Panchayati Raj Institutions: Issues and Challenges

25 years of Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : PESA, FIfth Schedule

Mains level : Tribal autonomy and self-government issues

The Ministry of Tribal Affairs has celebrated the 25th year of the inauguration of the Panchayats (Extension to Scheduled Areas) Act 1996 (PESA)’ as a part of Azadi Ka Amrit Mahotsav.

What is PESA?

  • The PESA is a law enacted by the govt. 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.

What are Scheduled Areas?

  • “Scheduled Areas” mean the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution.
  • They are found in ten states of India which have predominant population of tribal communities.
  • At present, Scheduled Areas have been declared in the States of AP (including Telangana), Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, MP, Maharashtra, Odisha and Rajasthan.

Powers granted to Gram Sabha/Panchayats

  • Land acquisition: To be consulted on matters of land acquisition and resettlement.
  • Mining licencing: Grant prospecting license for mining lease for minor minerals and concessions for such activities.
  • Water Bodies: Planning and management of minor water bodies.
  • Regulation of Liquor: The power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
  • Minor Forest Produces: The ownership of MFPs
  • Land reforms: The power to prevent alienation of land and to restore any unlawfully alienated land of a scheduled tribe.
  • Village Markets: The power to manage village markets.
  • Money Lending: The power to exercise control over money lending to scheduled tribes.

Role of Governor in Implementation of PESA

(1) Report as sought by the President:

  • As per para 3 of the Fifth Schedule, the Governor therein is required to make a report to the President regarding the administration of the Scheduled Areas.
  • The Attorney General had advised the Home Ministry that the role of the governor in sending this report is discretionary.

(2) Applicability of certain laws:

  • 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.
  • Governor may 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.

(3) Modification of laws:

  • The regulation-making powers of the Area 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.

Why was PESA enacted?

  • Filling the constitutional vacuum: These Areas were not covered by the 73rd Constitutional Amendment or Panchayati Raj Act of the Indian Constitution as provided in Part IX of the Constitution.
  • Self-governance: PESA sought to enable the Panchayats at appropriate levels and Gram Sabhas to implement a system of self-governance.
  • Customary regulation: It includes a number of issues such as customary resources, minor forest produce, minor minerals, minor water bodies, selection of beneficiaries, sanction of projects, and control over local institutions.

Significance of PESA

  • Tribal autonomy: PESA was seen as a panacea for many of these vulnerabilities where the tribal communities in such Scheduled Areas were to decide by themselves the pace and priorities of their development.
  • Tribal way of development: PESA was viewed as a positive development for tribal communities in Scheduled Areas that had earlier suffered tremendously from engagement with modern development processes.
  • Sustainable access to forests: The loss of access to forest, land, and other community resources had increased their vulnerability.
  • Easing of tribal distress: Rampant land acquisition and displacement due to development projects had led to large-scale distress in tribal communities living in Scheduled Areas.

Issues with PESA

  • Dilution of the role of Tribal Advisory Councils: PESA mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra-constitutional powers to the Governors.
  • Politicization: The councils, with the CM as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics.
  • Non-involvement: The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters.
  • Lack of coordination at Centre: Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence and they function almost without any coordination.
  • Lack of operationalization: In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests the reluctance to operationalize the PESA mandate.
  • Ignoring the spirit of PESA: The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realised.
  • Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books.

Related question in CS Mains:

Q. What are the two major legal initiatives by the State since Independence addressing discrimination against Scheduled Tribes (STs)? (2017, 150W)

Also try answering this PYQ:

In the areas covered under the Panchayat (Extension to the Scheduled Areas) Act, 1996, what is the role/power of Gram Sabha?

  1. Gram Sabha has the power to prevent alienation of land in the Scheduled Areas.
  2. Gram Sabha has the ownership of minor forest produce.
  3. Recommendation of Gram Sabha is required for granting prospecting license or mining lease for any mineral in the Scheduled Areas.

Which of the statements given above is/are correct?

(a) Only 1

(b) 1 and 2 only

(c) 2 and 3 only

(d) 1, 2 and 3

 

Post your answers here:
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