Tribal areas: States' bureaucratic structures 'refuse to relinquish' power despite PESA

By RR Prasad* 
The introduction of the Panchayat Raj system through the 73rd Constitutional Amendment is one of the most definitive steps towards institutionalizing a system of decentralized governance in independent India. The 73rd Constitutional Amendment provides substantial space for responsive and participatory governance.
To extend the provisions of the constitution relating to the Panchayats to the Scheduled Areas, a special legislation called Panchayat (Extension to Scheduled Areas) Act (PESA), 1996 was enacted by the Parliament. Scheduled Areas are those, which are under the 5th Schedule of the Constitution of India where the tribal populations are predominant.
The Act came into force on December 24, 1996 and it is now applicable in the tribal areas of ten States namely, Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana that have 5th Schedule Areas. In its 25th year, It would be desirable to look back and assess how far we have moved ahead in the direction of effective implementation of the PESA.

Gandhian concept of Gram Swaraj

The fundamental spirit of the Panchayat Extension Act for tribal areas under 5th Schedule is that it devolves power and authority to Gram Sabha rather than delegation; hence it paves way for participatory democracy.
The provision under Constitution and composition under this act calls for every legislation on the Panchayat in 5th Schedule area to be in conformity with the customary law, social and religious practices and traditional management practices of the community resources.
It also directs the state governments to endow powers and authority to make Gram Sabha function as Institutions of Local Self Governance, specifically on matters of enforcing prohibition of sale and consumption of intoxicant; ownership of minor forest produce; power to prevent alienation of land and restoration of unlawfully alienated land, management of village markets, control over money lending, etc.
PESA also empowered Gram Sabha of the Scheduled Areas to approve plans, programmes for social and economic development, identify beneficiaries under poverty alleviation programmes, certify utilization of funds by gram Panchayats, protect natural resources, including minor forest produce and be consulted prior to land acquisition.
PESA envisaged that each tier of the Local Governance is independent and Panchayats at higher level should not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha. Further, it also calls for creating the appropriate levels of Panchayats similar to 6th Schedule Area, where the Administrative boundaries are Autonomous enough for self-rule.
PESA is constructed around the Gandhian concept of Gram Swaraj, the governance frame for the village republics. Gandhi’s dream was included in the Constitution as Article 40, which came alive only when PESA was adopted.
While the 73rd Amendment, which inserted Article 243, made the terms gram (village) and Gram Sabha (village assembly) a part of the Constitution for the first time, PESA gave shape to the concept of self governance through empowerment following constitutional recognition of the competence of the Gram Sabha.

Cardinal principle of governance

PESA is based on the cardinal principle of governance that human communities are the best agency to handle most of their survival challenges, manage their affairs and progress towards growing emancipation through the instrumentality of participatory deliberative democracy.
Hence the first substantive section of PESA begins with the legal presumption that the ‘Gram Sabha’ is ‘competent’ and calls upon the state governments to ensure legal, procedural and administrative empowerment as a means of deepening democracy.
The cardinal principal that underlies PESA has two corollaries in relation to development namely a) any community can best decipher advancement and modernity when it is grounded in the strength of its own culture and way of life and b) can negotiate both advancement and modernity only when it is founded on the bedrock of its own culture and way of life. PESA therefore seeks to restore to tribal communities the right of self governance (swaraj).

Uncertain future

Unfortunately, like Gram Swaraj, the vision of the Father of the Nation, PESA remained a prophetic dream. Since its passage PESA has almost been forgotten and has not become part of mainstream political or policy discourse.
The law on tribal self rule which recognized for the first time the competence of a village assembly or Gram Sabha in safeguarding and preserving traditions and customs of the people and the community resources, has almost been forgotten and has not become part of mainstream political or policy discourse.

The States having Scheduled Areas and PESA have proved that it is too difficult to relinquish power in a bureaucratic power structure. They still want to govern the PESA areas through the centralized administration and laws that actually weaken what PESA provisions offer to the tribal community. Consequently, de facto compliance with PESA remains incomplete and perfunctory.

Pathalgadi movement has become a stage for course-correction of tribal movement for implementation of Schedule 5 of the Constitution

Discontent has been brewing up in the tribal belt of the country and effective implementation of PESA would be a definite legal as well as political solution to redress the discontent. Kochang village in Khunti district in Jharkhand, which has been witness to the Pathalgadi movement since 2016, has become a stage for course-correction of the tribal movement for implementation of Schedule 5 of the Constitution in toto.

Core issues

Many State governments have passed laws not fully in conformity with the central law. The implementation of the law has been severely hampered by the reluctance of most state governments to make laws and rules that conform to the spirit of the law.
Contentious issues like the ownership of minor forest produce, planning and management of minor water bodies and prevention of alienation of tribal lands have remained unsettled though recognized as traditional rights in PESA. Apart from that, transfer of fund and functionaries to the lower level government has not taken place after devolving statutory powers to the Gram Sabha and Panchayats.
Obstacles in the effective implementation of PESA can be attributed mainly to the two factors: (1) Legal and (2) Political issues. Legal issues include definition of village, gaps and inconsistencies between the Central and the State Acts, clash between PESA and pre-existing laws, lack of clarity about customary practices and cultural identity etc. Whereas political issues include (a) lack of political will, ignorance about PESA among different segments, fragmentation of well-knit tribal society because of electoral competition etc.
In the 5th Schedule Areas, villages have not been notified as per the PESA Act. Since PESA villages have not been notified, PESA Gram Sabha has also not been notified as a result PESA Act remains ineffective. Functionaries of the Gram Sabha have not been notified and the Gram Sabha Kosah (Account) has not been opened.
Despite Gram Sabha having the ownership for the Minor Forest Produce (MFP), there is no justification in keeping some important MFP under the nationalized category in many States having the 5th Schedule Areas. Further, the Minimum Support Price (MSP) for the MFP announced by the Central government is applicable only to the non-nationalized MFPs.
This approach totally delinks the PESA Gram Sabha from the management of the MFP. Customary laws in the 5th Schedule Areas have not been documented and codified to enable the Gram Sabha to resolve the local dispute as per the traditions.
The tribal development plan is not being referred to the Gram Sabha for approval and also the Utilization Certificate is being accepted without approval of the PESA Gram Sabha as per the provisions of PESA. 

Ensuring disaggregation of the tribal sub-plan allocation in a state having 5th Schedule Areas to the tribal development plans prepared at the PESA demarcated villages on the basis of the percentages of the tribal population has now become necessary to accelerate the pace of socio-economic development in the 5th Schedule Areas.
Similarly, funds from other institutional sources such as Special Central assistance to the tribal sub-plan (SCA to TSP) and under article 275(1) must also devolve to the Gram Sabh Kosh so that the stakeholder community can decide the need based investment.

Pledges for PESA

It is true that due to lack of political will, tribal rights in 5th Schedule Areas have been disregarded strategically. It is hoped that in its 25th year of implementation, serious efforts would be pledged to identify the pitfalls and promote policies that pave the environment for establishment, prevalence and persistence of a system of tribal self rule in the 5th Schedule Areas.
Nothing less than pledging plausible and time bound actions to implement PESA in letter and spirit would be required in its silver jubilee year.
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*Professor (Retd), National Institute of Rural Development & Panchayati Raj, Hyderabad