Pesa Act: The saga of Gaining Greater Autonomy, the ACT For The Scheduled Areas

PESA full form is Provisions of the Panchayats (Extension to the Scheduled Areas) Act.

The canons contained in Part 9 of the Constitution of India concerning the Panchayats were not pertinent to the tribal regions included in Schedule 5 of the Constitution.

But, the Parliament can extend the said provision to the specified tribal areas bearing in mind certain exceptions.

Hence, to extend the benefits of the Panchayati Raj System to such Adivasi regions, the legislators legislated “Provisions of the Panchayats (Extension to the Scheduled Areas) Act”, 1996, commonly referred to as “PESA Act.

Presently, the Fifth Schedule of the Constitution covers the following 10 Adivasi regions, namely:

  • Andhra Pradesh
  • Telangana
  • Chhattisgarh
  • Gujarat
  • Himachal Pradesh
  • Jharkhand
  • Madhya Pradesh
  • Maharashtra
  • Odisha
  • Rajasthan.

Respective ten scheduled areas have legislated the required compliance enactment by modifying the respective panchayat.

Introduction of PESA Act

The government of India legislated The Provisions of the Panchayats (Extension to Scheduled Areas) Act, or PESA act 1996.

The act intended to ensure autonomy by adapting the customary Gram Sabhas administration system for the people residing in such Scheduled Areas of India.

Initially, under the 73rd Constitutional Amendment, which laid down the foundation for the Panchayati Raj System, scheduled areas did not find a place.

Article 243 (M) of the Constitution made sure to restrict the amendment applicable to the scheduled areas.

After establishing the Bhuria Committee in 1995, the PESA ACT 1996 came into existence and reassured the self-governance of Adivasis.

The PESA Act aimed to operate the Panchayats at the required levels. The Act would aid Gram Sabha to regulate primary tribal concerns like traditional resources, forest supplies, minerals, water resources etc. The PESA act got perceived as a positive outcome for the upliftment of the scheduled area.

For a considerable period, these socially excluded people suffered immensely at the hands of archaic colonial statues even after the independence of India. They were rendered vulnerable at the loss of forest, water and land resources overtaken under the veil of development.

Unrestricted acquisition of land and other resources for the pragmatic generative projects leads to wide displacement of tribal people residing in Scheduled Areas.

Hence, The PESA Act came as a remedy to heal these vulnerabilities and established a paradigm shift.

Features of PESA ACT 1996

  • Restoration of self-governance:

    The prime aim of the said act was to restore the right of autonomy lost to the exterior legislatures.

  • Gram Sabha as a Focal Point:

    The governmental body in Gram Sabha was established and made the focal point of democracy and liberty.

  • Safeguarding Culture and Traditions:

    With newly gained power, the Adivasis could now engage their culture and traditions in the decision making and hence, preserve them.

  • Consultations for Acquisition:

    The act’s utmost important feature was to mandate the prior discussion with the people residing in the scheduled areas before acquiring their land.

  • Other than this, the Act empowered the tribal people with the ownership of “minor land produce“, local dispute resolution and managing their rural and traditional markets.

    Concerns on PESA Act

    • Fragmentary Implementation

      Though the PESA Act returns the autonomy to the scheduled areas, the regional authorities get obliged to enact state laws. Hence, leading to the fragmentary implementation of self-governance that further worsens the conditions of Adivasis.

    • Political and Legal Challenges

      It’s observed that the implementation of the PESA Act faces legal challenges and political resistance. It makes the working of the Act unclear.

    • Pseudo Approvals

      Social audits shattered the colourful image of the implementation of the PESA Act. Pragmatically, the growth projects are granted pseudo approvals, just on the papers, without real discussions and permissions with the members of Gram Sabha in these scheduled areas.

    Importance of Scheduled Areas

    Culture is the fundamental identity of a man and something that distinguishes one community from other. Thus, culture is integral to a man and must get preserved at all costs. India is the land of various cultures, and the preservation of all is a must.

    With one such aim, the Constitution framers set few areas under the fifth schedule and termed them Scheduled Areas.

    As per Article 244(1), “Scheduled Areas as such areas as the President may by order declare to be Scheduled Areas after consultation with the Governor of that State.

