A
STUDY DONE ON
“SCOPE OF PESA & ITS IMPLEMENTATION”
AS
RSP ASSIGNMENT

SUBMITTED BY: SUBMITTED TO:
RAJSHREE NANCY R N P36145 PROF. MUKUL KUMAR
SAYANI DATTA P36152
SHRISHTI GUPTA P36159
SHWETA MENON P36160
TRISHA KUMAR P36171
GROUP 2
SECTION B

Background:
The seventy third amendment act of 1992, was enacted by the Government of India to raise the status and dignity of the Panchayati Raj institutions. This act ensured that elections were conducted regularly, there was equal representation from the scheduled castes, scheduled tribes and women of the community and access to financial resources. The aim was to transform the Panchayati Raj into and institute of "self-governance".
Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA was enacted to include all the scheduled areas that were excluded as part of the seventy third amendment act. The purpose of PESA was to extend the provisions present in Part IX of the constitution to the Fifth scheduled areas. Part IX of the constitution details the constitution, composition and powers of a panchayat. The fifth scheduled areas were present across nine states. The nine states were Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Maharashtra, Madhya Pradesh, Orissa and Rajasthan.
The Bhuria Committee:
In order to formulate PESA and recommend policies to be undertaken, the Bhuria committee comprising members of the parliament and experts was set up by The Ministry of Rural Development.
A)Proposal:
1)The scheme should encourage participative democracy.
2)The traditional practices followed by the Gram Sabha should be intact. The management of natural resources should be under its control. The committee proposed that the modern supra-structure should be built by having the traditional structure as the foundation.
3)The administrative boundaries should be delimited based on the ethic, geographic and demographic considerations.
4)In order to appease the tribal grievances, a sub-state status can be bestowed on the tribal regions.
5)The basic principle of a tribal area is that most land is owned by the community for community purposes and not individually. The usage of this land is granted by the community. Hence the Land Acquisition Act should be modified in accordance with this principle.
6)The actions of lower functionaries in government departments have been exploitative and against the tribal interests. Hence the role of these departments in the tribal areas should be made minimal.
7)Though tribal areas are rich in mineral wealth there has been no economic development. A resource based industry could be developed with the help of outside financiers.
Administrative units of a Panchayat:
A hamlet or group of hamlets or a village is governed by a Gram Sabha. A Gram Sabha nominates its executive council. A Gram Panchayat is composed of a group of elected representatives which governs a group of villages. The next level is the intermediate tier panchayat followed by the autonomous district council. The aim of formulating the Act was to make the Gram Sabha an active participant.
Provisions under the PESA Act:
1) The traditional beliefs and culture of a tribal community should be protected by the Gram Sabha.
2) Any dispute in the community should be resolved by the Gram Sabha.
3) The Gram Sabha is in charge of protecting and managing all the common resources. This is done by keeping in mind the traditional management practices of the community.
4) Gram Sabha has the right to organize tribal welfare schemes, manage minor forest produce, restoring land to the tribal people, managing the natural resources and develop local plans and sub-plans for the betterment of the tribal areas.
5) Alcohol manufacturing could be controlled by the Gram Sabha.
6) The control of the local markets was vested with the Gram Sabha.
7) All the district panchayats will have the similar powers and rights as the district panchayats falling under the sixth schedule.

