The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)

The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)

 

PESA Act Of 1996 - Historical Background

  • Panchayati Raj (Part IX) is included in the State List of the Seventh Schedule of the Constitution and it is the States that have been charged with the responsibility for devolution of powers to the Panchayats.
  • While the Fifth Schedule areas are exempt from Part IX of the Constitution, Article 243M of the Constitution states that Parliament may extend its provisions to Scheduled and Tribal Areas by law, subject to such exceptions and modifications as may be specified in such law and that no such law shall be deemed an amendment to the Constitution.
  • It was enacted in 1996 in response to the Bhuria Committee's report, which recommended that Part IX of the Constitution be extended to Scheduled V areas with specific adjustments and exceptions.
  • Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana are among the ten states that have Scheduled V regions.
  • The Ministry of Panchayati Raj is the nodal Ministry for implementation of the provisions of PESA in the States.

 

What is the PESA Act?

  • It 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 243-243ZT of the Constitution, contains provisions relating to municipalities and cooperative societies.

 

Provisions of the PESA Act

  • The PESA Act is also known as Panchayats (Extension to Scheduled Areas) Act. It aims to empower local self-governance in scheduled areas in India.
  • Recognition of gram sabhas as the decision-making body in tribal areas.
  • Granting authority to gram sabhas to manage and control natural resources, such as land, water, and forests.
  • Ensuring participation of tribal communities in the decision-making process regarding land acquisition and development projects.
  • Protecting the traditional rights and customs of tribal communities.
  • Providing autonomy to panchayats in scheduled areas. It is done to plan and implement socio-economic development programs.
  • Facilitating the transfer of certain powers and responsibilities from higher levels of government to panchayats in scheduled areas.
  • Ensuring the safeguarding of tribal culture, heritage, and traditions.
  • Promoting self-governance and self-determination among tribal communities.
  • Strengthening the administrative and financial capacities of panchayats in scheduled areas.
  • Establishing institutional mechanisms for conflict resolution and dispute settlement at the local level.
  • Under the 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.

 

Objective of implementing PESA:

  • To extend the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas with certain modifications.
  • To provide self-rule for the bulk of the tribal population.
  • To have village governance with participatory democracy and to make the Gram Sabha a nucleus of all activities.
  • To evolve a suitable administrative framework consistent with traditional practices.
  • To safeguard and preserve the traditions and customs of tribal communities.

 

Salient Features of the PESA Act, 1996

  • The state legislation made for the panchayats in scheduled areas should be in consonance with customary traditions and laws of the local communities.
  • A village will comprise the habitation, hamlets or group of habitations and hamlets while shall comprise a community that is responsible to manage its affairs according to the traditions and laws of the community.
  • There should be a gram sabha in each village that will consist of all the electors registered in the electoral rolls of the village.
  • The gram sabha shall be responsible for protecting the customs and traditions of the people in the village.
  • Gram sabha should also be responsible for the approval of plans of development before they are taken up for implementation at village level.
  • Gram sabha shall be responsible to identify the people eligible for the various schemes and programmes.
  • The panchayat at village level should get a certification from the gram sabha in order to utilize the funds for these programmes.
  • Seats shall be reserved in the panchayat for SC and ST communities in proportion of their population. The reservation for ST should be at least half of the total seats and the seats of chairpersons at all levels of panchayats will be reserved for ST community only.
  • Persons may be nominated from scheduled tribes at intermediate and district level panchayats if the community is not adequately represented in the panchayat. This nomination will be done by the state legislature. The maximum number of persons to be nominated cannot exceed one-tenth of the total members of the panchayat.
  • State government needs to consult gram sabha before acquisition of land in the scheduled areas and before rehabilitation of people in these areas but the actual implementation of the projects shall lie in the hands of the state government.
  • Panchayat at appropriate level shall be responsible for the maintenance of the water bodies in the scheduled areas.
  • It is mandatory to get recommendations from gram sabha or panchayat at appropriate level to grant licenses for mining of minor minerals in the scheduled areas.
  • State government needs to ensure that the panchayats in the scheduled areas are given the power related to:
    • Prohibit the use or sale of intoxicants
    • Ownership of minor forest produce such as bamboo
    • prevent alienation of people in these areas and rehabilitation of people if the alienation has already taken place
    • Managing affairs related to village markets
    • Control money lending in these areas
    • Control local social institutions

 

  • State legislature must ensure that the panchayats at the upper level do not assume the powers of the lower level panchayats or the gram sabha
  • Any law that is in force but inconsistent with this act shall cease to be in force after the expiry of one year from the date of commencement of this act. The panchayats that are in power before this act shall remain for their tenure but can be dissolved sooner by the state legislature.

