PESA Act of 1996 (Extension Act)

PESA Act of 1996 (Extension Act) in Indian Polity #

To prepare for INDIAN POLITY for any competitive exam, aspirants have to know about the PESA Act of 1996 (Extension Act). It gives an idea of all the important topics for the IAS Exam and the polity syllabus (GS-II.). Important PESA Act of 1996 (Extension Act) terms are important from the polity and governance perspectives in the UPSC exam. IAS aspirants must have a deep understanding of these concepts and their applications, as questions from this static portion of the IAS Syllabus can appear in both the UPSC Prelims and the UPSC Mains exams.

In this article, you can read about the Basics, Background, Reason for creation and other aspects of the PESA Act of 1996 (Extension Act) for the UPSC and SPSC. 

PESA Act of 1996 (Extension Act): A Paradigm Shift in Tribal Governance #

• The provisions in Part IX of the Constitution regarding Panchayats do not apply to Fifth Schedule areas.
• However, Parliament has the authority to extend the provisions of Part IX of the Constitution relating to Panchayats to Scheduled Areas, incorporating specific exceptions and modifications as necessary.
• This authority was exercised through the enactment of the “Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996,” also known as the PESA Act or the Extension Act.
• At present (2019), ten states have Fifth Schedule Areas.
  • The states include Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Jharkhand, Maharashtra, Odisha, and Rajasthan.
    
  • Each of these ten states has amended the Panchayati Raj Act to enact the necessary compliance legislations.

What are the objectives of the PESA Act (1996 Extension) and how does it empower Tribal Self-Governance? #

• Extend the provisions of Part IX of the Constitution regarding panchayats to scheduled areas with specific modifications.
• Establish self-governance for the majority of the tribal population.
• Implement village governance through participatory democracy, centering all activities around the gram sabha.
• Develop an administrative framework that aligns with traditional practices.
• Protect and preserve the traditions and customs of tribal communities.
• Empower panchayats at appropriate levels with powers suited to tribal needs.
• Ensure higher-level panchayats do not usurp the powers and authority of lower-level gram sabhas.

Core Features of the PESA Act of 1996 (Extension Act) #

• State legislation on Panchayats in Scheduled Areas must align with customary laws, social and religious practices, and traditional community resource management.
  
• A village typically includes a habitation or group of habitations, or a hamlet or group of hamlets, forming a community that manages its affairs according to traditions and customs.
  
• Each village shall have a Gram Sabha composed of individuals listed in the electoral rolls for the village-level Panchayat.
  
• Every Gram Sabha shall have the authority to safeguard and preserve local traditions and customs, cultural identity, community resources, and customary dispute resolution methods.
• Every Gram Sabha shall–
  • Approve plans, programs, and projects for socio-economic development before they are implemented by the village-level Panchayat.
    
  • Identify beneficiaries for poverty alleviation and other programs.
    
  • Require every village-level Panchayat to obtain certification from the Gram Sabha regarding the utilization of funds for the aforementioned plans, programs, and projects.
    
  • Ensure that seat reservations in Panchayats in Scheduled Areas are proportionate to the population of the communities eligible for reservation under Part IX of the Constitution.
  • The reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats.
    • Additionally, all positions of Chairpersons in Panchayats at every level shall be allocated exclusively for members of Scheduled Tribes.
  • The state government can nominate Scheduled Tribes with no representation in intermediate or district level Panchayats.
    
    • Such nominations shall not exceed one-tenth of the total elected members in that Panchayat.
      
  • Consult the Gram Sabha or appropriate Panchayat levels before land acquisition in Scheduled Areas for development projects and before resettling or rehabilitating those affected by such projects in Scheduled Areas.
  • However, coordination of the planning and implementation of projects in Scheduled Areas shall be centralized at the state level.
• Coordination of actual planning and project implementation in Scheduled Areas shall be managed at the state level.
  
• Planning and management of minor water bodies in Scheduled Areas shall be delegated to the appropriate level of Panchayats.
  
• Recommendations from the Gram Sabha or the relevant Panchayat level shall be mandatory for granting prospecting licenses or mining leases for minor minerals in Scheduled Areas.
  
• Prior recommendations from the Gram Sabha or appropriate Panchayat level shall be required for granting concessions for minor mineral exploitation by auction.
  
• When granting Panchayats in Scheduled Areas the necessary powers and authority to function as self-governing institutions, the State Legislature shall ensure that both the appropriate level Panchayats and the Gram Sabha are endowed with specific powers and authority with 
  • The power to enforce prohibition or to regulate or restrict the and consumption of any intoxicant
  • Power to prohibit land alienation and to restore unlawfully alienated land of Scheduled Tribes.
  • Power to oversee village markets.
  • Power to regulate money lending to Scheduled Tribes.
  • Power to supervise institutions and officials in all social sectors.
  • Power to manage local plans and resources, including tribal sub-plans.
• State legislations must include safeguards to prevent higher-level Panchayats from assuming the powers of lower-level Panchayats or Gram Sabhas.
  
• The State Legislature should aim to adopt administrative structures for district-level Panchayats in Scheduled Areas similar to those in the Sixth Schedule of the Constitution.
  
• Any provision in existing laws concerning Panchayats in Scheduled Areas that conflicts with this Act will become void one year after the President’s assent to this Act.
• However, all Panchayats existing before this date shall remain in office until the completion of their term, unless dissolved earlier by the State Legislature.

Challenges and Pitfalls in the Implementation of PESA Act #

• Erosion of Tribal Advisory Councils’ Authority: Despite being mandated by the Fifth Schedule to oversee tribal affairs and grant special powers to Governors, Tribal Advisory Councils, chaired by Chief Ministers, have become passive entities influenced by mainstream political dynamics.
  • Their representatives rarely oppose state government policies.
• Limited Governor Intervention: Governors have refrained from involvement in tribal issues to maintain amicable relations with Chief Ministers.
  • Tribal activists lament the lack of gubernatorial response to petitions concerning critical issues like land disputes, mining conflicts, and police misconduct.
• Central Coordination Challenges: The implementation of PESA faces bureaucratic hurdles exacerbated by minimal coordination between the Ministry of Panchayati Raj and the Ministry of Tribal Affairs.
• Delay in Enactment: In many states, the absence of enabling rules even eight years after the Act’s adoption suggests reluctance by state governments to implement PESA.
• Neglecting PESA’s Intent: State legislations have omitted crucial principles integral to realizing the spirit of PESA.
  • For example, aligning state laws on Panchayats with customary laws and traditional management practices of community resources is frequently overlooked.
• Unclear Definitions: Statute books lack legal definitions for terms like “minor water bodies” and “minor minerals.”
  • State conformity legislations also fail to define these terms, resulting in ambiguity and leaving room for bureaucratic interpretation.