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Assignment 18 Pages

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Panchayat Extension to Scheduled Areas (PESA) Act,
1996
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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 - 243 ZT 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. The PESA
Act gives special powers to the Gram Sabhas in Scheduled Areas, especially for the
management of natural resources. The PESA Act was enacted in 1996 to provide for the
extension of the provisions of Part IX of the Constitution related to the Panchayats to the
Scheduled Areas. Part IX of the Constitution, which consists of Articles 243 - 243 ZT,
covers legislation related to municipalities and cooperative societies in addition to
Panchayats. The Panchayats Extension to Scheduled Areas (PESA) Act, 1996 was
intended to guarantee self-governance through Gram Sabhas (village assemblies) for
those residing in Scheduled Areas.
The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA is a
law enacted by the Government of India for ensuring self-governance through traditional
Gram Sabhas for people living in the Scheduled Areas of India. Scheduled Areas are
areas identified by the Fifth Schedule of the Constitution of India. Scheduled Areas are
found in ten states of India which have predominant population of tribal communities.
The Scheduled Areas, were not covered by the 73rd Constitutional Amendment or
Panchayati Raj Act of the Indian Constitution as provided in the Part IX of the
Constitution. PESA was enacted on 24th December, 1996 to extend the provisions of Part
IX of the Constitution to Scheduled Areas, with certain exceptions and modifications.
PESA is an Act to provide for the extension of the provisions of Part IX of the Constitution
relating to the Panchayats and the Scheduled Areas.
PESA was viewed as a positive development for tribal communities in Scheduled Areas
who had earlier suffered tremendously from engagement with modern development
processes and from the operation of both colonial laws and statutes made in independent
India. The loss of access to forest, land, and other community resources had increased
their vulnerability.
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Rampant land acquisition and displacement due to development projects had led to large
scale distress in tribal communities living in Scheduled Areas. PESA was seen as a
panacea for many of these vulnerabilities and sought to introduce a new paradigm of
development where the tribal communities in such Scheduled Areas were to decide by
themselves the pace and priorities of their development.
Scheduled Areas mean the Scheduled Areas as referred to in Clause (1) of Article 244 of
the Constitution. The Fifth Schedule of the Constitution of India, which mentions
Scheduled Areas, is termed as a "Constitution within a Constitution". The Act extended
the provisions of Panchayats to the tribal areas of ten states that have Fifth Schedule
Areas.
What is PESA Act?
PESA Act acknowledges the right of tribal communities, who live in Scheduled Areas, to
rule themselves using their own systems of self-government. The Act gives Gram Sabhas
the authority to play an important part in approving development plans and managing all
social sectors. Ten states- Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh,
Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana- have
declared Fifth Schedule areas that include (completely or partially) a number of their
districts.
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. Part IX,
comprising Articles 243 - 243 ZT of the Constitution, contains provisions relating to
municipalities and cooperative societies.
Provisions:

The PESA act directed the state government to make Gram Sabha and Panchayats
function as Institutions of Local Self Governance, specifically on matters of:
1. Enforcing the prohibition of sale and consumption of intoxicants
2. Ownership of minor forest produce
3. The authority to oversee village markets
4. Restore unlawfully alienated land, and prevent land alienation
5. Control over money lending, etc.

The PESA also gave the Scheduled Areas Gram Sabha the authority to approve
plans and programs for:
1. Social and economic development
2. Certifying utilization of funds by gram Panchayats
3. Identification of beneficiaries under poverty alleviation programs
4. Protect natural resources, including minor forest produce
5. Gram Sabha is to be consulted before land acquisition
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Some other provisions:
1. Gram Sabha to preserve indigenous traditions, beliefs, and culture
2. Gram Sabha to resolve the local disputes
3. Management and protection of common properties based on their traditional
systems is to be done by Gram Sabha
4. The administration must consult gram Sabha before land acquisition
5. Gram Sabha holds the right to control the distillation, prohibition, and manufacture
of intoxicants / liquor.

Objectives:
1. To ensure self-governance through Gram Sabhas (village assemblies) for people
living in the Scheduled Areas.
2. 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.
3. Empowers Gram Sabhas to play a key role in approving development plans and
controlling all social sectors.

What is the Significance of Implementing the Act?
1. Democratic Decentralisation:

PESA empowers Gram Sabhas to play a key role in approving development plans
and controlling all social sectors.
This includes management of:

a. Resources over Jal, Jangal, Zameen (water, forest and land)
b. Minor forest produce

2. Human resources: Processes and personnel who implement policies:

a. Managing local markets
b. Preventing land alienation
c. Regulating intoxicants among other things

3. Preserving Identity:

The powers of Gram Sabha's include maintenance of cultural identity and tradition,
control over schemes affecting the tribals, and control over natural resources within
the area of a village.

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

5. Public Watchdog:

The Gram Sabha would have the powers to monitor and prohibit the manufacturing,
transport, sale and consumption of intoxicants within their village limits.

