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Mythical promise? Gujarat PESA rules ultra vires of parent Act, ‘violate’ tribal rights

By Aditya Gujarathi*
The Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA) was enacted with the objective of recognizing the unique cultural and traditional practices of the Adivasi community whilst extending the Panchayati Raj Institutions with special rights to the Gram Sabha.
PESA lays down the exceptions and modifications the states were required to make in not only their own Panchayati Raj Acts to cater to Scheduled Areas, but also bringing other legislations in consonance with the letter and spirit of PESA.
The Gram Sabhas under PESA are deemed to be “competent” to safeguard and preserve the traditions of its populace, community resources and customary mode of dispute resolution.
While the act in itself promises a lot, it still leaves a lot to be desired as it does not truly transfer the final decision making power on a plethora of subjects to the Gram Sabha. Despite section 4(a) and 4(d) stating explicitly that no law at the state level should be in contravention to the social, cultural and traditional practices of the Adivasi community, the reality is in stark contrast.
Section 4(a) states that the states have to enact a State Panchayati Raj legislation in consonance with Adivasi culture and practices, but there have only been amendments in the State Panchayati Raj Acts and no state has enacted a separate law but have only notified the rules in the form of guidelines or amended their pre-existing Panchayati Raj Acts.
It is not just the states that have failed to implement the Act. The parent Act itself lacks credence with respect to fundamental issues like land acquisition and mining of minerals wherein only “mandatory consultation” has been provided for but no “express consent”, making the entire process ineffective in practice.
Nevertheless, these provisions create an enabling space for the Gram Sabhas to participate in development planning, ensuring implementation, and overseeing the spending of funds in a transparent manner. 
These provisions prove to be useful when exercised in conjunction with varying powers and functions in various socio-economic legislations, such as the Mahatma Gandhi Rural Employment Guarantee Act, 2005 (MNREGA) and other allied social security legislations.

PESA Rules of Gujarat vis-à-vis the Act

Gujarat notified State PESA Rules in 2017, and are quite comprehensive in nature with respect to the procedure related to conduct of elections and roles of various committees at the Gram Sabha level. And yet, while some provisions are in tune with the parent Act, there are glaring omissions which violates the very spirit of the Act as they divest powers from the Gram Sabha and vest them in the Sarpanch, Panchayat Secretary (Talati), the Block and District Development Officers.
Rule 12(b) of the PESA Rules clearly violates the principle of separation of power between the Gram Sabha and the Panchayats espoused in sections 4(e) and 4(n) of the act read together wherein it is stated that the Gram Sabha shall have the power of approving plans, programmes and projects for social and economic development and that the higher Panchayats do not assume the powers and authority of any Panchayat at the lower level.
Essentially, what rule 12(b) states is that where the Gram Sabha is in disagreement with any decision of any government department, it is to be referred to the District Development Officer of the District Panchayat who will decide it according to the provisions of the Act. This rule is prima facie in contravention of the Act and prima facie takes away the power of autonomy devolved upon the Gram Sabha through the Act.
Section 4(m)(vii) of the act grants the power to the Gram Sabha or the local Panchayat control over local plans and resources, including tribal sub-plans but such a provision is absent from the rules and hence makes Gram Sabha a toothless body when it comes to making policies for itself. Usually, the Panchayat body along with the Talati makes the plan, which is put to vote to those attending the Gram Sabha, which in reality lacks the requisite numbers necessary for brainstorming these plans or suggesting amendments.
On June 22, 2018, the village of Bilmad in Dang district of Gujarat sought to organize a Gram Sabha under PESA with its own agenda but received a letter from the Panchayat Secretary (Talati) stating that the Gram Sabha was not organized in consonance with the Gujarat Panchayati Raj Act, 1993. This is just one of many stories where government functionaries have undermined PESA.
Recently, a conversation between this writer and the Taluka (Block) Development Officer of Dediapada, in Narmada District, also revealed how PESA is not implemented in letter and spirit. He stated that there is no “special budget provision” for a PESA Gram Sabha revealing ignorance of his responsibilities and duties, despite holding an essential post with respect to implementation of PESA.

