PESA and Governance
The Provision of the Panchayats extention to Scheduled Areas
The tribal peoples of our country had always been the victims of plunder and violence. The history of struggle with the ruling landlords and higher authorities goes beyond the times of Independence. Why, even the British realised their gross error in waging violent battles against the Kondhs and other tribes only in the fag end of their rule in India. It was only in the late 1890s and early 1900s that they tried to bring in any protective measure for the tribal regions of India.
The scheduled areas were thus identified and demarcated with a purpose to provide special safeguards for the areas in which the scheduled tribes are in preponderence. Articles 244 and 244A read with Fifth and Sixth Schedules of the Constitution outline in detail the powers, privileges, rights and responsibilities of the President, union Government and the Governors regarding the Scheduled Areas. In addition to Article 46 of Part IV Directive Principles of the State Policy, which states that “The state shall promote with special care the education and economic interests of the weaker sections of the people and in particular of the scheduled castes and tribes, and shall proect them from social injustice and all forms of exploitation”, there are about 20 other Articles which prescribe the whole framework for regulatory and development functions of the state relating to the scheduled tribe population of the country.
The PESA Act, 1996, makes it mandatory for the states having Scheduled areas to make specific provisions for giving wide-ranging powers to the tribals on matters relating to decision making and development of their community. Technically, the Act gives radical governance powers to the tribal community and recognizes its traditonal community rights over local natural resources. It not only accpets the validity of “customary law, social and religious practices of community resources”, but also directs the state governments not to make any law which is inconsistent with these. It gives wide-ranging powers to the Gram Sabhas, which had hitherto been denied to them by the lawmakers of the country. PESA enables the Gram Sabha and Panchayat to protect community resources, control social sector functionaries, own minor forest produce, manage water bodies, give recommendations for mining leases,be consulted for land acquisitions, enforce prohibition, identify beneficiaries for poverty allievation and other government programmes and have a decisive say in all development projects in the villages.
However, in over a decade the Act is still to be implemented true to what it says on paper. Rajasthan, Madhya Pradesh and Odisha have clear incidents in recent history to show how the PESA has been tweaked or violated to meet the needs of the vested interests in the form of the politician-bureaucrat-businessman nexus. Almost all the states having Scheduled areas have histories of violence because of forcible land acquisitions and and protests arising from displacement. The Panchayats in a majority of observations have turned to nothing but authoritative bodies on merely granting leaves and identification of beneficiaries for government’s welfare programmes. After much struggle and persistent efforts by tribal groups, activists and organisation, the Minor Forest Produce Policy has evolved to the advantage of the tribes. Even then, the tribal people constantly face harassment and exploitation from the Department’s officials. Contradicting laws of the state, ineffective implementation of PESA, lack of political will to devolve powers to the Gram Sabha, etc continue to hamper local self-governance in tribal areas. A great effort from come from the sides of governments and civil society groups to ensure the PESA Act’s success in the Scheduled Areas.
Most of the State Governments have taken legislative and executive measures in order to protect tribal lands. Moreover the national policy on tribal development emphasises on developing the tribals along the lines of their own genius and encouraging in every way their wn traditional arts and culture, respecting tribal rights to land and forests, and working through and not in rivalry to their own social and cultural institutions. All the legislative and executive reforms notwithstanding the Constitution of india, through its 73rd ammendment paved the way for a separate and progressive legal and administrative regime for tribal areas to usher in geniune tribal self-rule. The final framework was legalised through the Provision of the Panchayats extension to Scheduled Areas (PESA) Act of 1996.