Why in the News?
Recently, the Ministry of Panchayati Raj celebrated 30 years of the Panchayats (Extension to Scheduled Areas) Act (PESA), 1996.
Salient Features of the PESA Act, 1996
- Constitutional Mandate: It operationalizes Article 243M(4)(b), extending the provisions of Part IX (Panchayati Raj) to the Fifth Schedule Areas with specific modifications.
- Geographic Scope: It applies to 10 states with Scheduled Areas- Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana.
- Current Status: 9 of the 10 states with tribal Scheduled Areas have framed their PESA rules, while Odisha has created draft rules.
- Recognition of Tradition: The Act legally recognizes the right of tribal communities to govern themselves through their customary laws, social practices and traditional management of community resources.
- Proportional Reservation of Seats: Reservation of seats for Scheduled Tribes (STs), Scheduled Castes (SCs), and others must correspond to their actual population percentage in the Panchayat area.
- STs are guaranteed at least 50% of the seats.
- Every Chairperson position at all levels of Panchayats in these areas must be held by an ST.
- Nomination of Unrepresented Tribes: If certain Tribal groups lack elected members, the state government has the power to nominate them to the block or district level bodies.
Endowed Powers and Rights | Areas of Mandatory Consultation |
State legislatures must ensure that Gram Sabhas and Panchayats at appropriate levels are endowed with the following specific powers:
| Act mandates that the Gram Sabhas or the Panchayats at appropriate levels must be consulted before undertaking the following activities:
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Initiatives for PESA Act Implementation
- Digital Planning (PESA-GPDP Portal): Launched in 2024 to facilitate hamlet-wise planning and ensure development aligns with tribal priorities.
- Linguistic Inclusion: Manuals on PESA have been translated into tribal languages like Santhali, Gondi, Bhili, and Mundari to ensure grassroots awareness.
- Establishment of PESA Cells: Dedicated cells in the Ministry and states (like Andhra Pradesh) provide technical and financial oversight for PESA implementation.
- Centres of Excellence (CoE): The MoPR has collaborated with universities, such as the Indira Gandhi National Tribal University, to institutionalize research and documentation on tribal self-rule.
- State-Specific Notification: Jharkhand's new rules provide for a traditional head (e.g., Manki, Munda) to preside over Gram Sabha meetings, reinforcing indigenous leadership.
Concerns and Challenges
Challenges in PESA implementation stem from legal ambiguities, institutional resistance, weak devolution of powers, and limited grassroots capacity.
- "Consultation" vs "Consent": The term "consultation" in the Act is often misinterpreted by authorities to proceed with land acquisition even without the Gram Sabha's explicit approval.
- E.g., Vedanta–Niyamgiri (Odisha): Despite strong community opposition, mining approvals were initially pushed citing consultation.
- Conflict with State Subject Laws: Many state-level laws regarding forest, mining, and excise are not yet in consonance with PESA provisions, leading to legal friction.
- E.g., overlapping provisions for control over Forest produce under Forest Rights Act, 2006 and PESA, 1996.
- Administrative Inertia: Bureaucratic resistance and a lack of awareness among tribal communities often result in higher-tier Panchayats or officials overriding Gram Sabha decisions.
- E.g., In Jharkhand, PESA rules were notified nearly 30 years after the enactment of the PESA Act, leading to prolonged administrative vacuum and land alienation in the interim.
- Limited Fiscal Autonomy: Despite statutory powers, many Gram Sabhas lack the actual transfer of funds and functionaries required for independent governance.
- Development vs Rights Narrative: PESA is often framed as anti-development, especially in resource-rich Scheduled Areas which leads to prioritisation of extractive projects over constitutional safeguards for tribal self-governance.
Way Forward
- Legal Harmonization: States must urgently amend inconsistent subject laws (Mining, Forest, Excise) to align with PESA requirements.
- Binding Consent: The legal interpretation of "consultation" should be strengthened to mean "prior informed consent" for all land and resource matters.
- Codify Niyamgiri principles of free, prior, and informed consent through statutory amendment or binding executive guidelines.
- Outcome-based Monitoring: Institutionalize Social Audits and use the PESA-GPDP portal to track the ground-level impact of Gram Sabha decisions rather than just digital data entry.
- Fiscal Empowerment: Ensure direct devolution of funds to Gram Sabhas to enable genuine self-reliance in managing local assets.
- Reframe Development narrative: Shift from extractive, top-down projects to community-led, sustainable development models and treat tribal self-governance as a constitutional asset.
Conclusion
As PESA completes nearly three decades, it must move decisively from procedural consultation to substantive consent, backed by fiscal autonomy, legal harmonisation, and administrative accountability. With recent digital, linguistic, and institutional initiatives, PESA can evolve from a statutory promise into a living framework of tribal self-governance and inclusive development in Scheduled Areas.