PESA and minor forest produce

Furthermore, section 4(m)(ii) and the model rules read together state that the ownership of minor forest produce (MFP) shall vest in the Gram Sabha, and if any rules regarding organization of trade is made by the state, “prior approval” of the Gram Sabha shall be required for the same. 
The Gujarat Rules make a mockery of this provision by vesting the powers in the Gram Panchayat. This provision is further made problematic due to the existence of Group Gram Panchayats in Gujarat wherein multiple villages are grouped together to form one Panchayat.
Gujarat PESA rules do absolutely nothing to curb injustice resulting in continued exploitation of Adivasis, though they state that powers vest in Gram Panchayats
The Gujarat Rules state that power may be vested on the Gujarat State Forest Development Corporation to sell MFP at the prices determined by the government and the net profit would be then transferred into the accounts of the collectors directly. The autonomy that PESA grants to the Gram Sabha is taken away by this provision and vests it in the Forest Department, legitimizing age old process of contracting with individuals who exploit the tribals.
Despite the fact that the sub-rule 2 of Rule 39 states that the collectors of MFPs shall be free to sell the MFP collected by them in any manner they like, and the de-nationalization of MFPs on notification of the PESA rules, the contractors still hold a monopoly over tendu leaves and other MFPs taking advantage of the rampant illiteracy in the Schedule V Areas in Gujarat.
The PESA rules have made no real difference to the position on the ground wherein the State Forest Development Corporation takes out tenders for licensing out trade through contractors. The contract then goes to the highest bidder who trades with the villagers unaware of the value of their products in the market.
The Gujarat PESA rules do absolutely nothing to curb this injustice resulting in continued exploitation of Adivasis. Even with the Rules stating that the powers would vest in Gram Panchayats to clear the path of the middlemen, the field experiences of various Civil Society Organizations state otherwise.
Despite the intrinsic link between PESA and Forest Rights Act, the Gujarat PESA rules clearly state that MFP would only constitute those that have been mentioned in the Gujarat Minor Forest Produce Trade Nationalization Act 1979 and not the Forest Rights Act, despite the Model Rules and the FAQs on the Panchayati Raj Ministry website stating otherwise.

Conduct of Gram Sabhas

Rules 60 and 62 vest unbridled powers in the hands of the Presiding Officer, who is the Sarpanch or the Deputy Sarpanch, to fix the agenda and points of order. By stating that no discussion shall take place on any point except by express consent of the Presiding Officer, the power of the Gram Sabha is deemed void.
It has often been noticed that the Talati controls the Sarpanch and takes a pre-decided agenda to these Gram Sabhas wherein even the quorum is not present. The fact of the matter is that when the Object and Spirit of the Act vests powers in the Gram Sabha, such unbridled powers to the Sarpanch, especially when the Gram Sabhas are only conducted four times in a year, completely violates the community spirit of PESA.
Various experiences in the state have exposed the fact that the quorum isn’t complete in most villages during the conduct of the Gram Sabha. The Talati and the Sarpanch dominate the Gram Sabha proceedings and granting the Sarpanch the final authority of decision making power on points of order only curtails the powers vested in the Gram Sabha.

Land acquisition

While provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act, 2013) state that consent of Panchayats at the appropriate level in Scheduled Areas shall be taken, PESA states that “consultation” is a pre-requisite for acquisition of land with the Gram Sabha OR the Panchayat at the appropriate level.
The use of the word “or” was shrewd drafting making sure that the Gram Sabha in a particular village does not cause any impediment in acquisition of land. The model rules summarized in the guidelines to the PESA States issued by the Panchayati Raj Ministry clearly state that every affected Gram Sabha is to be consulted before acquisition of land to make an assessment of the foreseeable damage, both socio-economically and environmentally. 
Again, visible departure from the spirit and object of the Act is observed, with the potential of oppressing the members of the Gram Sabhas and villages which are actually affected by acquisition of land. The Maharashtra Rules are in tune with the model rules and make room for a comprehensive procedure before acquisition of land in stark contrast to the Gujarat rules.

Consultation and consent

Providing for consultation instead of express consent, that too at the appropriate Panchayat level, is tantamount to shirking responsibility under PESA, wherein every village is a legal entity of its own. Nowhere in the Act or the Gujarat Rules is the word consent used, instead substituted by consultation which has a lower binding value.
The exact same problem had arisen when the Compensatory Afforestation Fund Act was being passed and the rules only provided for consultation and not express consent of the Gram Sabha. It is a classic tactic used by the drafters to circumvent procedural hurdles, in the process explicitly violating basic human rights of those whose land is being acquired or utilized.
Although consultation is at a lower footing than “informed” or “mandatory consent”, the Supreme Court in Indian Administrative Service & Ors vs Union of India and Ors laid down six criteria wherein consultation would be deemed mandatory and the action would be ultra vires in its absence.
The foremost being, “When the offending action effects fundamental rights or to effectuate built in insulation, as fair procedure, consultation is mandatory and non-consultation renders the action ultra vires or invalid or void.” This gives some affirmation to the consultation procedure mentioned in the act and the rules. 
Despite all its negatives, PESA and the Rules can be used as an effective strategic tool. There is a provision for an extraordinary Gram Sabha if it is decided in the general meeting, or written information given to the Secretary (Talati) by at least 5% of the total members or twenty-five members whichever is more.
If the Talati or the Sarpanch or Deputy Sarpanch fail to convene the meeting within a week, the Taluka Development Officer has to issue a notice of such meeting and a depute an officer for the same. This rule somewhat rescues PESA from being a dead letter in Gujarat.
One drawback of this is that there is no penal provision for failure to convene the meetings on the part of the Sarpanch or the Talati, but there have been instances in Gujarat where a special/ extraordinary Gram Sabha has been conducted and a resolution passed without the presence of the Talati and the Sarpanch.
These resolutions hold value as per PESA and even though not binding as per the Rules or the Act, due to their non-entry in the “Resolution Register”, communicate the aspirations and problems of the village. But no penal provision for failure to convene the meeting reduces pressure on the Secretary and Sarpanch drastically, reducing the potency of this provision.
---
*Research associate, Centre for Social Justice, Ahmedabad

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