The PESA Act

Source: By The Indian Express

Aam Aadmi Party (AAP) leader Arvind Kejriwal on 7 August 2022 declared a six-point “guarantee” for tribals in Gujarat’s Chhota Udepur district, including the “strict implementation” of The Panchayats (Extension to the Scheduled Areas) Act (PESA Act).

The PESA Act was enacted in 1996 “to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas”. (Other than Panchayats, Part IX, comprising Articles 243-243ZT of the Constitution, contains provisions relating to Municipalities and Cooperative Societies.)

Under the PESA Act, Scheduled Areas are those referred to in Article 244(1), which says that the provisions of the Fifth Schedule shall apply to the Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram. The Fifth Schedule provides for a range of special provisions for these areas.

How is the PESA Act, 1996 supposed to work?

The PESA Act was enacted to ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas. It recognises the right of tribal communities, who are residents of the Scheduled Areas, to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources.

In pursuance of this objective, the Act empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors. This includes the processes and personnel who implement policies, exercising control over minor (non-timber) forest resources, minor water bodies and minor minerals, managing local markets, preventing land alienation and regulating intoxicants among other things.

State governments are expected to amend their respective Panchayati Raj Acts without making any law that would be inconsistent with the mandate of PESA.

Ten states — Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana — have notified Fifth Schedule areas that cover (partially or fully) several districts in each of these states.

After the PESA Act was enacted, the central Ministry of Panchayati Raj circulated model PESA Rules. So far, six states have notified these Rules, including Gujarat.

What is the issue in Gujarat?

Gujarat notified the State PESA Rules in January 2017, and made them applicable in 4,503 gram sabhas under 2,584 village panchayats in 50 tribal talukas in eight districts of the state.

At an event held in the tribal district of Chhota Udepur in December 2020, then Chief Minister Vijay Rupani hailed the Act as the “golden period of tribal development”, promising a separate security force for the Gram Sabhas that would have “complete power to decide their issues”.

However, while the provisions of the law deem the Gram Sabhas as “most competent” to deal with matters related to their territories for safeguarding their customs, traditions as well as the natural resources in the tribal areas, the Act has not been enforced in letter and spirit, legal experts say.

Advocate Bhushan Oza, who has been representing tribal groups in their petitions pending before authorities and courts with respect to the tribal rights, says that the implementation of the Act is in contrast to what it promises.

Oza had told The Indian Express in 2020 that “Despite section 4(a) and 4(d) stating explicitly that the government cannot make any law at the state level or the Central level in matters concerning the tribal areas…tribals have never been taken into confidence before their lands are acquired or projects planned in their places of habitat. The PESA Act is rooted in the cultural and traditional practices of the tribal community, and vests ultimate power to the Gram Sabha to make administrative decisions. But that is not the ground reality.”

Oza also said that although the PESA Act lays down that the state must conduct elections in such a way that the tribal representation is to be dominant in the Gram Sabha Committees, there has been no attempt to proportionally increase the representation.

Robust implementation of PESA in areas notified under the Fifth Schedule in Gujarat has been a major contention of the Bharatiya Tribal Party (BTP) led by MLAs Chhotu Vasava and Mahesh Vasava. BTP chief Chhotu Vasava has said the implementation of PESA was an “absolute condition” for his party’s alliance with the AAP for the Assembly elections scheduled for later this year.