COMMENTARY

Economic & Political Weekly EPW febrUARY 21, 2015 vol l no 8 21

Enhancing PESAThe Unfi nished Agenda

Kamal Nayan Choubey

Amendments proposed by the previous Congress-led union government to the Panchayat (Extension to Scheduled Areas) Act 1996 had the potential of improving upon this progressive legislation. Unfortunately, with its successor pursuing different priorities, the possibility of the amendments being passed remains rather low.

A bill for an amendment to the Pan- chayat (Extension to Scheduled Areas) Act (PESA) 1996 was

released for public discussion by the Ministry of Panchayati Raj (MoPR) on 2 December 2013. This bill, titled the “Panchayat (Extension to Scheduled Areas) Bill, 2013,” was formulated on the basis of exhaustive recommendations by the Sonia Gandhi-led National Advisory Council (NAC) in Decem ber 2012. How-ever, for many months, the government did not initiate any concrete measure to implement these recommendations and only six months before elections the MoPR released the bill for public discus-sion. The crucial point is that after the formation of the Narendra Modi-led Bharatiya Janata Party (BJP) govern-ment at the centre, the bill is still availa-ble on the MoPR website seeking public comments and opinion. It is pertinent to ask that whe ther the provisions of the new bill would be able to rectify the

shortcomings of the PESA? What might be the future of the bill during the term of the BJP government?

The PESA has been recognised by many activists and scholars as a “progressive” law, because it gives some crucial rights to village-level communities to manage their lives and resources. The PESA, enacted by Parliament in 1996, extends Pancha-yat Raj institutions to Schedule V (of the Constitution) areas. In many parts of Madhya Pradesh, Jharkhand and Maha-rashtra, the Bharat Jan Andolan and some other organisations mobilised peo-ple and created public pressure for the enactment of the PESA. It is crucial to note that the Dileep Singh Bhuria Com-mittee, constituted in 1995 to prepare reports for the extension of panchayati raj in Schedule V areas, presented two reports. One was for rural areas and the other one was related to urban areas. However, only recommendations related to rural areas were accepted and the PESA was passed by Parliament. There is still no separate law for the urban areas corresponding to Schedule V.

The PESA defi nes the gram sabha as an organic self-governing community rather than just a basic administrative unit of self-governance. The member of a habita-tion is the natural unit of the community,

Kamal Nayan Choubey (kamalnayanchoubey@gmail.com) is with the Nehru Memorial Museum and Library, New Delhi.

COMMENTARY

febrUARY 21, 2015 vol l no 8 EPW Economic & Political Weekly22

whose adult member constitutes the gram sabha. The PESA has created a frame-work for autonomous and empowered gram sabha in the Schedule V areas. Communities are declared competent to safeguard and preserve their culture and tradition, exercise command over natural resources, enjoy ownership of minor forest produce and adjudicate their disputes (Section 4(d), and 4(m)(ii)). It empowers the village assembly to monitor all state institutions, within its jurisdic-tion, such as schools and health centres, with functionaries placed under its control (Section 4(i), (j), (k) and (l)).

The PESA, however, has not been im-plemented in its true spirit and it has been violated at many levels. First, since the panchayat is a subject in the state list, all states with Schedule V areas had to change their panchayat acts in accordance with the central act of PESA passed by Parliament. In many states, this was only partially implemented and some states took many years to make rules for Schedule V areas. Rajasthan is a promi-nent example of this case, where a state act, based on the central PESA was passed in 1999, but rules were not for-mulated until 2011. Since there were many limitations in these rules, tribal activists challenged it in the high court and the issue is still unresolved.

Second many states formulated rules according to PESA provisions and creat-ed a framework for the panchayat sys-tem in Schedule V areas, but some major provisions were not fully incorporated in these rules. For example, the central PESA states that the gram sabha or panchayat at the appropriate level shall be consulted before acquiring land. While the Andhra Pradesh act has made the provisions to consult the mandal (block) parishad before acquiring land, the Jharkhand act has no provision in this regard. The Gujarat act provides that taluka pancha-yats are to be con sulted before acquiring land and the Odisha act mentions that the district panchayat shall be consulted before acquiring land.

