THE PROVISIONS OF THE PANCHAYATS (EXTENSION TO THE

SCHEDULED AREAS) ACT, 1996:A CRITICAL ANALYSIS

INTRODUCTION:
Local Government is not a new phenomenon in India. In vedic period it was based on the
decentralisation and mass participation in decision making. Mostly the village affairs are
decided by the sabha and samiti. The villages were the self-dependent units. It generated its
own resources, had its own functionaries and its own functional domain. This system
persisted in the ancient period under the Mauryas, Guptas and Harsabarddhan. In the early
medieval period, drastic changes were made in village polity. Shershah Suri divided the
Revenue Administration and Police Administrationbetween Patwari and Muqaddam.
Mughals introduced Zagirdari system which evolved the practice of middle man in Revenue
Collection between Peasantry and the State. By the introduction of Zagirdari system, Mughal
created new centers of power at the local level and this weakened the solidarity of Panchayat
system and Village Community. This also affected the Village economy and lead to loss of
financial autonomy of the Village Panchayats. Despite the emergence of new Institutions like
Zagirdari, Panchayats system continued to be quite vibrant and living during Mughal era. But
with the Britishers in India and their changed Revenue system, the self sufficient village
reduced to the position of dependent unit. the Britishers did not understand the socio
economic culture of the India and they tried to avoid the decentralisation process and
introduce local government system with the help of centralisation process. The Britishers
never wanted to empower the Indian people thats why they tried to follow the principle of
centralisation rather than delegation and decentralisation. It was the Gandhi who has a full
faith on the gram swaraj and panchyat system in India. However, the Panchayat system was
inducted in the Constitution in the Article 40 by the Special Constituent Assembly. It is
specially mentioned that Balwantrai Mehta Committee suggested 3-tier Panchayati Raj
Institutions to fulfill the goals of Rural Development and democratization of the Society.
Many Committees namely Ashok Mehta, GVK Rao, L M Singhvi have contributed to the
growth and functionality of Panchayati Raj system in India. The 64th Amendment Bill and at
last 73rd Constitutional Amendment Act of Indian Constitution provided the Constitutional
status to the Panchayati Raj Institutions and they became 3-tier of the Government. The 73rd
Constitutional Amendment did not become operative to the whole of Indian Territory.
According to the 73rd Amendment, the Scheduled Areas were excluded from the provisions
of the Act. As per the Article 243M(4)(2), the Parliament may by law extend the provisions
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of Panchayat to the Scheduled Areas, subject to exceptions and modifications as may be

specified in such law. It was done so to avoid conflict between the traditional institutions and
statutory Panchayat. Considering the growing of discontentment among the tribals across the
tribal community, the Union Government constituted a Committee headed by Sri Dilip Singh
Bhuria in June, 1994 who submitted its report in January, 1994 recommending the adoption
of 3-tier system in the 5th Schedule Areas. So a Bill was passed in the Parliament on 24th
December,1995 giving rise to new Act namely Provision of Panchayats (Extended to
Scheduled Areas) Act (PESA), 1996 (Act No. 40). The rationale behind the Act is to bring at
par the tribal population to the general population of Rural Community. The Panchayats
(Extension to the Scheduled Area) Act, 1996 (PESA) empowers tribal people to manage their
own system according to their culture. This act gives privilege tribal people to use their land
and resources according to their own.

PESA ACT
The Panchayats (Extension to the Scheduled Area) Act, 1996 (PESA) is a landmark
legislation that ensures involvement of tribals in their empowerment process not only as
active participants but also as effective decision-makers, implementors, monitors and
evaluators. it is a very small act. section 1 of the act states the title of the act. Section 4 of the
Act provides for the establishment of a Gram Sabha for every village. The Gram Sabha is
empowered to safeguard and preserve the traditions and customs of the people, their cultural
identity, community resources and the customary mode of dispute resolution. According to
section 4 of the PESA ACT the people of the schedule areas can use their land and natural
resources according to them by forming gram sabha. The main purpose of the act is to save
the land of the tribal people. By the gram sabha only people of that area can decide about
their land and resources.