What are the Issues Related to PESA?
1. Partial Implementation:

The state governments are supposed to enact state laws for their Scheduled Areas
in consonance with this national law

a. This has resulted in the partially implemented PESA.
b. The partial implementation has worsened self-governance in Adivasi areas,
like in Jharkhand.

2. Administrative Hurdles:

Many experts have asserted that PESA did not deliver due to the lack of clarity,
legal infirmity, bureaucratic apathy, absence of political will, resistance to change in
the hierarchy of power, and so on.

3. Followed in Letter Rather than Spirit:

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.

4. PESA Act only applies to areas that are recognized as Scheduled Areas by law.
This legislation does not apply to a sizable portion of tribals who reside outside the
areas regarded as the scheduled areas.

5. Panchayats have not been given enough authority to levy and collect taxes, fees, or
other levies.

6. State Finance Commission decisions are only selectively implemented, giving
Panchayats no real power in practice.

7. Gram Sabha is the primary tool for successfully implementing PESA by empowering
the tribal people to manage their own affairs in a mostly autonomous manner.
Though, in reality, they are subordinate to other state legislatures and extraneous
forces like the forest department. It compromises PESA's primary objectives.

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How are Tribals and their Rights Protected in India?
a. In India, most of the tribes are collectively identified under Article 342 (1&2) as
"Scheduled Tribes".
b. Their right to self-determination is guaranteed by Part X: The Scheduled and Tribal
Areas - Article 244: Administration of Scheduled Areas and Tribal Areas.
c. That is, Fifth and Sixth Schedules of the Indian Constitution.
d. The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or
PESA.
e. The Tribal Panchsheel Policy (non-imposition by encouraging self-governance)
f. Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 concerns the rights of forest-dwelling communities to land and
other resources.

About PESA Act, 1996
a. To promote local self-governance in rural India, the 73rd constitutional amendment
was made in 1992.
b. Through this amendment, a three-tier Panchayati Raj Institution was made into a
law.
c. However, its application to the scheduled and tribal areas under Article 243 (M) was
restricted.
d. After the Bhuria Committee recommendations in 1995, Panchayat Extension to
Scheduled Areas (PESA) Act 1996 came into existence for ensuring tribal self-rule
for people living in scheduled areas of India.
e. The PESA conferred the absolute powers to Gram Sabha, whereas State
Legislature has given an advisory role to ensure the proper functioning of
Panchayats and Gram Sabhas.
f. The power delegated to Gram Sabha cannot be curtailed by a higher level, and
there shall be independence throughout.
g. The PESA is considered to be the backbone of tribal legislation in India.
h. PESA recognises the traditional system of the decision-making process and stands
for the peoples' self-governance.

Following powers and functions have been provided to the Gram
Sabhas:
1. Right to mandatory consultation in land acquisition, resettlement and rehabilitation
of displaced persons.
2. Protection of traditional belief, the culture of the tribal communities
3. Ownership of minor forest products
4. Resolution of the local disputes
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5. Prevention of land alienation
6. Management of village markets
7. Right to control production, distillation, and prohibition of liquor
8. Exercise of control over money-lending
9. Any other rights involving the Scheduled Tribes.

The law does not automatically cover the Scheduled Area, so, on the recommendation of
the Bhuria Committee Report submitted in 1995, PESA Act was enacted. The Act was
enacted in December 1996 for the extension of laws made under the 73rd constitutional
amendment to the scheduled areas, to enable Tribal Self Rule in these areas.
The PESA Act extended the provisions of Panchayats to the tribal areas. The act passed
on the resources, responsibility, and decision-making from the central government to the
lowest unit of governance, the Gram Sabha or the Village Assembly. Most of the North-
eastern states under the 6th Schedule where autonomous councils for governance exist
are not covered by PESA.
The Adivasi self-governance system has disappeared from most of the areas in
Jharkhand. During most of the time in history, most of the Adivasis (India's tribal
communities) had their own federal governance system. However, the administrative
systems during the colonial period and after independence affected the Adivasi
governance system to a great extent. The Panchayat Extension to Scheduled Areas
(PESA) Act, 1996 was supposed to uphold the traditional decision-making process.
Key Highlights:

Case Study - Tribal Governance System of Jharkhand:
1. Jharkhand was carved out as the 28th state of India from the Southern part of Bihar
in 2000. This part was distinctively different from the northern part of Bihar in terms
of geography and social composition. It has 32 different tribes, including the nine
Particularly Vulnerable Tribal Groups (PVTG).
2. According to Census 2001, Santhal (34%), Oraon (19.6%), Munda (14.8%) and Ho
(10.5%) are among the major tribes in terms of numbers. The entire social system
was organised into three functional levels across major tribal communities in the
state.
3. The first one is at the village level; the second at the cluster of five-six village levels
and the third at community levels.
4. These decision-making processes were considered people-centric and democratic,
although women were mostly not allowed to participate in such processes.
5. They had their own system of governance, which was, unlike the caste system,
non-hierarchical. Every tribal village had a village council as the basic unit for self-
governance.
6. These forums used to act as the decision-making bodies for all matters related to
administration, the Parliament and judiciary.
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7. The administrative matters were related to maintenance of village commons (such
as lands, forests and water bodies), labour sharing, agriculture activities, religious
events and festivals, etc.
8. The parliamentary matters were related to upholding and interpreting norms and
unwritten laws and traditional values.
9. The judiciary matters were related to managing conflict, disciplinary actions, etc
guided by unwritten norms and values.