Third, provisions related to the powers of gram sabhas regarding land acquisi-tion have been rampantly violated by many states. For example, in 2006 in Belar village of Lohandiguda, Bastar,

villagers were protesting against their land being acquired for a steel plant. On the day set aside for offi cial consent-taking, a legal provision prohi biting assembly (Section 144) was imposed on the whole area to prevent villagers from gathering. The villagers were then taken one by one and forced to sign their consent.1 There are many such examples where land has been acquired through false or forced consent in Schedule V areas.

Though there have been many short-comings in the implementation of the PESA, the agitations and movements that have strived for its implementation to be better, particularly the ones led by the Bharat Jan Andolan and other local orga nisations, have created enormous political awareness in many places. As mentioned earlier, there are many areas where the PESA has not been properly implemented and there are many exam-ples where the state has violated the spirit of this act. That said, this law has created enormous political consciousness in many areas. When Parliament passed this act, grass-roots organisations had started what was called pathargadhi (stone inscription) in many areas of Jharkhand and Maharashtra. Through this they inscribed the entirety of the PESA on big stone pedestals, translating the clauses in the act into Hindi. This created a lot of awareness about the provisions of this law and in many areas people used the term hamara kanoon (our law) for the PESA. Interestingly, in Rajasthan and Jharkhand activists began the stone

inscribing process even before the enact-ment of the state-level act or the formu-lation of rules related to PESA. For instance, during my fi eldwork in the Udaipur dis-trict of Rajasthan I found that the non-governmental organisation Aastha and the “Jungle Zameen Andolan” established shilalekh (another term for pathargadhi) in more than 350 villages of Udaipur district and declared village self-rule in these PESA areas. It was a process of political education for the villagers as they informed concerned authorities in the forest department and the block develop-ment offi cer about these actions. In many villages, on the basis of the central law, people asserted their rights over common resources of their village and non-tim-ber forest produce (NTFP) in their tradi-tional Nitstar forests. They stopped the intervention of local administration and forest department in their day-to-day ac-tivities. Interestingly, since Rajasthan has not formulated rules till 2011, their claim regarding village self-rule (gaon ganarajya) was contestable.

In recent years, many reports — The “Report of Expert Group of the Planning Commission on Development Challenges in Extremist Affected Areas” (2008), the “Sixth Report of the Second Admi ni-strative Reforms Commission” (2007), the “Balchandra Mungekar Committee Report” (2009), etc — have clearly under-lined the dismal situation of the imple-mentation of PESA. These and many other reports prepared by many peoples’ organi-sations have recommended that the state

EPW E-booksSelect EPW books are now available as e-books in Kindle and iBook (Apple) formats.

The titles are

1. Village Society (ED. SURINDER JODHKA) (http://www.amazon.com/dp/B00CS62AAW ; https://itunes.apple.com/us/book/village-society/id640486715?mt=11)

2. Environment, Technology and Development (ED. ROHAN D’SOUZA) (http://www.amazon.com/dp/B00CS624E4 ; https://itunes.apple.com/us/book/environment-technology-development/

id641419331?mt=11)

3. Windows of Opportunity: Memoirs of an Economic Adviser (BY K S KRISHNASWAMY) (http://www.amazon.com/dp/B00CS622GY ; https://itunes.apple.com/us/book/windows-of-opportunity/id640490173?mt=11)

Please visit the respective sites for prices of the e-books. More titles will be added gradually.

COMMENTARY

Economic & Political Weekly EPW febrUARY 21, 2015 vol l no 8 23

should implement PESA in its true spirit in order to counter the Maoist challenge to the Indian state.

PESA Amendment Bill

The MoPR website informs that the “PESA does not specify rule making power or pro-vide a time period by which states have to frame rules. The language of some sections of the PESA has been interpreted against the spirit of the Act.” This bill proposed many important changes in the act. Some of the vital changes are as follows.

First, it proposes a change in the Sec-tion 4(i) of the Principal Act (i e, existing law) and renumbered it as 4(i) (i). Accor-ding to the provision of Principal Act, the gram sabha or panchayat shall be con-sulted before land acquisition in Sched-ule V Areas. However, the bill proposes that “prior informed consent” of gram sabha or panchayat should be taken before land acquisition. It also mandates rehabilita-tion and sustainable livelihood plan for the persons affected by projects in the Schedule V Areas. How ever, the bill gives rights to states to determine the processes of taking “prior and informed consent”.

