“Panchayats (Extension to Scheduled Areas) Act 1996”的意思、由来-开放百科全书

The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA ^[1] is a law enacted by the Government of India for ensuring self governance through traditional Gram Sabhas for people living in the Scheduled Areas of India. Scheduled Areas are areas identified by the Fifth Schedule of the Constitution of India. Scheduled Areas are found in ten states of India which have predominant population of tribal communities. The Scheduled Areas, were not covered by the 73rd Constitutional Amendment or Panchayati Raj Act of the Indian Constitution as provided in the Part IX of the Constitution. PESA was enacted on 24 December 1996 to extend the provisions of Part IX of the Constitution to Scheduled Areas, with certain exceptions and modifications. PESA sought to enable the Panchayats at appropriate levels and Gram Sabhas to implement a system of self-governance with respect to a number of issues such as customary resources, minor forest produce, minor minerals, minor water bodies, selection of beneficiaries, sanction of projects, and control over local institutions.^[2] PESA is an Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats and the Scheduled Areas.^[3] PESA was viewed as a positive development for tribal communities in Scheduled Areas who had earlier suffered tremendously from engagement with modern development processes and from the operation of both colonial laws and statutes made in independent India. The loss of access to forest, land, and other community resources had increased their vulnerability. Rampant land acquisition and displacement due to development projects had led to large scale distress in tribal communities living in Scheduled Areas. PESA was seen as a panacea for many of these vulnerabilities and sought to introduce a new paradigm of development where the tribal communities in such Scheduled Areas were to decide by themselves the pace and priorities of their development.

Definition

“Scheduled Areas” mean the Scheduled Areas as referred to in Clause (1) of Article 244^[4] of the Constitution. The Fifth Schedule of the Constitution of India, which mentions Scheduled Areas, is termed as a "Constitution within a Constitution". The Act extended the provisions of Panchayats to the tribal areas of ten states that have Fifth Schedule Areas.^[5]

The salient feature of the Provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) and the modalities worked out to grant rights to tribal communities in the country are:

(i) Legislation on Panchayats shall be in conformity with the customary law, social and religious practices and traditional management practices of community resources;

(ii) Habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs; and shall have a separate Gram Sabha.

(iii) Every Gram Sabha to safeguard and preserve the traditions and customs of people, their cultural identity, community resources and the customary mode of dispute resolution.

(iv) The Gram Sabhas have roles and responsibilities in approving all development works in the village, identify beneficiaries, issue certificates of utilization of funds; powers to control institutions and functionaries in all social sectors and local plans.

(v) Gram Sabhas or Panchayats at appropriate level shall also have powers to manage minor water bodies; power of mandatory consultation in matters of land acquisition; resettlement and rehabilitation and prospecting licenses/mining leases for minor minerals; power to prevent alienation of land and restore alienated land; regulate and restrict sale/consumption of liquor; manage village markets, control money lending to STs; and ownership of minor forest produce.

The provisions of Panchayats with certain modification and exceptions have been extended to the Schedule V areas viz. the ten States where the Panchayats exists in the country including Andhra Pradesh. A list of ten States has been annexed. Only four States have framed their Rules for implementation of PESA. These are, Andhra Pradesh, Himachal Pradesh, Maharashtra and Rajasthan.

History and background

When the 73rd Amendment of the Constitution was passed Article 243 (M) of the Constitution mandated that the Panchayati Raj structure shall not be applicable to the Scheduled Areas. However, it was provided that Panchayati Raj may be made applicable to Scheduled Areas if Parliament by a law provides "for such a law subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368." In effect, after the recommendations of the Dilip Singh Bhuria committee the Parliament passed the PESA act in 1996 to extend the provisions of Part IX of the Constitution related to Panchayati Raj to scheduled Areas with certain exceptions and modifications.^[6]

The seeds of special provisions for special tracts called Scheduled Tracts or Areas which would have different laws applicable to them had been in the making since almost 60 years before independence. The initial thrust of British territorial conquest was met with great resistance by tribal communities. Accordingly, a conciliatory approach was taken by the British as a practical response. Accordingly, the Scheduled District Act, 1874 ensured that such areas could be made exempt from the operation of certain acts which could prove detrimental to such areas. Thereafter Montague-Chelmsford Report (1918), which formed the basis of the Government of India Act 1919 concluded that the political reforms contemplated for the rest of India could not apply to these backward areas as “there was no material on which to establish political institutions”.^[7] The Simon Commission and the Government of India act 1935 were also based on the policy of relative non-interference in scheduled Areas in the context of severe deprivations and the massive land alienation and presence of informal and exploitative credit in such areas. The Fifth schedule of the constitution of free India was thus a culmination of the above Acts.