PESA ACT & ITS IMPACT ON TRIBAL PEOPLE:

The tribal communities have a tradition of decision making that is often democratic in
nature. If the tribal population is made aware of the provisions of PESA and the 73rd
Amendment to the Constitution, it would result in greater participatory democracy in the
tribal areas. This would call for organising awareness campaigns so that the tribals would be
in a position to demand accountability of the elected representatives and government
functionaries, particularly in respect of cases where the ultimate decisions are contrary to the
resolutions passed by the Gram Sabha or Panchayat. To that extent, the tribals would be in a
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position to have a voice in deciding on the issues pertaining to the development of their
villages, as envisioned by PESA. A comparative analysis of PESA and the legislations
enacted by the States on this subject reveals that the provisions of PESA have been highly
diluted in the process of ratification by the States and most of the powers of the Gram Sabha
have been given to the district administration or to the Zilla Parishad. The main objective in
enacting PESA was to enable the tribal society to assume control over livelihoods, have a say
in management of natural resources and to protect the traditional culture and rights of the
tribals. The information available indicates that the main objective of PESA has been diluted
to the detriment of the tribal population. Critical issues such as access to natural resources,
especially the definition and rights over minor forest products remain unresolved and, in
general, the objectives of PESA have not been realized in any serious manner in any of the
states with a large tribal population. Tribals have been displaced in large numbers on account
of various large development projects like irrigation dams, hydro-electric and thermal power
plants, coal mines and mineral-based industries. A National Policy on Relief and
Rehabilitation of Project Affected Families (PAFs) was notified in February, 2004 with a
relief package of seventeen parameters to be fulfilled before permitting dislocation.
Thereafter, the Government of India, in October, 2007 approved a new National Policy for
Rehabilitation and Resettlement. But serious work on PAFs is yet to start in tribal areas.
Tribals are alienated from their lands not only by acquisition of land for public purpose, but
also by fraudulent transfers, forcible eviction, mortgages, leases and encroachment. The
Ministry of Rural Development has estimated the extent of alienation of tribal land in
different states: Andhra Pradesh (2.79 lakh acres), Madhya Pradesh (1.58 lakh acres),
Karnataka (1.3 lakh acres), Gujarat (1.16 lakh acres). Most tribals displaced by development
projects or industries have not been satisfactorily rehabilitated. A survey conducted indicated
that the number of displaced tribals till the year 1990 is about 85.39 lakhs of whom 64% are
yet to be rehabilitated. Those displaced have been forced to migrate to new areas and more
often, have unknowingly encroached on forest lands and on record, are considered as illegal
occupants. This type of displacement has led to far-reaching negative social and economic
consequences. The dislocations and the uncertainty concerning their future have made such
displaced tribal population an easy target for the extremists.

CASE LAWS WITH REFERENCE TO PESA ACT:

Rakesh kumar and others vs Union of India
The court upheld cent percent reservation constitutional in case of seats of Chairpersons of
Panchayats in Scheduled Areas. The Court said that this pattern of reservation has been
designed only for Scheduled Areas which merit such exceptional treatment. It relied on a MP
High Court Judgment (Ashok Kumar Tripathi v. Union of India) which said that
The peculiar situation of the inhabitants of the Scheduled Areas whose conditions have to be
improved to educate them in the local Government, a step towards an effort to achieve their
assimilation in the normal stream of democratic life at par with the advanced and the forward
sections of the society justifies such classification. In the Scheduled Areas in reality if an
aboriginal has to contest an election against a member of the forward section of the society,
the contest would be totally unequal as of a weak and ignorant against wealthy and powerful.
In a contest of this nature the weak and ignorant hardly can get a chance to become a member
and in any case it would be impossible for him to reach to the helm of the institution as
Chairperson. If he by chance becomes a Chairperson in the Panchayat consisting of
elected members from advanced sections of the society and the members are in
majority, it would be well-nigh impossible for the Chairperson of the reserved category
to effectively function and to save his elected status. The necessity, therefore, is that the
Chairperson should be from the reserved category so that he is in a position to effectively
function without inhibition and threat of no confidence motion against him to remove him
from his office. So far as the high percentage of reservation exceeding 50% for members
and 100% reservation for Chairpersons in Scheduled Areas is concerned, it is supportable
even on the touch stone of Article 14 of the Constitution. It is a protective discrimination
permissible on a reasonable classification of different sections of the society into more
oppressed- backwards and the forwards.

Ashok Kumar Tripathi v. Union of India:

