IMPORTANCE OF PESA ACT, 1996

Gujarati political parties are attempting to win over tribal voters by promising to adhere closely to the 1996 Panchayat Extension to Scheduled Areas (PESA) Act.

The State PESA Rules were made applicable to 4,503-Gram Sabhas under 2,584 village panchayats in 50 tribal talukas in eight districts of Gujarat by notification of the rules in January 2017.

The Act, however, has not been strictly adhered to.

The PESA law has been so far enacted in six states (Himachal Pradesh, Andhra Pradesh, Telangana, Rajasthan, Gujarat, and Maharashtra), and Chhattisgarh would become the seventh state if the rules were to be implemented.

PESA & tribal population in Gujarat

• In January 2017, Gujarat announced the State PESA rules.
• 8.1% of the ST population is in Gujarat, one of the 10 states with Schedule Areas.
• The eastern districts, close to the borders of Rajasthan, Madhya Pradesh, and Maharashtra, are where the tribal people are concentrated.
• Gujarat is home to 11 significant tribes, with the Bhil making up almost 48% of the state's total tribal population.

About Panchayat Extension to Scheduled Areas Act, 1996

Background:

The 1992 Indian Constitutional Amendments 73 and 74 extended the three-tier Panchayati Raj system of government to the nation's rural and urban areas.

It was enacted in April 1993.

• Scheduled areas, which are primarily populated by tribal members, were spared from the new revisions.
• There was a significant desire for strengthening local government in the scheduled region as well, given the low human development statistics.
• As a result, in 1996, Parliament passed a special piece of law known as the Panchayat (Extension to Scheduled Areas) Act (PESA).
• It becomes effective on December 24, 1996.

Goals:

To apply, with some changes, to the Scheduled Areas the provisions of Part IX of the Constitution relating to Panchayats.

• To grant the majority of tribe members self-rule.
• To establish Gram Sabha as the focal point of all activities and to implement participatory democracy in village governance.
• To develop a proper administrative structure that adheres to customary procedures.
• To protect and uphold the tribal groups' traditions and customs.

Application:

• It now applies to the Fifth Schedule areas, which deal with the management of the districts where tribal communities predominate.
• Ten states in the union have it in effect.
• PESA Rules have been notified by six States: Andhra Pradesh, Himachal Pradesh, Gujarat, Maharashtra, Rajasthan, and Telangana.
• The other four States—Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha—should also develop PESA Rules and begin putting them into effect as soon as possible.

Under the PESA Act, the Gram Sabhas were given broad authority to: enforce prohibition; control or impose restrictions on the sale and use of any intoxicant.

• possession of small-scale forest products.
• prevent the alienation of land in the Scheduled Areas and take the necessary steps to restore any Scheduled Tribe territory that has been illegally alienated.
• Manage the markets in the villages, whatever they are named.
• Control the lending of money to the Scheduled Tribes.
• In all spheres of society, exert control over institutions and officials.
• control over local plans, including tribal sub-plans, and the resources used to support such plans.

Significance of Implementing the Act

Democratic decentralization: PESA gives Gram Sabhas significant authority over all social sectors and the ability to approve development plans. This involves control over:

• Resources over jal, jangal, zameen (water, forest, and land)
• Minor forest produce
• Human resources: Processes and personnel who implement policies
• Managing local markets
• Preventing land alienation
• Regulating intoxicants among other things

Identity Preservation: The gram sabhas have authority over tribal affairs, the upkeep of cultural traditions and identity, and the management of natural resources in a village's vicinity.

Conflict Resolution: The PESA Act thus enables gram sabhas to maintain a safety net over their rights and surroundings against external or internal conflicts.

Public Watchdog: Within the boundaries of their villages, the gram sabha would have the authority to regulate and forbid the production, distribution, sale, and consumption of intoxicants.

Gandhian Philosophy: The Act is based on the Gandhian idea of Gram Swaraj, which is embodied in Article 40 of the Constitution (which organizes local panchayats) and only came to life with the passage of PESA.

Past injustice: Its provisions gave the impression that a saviour had emerged, erasing the historical injustice done to the tribal people and restoring their honour and self-government customs.

Issues:

State implementation and performance:

• To date, 40% of States have not created the essential rules for PESA, highlighting the state government’s lack of interest in the law.
• Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha are the four states that have not yet established the regulations for the act's implementation.
• The Panchayat Raj Act has not yet been modified in any state as needed under PESA.
• Even the states where the regulations were created did a poor job of guaranteeing their application.

Non-uniformity

• The state legislatures have the discretion to choose the Gram Sabhas' powers and functions, even though the Gram Sabhas' constitution is required in all states, many states have not devolved necessary power to the Gram Sabha.
• As a result, several states have created this body's powers and functions in various ways.
• In flagrant violation of PESA, 121 villages in Gujarat were notified of the project and their villages were cleared to build the Statue of Unity.
• Another instance was when the Pathalgadi movement, in which Adivasis constructed stone slabs to mark the boundaries of their communities, was criminalized.

Conflicting with other laws:

• After establishing the PESA, the Union Government introduced several additional laws and incorporated several PESA provisions into these laws, undermining the relevance and intent of the PESA.
• For instance, Gram Sabhas do have a role in the Land Acquisition Act of 2013 but mere consultation provisions limit its power.
• Similar PESA protections are found in the Forest Right Act of 2006, and people now look to these laws to defend their rights and resources.

Overriding laws:

• There has been a drive for corporate infiltration and resource control, making it simpler to act without the gram sabha's assent.

Way forward

For state governments: The Center and states' lack of commitment to gram sabhas' strengthening is demonstrated by the Act's violations and the weakening of the Act.

Laws governing the land acquisition, excise, forest production, mining and minerals, Agri produce market, and money lending must be changed for state governments to comply with PESA.

Civil society: Since they are more familiar with the realities and problems that tribal people confront on the ground, it is important to include civil society and NGOs working well in the tribal community to facilitate better PESA implementation.

In theory, PESA is an excellent piece of legislation, but its effectiveness depends on how seriously and effectively it is put into practice.

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