However, the deprivation of the people, especially Scheduled Tribes, living in such areas and the denial of access to community resources, including land and forest continued unabated, both in colonial times, and to a great extent, even post-independence. The deprivation of forest resources with the British insistence on sourcing teak and rubber from the forests and expropriating forest resources from the communities through colonial Acts (most notably the Indian Forest Act, 1927) led to severe vulnerability in such areas. ".^[8] The Wildlife Protection Act and the Forest Conservation act further constricted the space for maneuver for such communities leaving them practically without rights to the forests with which they had cohabited for centuries.

Another significant source of deprivation arose out of the massive displacement of tribal communities from such areas because of large development projects. It is estimated that while STs constitute only 8% of the population of India, their share in the total number of people displaced is almost 40%.^[9]

One of the most significant alienating factor was that tribal customs and ways of self-governance were not recognised, as customary authority gave way to centralised governance systems.

Because of a culmination of the above factors, tribal regions saw a number of violent movements and civil unrest.^[10]^[11]^[12]

Realization slowly seeped in that the issues that plague the tribal communities in such areas cannot be solved unless a comprehensive legislation was passed ensuring a large level of self governance to village communities with special provisions to ensure access to protect traditional culture, religious practices, and customary modes of dispute resolution; to ensure ownership over minor forest produce and management of minor water bodies, and to ensure that the village community shall have the central place in delivery of schemes, projects, and programs.

A number of social movements, and activists were responsible for the passing of PESA. One of the tallest among these was Mr B D Sharma, an ex-bureaucrat and a social crusader for tribal rights.^[13]^[14]

Various provisions of PESA in detail

1. State legislation to be in conformity with customary law, social and religious practices, and customary modes of dispute resolution:

The onus was on the State legislatures to make laws which were compliant with the spirit of self governance in PESA. The State Legislatures are not to make any laws which are against the provisions laid down in Section 4 of PESA.^[16] As per Section 5 of PESA any law which is inconsistent with PESA shall continue to be in force until the State Legislature repeals it or within one year of the PESA Act receiving the assent of the President, whichever is earlier. This implies that any state subject law which may be against provision of PESA, automatically is deemed null and void in the eyes of the law.

In the Panchayati Raj structure the Gram Sabhas are coterminous with the Gram Panchayats. This one-to-one relationship is sought to be broken down in PESA. PESA defines a village as a "habitation or a group of habitation or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions^[16]". Every such village shall have a Gram Sabha as per Section 4 (c).

Villages in Scheduled Areas are often widely dispersed and with low density of population. The traditional Panchayati Raj structure may not cater to the needs of such dispersed habitations. Often such villages are placed at some distance from the headquarters of the Gram Panchayat. This makes engagement of the people of the distant villages very difficult with the mainstream political discourse at the Gram Panchayat level. The possibility that all development will be concentrated in the headquarter village of the Gram Panchayat cannot be discounted. Hence, the provision of PESA which allows hamlets to become villages and have their own Gram Sabhas ensures deepening of democratic decentralization. However, mere formation of village is not enough. It is expected that the hamlet level Gram Sabhas are also aided with funds, functions, and functionaries that are implicit in the guarantee of PESA.

3. Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.

This segment of PESA gives to Gram Sabhas a degree of self governance based on their customary practices. However, it has been left to State legislatures to interpret the translation of these provisions. This is one of the most neglected provisions as most state governments have failed to gauge the true potential of this provision.^[17] In most states there has been hardly any attempt to document the customary and traditional ways of governance in tribal communities. Nor have there been many attempts to enshrine the same in PESA Rules.

4. Approval of Plans and Projects and selection of beneficiaries by Gram Sabhas

Gram Sabha shall approve plans / programmes and projects before their implementation and shall also be responsible for identification or selection of person as beneficiaries under various programmes. This will ensure that the local communities are able to make the political and administrative systems accountable and transparent, and also ensure effective service delivery in the remote areas where very often the Scheduled Area villages are situated.

Section 4 (m) (ii) of PESA gives to the Panchayats at the appropriate level and the Gram Sabhas the ownership over minor forest produce. This was one of the most radical interventions in Scheduled Area legislations as far as livelihood and cultural issues are concerned. The move, in effect, should have ended all kinds of State (read forest department) monopoly. However, State monopolies still persist in Minor Forest Produce, especially in lucrative MFP like Bamboo and Tendu.^[17] It is interesting to observe here that the Forest Rights Act, 2006 also defines a central role to the Gram Sabha in the management of minor forest produce. Evidently, any state monopolies, in this context, are patently illegal.