Second, Section 4(k) of the Principal Act provides that the recommendations of the gram sabha and panchayats at the appropriate level shall be made manda-tory prior to “grant of prospecting license or mining lease for minor minerals” (Section 4(k)) and “for grant of conces-sion for exploitation of minor minerals by auctions” (Section 4(l)) in Schedule V Areas. However, according to the bill the words prior “informed consent” would substitute the word “recommendations” and major minerals would also be included in the purview of the PESA (see Section 4(k) and 4(l) of the bill).

Third, the bill also intends to insert two new sections (Sections 5 and 6) in the PESA. Section 5 of the bill proposes that both the central government and the state governments have the powers to notify rules for the implementation of the act. However, “no provisions of the state government rules shall be in con-travention of the central government rules” (Section 5 of the bill). Section 6 of the bill empowers the central government to issue general or special directions to the state governments for the effective

implementation of this act and its rules. Both the changes are necessary for making PESA an effective law.

Fourth, the bill repeals Section 5 of the Principal Act. This states that laws related to the panchayats in scheduled areas, which are inconsistent with the provision of this act should be amended or repealed by state legislative assem-blies within one year from the date on which this act receives the assent of the president (Section 5). However, the bill proposes another section (Section 7) in lieu of existing Section 5, which says that any union or state acts dealing with subjects covered under this amendment act shall be null and void if they contra-vene this act, unless brought in confor-mity within one year of this amendment taking place (Section 7 of the bill).

Obviously, the bill tries to rectify many drawbacks and criticisms of the existing PESA law and it gives more pow-er to the central government to avoid arbitrary behaviour of many states. In-deed in the matters of land acquisition it proposes to give more certain powers to gram sabhas, and proposes to make the “prior informed consent” necessary for any mining or land acquisition.

Inherent Limitations of the Bill

First, it should be noted that the bill is not making any provision to secure the rights of minority groups in the villages of Schedule V areas. It would lead to a situation of dominance of the numerically strong groups and increase the marginali-sation of numerically smaller Scheduled Tribes (STs) and non-ST groups. Second, considering the experience of the PESA in the last 16 years, there must be an autono-mous body to monitor the implementation of this act because it has been frequently violated by government offi cials. Besides, centralisation of power, as proposed by the bill, is not a solution. Third, there have been many demands for the extension of Schedule V to newer areas. Such dem ands have been made for areas in Kerala, West Bengal, Karnataka, Rajasthan and other states, which are tribal-dominated but not presently covered under Schedule V. The bill, however, is silent on these crucial issues. Fourth, as mentioned earlier, the Bhuria Committee presented another

report which was related to urban areas under Schedule V. Interestingly a bill was introduced in Parliament in 2001 in this regard and it was given to the stand-ing committee on urban development, which submitted its report in July 2003 and recommended the enactment of this bill. However, after that session, this bill was enlisted for debate in every session, till 2010, but could not get passed or was debated by Parliament. Though the NAC also recommended the enaction of a sep-arate law for the urban areas of Sched-ule V, the bill released for the discussion is silent on this aspect.

Agenda for the Future

Though both the Congress and the BJP have expressed their commitment tow ards decentralisation of powers, particularly in tribal areas, the actual behaviour of these parties has left much to be desired. While on the one hand, the MoPR released the PESA amendment bill in December 2013, on the other hand, in the same month, the Ministry of Environment and Forests (MoEF), led by Veerappa Moily, gave clearance to 73 projects without following the procedure established by laws like PESA and the Forest Rights Act (FRA). This dichotomy in policy created apprehensions about the actual motive behind releasing the bill for public dis-cussion. Perhaps the United Progressive Alliance (UPA) government wanted to use it as an election gimmick. Again, the present BJP government has accelerated the process of giving clearance to various projects. Within 100 days of the formation of the government, the MoEF has given environmental clearance to 240 of the 325 projects that had been in limbo as the previous government slowed down the process of giving clearances to various projects due to a variety of reasons. Of course the PESA is seen as a big obstacle to those interested in extractive invest-ment in forest areas. One cannot expect the pre sent government seeking to pass the amendments to the PESA.

Note

1 Letter from the Struggle Committee of Belar village, Lohandiguda, Bastar district and the Dantewada Bhumkal Samiti to the Chairman, National Commission for Scheduled Tribes, October 2006.