This article has been written by Anuja Jalan, a Legal Professional holding a Master’s degree in Law from UPES, Dehradun, and a B.A.LL.B degree from Basanthali Vidyapith.
AbstractThe Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, commonly known as PESA, is a landmark legislation aimed at empowering tribal communities in India. Enacted on 24rth Dec, 1996, this Act extends the provisions of Part IX of the Indian Constitution, which pertains to Panchayats for the Scheduled Areas. These areas are predominantly inhabited by tribal populations and are identified under the Fifth Schedule of the Constitution. As per the act any state legislation concerning Panchayats should align with the customary laws, social and religious practices, and traditional methods of managing community resources. This measure aims to protect the tribes and their cultural authenticity while simultaneously enforcing an appropriate legal framework. This article examines the necessity and significance of PESA, detailing its key provisions and its impact on tribal self-governance. It grants Gram Sabhas significant authority in approving development plans, managing community resources, and preserving cultural identity. The Act also ensures proportional representation of Scheduled Tribes in Panchayats and reserves all Chairperson Positions for them. The article explores the challenges and achievements in implementing PESA, emphasizing the need for ongoing efforts to overcome administrative obstacles and raise awareness. By granting Panchayats specific powers, such as regulating intoxicants, managing minor forest produce, and preventing land alienation, PESA aims to foster sustainable development and protect tribal rights. Additionally, the article discusses legislative safeguards to prevent higher-level Panchayats from encroaching on the powers of lower-level Panchayats and Gram Sabhas. It highlights the importance of adopting the Sixth Schedule’s framework for administrative arrangements, ensuring a culturally sensitive and inclusive governance structure. In a nutshell, PESA is a crucial tool for promoting grassroots democracy, protecting tribal autonomy, and fostering inclusive development in India’s Scheduled Areas. The Act’s provisions are designed to integrate tribal communities into the broader democratic framework while preserving their cultural heritage and ensuring their active participation in local governance. Keyword: Panchayat, Scheduled Areas, Scheduled Tribes, Gram Sabha, Local Administration |
Essential Aspects of PESA
The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, extends the Panchayat system to the scheduled areas covered under Schedule Fifth of the Constitution of India[1], which doesn’t cover the state of Assam, Meghalaya, Mizoram & Tripura. Part IX of the Indian Constitution details the laws concerning Panchayats, and this Act aims to extend those provisions to the Scheduled Areas. However, it is important to note that Part IX does not directly apply to these areas. Instead, it must adhere to Section 4 of the 1996 Act, which outlines specific modifications and exceptions. These adjustments are made to protect the Scheduled Tribes and ensure their cultural uniqueness and autonomy is preserved. Art 366 (25) defines the term “Scheduled Tribes” which refers to those tribes, tribal communities, or segments within them that are recognized as Scheduled Tribes under Article 342[2] for the purposes of this Constitution.
Under the act section 4 defines villages to be typically consisting of a habitation or a cluster of habitations, or a hamlet or group of hamlets, forming a community that manages its affairs according to traditional customs. And each such village has to have a Gram Sabha, comprising individuals listed on the electoral rolls for the village-level Panchayat. The Gram Sabha is empowered to protect and uphold the traditions and customs of the people, their cultural identity, community resources, and customary methods of dispute resolution.
Each Gram Sabha shall:
- Approve Development Initiatives: Review and sanction plans, programs, and projects aimed at social and economic development before they are undertaken by the village-level Panchayat.
- Select Beneficiaries: Identify and select individuals to benefit from poverty alleviation and other relevant programs.
- Fund Utilization Certification: Village-level Panchayats must obtain approval from the Gram Sabha confirming the proper use of funds for the specified plans, programs, and projects.
- Seat Reservation: Seats in Panchayats within Scheduled Areas will be reserved in proportion to the population of the communities eligible for reservation under Part IX of the Constitution. However, at least half of the total seats must be reserved for Scheduled Tribes.