This reservation in local bodies is in proportion to population of the community, but, not less than half; all seats of chairperson of Panchayat at all levels shall be reserved for Scheduled Tribes.

In view of the historical fact of massive land alienation from tribal to non-tribal persons the gram sabhas have been given the power of preventing land alienation. In effect, no land can be transferred from a tribal to a non-tribal person. This provision of PESA has a number of implications, including the ones that arose after the delivery of the Samatha judgement by the Supreme Court.

PESA gives to the Gram Panchayats the power to manage minor water bodies. Minor Water Bodies are generally water bodies which irrigate up to 100 Hectares of land. The rights to fishery and other riparian rights also accrue to the Gram Panchayats.

Money Lending, especially usurious money lending, has been a problem of long-standing in the Scheduled areas. This arises, especially because of lack of institutional credit. PESA allows Gram Sabhas to exercise control over money-lending activities.

11. Power of Gram Sabha to exercise control over institutions and functionaries in all social sectors

The Gram Sabha should have control over local institutions and functionaries. These local level institutions include the Gram Panchayats, the Anganwadis (child nutrition centres), the health sub-centres, schools, ration shops, etc. The Gram sabha is competent to take detailed review of these institutions and their functionaries. Ideally, the Gram Sabha should be also involved in the budgeting exercise and in ensuring social audit of all schemes.

The TSP is a part of Central and State Budgets in India which are kept aside specifically for the various schemes and programmes that intend to benefit the tribal communities. It is expected in PESA that the local tribal communities shall have control over the TSP and other local plans and resources. PESA does not make clear whether this control will be direct or indirect. However, on reading this provision with other sub-sections of PESA it can be assumed that the Gram Sabhas and the Panchayats at the appropriate level should be deeply involved in the formulation and execution of the plan.

Land acquisition, especially in Scheduled Areas has been a vexed question in India for very long. PESA provides that village communities need to be consulted in a meaningful fashion to ensure that the voice of the community is taken into account before decisions about land acquisition are made by the administrative apparatus.^[18]

Minor Minerals, in Scheduled Areas to which PESA is applicable, can be auctioned only after the specific permission of the Gram Sabha.^[19]

The Gram Sabhas and the Panchayats at the appropriate level have the right to enforce prohibition and to regulate the sale of intoxicants.^[20]^[21]

Implementation

Great hopes arose in scheduled Areas after the passing of PESA in 1996 as it was viewed to be the panacea for many of the problems that plagued such areas. However, even two decades after the passing of the act, the implementation of the act is sketchy at best.^[22]^[23] PESA relied on the legislatures of the ten scheduled Area states to make necessary changes to State Panchayati law and the state subject laws to bring them in line with PESA. it was assumed that in keeping with the spirit of PESA (especially Section 4 (n) ) the higher levels of governance shall not appropriate the powers of the lower levels. However, in reality, the State laws were either not amended in line with PESA or amended only to partially correspond to the letter and spirit of PESA. Many of the powers that needed to accrue to the Gram Sabhas were only delegated to the Gram Panchayat.^[24]^[25] This violated the cardinal assumption of PESA of hamlet level villages having their own Gram Sabha with the rights enshrined in PESA to be available to them.^[26]^[17]

One of the most severe violations arose in the context of rights over minor forest produce. Section 4 (m) (ii) of PESA gave to the Gram Sabhas the ownership over minor forest produce. However, most of the States retained monopolies over minor forest produce, ostensibly for protecting tribal communities.^[27] Control over Tendu and bamboo trade, two of the most lucrative of MFP, remained in the hands of the forest department in most states.^[17]

One of the reasons for the states managing to retain monopoly over MFP was the failure of PESA act to define what constituted a MFP. States often took the plea that Minor Forest produce inasmuch as PESA is concerned, is the way MFP is defined in the state laws. In most of the state laws high value MFPs like bamboo and tendu were not in the list of minor forest produce. In fact, in the Indian Forest Act, 1927 in Section 2(7) bamboo has been defined as a tree.

However, the unwillingness of State Governments to implement the provisions of PESA went far deeper. Even after the FRA, 2006 clearly defined MFP, and included bamboo and tendu as non-timber forest produce, there was hardly any substantial change in the PESA states.^[27]^[28]

Apart from these issues, PESA remained unworkable because most Scheduled Area states did not publish PESA Rules which could have provided a working template to put this Act into action.^[29] The failure of most states to publish rules reflects poorly on the Center as it has not been able to prevail on the States to implement the mandatory provisions of PESA.

