The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 abbreviated as PESA Act 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. 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. 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 largescale 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 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.
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. In the past few years four states have been able to publish PESA Rules. Andhra Pradesh was the first state to publish the rules in 2011, 15 years after the promulgation of PESA. Himachal Pradesh, Rajasthan, Telangana, Gujarat, Chhattisgarh, Madhya Pradesh and Maharashtra have also published their PESA Rules. The remaining two states, Jharkhand and Odisha, have not yet framed PESA rules, though Jharkhand has floated a draft for public consultation.
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. 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." 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.
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. There have been also demands that the Reports prepared by the Governors should be made public. 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.
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. 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.
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.
A. Change in Village definition in Maharashtra Village Panchayats Act:
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:
"54-1A. Notwithstanding anything contained in sections 4, 5 or any other provisions of this Act, in the Scheduled Areas, - (a) a 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 which is declared as a village in the prescribed manner shall be the village for the purposes of this chapter;
"(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 one or more than one of such villages."
B. Promulgation of PESA Rules for Maharashtra:
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.
C. Bringing State Acts in conformity with PESA
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.
D. Notifications issued by the Governor of Maharashtra under sub-para (1) of Para 5 :
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.
1. Notification under sub-para (1) of Para 5 ensuring ownership of minor forest produce, including Bamboo and Tendu
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.
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.
2. Notification regarding prevention of land alienation by Gram Sabhas through modification to the Maharashtra Land Revenue Code, 1966: