Subject: Polity

The Ministry of Tribal Affairs has celebrated the 25^th 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)

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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

 

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Stating that the Uniform Civil Code “is a necessity and mandatorily required today,” the Allahabad High Court has called upon the Central Government to forthwith initiate the process for its implementation.

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Why need UCC?

• UCC would provide equal status to all citizens
• It would promote gender parity in Indian society.
• UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
• Its implementation would thus support the national integration.

Issues with UCC

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment on religious freedom.
• It is often regarded as interference of the state in personal matters of the minorities.
• Experts often argue that the time is not ripe for Indian society to embrace such UCC.

Greater role for State

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
• Nehru agreed to the trifurcation of the Code into separate Acts and diluted several provisions.

 

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