Many people have commented on the non-implementation of PESA. Shri B D sharma, former civil-servant and former Commissioner for Scheduled Castes and Scheduled Tribes, wrote in his letter to the President of India that the "ruling elite are not prepared to go by the spirit of PESA. It remains virtually unimplemented in all States."^[30] The Planning Commission in a comprehensive study in 2008 commented that "the rudderless implementation of PESA, albeit partial and perfunctory, faces the first estoppel at the level of defining the ‘village’ that comprises the community, and ‘competence’of Gram Sabha to manage the affairs of the community in terms of its customs and traditions."^[31]

Rules

In order to ensure that PESA would be implemented, functional guidelines in the form of PESA rules are absolutely necessary. However, the lack of interest of state governments in publishing PESA rules impacted PESA adversely.^[26] In the past few years four states have been able to publish PESA Rules. Andhra was the first state to publish the rules in 2011, 15 years after the promulgation of PESA.^[32] Himachal Pradesh, Rajasthan and Maharashtra have also published their PESA Rules.^[33]^[34]^[35] The remaining six states- Telangana, Jharkhand, Chhattisgarh, Madhya Pradesh, Odisha, and Gujarat have not yet succeeded in framing PESA rules.

Role of governors in Scheduled Areas and in implementation of PESA

PESA is implemented in Scheduled Areas. The Scheduled Areas are governed by the provisions of the Fifth schedule of the Constitution. The Fifth schedule gives to the governors of the ten scheduled area states very important functions. While, constitutionally, in most matters of governance the governors are aided and advised by the Council of Ministers, it may not be so in matters concerning the Scheduled Areas. As per para 3 of the Fifth Schedule "the Governor of each State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas."

The Attorney General had advised the Home Ministry that the role of the governor in sending this report is discretionary.^[36]

An even more significant role of the Governor in scheduled areas arises out of the powers inherent in sub-para (1) of Para 5 of the Fifth Schedule. As per the sub-Para "5. Law applicable to Scheduled Areas.—(1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect."^[37] It has been alleged that Governors of most states have not been able to send all reports on time and the content of the reports also does not do justice to this Constitutional responsibility.^[17]

The above provision gives to the Governor of a Schedule Areas a very significant power "notwithstanding anything in the Constitution". This power, unlike the power in sub-para (2) of Para 5 (regulation making powers) is bound neither by the advice of the Tribes Advisory Council or the assent of the President. The provision lays down the responsibility on the Governor to ensure that laws that are contrary to the interests of Scheduled Areas may be suitably modified. However, it has been alleged that Governors of Scheduled Areas (barring a few exception ) have hardly ever used these powers independently.^[38]^[39]^[40] There have been also demands that the Reports prepared by the Governors should be made public.^[41] However, recently Maharashtra Governor has issued a number of notifications to bring the state subject laws in line with PESA and to guarantee minor forest produce to Gram Sabha. Certain steps have also been taken to ensure peace and good governance in such areas.^[42]^[43]^[44]^[45]

A 'Group of Governors on the Areas under Schedule V of the Constitution and Related Issues'- was constituted by President Pranab Mukherjee, included Governors of Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Odisha, Rajasthan and Madhya Pradesh, with Governor of Maharashtra and Minister of Tribal Affairs, Government of India - as special invitees.

The Group recommended a number of interventions such as constitution of a Tribes Advisory Council in Schedule V States on a uniform pattern, drafting of a uniform model for Tribal Sub Plan Budget Allocations, making TSP allocations non transferable and non lapsable, declaring all TSP districts as 'High Priority Districts' under National Rural Health Mission, protecting land rights of tribal communities, etc.^[46]

The Prime Minister of India in the Conference of Governors held in 2013 advised the Governors of Fifth scheduled States to use their Fifth schedule powers and to implement PESA effectively.^[47]

Implementation of PESA in Maharashtra and Role of Governor under the Fifth Schedule

A number of steps have been taken in the past few years by the Governor of Maharashtra to fulfil his mandate under the Fifth Schedule and to ensure implementation of PESA in Maharashtra.^[49]

Since the hamlets and habitations in Scheduled Areas are dispersed and ar apart from each other, section 4 (b) of PEA recognised the right of such habitations to become a village and to have their own Gram Sabhas. Accordingly, Maharashtra Government, by Notification dated 25/06/2014, inserted in chapter III-A of the Maharashtra Village Panchayats Act, special provisions relating to Village and Gram Sabha, namely:

"(b) every village, so declared under clause (a), shall have a 'Gram Sabha' consisting of persons whose names are included in the electoral rolls for the Panchayat at the Village level and a Panchayat may {{sich|comprise |hide=y|of}} one or more than one of such villages."

