AMID the conflicting pulls at different levels of the government and the not-so-subtle efforts to undermine the Panchayat (Extension to Scheduled Areas) Act, or PESA, a set of recommendations formulated by the National Advisory Council (NAC) aimed at protecting the Act from violations and dilutions is gathering dust. The NAC put together these recommendations after sections of civil society highlighted in a sustained manner empirical evidence of PESA violations.
The recommendations are yet to be made public. The changes the NAC has sought to introduce into the Act have two elements. Firstly, it has recommended amendments to address the linguistic loopholes in the loosely drafted Act. Secondly, it has emphasised and spelt out the powers of the Governor to intervene directly under the provisions of the Fifth Schedule. The recommendations seek to make the PESA draft concrete and thus reduce the scope for misinterpretation. The NAC has further elaborated on the powers of the gram sabha and defined words that are frequently misinterpreted or misused. Some of the words in the existing draft, such as “community resources”, “access rights”, “alienation of land”, “customary law”, “minor forest and water produce”, and “community resources” have been explained.
It proposes to introduce concrete definitions of loosely defined terms in the existing PESA. For example, the recommendations define “appropriate level” mentioned in PESA thus: “Panchayat at appropriate level” means the gram panchayat in whose area a particular resource is situated or the next higher tier, namely, the intermediate panchayat/zilla parishad, if the resource in question is situated in more than one panchayat or intermediate panchayat as the case may be.
It also recommends that the word “consultation” be replaced by “consent”. “Prior informed consent” means, it says, “freely given written assent or agreement to permit an occurrence or to permit an act or to allow an occurrence only after a complete disclosure of facts needed to make the reasoned decision free from any coercion or inducement”. Similarly, it provides for better complaint mechanisms to prevent any refusal by the authorities. “Complaint” refers to “any representation, whether oral or in writing, made to a competent authority regarding violation of provisions of the Act by a member/s of the gram sabha or the gram sabha itself”.
The idea is to address the existing problems, and that is why it has elaborated substantially on the powers of the gram sabha. If the amendments are accepted, the gram sabha will also have the power to identify beneficiaries, approve plans, conduct social audits and ensure increased accountability of government functionaries. The NAC has also recommended the need to align Central and State laws in conformity with PESA, and it wants the Centre to be able to issue directions so that the various laws remain in conformity with PESA in order to ensure the autonomy of the gram sabhas and the panchayats in Scheduled Areas. To redress any sort of problems, it has also recommended a grievance redress body and a task force to oversee the implementation of its decisions.
In order to prevent any bypassing of PESA by upgrading the rural panchayats, the NAC has directed the Central government to expedite the Provisions of the Municipalities (Extension to Scheduled Areas) Bill.
Activists have welcomed the NAC recommendations. Videh Upadhay, an advocate, told Frontline: “I am happier that the Governor’s power has also been delineated. While amendments and their enactments are a long process, the NAC has explained how the Governor can intervene directly in case he sees any violations in the present PESA. The Governor, constitutionally, is not just a rubber stamp. The focus should not be on ‘what now’ but on ‘how to’ best implement PESA. We have to energise the law by mobilising courts, public opinion and governments.” But such appreciation from civil society has made no impact on the government. The affidavit filed by the Additional Solicitor General in the Chhattisgarh High Court to remove the “discretionary powers” of the Governor under the Fifth Schedule underscores the government’s intent.
Ajoy Ashirwad Mahaprashasta and Venkitesh Ramakrishnan