PESA, which is seen as an enabling law for tribal self-governance, is violated brazenly by both the Union government and State governments in the name of development. By VENKITESH RAMAKRISHNAN and AJOY ASHIRWAD MAHAPRASHASTA

SINCE October 2012, the Ministry of Rural Development of the United Progressive Alliance (UPA) government has apparently been engaged in an exercise to evolve a “National Land Reforms Policy”. Over these months, the Ministry wrote to various State governments, highlighting the importance of the initiative. In January, it also constituted a national-level “Task Force on Land Reforms” comprising nine official and eight non-official members.

These steps were in pursuance of the October 11, 2012, agreement the Ministry had signed in Agra with the Jan Satyagraha, a movement that had launched a padayatra (foot march) demanding a comprehensive National Land Reforms Act and institutions for its effective implementation and monitoring in order to provide landless, homeless and marginalised communities access to land and livelihood resources. Ironically, while the Ministry’s efforts have been continuing apace, other segments of the Union government and some State governments have actuated a number of measures that decisively undermine the initiative.

These acts of sabotage are essentially related to the Panchayat (Extension to Scheduled Areas) Act (PESA), 1996, which, under the Fifth Schedule of the Constitution, seeks to enable tribal self-governance. The Agra agreement, which virtually forms the basis of the efforts to formulate a new “National Land Reforms Policy”, also lays emphasis on effective implementation of PESA as a prerequisite for developing a just and balanced land rights system. However, on February 5, the Union Ministry of Environment and Forests accorded “a general approval for diversion of forest land for undertaking developmental activities by the State Government Departments for the welfare of the people”, under its guidelines F. No. 11-9/1998-FC (pt). The explanation of “developmental activities” “for the welfare of the people” apparently involves infrastructure projects in different sectors.

Observers of tribal and environmental issues, such as E.A.S. Sarma, former Secretary to the Government of India, have pointed out that this government guideline is in clear violation of PESA and the Forest Rights Act (FRA), 2006. The FRA was enacted to recognise and vest forest rights and occupation in forest land in forest-dwelling Scheduled Tribes and other traditional forest dwellers who had been residing in such forests for generations but whose rights could not be recorded.

U-turn on Governors’ powers

A few days after the promulgation of the guideline, the Union government filed an affidavit in the Bilaspur High Court in Chhattisgarh which overturned its own earlier positions on the Fifth Schedule of the Constitution and PESA. The government, through the affidavit filed by the Additional Solicitor General, negated the “discretionary powers” entitled to the Governor in the Fifth Schedule. Its contention was that the Fifth Schedule was after all only a part of the Constitution and the general principle of the Governor acting only on the aid and advice of the Council of Ministers applied here too.

Interestingly, this also negated the opinion placed on record by former Attorneys General Goolam E. Vahnavati and Soli J. Sorabjee. Both had held that the Governor did indeed have discretionary powers under the Fifth Schedule of the Constitution. Vahanvati undertook a detailed study of the provisions of the Fifth Schedule before giving this opinion in April 2010. In fact, the position articulated by Vahanvati has been the line consistently taken by the Supreme Court since 1997, for example in Bhuri Nath and Ors vs Govt. of J&K and in the Samata case. But in one single stroke, the UPA seems to have subverted the government’s own considered positions of the past.

The Union government’s affidavit came about in the context of a public interest petition against the Bharatiya Janata Party (BJP) government in Chhattisgarh. The State government had anointed Chief Minister Raman Singh as the Chairperson of the Tribal Advisory Council (TAC) and the petition filed by the social activist B.K. Manish had argued against this, stating that it was a violation of Para 4(2) of the Fifth Schedule, which stipulated that the TAC would advise on matters referred to it by the Governor. Clearly, both the ruling UPA and the principal opposition party, the BJP, are on the same page when it comes to undermining PESA and the Fifth Schedule.

Referring to these developments, the land rights activist Ramesh Sharma, who is associated with the Ekta Parishad, stated that these manoeuvres of the country’s two principal mainstream parties pointed to an organised attempt to thwart tribal land rights in general and PESA in particular. “Even at the best of times the implementation of PESA was faulty and patchy. It seems that the effort is to institutionalise its ineffectiveness. In other words, make the Act a paper tiger. This, in fact, has been an ongoing process, which has gathered increasing momentum over the past decade and a half,” Sharma told Frontline.

Other land rights activists and observers point out that while the Adivasis have historically depended on their traditional rights over the region’s jal, jangal aur jameen (water, forests and land), indiscriminate land acquisition by different governments for multinational mining corporations in the past two decades has led to considerable displacement and exploitation of these people. The legal rights and immunity that were guaranteed to Adivasis in the Constitution were frequently bypassed or misinterpreted by various governments to suit corporate interests in the mineral-rich lands of Indian forests. While the governments have justified the acquisition of lands in the name of economic growth, the Adivasis were never made stakeholders in the process of industrial development. Neither their participation nor their consent was sought in the rush for industrialisation, nor were they given any proper rehabilitation benefits.