- Chairperson Reservation: All Chairperson positions in Panchayats at every level shall be reserved for members of Scheduled Tribes
- Nomination by State Government: Under the Act, the State Government has the authority to nominate members from Scheduled Tribes who are not represented in the intermediate or district-level Panchayats. However, these appointments should not exceed one-tenth of the total elected members in that Panchayat.
Also, before acquiring land in the Scheduled Areas for development projects or resettling and rehabilitating individuals affected by such projects, it is mandatory to consult the Gram Sabha or the relevant Panchayats. And all such activities are done under the coordination of the state body.
The responsibility for the planning and management of minor water bodies within the Scheduled Areas has been delegated to the Panchayats at the appropriate level by the act. This ensures that local governance bodies, which are more attuned to the specific needs and conditions of their communities, can effectively oversee these crucial resources.
Furthermore, it is mandatory to obtain recommendations from the Gram Sabha or the relevant Panchayats before issuing any prospecting licenses or mining leases for minor minerals in the Scheduled Areas. This requirement ensures that the local communities have a say in the exploitation of their natural resources, thereby safeguarding their interests and promoting sustainable development.
Similarly, the prior approval of the Gram Sabha or the relevant Panchayats is required before granting any concessions for the exploitation of minor minerals through auction. This measure is designed to ensure that the extraction of these resources is conducted in a manner that is both environmentally responsible and beneficial to the local population.
By entrusting these responsibilities to the Panchayats and requiring their input on resource management decisions, the Act aims to empower local communities, protect their rights, and promote a more inclusive and participatory approach to governance in the Scheduled Areas. In order to empower Panchayats in the Scheduled Areas to function effectively as institutions of self-government, the State Legislature must ensure that these Panchayats, along with the Gram Sabha, are endowed with the necessary powers and authority.
Notably:
- Regulation of Intoxicants: The authority to enforce prohibition or to regulate and restrict the sale and consumption of any intoxicants within their jurisdiction.
- Ownership of Minor Forest Produce: The right to own and manage minor forest produce, ensuring that the benefits from these resources are retained within the community.
- Prevention of Land Alienation: The power to prevent the alienation of land in the Scheduled Areas and to take appropriate actions to restore any land that has been unlawfully alienated from a Scheduled Tribe.
- Management of Village Markets: The responsibility to manage village markets, regardless of the name by which they are called, ensuring fair and equitable trade practices.
- Control Over Money Lending: The authority to regulate money lending activities to protect Scheduled Tribes from exploitative practices.
- Oversight of Social Institutions: The power to exercise control over institutions and functionaries in all social sectors, ensuring that they operate in the best interests of the community.
- Local Planning and Resource Management: The ability to oversee local plans and manage resources for such plans, including tribal sub-plans, to ensure that development initiatives are aligned with the needs and priorities of the tribal communities.
By endowing Panchayats and Gram Sabhas with these specific powers, the State Legislature aims to promote self-governance, protect the rights and resources of Scheduled Tribes, and foster sustainable development in the Scheduled Areas. This approach not only preserves the cultural identity and autonomy of tribal communities but also integrates them into the broader framework of democratic governance. State legislations that grant Panchayats the necessary powers and authority to function as self-governing institutions must include safeguards to ensure that higher-level Panchayats do not encroach upon the powers and authority of lower-level Panchayats or the Gram Sabha. This is crucial to maintaining the decentralized nature of governance and ensuring that local bodies retain their autonomy and effectiveness.
The Sixth Schedule provides a robust model for self-governance, particularly suited to the unique socio-cultural and administrative needs of tribal communities. By adopting this pattern, the State Legislature can ensure that the administrative structures are not only effective but also culturally sensitive and inclusive. Therefore, the act provides for the state legislature to follow sixth schedule of the constitution framework
- These administrative arrangements are designed to promote transparency, accountability, and participation at all levels of governance. This includes establishing clear lines of authority and responsibility, as well as mechanisms for regular consultation and feedback from the community. Such measures help building trust and cooperation between different levels of Panchayats and the Gram Sabha, fostering a more cohesive and responsive governance system.
