25 Years of PESA: Violations and Attempts at Dilution

As the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, which aimed to decentralise power and empower indegneous communities, completes 25 years in existence, it faces glaring incompetence, gross violations and structural loopholes. The 73rd and the 74th Amendments to the Indian Constitution passed in 1992 took the three-tier Panchayati Raj governance structure to rural and urban parts of the country; tribal dominated areas listed under The Fifth Schedule of the Constitution were kept out of the purview of the Panchayati Raj Acts.

PESA, enacted in 1996, took local self-governance rules to the areas listed under the Fifth Schedule which deals with the administration of districts dominated by the tribal communities; it is in force in 10 states in the country which include Jharkhand, Chhattisgarh, Odisha, Andhra Pradesh, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Rajasthan and Telangana.

While the Act’s aim was to extend governance to scheduled areas and the tribal community, what was once considered one of the most powerful legislations in support of the community – which constitutes around nine per cent of India’s population – has now been termed “toothless” with the erosion of its spirit. Violations of the self-governance aspects of the Gram Sabhas with respect to customary resources, minor forest produce, minor minerals, minor water bodies, selection of beneficiaries, sanction of projects, and control over local institutions continue.

While the constitution of gram sabhas was made mandatory in states, the powers and functions of the gram sabhas have been left to the discretion of the state legislatures. As a result, different states have developed powers and functions for this body differently.

However, about 40% of states have not even formulated necessary rules regarding PESA, which highlights its dilution. Four states – Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha – have not even framed the rules for the implementation of the act yet.

Calling the act a “myth”, Abhijeet Mohanty argues, “As the situation stands at present, no gram sabha can hope to function without going through revenue officers at various levels, and in a majority of cases, required sanctions are denied by inordinate delays or outright refusals. No stretch of common property can in any way be rightfully owned and controlled by any village, communities, groups, or people. And the gram sabha’s power to accord such ownership is never recognised. This is a direct violation of the PESA Act.”

From the land acquired and the clearing of villages for the Statue of Unity in Gujarat, where 121 villages were notified for the project in a blatant disregard for PESA. Another example was the criminalisation of the Pathalgadi movement, wherein Adivasis erected stone slabs to demarcate the area of their villages’ jurisdiction. PESA laws of maintenance of autonomy and tribal culture remained obscure. The infringement of the provisions of PESA outlined with it a disregard for the rights of forest-dwellers, mostly tribal people, and environmental concerns, manifested in the short-circuiting of due process, to enable “development” projects.

Speaking to Newsclick about the Act, C.R. Bijoy, an expert on natural resource conflicts and governance issues, said: “Not a single state has currently amended the Panchayat Raj Act as required as per PESA. State amendment is not in full compliance; states have not complied with the central provisions. PESA defines the powers of the gram sabha and structures above gram sabha cannot encroach into its powers. However, a gram sabha has no powers; all the powers have been vested in the elected members, creating a hierarchy of powers. One law gives one supreme power the other gives another; therefore, PESA cannot work in the given structure.”

“Structures above gram sabha should be patterned on the Sixth Schedule. What should have happened is that scheduled areas should have had a structure where the powers of the state could be allocated in such a way that the gram sabha is not overridden but empowered,” he added.

Violations of the Act and its dilution highlights a pattern of developments which show the Centre and states' lack of commitment towards strengthening of gram sabhas. Instead there has been a a push for corporate entry and control of resources, making it easier to surpass gram sabha consent.

In one of the major moves of the Modi government, the draft Environment Impact Assessment policy issued last year seeks to significantly water down the 2006 rules, making it easier for the government and private sector to implement projects without environmental scrutiny. The dilution of The Forest Rights Act (2006) and the government’s interest in the eviction of forest dwellers, coupled with the latest dilution of powers of the state in forest matters under The Forest Conservation Act (1980) expose the focus on watering down provisions protecting tribal communities and natural resources. Moreover, as India privatises coal and brings in mining reforms, one of the biggest concerns of environmentalists lie in its conflict with the violations and undermining of the PESA provisions.

Speaking to Newsclick, Bineet Mundu, coordinator of the·Indigenous Centre for Land Resource and Governance, added: “The biggest challenge is the degradation of the spirit of PESA. The formulation of rules for what was a radical scheme, did not take place for varied reasons. What is happening as a result of this is the increase in conflict. The traditional gram sabhas and the state structured panchayats are in conflict with one another. This conflict and the inconsistencies need to be ironed out.”