However, Adivasis have resisted such government and corporate initiatives and struggled to retain their rights over the natural resources. In many places, the struggles have been violent, as in the case of the Bastar region in south Chhattisgarh; in other areas, Adivasis, along with civil society groups, have tried to regain their rights by fighting militant social and legal battles and reminding the government time and again of their constitutional rights.

Exploitation by States

As activists like Sharma point out, it is in this context of indiscriminate land acquisitions and industrialisation that PESA has become the most violated legislation at present. The governments, both in the States and at the Centre, have exploited semantic loopholes in the Act to circumvent its provisions and deny the tribal people any sort of self-governance. And in the past few years, this has become the most important point of contestation for the tribal people in India’s hinterland. In almost all such land acquisitions in tribal areas, PESA has been violated in some way or the other. “There are three important gaps that the governments exploited to bypass the Act: first, PESA is a loosely drafted Act; second, there is no overarching clause that protects it from being bypassed by the State governments; and third, the word ‘consultation’ with the tribal people, as mentioned in the Act, is not clearly defined,” Neelabh Dubey, an advocate in the Bilaspur High Court, told Frontline.

PESA uses the word “consultation” with the tribal people, and the governments have used it to their own advantage by not taking the consent of the villagers concerned before any acquisition of land. Activists have pointed out several incidents where the State governments have falsely claimed that the villagers were “consulted”; as PESA does not require a written approval from the gram sabha, the governments are not bound to show a written statement.

PESA mandates that the gram sabha or panchayats should be consulted at an “appropriate level” before any decision. Videh Upadhay, an advocate, points out that the governments have, however, distorted the meaning of “appropriate level” and have not even bothered to consult the gram sabhas and have resorted to seeking opinions only from district-level committees, most of whose representatives are stooges of one political party or the other. In many instances, the consultations for land acquisition were done with district committees 500 kilometres from the area where land had to be acquired.

Such problems stem from the larger fact that PESA empowers the State governments to frame rules. PESA mandates that within a year of its promulgation, the rules for the panchayats in the Fifth Schedule areas have to be legislated keeping in mind the regional contexts. But except for Madhya Pradesh, no other State has done this. Recently, Union Rural Development Minister Jairam Ramesh, on his visit to Kalahandi, Odisha, was shocked to find out that none of the villagers knew about PESA. Odisha remains among the many States that have not framed rules for PESA even 16 years after its promulgation. That PESA offers flexibility and does not have universal rules owing to the varied conditions and contexts of every tribal area has been used by State governments to their own advantage. For example, PESA does not make it necessary for the governments to empower the panchayats with fiscal and administrative powers such as collecting taxes and fees. And this limits the autonomy of the tribal areas.

In the past few years, more than 600 villages were converted into urban panchayats as the State governments have the power to upgrade rural panchayats. Upgrading has generally been an effective tool to bypass PESA, which mandates the gram sabha’s approval for land acquisition for industrial and mining projects. In most of the upgraded villages, there is a conspicuous industrial drive at present. Barring Madhya Pradesh, the States, in stark violation of Section 4(n) of PESA, have enacted laws that provide the bulk of the powers to the gram panchayat instead of the gram sabha. Panchayats, being an elected body, have also been heavily corrupted by money and muscle power.

In addition to all these violations, activists have noticed that in many places, districts came up with their own rules for PESA to dilute the powers of the gram sabha. PESA was drafted in an open-ended manner to make it flexible so that its vision of guaranteeing tribal autonomy is not compromised. But the way the State governments have gone about formulating rules for it have completely violated that spirit.

In a 2006 report on PESA violations, a joint effort of the Planning Commission, the Land Resources Department of the Ministry of Rural Development, and the Ministry of Panchayati Raj, a number of such violations have been reported from Raigarh, a district of Chhattisgarh. In at least four blocks of Raigarh, where there are many investment proposals, PESA has not only been bypassed but also not considered by the State government (“Standing up to the state,” Frontline, June 17, 2011). Because of such violations, which are in stark contrast to the spirit of PESA, more and more lands are being alienated from the tribal people, and the natural resources that they had been dependent on are being taken away from them on a daily basis.

Out of the total tribal population of India, more than 40 per cent has already been displaced. This is happening when, even by government estimates, more than 60 per cent of the Adivasis are classified as living in extreme poverty with no access to land, adequate food, health facilities and education. In such circumstances, even minor violations of laws like PESA and other provisions of the Fifth Schedule have an enormous impact on them. Violations of PESA make a mockery of India’s boasts participatory democracy.