    Significance Of Scheduled Areas

    The importance of scheduled areas is as follows:

    • Preserving the culture.
    • Retaining the identity.
    • Restoring the lost traditions.
    • Ensuring their rights.
    • The promise of their betterment.

    Types of Scheduled areas

    The fifth Schedule recognises the following scheduled areas:

    • Andhra Pradesh
    • Telangana
    • Gujarat
    • Jharkhand
    • Chhattisgarh
    • Himachal Pradesh
    • Madhya Pradesh
    • Maharashtra
    • Odisha
    • Rajasthan

    Gram Sabha

    Panchayati Raj is a three-tier Indian rural m management system. Gram Sabha is the prime authority under the Panchayati Raj system.

    It is a rural body comprised of all the eligible voters residing in that particular area of the panchayat. Villagers 18 years old or more in age and registered with a right to vote are eligible to be the member of the Gram Sabha.

    Sarpanch elected by the members of the Gram sabha heads the Gram Sabha. Tenure of the said Sarpanch is five years, while there is no such tenure of the membership of the Gram Sabha.

    Functions of Gram Sabha

    • Execution of the growth projects and strategies in the wards
    • Identification of beneficiaries. In the event of failure, such a function shall be disposed of by the Gramvarious Panchayat.
    • To secure financial aids for the welfare of the community.
    • Initiate the education and healthcare schemes and programmes.
    • Maintaining peace and integrity amongst the varied communities residing in the village.
    • Evaluating and analysing the results and suggestions of the Vigilance Committee
    • Look after the matters notified by the members of Gram Sabha.
    • Deciding the matters forwarded by the Gram Panchayat
    • Managing the financial matters about the taxes, fees and rents

    Importance of Gram Sabha

    Gram Sabha holds immense importance under the Panchayati Raj System. It is because of the following functions performed by it:

    • Developmental Policies

      One of the main functions of the Gram Sabha is to look after the villagers’ needs and undertake various developmental strategies to grow and develop the village to cater to the contemporary need of the people residing in the village. Likewise, in the scheduled areas, the Gram Sabha works as planned and tribal area administration.

    • Guardian of Village Land
      Gram Sabha is known as “the custodian of the village’s public property” for administrative functions. For the said purpose, it is must discuss the propositions concerning the land acquisition in the scheduled areas with the Gram sabha before proceeding further with the proposal.

    • Maintaining Law and Order

      Among other responsibilities, Gram Sabha’s presence is essential in maintaining law and order in the village.

      It mediates the resolution of disputes that broke out amongst the locals. Further, it holds the elected representatives accountable and answerable to the people electing them as their representatives.

    Role of Gram Sabha

    • Protecting and preserving the traditions, culture and customs of the tribal people residing in such scheduled areas
    • Sanctioning the socio-economic developmental schemes to be implemented by the government in such scheduled areas
    • Approving the schemes and strategies recommended by the Panchayat at the village level.
    • Appointing beneficiaries under poverty alleviating schemes and other programmes.
    • Right to be consulted before making the acquisition of land in the Scheduled Areas” for growth schemes and before displacing and rehabilitating residences attacked by the said schemes in the Scheduled Areas.
    • Right to plan and manage minor water bodies in the Scheduled Areas.
    • Regulating, restricting the sale, consumption and usage of any intoxicant substance in the territory of scheduled areas.
    • Proprietorship over “minor forest produce”.
    • Exercising control over local markets and resources.

    Difference between Gram Sabha and Gram Panchayat

    Gram Sabha Gram Panchayat
    Gram Sabha is the legislative body, performing administrative functions at the rural level, preparing an annual budget for the territory, and auditing the Gram Panchayat reports. Gram Panchayat is the body at the lowest level of the Panchayati Raj System. Its basic function is to look after the growth and welfare of the village.
    Perpetual Existence. Provisional Existence.
    Registered voters, 18 years in age, form the members of Gram Sabha. Here member consists of- Sarpanchs and Ward Members
    No elections are required to be a member. Elections performed for electing Sarpanchs and Ward Members
    Compulsory to hold two meetings per year. Must hold a meeting per month.

    Scheduled and Tribal Area Administration

    Article 244 contains the canons for the administration of Scheduled areas and Tribal areas in India. It states that the legal provisions under the Fifth Schedule of the Constitution of India are responsible for the administration and governance of the scheduled and tribal areas other than the states of Assam, Meghalaya, Tripura and Mizoram.