In order to ensure that PESA was implemented in letter and spirit, there was also a need to put in place PESA rules in the state. This task had been long pending and was coming in the way of implementation of PESA. However, in March 2014 the State Government finally published PESA rules to ensure detailed directions about the various aspects of PESA.^[50]

Changes were required in various State Acts of Maharashtra State to bring them in conformity with PESA. This was necessary as PESA requires its implementation through the Panahayati Raj Act of the State and the State subject laws. By a series of notifications the Governor of Maharashtra ensured that most of these state legislations were brought in line with PESA. Many of the above Acts have been modified and brought in line with PESA by Notifications issued by the present Governor of Maharashtra Shri Ch. Vidyasagar Rao and the earlier Governor Shri Sankarnarayanan.

Under sub-paragraph (1) of paragraph 5 of the Fifth Schedule of the Constitution of India, the Governor may by Public Notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the state subject to the exceptions and modifications specified in the notification. In exercise of these powers, the Governor of Maharashtra has issued various notifications for welfare of tribal communities in Scheduled Areas.

The definition of Minor Forest Produce (MFP) under the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Recognition of Trade) (Amendment) Act, 1997 did not include many of the minor forest produce recognized under the subsequent the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, (FRA). Hence, despite the powers vested in them under PESA, the Gram sabhas were not able to access many important MFPs such as Tendu and Bamboo. In fact, the list included in the state subject law pertained to only 33 low value MFPs. This anomaly had led to denial of livelihood opportunities to Village Communities in the Scheduled Areas, primarily the members of the Scheduled Tribes. By Notification dated 19/08/2014, the Governor of Maharashtra made modifications to the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Regulation of trade) (Amendment) Act, 1997 and modifications to the Indian Forest Act, 1927, in its application to the State of Maharashtra.^[48]

Because of these changes many Gram Sabhas in Scheduled Areas have been able to exercise their rights over minor forest produce, including high value products, such as bamboo and tendu. Using these rights in consonance with FRA, more than 100 Gram Sabhas in Gadchiroli have exercised for the first time their rights over bamboo and more than 500 have exercised their rights over tendu and earned income ranging from 10 lakh to 80 lakh per Gram Sabha, leading to a positive impact in the Left-Wing Extremist (LWE) affected district.^[51]

2. Notification regarding prevention of land alienation by Gram Sabhas through modification to the Maharashtra Land Revenue Code, 1966:

The Scheduled Areas are often plagued with land alienation from tribal persons to non-tribal persons. The tribal communities have been steadily losing land in scheduled Areas and their population vis-a-vis non-tribal persons is dwindling in such areas. Land alienation in such areas occurs because of various reasons such as threat, coercion, fraud, forgery, and the general indebtedness of tribal persons to money-lenders. In order to bring the state revenue laws in line with section 4(m)(iii) of PESA, 1996, in exercise of powers conferred by sub paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution, by Notification dated 14/06/2016, the Governor of Maharashtra directed that section 36 A of the Maharashtra Land Revenue Code, 1966, in its application to the Scheduled Areas of the State of Maharashtra shall apply with the modifications mentioned in the said Notification and that no land can be alienated in Scheduled Areas without the prior consent of the Gram Sabhas.^[52]

3. Notifications under sub-para (1) of Para 5 of Fifth Schedule bringing certain State Acts in consonance with PESA

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996) had been enacted with intention of extending the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas, and to ensure a large degree of self-governance to the appropriate Panchayats and the Gram Sabhas in the Scheduled Areas. Since the provisions of PESA also requires that all the State Acts shall ensure that the appropriate Panchayats and Gram Sabhas are endowed with a number of powers outlined in the said Act, it is expedient to bring certain State Acts in consonance with the PESA. Therefore, in exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, by Notification dated 30/10/2014, Governor of Maharashtra Shri Ch. Vidyasagar Rao directed that the Markets and Fairs Act, 1862 (Bom. IV of 1862), Indian Forest Act, 1927 (16 of 1927), in its application to the State of Maharashtra, the Maharashtra Village Panchayats Act (III of 1959), the Maharashtra Land Revenue Code, 1966 and the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) in its application to the State of Maharashtra, shall apply to the Scheduled Areas with the exceptions and modifications mentioned in the said Notification.^[48] By the notification, a special chapter was introduced in the Indian Forest Act, 1927 to ensure the rights of the minor forest produce of Gram Sabhas was carried out without any hindrance. All decisions about collection, sale and sharing of income proceeds are now taken by Gram Sabhas. The definition of social sector in the Maharashtra Village Panchayats Act was also amended so that all line departments dealing in social sector could also be reviewed by the Panchayati Raj sector.

