The PESA Act, 1996 - Panchayat Extension to Scheduled Areas (PESA)

The half-hearted implementation of PESA has created many difficulties in governane of tribal areas, and led to an erosion in their political rights.

 The PESA Act, 1996 - Panchayat Extension to Scheduled Areas (PESA)

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• The story: History teaches us that most of the Adivasis - India's tribals - had their own federal governance system through the centuries. But the administrative systems during the British colonial period and in independent India affected the Adivasi governance system greatly. The Panchayat Extension to Scheduled Areas (PESA) Act, 1996 was supposed to uphold the traditional decision-making process. Did it succeed?
• Tribal Governance System of Jharkhand: The state of Jharkhand was carved out as the 28th state of India from the Southern part of Bihar in 2000. It was distinctively different from the northern part of Bihar in terms of geography and social composition.

1. It has 32 different tribes, including the nine Particularly Vulnerable Tribal Groups (PVTG). According to Census 2001, Santhal (34%), Oraon (19.6%), Munda (14.8%) and Ho (10.5%) are among the major tribes in terms of numbers.
2. The entire social system was organised into three functional levels across major tribal communities in the state. The first one is at the village level; the second at the cluster of five-six village levels and the third at community levels.
3. These processes were people-centric and democratic, although women were mostly not allowed to participate in such processes. They had their own system of governance, which was non-hierarchical (like the caste system).
4. Every tribal village had a village council as the basic unit for self-governance. These acted as the decision-making bodies for all matters related to administration, the Parliament and judiciary.
5. The administrative matters were related to maintenance of village commons (such as lands, forests and water bodies), labour sharing, agriculture activities, religious events and festivals, etc. The parliamentary matters were related to upholding and interpreting norms and unwritten laws and traditional values. The judiciary matters were related to managing conflict, disciplinary actions, etc guided by unwritten norms and values.

• End of it all: After the introduction of the Bihar Panchayat Raj System (BPRS) in 1947, these Adivasi traditional governance systems became weak. The BPRS was formed keeping the non-Adivasi areas in view. Due to the non-priority and neglect, the process of the traditional governance system was affected. Then came industrialisation, and consequent displacement of Adivasis and urbanisation.
• The PESA Act, 1996: To promote local self-governance in rural India, the government enacted the 73rd constitutional amendment in 1992. Through this, a three-tier Panchayati Raj Institution was made into a law. But its application to the scheduled and tribal areas under Article 243(M) was restricted.
• Bhuria Committee recommendations: In 1995, the Panchayat Extension to Scheduled Areas (PESA) Act 1996 came into existence for ensuring tribal self-rule for people living in scheduled areas of India. (as per Committee recommendations)

1. It conferred the absolute powers to Gram Sabha, whereas state legislature has given an advisory role to ensure the proper functioning of Panchayats and Gram Sabhas.
2. The power delegated to Gram Sabha cannot be curtailed by a higher level, and there shall be independence throughout. The PESA is considered to be the backbone of tribal legislation in India. Why? It recognises the traditional system of the decision-making process and stands for the peoples’ self-governance.

• Gram Sabhas: They have many powers and functions, including - (i) Right to mandatory consultation in land acquisition, resettlement and rehabilitation of displaced persons; (ii) Protection of traditional belief, the culture of the tribal communities; (iii) Ownership of minor forest products; (iv) Resolution of the local disputes; (v) Prevention of land alienation; (vi) Management of village markets; (vii) Right to control production, distillation, and prohibition of liquor; (viii) Exercise of control over money-lending, and (ix) Any other rights involving the Scheduled Tribes.
• Half-hearted: As the state governments are supposed to enact state laws for their Scheduled Areas in consonance with this national law, it resulted in the partially implemented PESA. That worsened self-governance in Adivasi areas, as seen in Jharkhand. The PESA did not deliver due to the lack of clarity, legal infirmity, bureaucratic apathy, absence of a political will, resistance to change in the hierarchy of power, and so on. Social audits pointed out that in reality different developmental schemes were being approved on paper by Gram Sabha, without actually having any meeting for discussion and decision making.
• In India, most of the tribes are collectively identified under Article 342 (1&2) as “Scheduled Tribes”. Their right to self-determination is guaranteed by Part X: The Scheduled and Tribal Areas – Article 244: Administration of Scheduled Areas and Tribal Areas, which is the Fifth and Sixth Schedules of the Indian Constitution. Then there is "The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA", and "The Tribal Panchsheel Policy".
• There also is the "Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006" that concerns the rights of forest-dwelling communities to land and other resources.
• Summary: It is the need of the hour to implement PESA fully, to reinvigorate the dying self-governance system in tribal areas.

 

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