    Administration of Scheduled Areas

    • According to the fifth schedule, the Constitution of India empowers the President to declare a State as a Scheduled Area after Governor Consultation.
    • The Executive Power of State applies to the Scheduled Areas as well. Each such State’s Governor is obliged to prepare a report concerning the administration of such State, to get deposited to the President.
    • For administrative purpose, its is a must to establish ” Tribes Advisory Council”.
    • The Governor, through a notification, directs the applicability of a particular legislature enacted by the Parliament to such states.

    Administration of Tribal Areas

    The Sixth Schedule of the Constitution of India looks after the administration of the tribal areas in Assam, Meghalaya, Tripura and Mizoram. The legal provisions provide for the administration in the following way:

    1. Sovereign districts and regions
    2. Power of the Governor to reorganise, alter and modify the boundaries of the territory.
    3. Division of the district based on the different scheduled tribes inhabited in the region
    4. Setting up of District Council in each autonomous region comprising of a maximum of thirty members.

      Out of thirty members, four members get nominated by the Governor and hold office for five years.

    5. Such Councils enacts laws on local resources like land, forests, canal water, Jhum cultivation.
    6. Local Dispute Resolution.

    Difference between Scheduled Area and Tribal Area

    Scheduled Areas are those States which the President may announce as Scheduled Areas after the recommendation of the Governor of such States. In contrast, the districts in the States of Assam, Meghalaya, Tripura and Mizoram, which enacts “Regional Autonomous Councils” for the said districts, are called Tribal Areas.

    Case Study Involving PESA Act

    Gram Panchayat in Orissa

    With the advent of the PESA Act in 1996, the government of Orissa co-ordinated the previously legislated acts, namely, Orissa Gram Panchayat Act, 1964, Orissa Panchayat Samiti Act, 1959 and Orissa Zilla Parishad Act, 1991.

    PESA Act took into its ambit 7 districts i.e. Mayurbhanj, Sundargarh, Koraput, Malkangiri, Rayagada, Nowarangpur and Kandhamal, completely, and Keonjhar, Gajapati, Kalahandi, Balasore, Sambalpur and Ganjam, partially.

    While altering the PRI Acts, seemingly, the State of Orissa partially complied with the PESA. The obligatory legal provisions empowering such Adivasis, through the institution of Gram Sabha, with jurisdiction over local resources, licensing of minor minerals and land procurement by the government were not adhered to.

    Despite the advantages, the new Act faced opposition. It argued that the implementation of the Act led to frequent amendments. It came out to be a mere beautification of the Panchayat System in the districts of Orissa without devolving actual power to them. It accentuated the darker and unrevealed side of the PESA Act.

    Conclusion

    India is the land of diverse cultures, traditions and communities. The Constitution of India guarantees each such community equality. Hence, for a very long time, tribal people or Adivasis were denied this equality. They were subject to rules that had no purpose for them and exploited them.

    The PESA Act 1996 got enacted to restore equality and enable the protected states under the fifth and sixth schedules to govern their territories.

    The primary objective of the Act was to conserve and preserve the culture and traditions so dear to them. Thus, safeguard the identity of the scheduled and tribal areas by extending the system of self-governance to their territory.

    But, in actuality, the Adivasis have time and again knocked on the doors of the Apex Court to safeguard their rights exploited in the name of contemporary development. It highlights the fact that the legal provisions so enacted does not suffice.

    FAQs Regarding PESA Act

    What constitutes the “Minor Forest Produce”?

    It consists of non-timber forest produce like bamboo, stumps, cane, cocoons, lac, tendu leaves, medicinal plants, herbs, roots, tubers, etc., as defined under “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006”.

    How is a village formed under the PESA Act?

    The area initially inhabited by the group of hamlets is considered a village under the PESA Act.

    Who is the secretary of Gram Sabha?

    Secretary of Gram Panchayat

    How many States get covered under the Sixth Schedule of the Indian Constitution?

    Four States

    Does PESA Act empower the Gram Sabha in the Scheduled Areas to look after fisheries, if present in that area?

    Yes, Gram Sabha manages and looks after all the local resources.

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