As per the Notification dated 19/08/2014, Bamboo has been added in the list of Minor Forest Produce in Scheduled Areas. In pursuance to this Notification, the Rural Development Department by Government Resolution dated 31/03/2015 and 23/11/2015 has issued guidelines regarding Bamboo cutting and selling through Gram Sabhas.

F. Seed capital from Manav Vikas Mission to ensure meaningful access to Minor Forest Produce:

Planning Department by Government Resolution dated 21/08/2014 and 01/08/2016 has issued instructions to make available the one-time seed capital to the Gram Sabhas for this purpose through MVM.

By Notification dated 30/10/2014, the Maharashtra Village Panchayats Act (III of 1959) has been modified. A new clause (o) in section 54 B is inserted that Gram Panchayats and Gram Sabhas shall " be competent to exercise control over local plans and resources for such plan including the Tribal Sub Plan, provided that not less than 5% of the total Tribal Sub Plan funds of the respective annual plan shall be devolved to the Gram Panchayats in Scheduled Areas in proportion to their population." In pursuance to this Notification, a Government Resolution has been issued on 21 April 2015 and then on 21 August 2015 by Tribal Development Department regarding direct devolution of 5% of Tribal Sub Plan funds to Gram Panchayats in Scheduled Areas of Maharashtra State. This step is significant as it ensures a greater degree of democratic decentralization in such areas.

PESA in Andhra Pradesh, Orissa, Jharkhand, Gujarat And Chhattisgarh

A Planning Commission Report concluded that "in most cases, in the pre-PESA implementation phase, there was little if any difference between tribal and non-tribal areas with respect to the role of the Gram Sabha. The Sarpanch and other influential Gram Panchayat members dominate the often irregular and scantily attended Gram Sabha meetings. The common people possess little awareness about its functioning." The report recommended awareness generation among the tribal community on the provisions provided in PESA Act. The report also noted that there has been " absolutely no groundwork in recognising the Gram Sabha’s jurisdiction over forests and in the creation of adequate mechanisms and support structures for them to play any significant role. ...• The advent of PESA in 1996 was a welcome event that conferred relatively greater autonomy to Gram Sabhas. However, PESA’s sincere implementation has not been seriously attempted by the government, which is still dominated by centralized structures and laws that are in contradiction with the progressive provisions of PESA. For example, the provisions, as explained in the Act, related to people’s control over livelihood resources have yet to be executed in the scheduled areas. In a few places, since the appearance of PESA, an attempt has been made to restore control over the village resources to the people. Following these efforts, people have faced sometimes violent reactions from the ruling class. As such, conflicting areas were identified prior to advocating the implementation of various provisions of PESA." ^[54] The Planning Commission report noted that "there are policy loopholes between self-governance laws and existing laws that give power to various departments to control resources, and many other functions that Panchayats are supposed to manage by themselves (as per the provisions of PESA). For example, the modern state and its legal apparatus do not recognise the customary ownership rights of land, which are by and large unwritten in the tribal community. Therefore, if tribal communities cannot exercise ownership rights in their traditional fashion, the spirit behind the provision in PESA of managing land resources by Gram Sabhas is defeated. So more focused and nuanced work should be done in this regards...... Similar conflict is prevalent with regard to ownership rights of water resources. Most village ponds are either on community land, revenue land or forestland. Under existing conditions, local people are either prohibited or have restricted use of these ponds. Hence there is some overlapping of ownership rights, and clarity on such issues is possible only after the Indian Forest Act and other related Acts are amended to accommodate the provisions of PESA."

The report lamented the fact that "the situation regarding forest resources is still worse, as forests have been under total control

of the Department of Forests until now. Years of autocratic control over the profit-yielding forest resources have made the Department reluctant to yield control over forests. It is this very attitude, along with an absence of Amendments in the Indian Forest Act, which is in

conflict with the provisions of PESA and this problem could be solved in a war footing manner."^[54]

Scheduled Areas and Samatha judgement

The Samatha judgment of the Supreme Court in 1997 was a landmark judicial intervention in scheduled Areas and PESA. "Samata first filed a case in the local courts and later in the High Court in 1993 against the Government of A.P for leasing tribal lands to private mining companies in the scheduled areas. The High Court dismissed the case after which Samata filed a Special Leave Petition in the Supreme Court of India. A four- year battle led to a historic judgement in July 1997 by a three judge-bench. The Court in its final verdict, declared that ‘person’ would include both natural persons as well as juristic person and constitutional government and that all lands leased by the government or its agencies to private mining companies apart from its instrumentalities in the scheduled areas are null and void. In addition it also held that transfer of land to the government or its instrumentalities is entrustment of public property as the aim of public corporations is in public interest and hence such transfers stand upheld."^[55]^[56]^[57] It is alleged that the Central and State Governments were not sympathetic to the Samatha judgement and tried to scuttle it by challenging it.^[58]

