DDI NOTES

PESA- PANCHAYAT (EXTENSION TO SCHEDULED AREAS) ACT,1996

What is PESA act?

The Panchayat (Extension to the Scheduled Areas) Act, popularly known as the PESA Act, was passed
by the government in 1996 following the 73rd amendment. Its primary objective is to save the tribal
community from exploitation by establishing Gram Sabhas as hubs of autonomous administration. It
is the most progressive legislation for tribal areas, acknowledging the historical control over natural
resources of indigenous populations. According to PESA, the Gram Sabha will be involved in
managing the minor forest produce, approving development plans and programmes, and making any
decisions on the acquisition of land as well as the rehabilitation of impacted parties.

Why is it formed

because the rules do not automatically apply to the designated regions, the PESA Act was enacted in
1996 to allow Tribal Self-Government in these areas. The Act extended Panchayat provisions to tribal
communities in nine states with Fifth Schedule communities.

Key provisions

How it is implemented

Challenges

Why it is failed ?

The law has failed because the government "enacted the law but never pushed to formulate
necessary rules," according to Anil Garg. Another factor rendered the act unnecessary. The Union
government introduced a number of new laws after passing PESA, several of which incorporated
PESA's provisions. For instance, the 2013 Land Acquisition Act greatly increased gram sabha power.
Similar PESA protections are found in the Forest Right Act of 2006, and people now look to these
laws to defend their rights and resources.

In research done by Nupur Tiwari of the Indian Institute of Public Administration has stated that PESA
did not achieve its intended goal since it does not clarify rule-making authorities or set a time
window for states to frame regulations. She remarked that states have not drafted adequate PESA
guidelines, and hence the official system has not implemented PESA.

CASE STUDIES:

The inadequate implementation of the Act is highlighted by a research done by the Indian Institute of
Public Administration in six districts of three different states: Jharkhand, Chhattisgarh, and Odisha.
65% of those whose land was acquired in the Khunti district said that they were not even questioned
about it. Similar assertions were made by about 26% of those surveyed in the Jharkhand district of
Gumla. The study was conducted in 2016–2017, a period of intense Adivasi protests against
Jharkhand's proposed change to existing legislation to permit the use of Adivasi land for agriculture
and other purposes.

Similar situation is in Rajasthan, where a local activist dealing with Adivasi groups claims that despite
the state government adopting the rule in 2011 in response to repeated requests from the
community, nothing has changed there. To achieve the desired outcome, the state government was
meant to change a number of municipal laws, but this never happened. As a result, he stated, local
officials and the Panchayat continue to be in charge of carrying out PESA.

Resolutions

There should be agreement among officials on how to carry out the Act. First, staff from the two
ministries engaged in the Act's implementation must be taught.

Under PESA, it is critical to strengthen and empower Gram Sabha. However, whatever system is
developed, it must be developed in cooperation with tribals rather than enforced in order to achieve
effective integration with the tribal system; only then can its implementation be assured.

There is also a need to include civil society and NGOs working for tribal welfare to ensure improved
efficiency of PESA because they are more familiar with the ground reality.

Given the performance of state governments in implementing PESA and their inability to evade it,
the Central government should make a notification that all other legislation in the fifth schedule (or
PESA) areas shall be subject to PESA.

For indigenous people who have been evicted from their lands by the wealthy or powerful, land
disputes are a further hardship. It proposed issuing notification of a date when all pending cases in
any court of law where the land of a tribal member is alleged to have been illegally transferred or
occupied by any person or body, shall stand transferred to the Gram Sabha in whose jurisdiction the
land is situated. This was done in an effort to restore speedy justice.

The PESA act 1996 was enacted after Bhuria Committee submitted its report in 1996. Chairperson of
this committee is Shri Dileep Singh Bhuria wrote a letter to prime minister stated, “the most
important fact of the proposed law is that it will remove the dissonance between tribal tradition of
self-governance and modern formal institutions, which has been at the root of simmering discontent
and occasional confrontations.” Also added “After the new institutional frames become operational,
the people will be able to perceive the state apparatus as an extension of their own system in the
service of the community that too, in a crucial phase of modernisation firmly rooted in tradition.”

PESA enacted the framework of tribal self-governance’s certain non-negotiable features.

1. Affirmed that an organic self-governing community rather than an administrative unit, like a
revenue village, was the basic unit of self-governance.
2. PESA recognized that a habitation become a natural unit of community whose adult
members constituted the Gram Sabha.
3. Secs. 4(d) act and 4(m)- community was declared as competent to safeguard and preserve
their culture and traditions.
4. Exercise command over natural resources, empowered and invested with ownership of
minor forest produce.
5. The Gram Sabha has been given rights of adjudication in the local disputes and is also
deemed competent to monitor all the organs of the state that operate at the level of its
 geographical domain, such as the school, health centre and markets as well as the worker of
Integrated Children Development Scheme and Public Distribution System.
6. Land Acquisition and Relief and Rehabilitation Act (LARR), which gives the right of consent to
the people, not fully but substantially.
7. Also affirms that the community to adjudicate and act to put an end to exploitative relations
regarding land alienation, money landing, market relations and alcohol.

The inability of government structure to implement the rules of PESA in Schedule Five areas, and
the reluctance to give authority to third tier governance that was created by Constitutional
Amendments, has resulted in the act being consigned to memory and amnesia.

PESA only covered Schedule Five areas thus leave out 50% of tribal population out of its ambit.