SCOPE OF PESA IN VARIOUS STATES: A) Andhra Pradesh: * After the Panchayati Raj Act was constituted, state governments were asked to amend their Acts to incorporate the provision of PESA. * Hence, in 1998 Andhra Pradesh State Government made changes to the Panchayati Raj Legislatures to incorporate the PESA Act. Later, to implement the provision of PESA, Andhra Pradesh Panchayat Extension to Scheduled Area Rules was implemented in 2011. * The following areas are included as Scheduled Areas according to the 5th Schedule:
Visakhapatnam, East Godavari, West Godavari, Aliabad, Srikakulam, Vizianagram, Mahboobnagar, Prakasam. * Some Mandals are also included as part of the Scheduled Mandals. * There are around 35 ST communities in Andhra Pradesh according to the 5th Schedule. * There has been some conflict over the inclusion of Scheduled Areas as the criteria for identifying the Scheduled and Non-Scheduled Area is different in different states. * AP had also demanded their tribal regions to be notified under the 6th Schedule so that they could get more autonomous power. * However, the provisions for PESA in Andhra Pradesh are as follows: 1) The Gram Sabha and Panchayat was to be informed about making any land acquisition and also the people affected by such acquisitions had to be rehabilitated only after consulting them. * Also, all the planning and implementation of the projects in the Scheduled Areas had to be done at the State Level only. * The Andhra Pradesh (AP) government amended this Act by assigning the responsibility to Mandal Parishad instead of Gram Sabha and Panchayat. Though the actual planning and implementation has still to be coordinated at the State Level. 2) Planning and management of water bodies was assigned to the Panchayat. * However, AP Act states that this responsibility can be taken up by any of the 3 tiers of Panchayat depending upon the case. 3) When the grant for concession has to be given for the exploitation of minor minerals by auction, prior recommendation of Gram Sabha or Panchayat was mandatory. * However, the AP Act states that only the Gram Panchayat’s prior recommendation shall be considered. 4) The power to enforce any regulations or impose any restrictions on the use of any intoxicant now lies in the hands of either the Gram Sabha or the Gram Panchayat according to the AP Act. 5) Matters regarding the ownership of Minor Forest Produce shall be decided by the Gram Sabha or the Panchayat depending upon the case concerned. 6) The power to prevent any land from being alienated in the Scheduled Areas or to restore any lawfully alienated land in Scheduled Tribe rests in the hands of either the Gram Sabha or the Gram Panchayat. 7) Village markets can be managed by any name according to the AP Act and this responsibility lies with either the Gram Sabha or Panchayat. 8) Power of exercising control over money lending to the Scheduled Tribe is with either the Gram Sabha or Panchayat. 9) The Gram Sabha or Panchayat’s recommendations on the matters of providing grants for prospecting license or the lease for mining minor minerals had to be considered prior to taking any decision. * But the AP Act amended this by stating that only the Gram Panchayat’s prior recommendation shall be considered final. * AP accounts for the highest land alienation cases in the country and the quantum of land cases reported account for one-third of the total cases reported in the country. * Land alienation was mainly done through the process of money lending. Since most of the tribal groups suffer from income poverty, they default on the money that they owe and so the creditor takes away the land as a form of compensation for the money defaulted. * This was rampant in the tribal tracts of coastal Andhra Pradesh. * Hence PESA Act proved to be very important in curbing such practices. * But in spite of PESA being considered as the most logical step for the empowerment of tribals, its implementation has not been done properly. * Tribal communities have always been denied the right to use communities’ natural resources and also the right of self-governance. So, when the Samantha Judgement was passed stating that governors were barred from purchasing any tribal land that was not state-owned, oppositions were raised from the Ministry of Mines and also from the Andhra Pradesh government that such decision would have an adverse effect on not only the mining sector but also the non-agricultural activities in turn impacting the economic development of the country. * So, the decision was reversed and subsequently Governors were given the authority to allot Scheduled Area land to the government or non-tribals. * This resulted in imbalance in the autonomous power of tribal.

B) Orissa:
In Orissa, The Provision of Panchayats (Extension to the Scheduled Areas) Act, broadly covered seven districts i.e. Mayurbhanj, Sundargarh, Koraput, Malkangiri, Rayagada, Nowarangpur and Kandhamal in full and Keonjhar, Gajapati, Kalahandi, Balasore, Sambalpur and Ganjam in parts.
In the most recent legislation the following provisions of the PESA were incorporated in the Panchayat Institutions of Orissa.
Gram Panchayat is given the power of :- * Enforcement of Prohibition of regulation or restriction of sale and consumption of any intoxicant * Ownership of minor forest produce * Prevention of alienation of land and restoration of any unlawfully alienated land and Scheduled Tribes * Control over money-lending * Management of village markets.

In reality, state of Orissa didn’t comply with the provisions of the act entirely. The control over natural resources by the tribal communities was not ensured. The licenses for minor minerals and their misuse were not checked. The government acquired land for development projects which were not implemented.
Commonly, the word ownership is interpreted as the right to take decisions related to protecting, harvesting and subsequent management of MFP (Minor Forest Produce). This lead to a destruction of forests. In the actual sense of the provision, it just gave the right to net revenues from MFP after retaining the administrative expense of the forest department to the gram panchayats.
The gram sabha had access to the forest located within the revenue boundary of the village, but this provision was contrary to the fact that most of the reserved forest in a state was not located within a revenue boundary of a village.
Also, due to land acquisition that was facilitated by the state and the marketing process, another issue pertaining to the control over natural resources comes across. Although the transfer of land from tribal to non-tribal was forbidden, it is still in practice.
Acquisition of community’s resources for marketing is leading to loss of livelihood and resource for the tribes. For instance, the Samata judgment, which if cleared by both the Union and the State government would have led to sustainable mining thus avoiding present conflicts witnessed in the mineral rich areas.
Migration resulting from pseudo economic development makes participation in village proceedings difficult.
Hence, a proper implementation of PESA is the answer to the economic development of PESA areas.