Gradual Collapse of the System:
1. After the introduction of the Bihar Panchayat Raj System (BPRS) in 1947, these
Adivasi traditional governance systems became weak.
2. BPRS was formed keeping the non-Adivasi areas in view.
3. As a result, due to the non-priority and neglect, the process of the traditional
governance system was affected.
4. This was aggravated by industrialisation, displacement of Adivasis and
urbanisation.

Bhuria Committee
The government appointed a committee headed by Mr. Dileep Singh Bhuria to work out
the details as to how structures similar to Panchayati Raj Institutions can take shape in
Tribal Areas and Scheduled Areas and define their powers. The Bhuria Committee
submitted its report in January 1995.
The Committee recommended a three-tier structure of self-governance in the tribal
areas, those are:

a. Gram Sabha - Every habitation community to have a Gram Sabha which will
exercise command over natural resources, resolve disputes and manage
institutions under it like schools and cooperatives.
b. Gram Panchayat - An elected body of representatives of each Gram Sabha, also
functions as an appellate authority for unresolved disputes at the lower level.
c. A block or taluka level body is the next higher level.

Role of governors in Scheduled Areas and in implementation of
PESA
PESA is implemented in Scheduled Areas. The Scheduled Areas are governed by the
provisions of the Fifth schedule of the Constitution. The Fifth schedule gives to the
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governors of the ten scheduled area states very important functions. While,
constitutionally, in most matters of governance the governors are aided and advised by
the Council of Ministers, it may not be so in matters concerning the Scheduled Areas.
As per Para 3 of the Fifth Schedule "the Governor of each State having Scheduled Areas
therein shall annually, or whenever so required by the President, make a report to the
President regarding the administration of the Scheduled Areas in that State and the
executive power of the Union shall extend to the giving of directions to the State as to the
administration of the said areas."
The Attorney General of India had advised the Home Ministry that the role of the
Governor in sending this report is discretionary. An even more significant role of the
Governor in scheduled areas arises out of the powers inherent in Sub-Para (1) of Para 5
of the Fifth Schedule. As per the sub-Para "5.
Law applicable to Scheduled Areas:
1. Notwithstanding anything in this Constitution, the Governor may by public
notification direct that any particular Act of Parliament or of the Legislature of the
State shall not apply to a Scheduled Area or any part thereof in the State or shall
apply to a Scheduled Area or any part thereof in the State subject to such
exceptions and modifications as he may specify in the notification and any direction
given under this sub-paragraph may be given so as to have retrospective effect." It
has been alleged that Governors of most states have not been able to send all
reports on time and the content of the reports also does not do justice to this
Constitutional responsibility.

The above provision gives to the Governor of a Schedule Areas a very significant power
"notwithstanding anything in the Constitution". This power, unlike the power in Sub-Para
(2) of Para 5 (regulation making powers) is bound neither by the advice of the Tribes
Advisory Council or the assent of the President. The provision lays down the
responsibility on the Governor to ensure that laws that are contrary to the interests of
Scheduled Areas may be suitably modified.
However, it has been alleged that Governors of Scheduled Areas (barring a few
exception) have hardly ever used these powers independently. There have been also
demands that the Reports prepared by the Governors should be made public. However,
recently Maharashtra Governor has issued a number of notifications to bring the state
subject laws in line with PESA and to guarantee minor forest produce to Gram Sabha.
Certain steps have also been taken to ensure peace and good governance in such areas.
A Group of Governors on the Areas under Schedule V of the Constitution and Related
Issues'- was constituted by President Pranab Mukherjee, included Governors of Andhra
Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Odisha, Rajasthan and
Madhya Pradesh, with Governor of Maharashtra and Minister of Tribal Affairs,
Government of India - as special invitees.
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The Group recommended a number of interventions such as constitution of a Tribes
Advisory Council in Schedule V States on a uniform pattern, drafting of a uniform
model for Tribal Sub Plan Budget Allocations, making TSP allocations non-transferable
and non-lapsable, declaring all TSP districts as 'High Priority Districts' under National
Rural Health Mission, protecting land rights of tribal communities, etc. The Prime Minister
of India in the Conference of Governors held in 2013 advised the Governors of Fifth
scheduled States to use their Fifth schedule powers and to implement PESA effectively.
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.
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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.
Implementation of PESA at certain State Level
Implementation of PESA in Maharashtra and Role of Governor under the Fifth
Schedule

A number of steps have been taken in the past few years by the Governor of Maharashtra
to fulfil his mandate under the Fifth Schedule and to ensure implementation of PESA in
Maharashtra.

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