At the Bar it was argued that such excess policy of reservation is bound to create bad blood
between the two classes and would be a serious deterrent to bring such oppressed classes into
the mainstream of democratic life. There are arguments for and against this. In the matters
of policy the best judges are the Legislators who are closer to the society and represent
them. They have a study of the society and have advantage of reports based on
sociological surveys made by experts. They better understand the needs of the society and
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the various sections forming it. It is not for this Court to enter into this forbidden arena
and lay down a policy of reservation. The argument advanced on behalf of the petitioners
only shows that the attitude of the members of the advanced sections of the society towards
castes and tribes continues to be more of competition than compassion. The reservation in
various walks of life made in their favour for the last 50 years of the independence has not
been successful in improving their socio-economic condition and have not made them
effective participant in the democratic process. The necessity is still felt by the legislators in
making special provisions for them in the Constitution and the laws to ensure their effective
participation at least in the local self-Government institutions as a first step to give them due
share of governance in the Assemblies of the States and the Parliament. The argument that
the policy of reservation would segregate them rather than assimilate them with the common
stream is one for the legislator to consider on the basis of existing social situation. In the
matters of policy, wisdom of legislature cannot be questioned or the policy laid down
cannot be upset by the Court which is ill equipped to deal with the subject.
The basic system of laws governing Tribal Rights is still extremely unclear. It is therefore
imperative to create a task force that should undertake a Harmonisation of Laws (a)
between Central Acts and Local Land Laws, (b) between Forest and Revenue Records and
(c) between Court judgments and other laws. The Committee that looked at planning at the
grassroots levels had made a specific mention of the need for harmonious operation of such
laws and policies to promote the interest of the tribals. A critical issue in the implementation
of PESA is to harmonise its provisions with those of the central legislations and also to
recast relevant policies and schemes of Union ministries / departments. No integrative
exercise has so far been undertaken to examine the relevance of different central laws to
these Fifth Schedule Areas and to harmonise them with the aims and objectives of PESA.
Such an exercise is overdue. Among the laws which warrant particular attention are the Land
Acquisition Act, 1894, the Mines and Minerals (Development and Regulation) Act, 1957,
the Indian Forest Act, 1927, the Forest Conservation Act, 1980 and the Indian Registration
Act. In so far as policies and CSSs/Central Schemes are concerned, policies pertaining to
wastelands, water resources and extraction of minerals from lands in Fifth Schedule Areas
do not seem to reflect the intent and purpose of PESA. These policies, as interpreted and
implemented, have given rise at times, to confrontation between the tribal people and the
Administration. The National Minerals Policy, 2003, National Forest Policy, 1988, Wild
Life Conservation Strategy, 2002 and National Draft Environment Policy, 2004 would, in
particular, require detailed examination from the view point of ensuring compliance with
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the provisions of PESA.

There is no clear national tribal policy laying down the direction and imperatives for
tribal development. The last one was the Panchsheel Programme for tribal development
enunciated by the late Prime Minister Pt. Jawaharlal Nehru. It is time that a national plan
of action for tribe-specific comprehensive development which could serve as a road map
for the welfare of the tribals is formulated.

CONCLUSION:
PESA ACT is a legislation that is made only for the tribal people for saving the rights of the
tribal people. There is adequate acknowledgement that across the PESA areas, people
increasingly wanted more democratic spaces that allow them the life with dignity. But the
current alienation is a manifestation of mis-governance and a lasting solution also lie in an
honest implementation of PESA and putting people aspirations at the centre of public policies
in schedule five areas. Of late, it has been admitted among all of us that if PESA has been
honestly implemented, then it would have been a different to left wing to extremism and
militarization in PESA areas. The effective control over the natural resources and
management of minor forest produces in true spirit of PESA would have the answer to
economic development of PESA areas. The agrarian crisis and distress migrations could have
been better arrested through effective market economy as envisaged under PESA. The
migration as resulted from forced economic development renders impossible participation in
Village Decision Making and is to the severe detriment of the inclusive and participatory
governance envisaged. Awareness campaigns should be organised in order to make the tribal
population aware of the provisions of PESA and the 73rd amendment to the Constitution so
as to demand accountability in cases in which the final decisions are contrary to the decisions
of the Gram Sabha or Panchayat. There should be a complete overhaul and systematic reorganisation of existing land records with free access to information about land holdings.
There is need to harmonise the various legislations and government policies being
implemented in tribal areas with the provisions of PESA. The laws that require harmonisation
are the Land Acquisition Act, 1894, Mines and Minerals (Development and Regulation) Act,
1957, the Indian Forest Act, 1927, the Forest Conservation Act, 1980, and the Indian
Registration Issues Related to Scheduled Tribes Act. National policies such as the National Water
Policy, 2002, National

Minerals Policy, 2003, National Forest Policy, 1988, Wildlife

Conservation Strategy, 2002 and National Draft Environment Policy, 2004 would also
require harmonisation with PESA. Mining laws applicable to Scheduled Tribal Areas should
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be in conformity with the principles of the Fifth and Sixth Schedules of the Constitution.
Government should select such police, revenue and forest officials who have the training and
zeal to work in tribal areas and understand as well as empathise with the population they
serve. A national plan of action for comprehensive development which would serve as a road
map for the welfare of the tribals should be prepared and implemented. There should be
convergence of regulatory and development programmes in the tribal areas. For the purpose,
a decadal development plan should be prepared and implemented in a mission mode so that
the rights of the tribal people can be saved and the land and natural resources can also be
saved.