However, the Supreme Court dismissed the petitions of State and Central Governments for modification of the Samata order.^[59] Simultaneously, the Andhra Pradesh government moved the Tribes Advisory Council for amendment to the Land Transfer Regulation Act of 1959. It is also alleged that the Ministry of Mines circulated a Secret Note to the committee of Secretaries proposing an amendment of the Fifth Schedule to overcome the Samata Judgement to facilitate the leasing of land to outsiders in tribal areas. The Indian Express carried an article in the edit page exposing secret note of Ministry of Mines.^[60] The President Shri K R Narayanan in his Republic Day speech issued a veiled warning against plotting to amend the V Schedule of the Constitution.^[61]^[62] It was also alleged that the Planning Commission had also moved draft notes wanting to do away with the Samatha judgement.^[63]

Land acquisition in Scheduled Areas

While section 4 (i) of PESA provides the right to Gram Sabhas to be consulted before land acquisition, more stringent provisions exist in section 41 and 42 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR, in brief).^[74]

Unlike PESA, Section 41 of LARR 2013 provides for consent of Gram Sabhas before the process of land acquisition can begin. Section 41 and 42 also provide certain protections just in case the land acquisition is taken up as a last resort.

"41(1) As far as possible, no acquisition of land shall be made in the Scheduled Areas.

(2) Where such acquisition does take place it shall be done only as a demonstrable last resort.

(3) In case of acquisition or alienation of any land in the Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils, at the appropriate level in Scheduled Areas under the Fifth Schedule to the Constitution, as the case may be, shall be obtained, in all cases of land acquisition in such areas, including acquisition in case of urgency, before issue of a notification under this Act, or any other Central Act or a State Act for the time being in force:

Provided that the consent of the Panchayats or the Autonomous Districts Councils shall be obtained in cases where the Gram Sabha does not exist or has not been constituted.

(4) In case of a project involving land acquisition on behalf of a Requiring Body which involves involuntary displacement of the Scheduled Castes or the Scheduled Tribes families, a Development Plan shall be prepared, in such form as may be prescribed, laying down the details of procedure for settling land rights due, but not settled and restoring titles of the Scheduled Tribes as well as the Scheduled Castes on the alienated land by undertaking a special drive together with land acquisition.

(5) The Development Plan shall also contain a programme for development of alternate fuel, fodder and, non-timber forest produce resources on non-forest lands within a period of five years, sufficient to meet the requirements of tribal communities as well as the Scheduled Castes.

(6) In case of land being acquired from members of the Scheduled Castes or the Scheduled Tribes, at least one-third of the compensation amount due shall be paid to the affected families initially as first installment and the rest shall be paid after taking over of the possession of the land.

(7) The affected families of the Scheduled Tribes shall be resettled preferably in the same Scheduled Area in a compact block so that they can retain their ethnic, linguistic and cultural identity.

(8) The resettlement areas predominantly inhabited by the Scheduled Castes and the Scheduled Tribes shall get land, to such extent as may be decided by the appropriate Government free of cost for community and social gatherings.

(9) Any alienation of tribal lands or lands belonging to members of the Scheduled Castes in disregard of the laws and regulations for the time being in force shall be treated as null and void, and in the case of acquisition of such lands, the rehabilitation and resettlement

benefits shall be made available to the original tribal land owners or land owners belonging to the Scheduled Castes.

(10) The affected Scheduled Tribes, other traditional forest dwellers and the Scheduled Castes having fishing rights in a river or pond or dam in the affected area shall be given fishing rights in the reservoir area of the irrigation or hydel projects.

(11) Where the affected families belonging to the Scheduled Castes and the Scheduled Tribes are relocated outside of the district, then, they shall be paid an additional twenty-five per cent, rehabilitation and resettlement benefits to which they are entitled in monetary

42. (1) All benefits, including the reservation benefits available to the Scheduled Tribes and the Scheduled Castes in the affected areas shall continue in the resettlement area.

(2) Whenever the affected families belonging to the Scheduled Tribes who are residing in the Scheduled Areas referred to in the Fifth Scheduled or the tribal areas referred to in the Sixth Scheduled to the Constitution are relocated outside those areas, than, all the statutory safeguards, entitlements and benefits being enjoyed by them under this Act shall be extended to the area to which they are resettled regardless of whether the resettlement area is a Scheduled Area referred to in the said Fifth Schedule, or a tribal area referred to in the said Sixth Schedule, or not.