 

Significance of Implementing the Act

  • Democratic decentralization: PESA gives Gram Sabhas significant authority over all social sectors and the ability to approve development plans. This involves control over:
    • Resources over jal, jangal, zameen (water, forest, and land)
    • Minor forest produce
    • Human resources: Processes and personnel who implement policies
    • Managing local markets
    • Preventing land alienation
    • Regulating intoxicants among other things

 

  • Identity Preservation: The gram sabhas have authority over tribal affairs, the upkeep of cultural traditions and identity, and the management of natural resources in a village's vicinity.
  • Conflict Resolution: The PESA Act thus enables gram sabhas to maintain a safety net over their rights and surroundings against external or internal conflicts.
  • Public Watchdog: Within the boundaries of their villages, the gram sabha would have the authority to regulate and forbid the production, distribution, sale, and consumption of intoxicants.
  • Gandhian Philosophy: The Act is based on the Gandhian idea of Gram Swaraj, which is embodied in Article 40 of the Constitution (which organizes local panchayats) and only came to life with the passage of PESA.
  • Past injustice: Its provisions gave the impression that a saviour had emerged, erasing the historical injustice done to the tribal people and restoring their honour and self-government customs.

 

How is the PESA Act, 1996 supposed to work?

  • It 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.
  • 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.

 

PESA Act Outcomes

Since its inception, the PESA Act has made several achievements in empowering tribal communities and promoting their participation in the development process. Some of them are as follows:

 

  • This Act has contributed to the empowerment of tribal communities by giving them a greater say in the development process through the Gram Sabha and the Gram Panchayat.
  •  The Act requires that the consent of the Gram Sabha be obtained before any land is acquired or transferred, which has helped to prevent the exploitation of tribal communities by outsiders.
  •  This  Act has contributed to the preservation of the cultural and social practices of tribal communities in the Scheduled Areas to protect the traditions and way of life of tribal communities.
  •  This Act has promoted decentralization by giving more powers and functions to the Gram Sabha and the Gram Panchayat.
  • It has contributed to the improvement of access to basic services, such as education, healthcare, and drinking water, in the Scheduled Areas.

 

PESA Act 1996 Challenges

  •  Tribal communities in non-scheduled areas of the country are not covered by the Act and do not have access to its provisions.
  • Many tribal communities in the Scheduled Areas are not aware of the rights and entitlements of the PESA Act.
  •  Gram Sabha and the Gram Panchayat often do not have sufficient resources to carry out their functions effectively.
  • Many Gram Sabhas and Gram Panchayats lack trained personnel to carry out their functions effectively.
  • Political interference: requires that the Gram Sabha be consulted, but the decisions of the Gram Sabha are often not respected and are subject to political interference.
  •  The PESA Act can sometimes be in conflict with other laws, such as the Forest Rights Act and the Wildlife Protection Act, which can hinder its implementation.

 

Way to forward

  • Violations of the Act and its dilution highlight a pattern of developments that show the Centre and states’ lack of commitment towards strengthening gram sabhas.
  • State governments need to change their laws in order to comply with PESA and laws relating to land acquisition, excise, forest produce, mines and minerals, Agri produce market and money lending need to be amended.
  • There is a need for involving civil society and NGOs doing good work in the area of tribals to ensure better implementation of PESA since they are better versed with the ground reality and issues faced by the tribal people.
  • PESA is good legislation in spirit but it will only make sense only if taken seriously and implemented well.

 

 

 

 

The Government enacted the Panchayat Extension to Scheduled Areas (PESA) Act in 1996. Which one of the following is not identified as its objective?

 

(a) To provide self-governance

(b) To recognize traditional rights

(c) To create autonomous regions in tribal areas

(d) To free tribal people from exploitation

 

Answer: C

 

 

The Panchayats Extension to the Scheduled Areas Act (PESA), 1996 was enacted with a view to conserving local traditions and cultural practices of the tribal people. In this context discuss the key features of the PESA Act and what are the challenges in its implementation?

 

Examine the provisions of Panchayat Extension Services Act (PESA), 1996. (UPSC CSE Mains 2018)