C) Madhya pradesh

The M.P. Panchayat Raj Adhiniyam consolidated in the year 1994. It establishes the Panchayats with a view to ensure effective involvement of the Panchayati Raj Institutions (PRIs) in local administration and developmental activities.

The M.P. Government has enacted the Panchayati Raj Dwitiya (Sansodhan) Adhiniyam 1997 to conform to the Central Legislation of PESA. Subsequent amendments along with Panchayati Raj (Sanshodhan) Adhiniyam 1999 and the M.P. Panchayati Raj (Sanshodhan) Adhiniyam 2001 were made wherein the words „Panchayati Raj‟ was substituted by words „Panchayati Raj Avam Gram Swaraj‟ in the Act. However, the way in which PESA provisions have been incorporated in MP Panchayati Raj Avam Gram Swaraj Adhiniyam (MPPRGSA), have been at variance with the spirit of PESA.

* Definition of Village and its Gram Sabha:

Central PESA states “a village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affair in accordance with traditions and customs”
MPPRGSA states: ‟Village‟ means a village in the Scheduled Areas which shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affair in accordance with traditions and customs.

The terms “Gram Sabha” and “Village” used throughout in the Act must make a clear reference to the village as defined in the Act as: Every “such village shall have a Gram Sabha” and “recognised as such by the concerned Panchayats within which such Village Gram Sabha exists”
MPPRGSA states: Gram Sabha‟ means a body consisting of persons whose names are included in the electoral rolls relating to the area of a Panchayat at the village level, or part thereof, for which it is constituted

* Dispute between Gram Sabhas in Scheduled Areas:
MPPRGSA Powers and functions and annual meeting of Gram Sabha .The Gram Panchayat shall carry out the recommendations, if any, made by the Gram Sabha in regard to the matters before it .

* Traditions, Customs, customary resources and traditional methods of dispute resolution:
The state government has enacted the Madhya Pradesh Gram Nyayalaya Adhiniyam, 1996 and Madhya Pradesh Gram Nyayalaya Rules, 2009 setting up rural courts to dispense speedy justice at the Gram Panchayat level. It has no provision for involvement of Gram Sabha in the dispute resolution mechanism. The Gram Nyayalaya constituted under the act is for a circle comprising of ten or more Gram Panchayats. Hence, dispute resolution is not at the village level but at the Panchayat level.

* Planning and Management of Minor water bodies:
In MPPRGSA the various tiers of Panchayats have been vested with several functions relating to minor water bodies. MPPRGSA not only vests the power to plan and manage but also the ownership of minor water bodies (beyond PESA provisions) up to a specified water area to Gram Sabha, Janpad and Zila Panchayat

* Power to Impose Water Rate
MPPRGSA provides power to impose water rate to the Gram Panchayat where it is involved in supplying water. The Madhya Pradesh Sinchai Prabandhan Me Krishakon Ki Bhagidari Adhiniyam, 1999 The Act provides for farmers‟ participation in the management of irrigation system. Farmers Organisation has been formed such as Water Users Associations; mainly for the regulation and maintenance of the irrigation systems such as reservoirs, bore/tube wells, tanks and wells.

M.P. Irrigation Act, 1931 and M.P. Irrigation Rules, 1974 The Act provides for constitution of an Irrigation Panchayat for every village or Chak, and at the discretion of the Collector for a group of Villages in the commanded area of the canal.

* Land Acquisition for Development Projects and resettling or rehabilitating persons.
In the scheduled areas, the MPPRGSA does not provide for mandatory consultation of the Gram Sabha or Panchayat at Gram, Block or District level before acquisition of land for development projects or before resettling or rehabilitating persons affected by such projects * Granting mining lease for minor minerals :
MPPRGSA, there is no specific provision regarding taking mandatory recommendations of the Gram Sabha or the Panchayat at appropriate level prior to the grant of prospecting licence or mining lease for minor minerals or for grant of concession for the exploitation of minor minerals by auction in the Scheduled Areas.

