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PESA and pressures
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Mohammed Yousuf P.V. Narasimha Rao. His government amended the Constitution to empower panchayats and municipalities.

IN order to understand violations of the Panchayat (Extension to Scheduled Areas) Act, it is imperative to know its history. Most of the tribes in India are collectively identified under Article 342 (1&2) of the Constitution as Scheduled Tribes, which provided them overarching immunity to the extent of granting them the right to self-determination as guaranteed under Article 244 (Administration of Scheduled Areas and Tribal Areas) of Part X: The Scheduled and Tribal Areas. The Indian Constitution protects tribal interests through the Fifth and Sixth Schedules.

While the Sixth Schedule, applicable in Assam, Meghalaya, Tripura and Mizoram, gives tribal people freedom to exercise legislative and executive powers through an autonomous regional council and an autonomous district council, the Fifth Schedule, applicable in all the other identified tribal regions, guarantees tribal autonomy and tribal rights over land through a Tribal Advisory Council in each State.

With centralism in governance coming in for increasing criticism, the P.V. Narasimha Rao government in 1992 passed the 73rd and 74th Constitutional Amendment Acts, which empowered panchayats and municipalities with a vision of local self-governance. The Fifth Schedule areas, because of the constitutional immunity against overarching laws, did not fall in its domain legally. While village-level democracy became a real prospect in other areas, the Fifth Schedule areas remained bereft of that privilege. It was for this reason that PESA was enacted under the Fifth Schedule, which extended panchayat rule to the tribal areas. The fundamental spirit of PESA is that it does not delegate powers but devolves them to the village-level gram sabhas, paving the way for participatory democracy.

The Bhuria Committee in 1995 formulated a three-tier structure to extend the panchayati raj functions in the scheduled areas. The lowest but most important constituent of the structure is the village-level gram sabha, which will exercise command over natural resources, resolve disputes and manage institutions such as schools and cooperatives under it. Above it will be a gram panchayat, an elected body of representatives of each gram sabha, also to function as an appellate authority for unresolved disputes at the lower level. At the top of it will be a block- or taluk-level body.

When it was enacted, PESA was seen as a legislative revolution as it empowered gram sabhas to take decisions on important and contested tribal matters such as enforcing a ban on the sale and consumption of intoxicants, ownership of minor forest produce, power to prevent alienation of land and to restore unlawfully alienated land, management of village markets, control over moneylending, an land acquisition. Along with this, it made it mandatory for all legislation in the scheduled areas to be in conformity with the customary law, social and religious practices and traditional management practices of the community.

PESA comes under the Fifth Schedule, which mandates tribal advisory councils to oversee tribal affairs and also gives extrajudicial, extraconstitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised. However, the councils, with the Chief Minister as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments’ policies. The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses.

Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have overlapping influence on the implementation of PESA and they function almost without any coordination.

Ajoy Ashirwad Mahaprashasta

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