- Furthermore, the State Legislature should ensure that adequate resources and capacity-building initiatives are provided to Panchayats at all levels. This includes financial resources, technical support, and training programs to enhance the skills and knowledge of Panchayat members. By empowering these local bodies with the necessary tools and support, the State can facilitate more effective and sustainable development in the Scheduled Areas.
By incorporating these safeguards and following the Sixth Schedule’s pattern, the State Legislature aims to create a balanced and effective governance structure that empowers local communities while maintaining the integrity and autonomy of each level of Panchayat. This approach not only respects the cultural identity and autonomy of tribal communities but also integrates them into the broader framework of democratic governance, ensuring that their voices are heard and their needs are addressed.
Despite the provisions in Part IX of the Constitution, with the exceptions and modifications introduced by this Act, any existing law related to Panchayats in the Scheduled Areas that was in force immediately before this Act received the President’s assent will remain effective. This continued until such laws were amended or repealed by a competent Legislature or other authority, or until one year had passed since the Act received the President’s assent. Such provisions enable a smooth transitioning between laws and provide the necessary time for the authorities to develop the infrastructure needed for the same.
Furthermore, all Panchayats that was in existence immediately before the Act’s commencement continued to function until the end of their term. They may only be dissolved earlier if a resolution to that effect is passed by the Legislative Assembly of the State, or in the case of a bicameral legislature, by both Houses of the State Legislature. It also safeguards the existing Panchayats, ensuring they can complete their terms unless a formal resolution for their dissolution is passed. This approach balances the need for legal consistency with the practical requirements of governance, providing a stable framework for the implementation of the new provisions under the Act.
Impact and Significance (cum Conclusion)
The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) is a pivotal piece of legislation designed to empower tribal communities in India by extending the provisions of Part IX of the Indian Constitution to the Scheduled Areas. PESA mandates that state laws related to Panchayats in these areas must conform to customary laws, social and religious practices, and traditional management of community resources. Often dubbed the “Constitution within the Constitution” for tribal regions, it seeks to decentralize governance and promote self-rule among tribal communities, thereby enhancing their socio-economic development. By acknowledging and incorporating traditional practices and institutions, PESA aims to empower tribal populations and ensure their active participation in local governance.
The Act has played a significant role in fostering grassroots democracy and increasing the decision-making power of tribal communities. However, its implementation has encountered challenges such as lack of awareness, administrative obstacles, and resistance from non-tribal entities. Ongoing efforts are necessary to address these issues and fully realize PESA’s potential in empowering tribal self-governance
References:
- Panchayat (Extension to Scheduled Areas) Act, 1996, pdf (mha.gov.in), accessed on 10th Aug,2024.
- Empowering Tribal Communities: The Pesa Act Of 1996, IndiaTribe, Nov 30th, 2023, Empowering Tribal Communities: the PESA Act of 1996 – Tribe of India (tribesofindia.org) , accessed on 10th Aug,2024.
- Kundan Pandey, PESA: The wait for reforms on the ground continues even after 25 years, 4rth2024, PESA: The wait for reforms on the ground continues even after 25 years (mongabay.com), accessed on 18th Aug, 2024.
- Sakshi Gupta, Panchayat (Extension to Scheduled Areas) Act, 1996, 27th June, 2024, Panchayat Extension to Scheduled Areas (PESA Act) 1996 (studyiq.com), accessed on 8rth Aug, 2024.
- G. Sampath, How the PESA has boosted forest conservation in India, 25th June, 2024, How the PESA has boosted forest conservation in India – The Hindu, accessed on 10th Aug,2024.
- Concept Note on The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996(PESA) (pib.gov.in), accessed on 18th Aug, 2024.
- R. Bijoy, Panchayat Raj (Extension to Scheduled Areas) Act of 1996: Policy Brief (undp.org), 2012, accessed on 10th Aug, 2024.
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[1] 244. Administration of Scheduled Areas and Tribal Areas
(1)The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram.
[2] 342. Scheduled Tribes (1)The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notificationspecify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.(2)Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
