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Notice (8): Undefined variable: urlPrefix [APP/Template/Layout/printlayout.ctp, line 8]latest-news-updates/pesa-governments-sheathed-weapon-1938.html"/> LATEST NEWS UPDATES | PESA: Government's sheathed weapon | Im4change.org
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PESA: Government's sheathed weapon


In the least remarked upon move by the government to take on the development challenge in left-wing extremist (LWE) areas, Sudha Pillai was elevated to member-secretary of the Planning Commission on the eve of her retirement from the IAS.

A topper in her batch, Sudha was initially posted to her home state of Punjab and then moved to Kerala after her marriage to her batchmate, present home secretary Gopal Pillai.

Between the two of them, they have the potential to coordinate in their own home, even before going to office, the entire two-pronged strategy the prime minister has called for to tackle the single most serious internal security challenge the country currently faces, far more far-reaching in its dire consequences than any cross-border terrorism from Pakistan.

For, Sudha was the very isolated joint secretary in the ministry of rural development who drafted the provisions of the Panchayats (Extension to Scheduled Areas ) Act, 1996 (PESA), the only legislation that the Constitution has ever mandated Parliament to pass. She based her draft on the Dilip Singh Bhuria report.

It passed parliamentary muster in December 1996 —and has remained over 13 years the law most observed in the breach by the state governments concerned, that is, those who govern Fifth Schedule areas, including those most affected by LWE.

Fortunately, the founding fathers of our Constitution (I suspect primarily Dr Ambedkar himself) foresaw that governments of composite states incorporating tribal areas would be so indifferent to tribal interests, indeed even hostile to such interests, that a phrase was added on to paragraph 3 of Part A of the Fifth Schedule authorising the “Union government” to give “directions” to state governments for the “administration” of these areas. Never has the need to invoke this 60-year old provision of the Constitution been more required than today.

The state governments of all Fifth Schedule states, whether of the ruling party at the Centre or of the far larger number of parties in Opposition at the Centre, ranging from the communal to the communist, have all been uniformly guilty of denying to their Fifth Schedule tribal populations the full range of PESA rights notwithstanding each one of them having long years ago passed the required conformity legislation.

Thus, their failure to sincerely and faithfully implement PESA is a betrayal of not only their respective tribal populations but also a repudiation of their pledges to their respective legislatures.

Besides, there are numerous political commitments made by these state governments, particularly during the time I served as panchayat minister, in mutually agreed documents signed by chief ministers with me, that enforcing PESA though paragraph 3 of the Fifth Schedule would tantamount to no more than ensuring that the state governments concerned (particularly LWE-infected Chhattisgarh, Jharkhand, Orissa, West Bengal, Madhya Pradesh, Bihar — all under non-Congress governments — and even Congress-led Andhra Pradesh and Maharashtra, besides non-Congress Gujarat, Himachal and Uttarakhand and Congress Rajasthan) actually implement on the ground pledges they have themselves made of their own volition on paper.

I listed these in detail in my May 6 speech in the Rajya Sabha.

To avoid making this an issue of Centre-state relations, all the National Development Council (NDC) has to do is take up the unanimous report of the Empowered Sub-Committee on Panchayati Raj submitted all of two years ago to an unbelieving Planning Commission which has refused these last 24 months to even bring the report to the NDC, largely because a sceptical deputy chairman cannot bring himself to believe that state governments would willingly commit themselves to the report's conclusions!

Moreover, PESA had provided that within a year — that is, or was, by December 1997! — all legislation not in conformity with PESA be amended to bring it in line with PESA provisions (in letter, of course, but also in spirit).

This could broadly be interpreted to mean that the two principal colonial causes of tribal disaffection — the failure to recognise community propriety rights over land of tribal communities in the Indian Forests Act, 1927 and the many glaring oppressive features of the 19th century Land Acquisition Act — could and should be amended to bring them in line with the letter and spirit of PESA which stresses the role of the tribal community in matters affecting the land they live on and the duty of gram sabhas in Fifth Schedule areas to ensure that tribal land is not alienated except with their consent.

While “consultation” with gram sabhas is mandatory only with regard to “minor” mineral and forest produce, the right to prevent alienation of tribal land without due consent clearly means that POSCO, NDMC and other corporate predators cannot make free with other people's property and certainly not in collaboration with state agencies, as is clearly happening.

Also, state governments need to be “directed” to faithfully implement more recent legislation in respect of the rights of forest dwellers and to sound rehabilitation and resettlement in the event of their being “displaced” — a disgraceful euphemism to cover up the ghastly consequences of your being deprived of your land to accommodate the commercial interests of those far more powerful than yourself, with almost all the benefits going to the usurper.

What is at stake is Rs 50,000 crore of tribal money, calculated on the basis of a third of the central funds voted by Parliament for Bharat Nirman, MNREGA and other anti-poverty programmes plus a third share of the 13th Finance Commission's recommendations for non-plan revenue grants to panchayats — representing the dues of the districts affected by LWE.

Leaving aside the 19 most seriously affected LWE districts covered by PESA, the full-fledged implementation of PESA will give Rs 50,000 crore to tribal communities to develop themselves.

Nothing would deal a bigger blow to the Maoists than participative development by, for and of the tribal communities.

The home minister has rightly declared that the government's principal duty is to uphold the Constitution and the law in LWE-affected areas. Well, Part IX of the Constitution — ‘The Panchayats' — and PESA are also the law of the land.