The Act gives the power to the Gram Sabha to manage its land resources among others. This would include minerals including minor minerals. For e.g. Madhya Pradesh Minor Mineral Rules, 1996 (hereinafter Rules) for the regulation of matters such as grant and renewal of quarry lease and quarry permit for minor minerals, restrictions on undertaking mining operations, period of lease, assessment of royalty and disbursement of revenue from quarrying of minor minerals between Janpad Panchayat and Gram Panchayat.

PROBLEMS RELATED TO PESA

a. The PESA Act does not specify rule making powers or provide a time period by which the States have to frame rules. States have generally not framed appropriate rules under PESA, and therefore the official system has not operationalized PESA.

b. State and Central subject laws relating to mines and minerals, forests, land acquisition etc. are not PESA compliant.

c. The wordings of some sections of the PESA Act have been interpreted against the spirit of the Act. Particularly, as the Mungekar Committee has observed, the States in many cases have taken advantage of the flexible provision of ‘Gram Sabha or Panchayats at the appropriate level’ in PESA and used the discretion in favour of Panchayats, which goes against the basic tenets of PESA.

d. There is no provision for appeal against the decision of the Gram Sabha, which is not in conformity with the democratic process and introduces an element of absolute power, rather than checks and balances on power of institutions.”

The result has been that despite PESA being in force for more than 15 years, tribal people continue to be deprived of their rights including their right to self-governance as recognised in PESA, and from their life sustaining natural resources in the Fifth Schedule Areas. Dislocation of the communities and their disaffection and distrust of the government has further increased.

REINFORCING PESA

a. While all States in the Fifth Schedule Area have enacted compliance legislations vis-à-vis PESA, their provisions have been diluted by giving the power of the Gram Sabha to other bodies. Subject matter laws and rules in respect of money lending, forest, mining and excise have not been amended.
b. Awareness campaigns should be organised in order to make the tribal population aware of the provisions of PESA and the 73rd amendment to the Constitution so as to demand accountability in cases in which the final decisions are contrary to the decisions of the Gram Sabha or Panchayat.
c. There should be a complete overhaul and systematic re-organisation of existing land records with free access to information about land holdings.
d. There is need to harmonise the various legislations and government policies being implemented in tribal areas with the provisions of PESA.
e. Mining laws applicable to Scheduled Tribal Areas should be in conformity with the principles of the Fifth and Sixth Schedules of the Constitution.
f. Government should select such police, revenue and forest officials who have the training and zeal to work in tribal areas and understand as well as empathise with the population they serve.
g. A national plan of action for comprehensive development which would serve as a road map for the welfare of the tribals should be prepared and implemented.
h. There should be convergence of regulatory and development programmes in the tribal areas with appropriate mechanism for resolution of conflicts and adjustments.

CURRENT STATUS OF PESA

Most states need to amend the rules, such as those relating to money lending, forest, mining and excise to harmomise with PESA. Provisons in such laws are invalid now but continue to be followed by departments and their functionaries for clear instructions. Transfer of funds and functionaries is not matched by the power devolved upon the Gram Sabha and Panchayats.

“The areas in Central India where unrest is prevailing covers several States (like Andhra Pradesh, Orissa, Chhattisgarh, Madhya Pradesh, Jharkhand and part of Maharashtra) are minimally administered. State interventions both for development and for law and order had been fairly low. In fact there is a kind of vacuum of administration in these areas which is
“Technically under Section 5 of the PESA Act all such laws have automatically become invalid after December 12, 1997. But in practice these laws are being still followed by the State Government machinery.”

Despite these response from the States and the Centre are inadequate. Most States have not framed rules for PESA implementation till date. Recent developments include framing of rules in Andhra Pradesh and Himachal Pradesh, preparation of training resources in Madhya Pradesh, Andhra Pradesh and Chhattisgarh. States are reluctant to amend Panchayat and subject laws as per PESA. Issues, such as control of Gram Sabhas over Minor Forest Produce, consultation before land acquisition, right of Gram Sabha to preserve community resources etc. are extremely sensitive. Internal conflicts between the line departments such as Forest, Mining, Excise etc and State Panchayati Raj departments are inevitable.