PESA 1996 (Panchayats (Extension to Scheduled Areas) Act): Features, Provisions, and Implications for Tribal Governance

Context:

This Article is based on the news “Strengthening of Panchayats (Extension to Scheduled Areas) Act” which was published in the Down to Earth. Two-Day Regional Conference on the Strengthening of Panchayats (Extension to Scheduled Areas) Act took Place in Ranchi, Jharkhand.

Ministry of Panchayati Raj’s Continued Commitment to PESA 1996 Implementation

• The conference marks the second in the series, representing the ongoing efforts of the Ministry of Panchayati Raj to promote the effective adoption and implementation of PESA 1996.
• In addition to governmental bodies, several Civil Society Organisations (CSOs)/ Non-Governmental Organizations (NGOs) working towards the empowerment of Scheduled Tribes have been invited to contribute to the discourse.

What is the background of PESA? – Empowering Tribal Governance through Local Self-Governance

• Need For Local Self-Governance: The 73rd constitutional amendment was made in 1992 to promote local self-governance in rural India.
  • Issue: Its application to scheduled and tribal areas under Article 243(M) was restricted.
• Bhuria Committee Recommendation: Government appointed a committee headed by Mr. Dileep Singh Bhuria to work on a similar structure of Panchayati Raj Institution to shape Tribal areas and Schedule areas. Therefore the Bhurai committee was established.
  • Bhuria committee recommendations in 1995 resulted in the PESA Act 1996. A three tier structure was recommended by the committee, those are
    • Gram Sabha
    • Gram Panchayat
    • Block or Taluk Level Body

What is PESA?

• Enacted On: PESA was enacted on 24 December 1996 to extend the provisions of Part 9 of the Constitution to Schedule Areas, with certain exceptions and modifications.
  • The Schedule Areas were not covered by the 73rd Constitutional Amendment or Panchayati Raj Act of the Indian Constitution as provided in Part 9 of the Constitution.
• Self-Governance Through Gram Sabha: The PESA Act was enacted to ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas.
• Rights of Tribal Communities: The PESA Act recognizes the rights of tribal communities who are residents of tribal communities, and also acknowledges their traditional rights over natural resources.
• States Under the Act: Ten states have notified Fifth Schedule areas that cover (partially or fully) several districts in each of these states.
  • These states are Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana.

PESA 1996: Fostering Tribal Self-Governance, Preserving Traditions, and Empowering Gram Sabha

• Extending Panchayati Raj Provision to Scheduled Areas: To extend the provisions of Part 9 of the Constitution relating to the Panchayats to the scheduled areas with certain modifications.
• Self-Rule to Tribals: To provide self-rule for the bulk of the tribal population.
• Gram Sabha Accountability: To have village governance with participatory democracy and to make the gram sabha the nucleus of all activities.
• Promoting Traditional Practices: To evolve a suitable administrative framework consistent with traditional practices
• Preserving Customs of Tribals: To safeguard and preserve the traditions and customs of tribal communities.
• Empowering Panchayats: To empower panchayats at the appropriate levels with specific powers conducive to tribal requirements
• Empowering Gram Sabha: To prevent panchayats at the higher level from assuming the powers and authority of panchayats at the lower level of the gram sabha.

PESA 1996 Features: Aligning with Tradition, Gram Sabha Empowerment

• Align with Customary Law: A state legislature on the Panchayats in the Scheduled Areas shall align with the customary law, social and religious practices, and traditional management practices of community resources.
• Every Gram Sabha shall:
• • Approve the plans, programs, and projects for social and economic development before they are taken up for implementation by the Panchayat at the village level, and
  • Be responsible for the identification of beneficiaries under poverty alleviation and other programs.
• Part 9 of the Constitution – Articles 243 to 243O – mentions The Panchayati Raj System
• Reservation in Panchayats: The reservation of seats in the Schedule Areas in every panchayat shall be in proportion to the population of the communities for whom reservation is sought to be given under Part 9 of the Constitution.
  • 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.
• Inconsistent Law Ceases: Any provisions of any law (relating to the Panchayats in the Schedule Areas) that are inconsistent with the provision of this act shall cease to be in force  at the expiry of one year from the date on which this act receives the assent of the president. 

PESA 1996 Challenges: Limited Applicability, Administrative Constraints, and Implementation Gaps

• Applicability: PESA is only applicable to those areas which are legally regarded as Scheduled Areas. A significant number of tribals living outside the scheduled areas are not covered by this legislation.
• Superficial Administrative and Fiscal Empowerment: While political decentralization has been largely successful, there is only superficial administrative and fiscal empowerment that remains with the State Governments.
  • Panchayats have not been given adequate responsibilities to levy and collect taxes, fees, duties, or tolls. This severely limits their autonomy.
• States Not Even Framed the Rules: The law has been given a cold shoulder by those who were supposed to implement and execute it.
  • A total of four states – Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha have not even framed the rules yet.
  • Gujarat used the rules of the Panchayati Raj Act to manage the fifth schedule areas.
• Boundations with State Election Commissions: The State Election Commissions do not have the same freedom from State to State. 
  • It would be better to empower SECs so that they can freely deal with all matters relating to panchayat elections like delimitations of constituencies, rotation of reserved seats in Panchayats, finalization of electoral rolls, etc.
• Land Alienation: The government is acquiring land without the consent of gram sabhas (village councils).
  • Despite having a 26% Adivasi population, Jharkhand has failed to formulate rules for the implementation of PESA, a law meant for the welfare of the Adivasi community.
• Compromising Authority of Gram Sabhas: Gram Sabhas are the primary instrument of PESA effectively by giving control to the tribals to take care of their affairs almost autonomously.
• • However, in reality, other state legislatures and extraneous forces, such as the forest department, subordinate them.
  • It defeats the very purpose of PESA.

Way Ahead:

• Capacity Building: Equipping Gram Sabhas with training and resources to effectively manage their responsibilities and navigate complex issues.
  • Panchayats should be given adequate responsibilities to levy and collect taxes, fees, duties, or tolls.
• Addressing Implementation Gaps: Bridging the gap between the Act’s provisions and their implementation on the ground.
• Raising Awareness: Creating widespread awareness about the PESA act among tribal communities, government officials, and the general public.
• Land Alienation and Resource Management: Effectively addressing the issue of land alienation and ensuring equitable and sustainable management of natural resources in Scheduled Areas.

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