(3) Where the community rights have been settled under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the same shall be quantified in monetary amount and be paid to the individual concerned who

has been displaced due to the acquisition of land in proportion with his share in such community rights."^[64]

PESA, Eleventh Schedule of Constitution and Transfer of 29 subjects to Panchayats at appropriate level and Gram Sabhas

The difference between PESA and the PRI structure established under the 73rd Constitutional amendment is that while the 73rd Amendment states that the States "may" transfer the 29 subjects enlisted in the Eleventh Schedule, PESA makes this transfer mandatory at least for those powers which are outlined in Section 4 of PESA, namely: Minor Forest produce, Social Forestry, Land Management, Fisheries, Village Markets, tribal development, social Justice, Food and Civil supplies, and subjects related to local institutions. In the absence of the transfer of the 3 Fs, i.e., funds, functions and functionaries it shall be very difficult to put PESA in operation.^[65]

Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)

Both PESA and FRA are rights-based legislations with certain common ground. While the scope of PESA is limited to Scheduled Areas, FRA extends to all forests. The common string uniting PESA and FRA is the reliance on Gram Sabhas as the unit for decision making. While in PESA it is the Gram sabha which owns MFP, in FRA the rights over MFP are with the STs and the OTFDs. However, these rights are to be exercised as per decisions made by Gram Sabha. By letter dated 13 February 2015 Minister of Tribal affairs has clarified that there is no conflict between FRA and PESA as far as ownership of MFP is concerned and has called both as "kindred statute".^[66] However, one difference between FRA and PESA that can be inferred is that unlike FRA, the rights over MFP are inherent in statute for all Gram Sabhas without the need to claim rights.

Scheduled Areas, and the question of tribal land alienation

One of the keenest issues that have affected tribal autonomy and welfare is the question of land alienation. After the concept of private ownership of property had been extended to tribal lands by the British, a large number of tribal people lost their land to the wiles of the money-lenders and the influx of outsiders. In the wake of a number of tribal uprisings a number of protective acts were passed most notable of which were Act I of 1959 and 1970 in Andhra Pradesh.^[67] However, the loss of land continued unabated despite several land laws across states promulgated for the protection of tribals.^[68] PESA was notable in its scope, as by section 4 (m) (iii) it gave to Gram Sabhas the power to not only prevent alienation of land but also to restore illegally alienated land.

PESA, Scheduled Areas and Part IX A of the Constitution

As per article 243 ZC of the Constitution Part IX A of the Constitution relating to urban local bodies shall not be applicable to Scheduled Areas unless Parliament by law makes "Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368".^[69] In pursuance to this requirement, the Municipal Extension to Scheduled Areas Act (MESA) was introduced in Parliament. However, it was never passed. technically, no areas in Scheduled Areas can be converted into a municipality till the Act is passed. it is expected that if and when such an Act is passed it shall through certain modifications in Part IX A of the Constitution provide adequate safeguards for the people of Scheduled Areas.

However, absence of MESA has not prevented many states from creating municipalities leading to much heartburn in scheduled areas and legal challenges.^[70] "C R Bijoy of Campaign for Survival and Dignity, a non-profit in Delhi, says state governments are upgrading the panchayati areas within the scheduled area into municipal areas and are taking the areas out of the purview of PESA provisions, which mandate village council’s approval for setting up any project. Worse, they are doing so without providing alternative protective provisions to the municipal areas. This is creating legal infirmity, Bijoy adds. As per the 1991 census, there were 167 urban local bodies in Schedule Five areas. Their number has increased since. Between 2007 and 2009, Chhattisgarh and Madhya Pradesh upgraded 26 and eight tribal rural areas into municipalities, and these are the areas with major industrial investment proposals. Alok Pandey of PRIA, a Delhi-based non-profit that works on local governance, cites another reason for such upgrade. Before the general election of 2009, the Chhattisgarh and Madhya Pradesh governments upgraded 79 and 100 panchayats, respectively. A major reason behind this is to get more Central allocations from the Ministry of Urban Development." ^[71]

Home Ministry and PESA in context of LWE states

The Home Ministry has stated repeatedly that the implementation of PESA in letter and spirit is very necessary for countering Naxal violence in Left Wing Extremism (LWE) affected States in Scheduled Areas. The Ministry suggests special stress on minor forest produce rights to Gram Sabhas for this purpose.^[72]^[73] In an answer in the Parliament to a related question on PESA the MoS Home Affairs suggested that good governance and proper functioning of PRI institutions and PESA was central to the strategy to combat LWE violence in the country.^[74]

See also

References

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