Three features for it to function smoothly:

1. Restoration of alienated land

Non- implementation of PESA Act

The most important piece of legislation for India's tribal communities is the PESA Act of 1996
[Panchayat (Extension to Scheduled communities) Act, 1996]. However, its implementation has only
been on paper. The correct implementation of PESA can not only empower tribals through self-
government, but also deliver a serious blow to Naxal violence, which relies on the Adivasis'
backwardness. Unfortunately, the abuse of India's most exploited people continues because the rich
and powerful cannot abandon their narrow-mindedness or refrain from exploiting the indigenous
people's natural resources and land.

The survey also discovered extensive fraudulent and coercive transfer of tribal lands into non-tribal
hands. Despite a long-standing pledge to repeal or update the antiquated Land Acquisition Act of
1894, it is still being used, or misapplied, to acquire land owned by households and communities and
pass it over to corporations. "When it comes to acquiring mineral resources for industry, the stakes
are high against the PESA's operation."

Aside from megaprojects, industry is being generously allowed to wreak havoc on tribals' living
conditions under the liberalisation system. Despite many Forest Acts stating that forest people have
first right to forest produce, forest authorities have begun giving over forest wealth to industry. The
extensive tribal areas of Andhra Pradesh, Madhya Pradesh, and Orissa are principally dependent on
the collection and sale of non-timber forest product (NTFP).

The unwillingness of the majority of State Governments to enact laws and regulations that adhere to
the spirit of the PESA Act has seriously hindered the law's implementation. The bureaucrats have
been able to carry on with business as usual because to a lack of political will, and PESA provisions
have only ever seemed good on paper. The idea of ownership of minor forest produce (MFP) is likely
the most egregious example of bureaucratic subversion. The tribal people has long relied heavily on
the MFP for their livelihood, but forest officials have come up with clever justifications to keep them
away from it. For instance, authorities contend that the authority of Gram Sabhas is limited to the
forest situated within a village's tax boundaries. In practise, a reserved forest is typically not found
within a village's income boundary. The goal of the ordinance is unmistakably to maintain regular
access to MFP from forests close to the village.

The Fifth Schedule provisions protect tribal culture and their traditional way of life, which is also
protected by other laws like as the Forest Rights Act and the PESA. The goal is to give these groups
the freedom to handle their own socio-cultural issues. Since their way of life is inextricably linked to
the land and nearby natural resources, which are essential to their survival, it follows that they ought
to have the authority to exert control over the land, forests, and natural resources. But the reality is
remarkably different. Despite the fact that the sale of tribal lands to non-tribals in Scheduled areas is
prohibited, the average size of the land holding by the tribals has been decreasing as a result of
State-led acquisitions and the bad intentions of powerful non-tribal land mafia. The encroachment
on tribal lands and the rapacious exploitation of their natural resources have both increased since
liberalization-cum-privatization.

The purpose of the PESA Act was to increase local self-governance. However, even after 25 years of
its existence, 40% of governments have not been able to create the essential regulations for
execution. Adivasis, who make up about 9% of India's population and reside in the four states of
Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha, failed to implement and carry it out. While
Gujarat managed the fifth scheduled regions in accordance with the provisions of the Panchayati Raj
Act.

INTRODUCTION:

Indigenous people have fought for acknowledgment of their identities, lifestyles, and claims to
ancestral lands, territories, and natural resources throughout history. Despite this, their rights have
frequently been infringed. Through many years there has been systematic failure and exploitation of
tribal communities both socially and economically.

The majority of the tribes in India are classified as Scheduled Tribes under Article 342 (1&2), and
their right to self-determination is protected by Part X: Administration of Scheduled Areas and Tribal
Areas is covered in The Scheduled and Tribal Areas - Article 244.

During the pre-colonial times the state did not interfere in the affairs of tribal communities. However,
Indian Forest Act of 1927 implemented during colonial times change the situation. As the state
intervened and enshrined over forest by denying the community of their rights to use natural
resources. This allowed the free flow of timber and other products that colonizers needed. Since
independence India has grown significantly in cultural, economic and global political areas. However,
the tribal affairs were neglected or alienated in the purview of development. Thus, the traditional
rights over land and forest resources were still imposed on the tribal communities.

Hence, Forest Rights Act and PESA Act provide a way out of this colonial legacy by democratisation of
people with legitimate rights.

CONCLUSION:

The PESA Act of 1996, which gives the Gram Sabha power and educates its members about their
responsibilities and rights in the villages, is the foundation for the tribal people who live in India. At
least now people are aware of their village's democracy, which was previously only passed down
orally but is now written. The fundamental goal of PRI is to strengthen Gram Sabha. It becomes even
more crucial for the schedule areas. Making India's democracy more inclusive also requires giving
tribal villages the authority to run their own affairs. The inability of government structure to
implement the rules of PESA in Schedule Five areas, and the reluctance to give authority to third tier
governance that was created by Constitutional Amendments, has resulted in the act being consigned
to memory and amnesia.

Unfortunately, the US model of capitalism is being adopted by the Indian government. Therefore, it is
giving all of the natural resources, minerals, and lands to the wealthy. They will establish industries
and businesses, and India's GDP will grow rapidly as a result. For instance, the case of Niyamgiri hills
where industries are being set up to extract bauxite. The Amartya Sen people development approach
should be adopted by Indian politicians. In this approach, the wealthy do not rule the nation, and
neither the economy nor big international firms are given first priority. However, people start to
dominate the conversation, and the government is now in charge of their general welfare. The only
organisation with the true potential to put an end to the left-wing fanatics who profit from their
ignorance, isolation, and backwardness is PESA.

Pesa act form in 1991