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Armed With a Toothless Law, the Plight of the Adivasi Worsens -Abhijit Mohanty
-TheWire.in

Since coming into effect 21 years ago, PESA has been grossly misused and underutilised, disenfranchising Adivasi communities all over the country.

In India, tribal communities have had a long history of struggle, including during the colonial rule. In fact, the tribal war for independence has largely been ignored in the popular history of independent India. Today, most of us are not aware that the war of independence started as early as 1789 with Tilka Manjhi, the leader of the Mahal Pahadias. Since 1789, around 80,000 tribals lost their lives fighting for independence. British records of that time state that the tribal people did not have many weapons but they refused to surrender and fought till the end. The British recognised the importance of letting tribal communities govern their own areas. Schedules V and VI of the constitution of independent India reflects this point of view.

Genesis of PESA Act

India had created history in fiscal federalism via the landmark 73rd and 74th amendments to the constitution in 1992. These amendments introduced a three-tier local self government to the federal structure, giving constitutional recognition to rural local self-government institutions and enabling decentralised governance through Panchayati Raj institutions.

Nevertheless, there was not much interest in strengthening participatory democracy by way of making the gram sabha the corner stone of the Panchayati Raj system. While the constitution of gram sabhas was made mandatory in states, the powers and functions of the gram sabhas have been left to the discretion of the state legislatures. As a result, different states have developed powers and functions for this body differently.

Following the amendment, a high-level committee was constituted under the chairmanship of Dileep Singh Bhuria, charged with recommending how scheduled areas should be incorporated under the 73rd Amendment Act. As recommended by this committee, a Bill was introduced in parliament and passed on December 19, 1996. Subsequently, after getting the president’s assent on December 24, 1996, the 73rd Amendment Act was extended the Scheduled Areas mentioned under Clause (2) of Article 244 of the constitution. It became mandatory for the states to amend their existing Panchayat Acts to conform with the Extension Act within a year.

The Panchayatiraj Extension to Scheduled Areas Act, 1996 (PESA) has made it mandatory for states having scheduled areas to make specific provisions for giving wide-ranging powers to tribals on matters relating to decision making and development of their community.

Technically, when the Act refers to extending the provisions of Part IX of the constitution to the schedule V areas, politically, it gives radical governance powers to the tribal communities and recognises its traditional community rights over local natural resources. It not only accepts the validity of “customary law, social and religious practices, and traditional management practices of community resources”, but also directs the state government not to make any law which is inconsistent with these. Accepting a clear-cut role for the community, it gives wide-ranging powers to gram sabhas, which had hitherto been denied to them by the law makers of the country.

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