How the PESA Act has Boosted Forest Conservation in India

The policy approach to conservation in India has long grappled with two kinds of conflicts: conservation versus resource extraction by local communities, and conservation versus ‘economic development’.

About PESA Act 1996

• Background: To promote local self-governance in rural India, the 73rd constitutional amendment was made in 1992.
  • Through this amendment, a three-tier Panchayati Raj Institution was made into a law.
  • However, its application to the scheduled and tribal areas under Article 243(M) was restricted.
  • After the Bhuria Committee recommendations in 1995, PESA Act 1996 came into existence for ensuring tribal self-rule for people living in scheduled areas of India. 
• Role of State Government: PESA, was enacted by the Centre to ensure self- governance through gram sabhas (village assemblies) for people living in scheduled areas.
  • State governments were required to amend their respective Panchayat Raj Acts without making any law that would be inconsistent with the mandate of PESA.
• Objective: It legally recognises the right of tribal communities, residents of the scheduled areas, to govern themselves through their own systems of self- government.
  • It acknowledges their traditional rights over natural resources.
• Central Government Act: Article 243M in The Constitution Of India 1949. Part not to apply to certain areas.
• • Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2), of article 244.

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Panchayats Extension To The Scheduled Areas Act 1996

A one-day National Conference was organized to commemorate the 25th year of enactment of PESA, as part of Azadi Ka Amrit Mahotsav. 

• Article 243M of the Constitution exempts the Fifth Schedule areas from Part IX of the Constitution but the Parliament is empowered to extend its provisions to the Scheduled and Tribal Areas by law without it being considered as an amendment to the Constitution.
• Based on the recommendations of Dileep Singh Bhuria Committee, PESA Act was enacted in 1996 for tribal empowerment and to bring them into the mainstream.
• PESA Act is called a ‘Constitution within the Constitution‘ as it extends the Provision of Panchayati Raj (Part IX) of the Constitution to the Fifth Schedule areas of 10 States under clause (1) of the Article 244 with certain modifications and exceptions.
• The 10 states: Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Orissa, Rajasthan and Telangana.
• It recognizes the role of the Gram Sabha and the community in these areas and directs the state government to devolve power and authority directly to Gram Sabha and Panchayats.
• The Ministry of Panchayati Raj is the nodal Ministry for implementation of the provisions of PESA Act.

Provisions of PESA Act

• Promoting institutions of Local Self Governance and participatory democracy, all the State Panchayati Raj Acts for Fifth Schedule areas have following salient features:
• All State Legislation on Panchayats shall be in conformity with the customary law, social and religious practices and traditional management practices of community resources;
• Every village to have a separate Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level;
• Every Gram Sabha to safeguard and preserve the traditions and customs of people, their cultural identity, community resources and the customary mode of dispute resolution;
• Every panchayat to have reservation of seats in proportion to the community population (minimum of 50%) with Chairperson of Panchayats at all level to be reserved for STs;
• Roles and Responsibilities of Gram Sabhas: To approve all development works in the village, identify beneficiaries, issue certificates of utilization of funds.

Powers and functions given to the Gram Sabhas

• Right to mandatory consultation in land acquisition, resettlement and rehabilitation of displaced persons.
• Protection of traditional belief, the culture of the tribal communities.
• Ownership of minor forest products.
• Resolution of the local disputes.
• Prevention of land alienation.
• Management of village markets.
• Right to control production, distillation, and prohibition of liquor.
• Exercise of control over money-lending.
• Any other rights involving the Scheduled Tribes.

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Significance of PESA

• Empowered Gram Sabhas: They play a key role in approving development plans and controlling all major developments in the social sectors.
• Tribal Integration: Decentralized governance helps in reducing the grievances of tribal people, building trust towards integration with mainstream.
• Protect Ecosystem: PESA empowers tribes through Gram Sabhas to preserve their connection with ecosystem. E.g. In 2013, the Supreme Court of India ordered the Odisha Government to seek gram sabha permission for bauxite mining in Kalahandi and Rayagada district of Odisha, leading to cancellation of mining on Niyamgiri hills.
• Safeguard tribal interests and rights: The control over institutions and functionaries help in protecting their traditional culture, religion and identity as well as the rights provided by the Constitution.

Limitations of PESA Act

PESA Act has made significant contributions towards advancement in tribal community’s livelihoods. But it suffers from number of challenges in its implementation and lackluster response from certain state government amplifies it, such as-

• • PESA Rules: Four major tribal States namely Jharkhand, Chhattisgarh, Madhya Pradesh, and Odisha are yet to frame PESA Rules.
  • Use of unfair means for bypassing the law: Acquisition of land happens under other acts, violating the spirit behind PESA, i.e. safeguard tribal land and consent of gram sabhas. E.g., in the Korba district of Chhattisgarh, the authorities decided to acquire land using the Coal Bearing Act of 1957. 
  • Poor Implementation of law: A 2010 study on “Status of Panchayat Extension to Schedule Area Act (PESA)” in Andhra Pradesh, Gujarat, Chhattisgarh, Jharkhand, and Orissa by Indian Institute of Public Administration (IIPA) highlighted poor implementation of the Act.
  • E.g., In Khunti district of Jharkhand, 65% of people whose land was acquired were not even asked about it.
  • Its share in Gumla district of Jharkhand was around 26%.
• Many experts have asserted that PESA did not deliver due to the lack of clarity, legal infirmity, bureaucratic apathy, absence of a political will, resistance to change in the hierarchy of power, and so on.
• Social audits conducted across the state have also pointed out that in reality different developmental schemes were being approved on paper by Gram Sabha, without actually having any meeting for discussion and decision making.

Way Forward

To keep the spirit of saving Jal, Jungle and Jameen (Water, Forest and Land) of tribes through PESA, reformations can be discussed on following lines-

• Implement Municipalities Extension to the Scheduled Areas (MESA): Bhuria Committee recommended PESA and MESA for extending the provisions of 73rd and 74th amendments to V (Fifth) schedule areas. But urban tribal areas are yet to have MESA.
• Framing of PESA Rules: The remaining states must frame the PESA rules expeditiously and implement based on the Ministry of Panchayati Raj model rules of 2009.
• Convergence of PESA with other regulations: The provisions of PESA shall be converged with converged with Forest Rights Act (2006), Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (2013) etc. to protect tribal rights/culture.
• New Tribal Community Development Model: The Ministry of Panchayati Raj and the Ministry of Tribal Affairsshould create a new development model for the tribal community while preparing the Gram Panchayat Development Plan (GPDP), keeping in mind the traditions of the tribal community and convergence of efforts.
• Other Steps: Reduce Land alienation among tribes and focus on greater social development (health and education) for capacity building of tribal communities.

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Conclusion

The PESA Act empowers tribal self-governance and protects rights but faces implementation challenges. Effective reforms and integration with other laws are essential for its success.

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