, Jameen:
    • PESA seeks to protect the principle of Jal, Jungle, Jameen (Water, forest and land) for the tribals and is the basis of Atma Nirbhar Bharat.
  • Historical injustice:
    • 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 a restoration of their dignity and tradition of self-governance.
• 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.

Way 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. 
• 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.

Source: TH