PESA ACT OF 1996 (EXTENSION ACT)
PESA ACT OF 1996 (EXTENSION ACT)
- The provisions of Part IX of the constitution relating to the Panchayats are not applicable to the Fifth Schedule areas.
- The Parliament may extend these provisions to such areas, subject to such exceptions and modifications as it may specify.
- Under this provision, the Parliament has enacted the “Provisions of the Panchayats (Extension to the Scheduled Areas) Act”, 1996, popularly known as the PESA Act or the Extension Act.
At present (2019), ten states have Fifth Schedule Areas. These are: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. All the ten states have enacted requisite compliance legislations by amending the respective Panchayati Raj Acts.
|OBJECTIVES OF THE PESA ACT|
- To extend the provisions of Part IX of the Constitution relating to the panchayats to the scheduled areas with certain modifications
- To provide self-rule for the bulk of the tribal population
- To have village governance with participatory democracy and to make the gram sabha a nucleus of all activities
- To evolve a suitable administrative framework consistent with traditional practices
- To safeguard and to preserve the traditions and customs of tribal communities
- To empower panchayats at the appropriate levels with specific powers conducive to tribal requirements
- To prevent panchayats at the higher level from assuming the powers and authority of panchayats at the lower level of the gram sabha
|FEATURES OF THE ACT|
- A state legislation on the Panchayats in the Scheduled Areas shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources.
- A village shall ordinarily consist of 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.
- Every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level.
- Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.
- Every Gram Sabha shall–
- Approve of the plans, programmes and projects for social economic development before they are taken up implementation by the Panchayat at the village level;
- Be responsible for the identification of beneficiaries under poverty alleviation and other programmes.
- Every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds for the above plans, programmes and projects.
- The reservation of seats in the Scheduled Areas in every Panchayat shall be in proportion to the population of the communities for whom reservation is sought to be given under Part IX of the Constitution. The reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats. Further, all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes.
- The state government may nominate such Scheduled Tribes which have no representation in the Panchayat at the intermediate level or the Panchayat at the district level. But such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat.
- The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas. However, the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the state level.
- Planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate level.
- The recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas.
- The prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory for grant of concession for the exploitation of minor minerals by auction.
- While endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with–
- the power to enforce prohibition or to regulate or restrict the and consumption of any intoxicant
- the ownership of minor forest produce
- the power to prevent alienation of land in the Scheduled A and to take appropriate action to restore any unlawfully alien land of a Scheduled Tribe
- the power to manage village markets
- the power to exercise control over money lending to Scheduled Tribes
- the power to exercise control over institutions and functionary all social sectors
- the power to control local plans and resources including tribal sub-plans
- The State Legislations shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha.
- The State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.
- Any provision of any law (relating to Panchayats in the Scheduled Areas) which is inconsistent with the provisions of this Act shall cease to be in force at the expiry of one year from the date on which this Act receives the assent of the President .
- However, all the Panchayats existing immediately before such date shall continue till the expiry of their term, unless dissolved by the State Legislature sooner.
|PROBLEMS WITH PESA|
- Dilution of role of Tribal Advisory Councils:PESA comes under the Fifth Schedule, which mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra constitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised.
- However, the councils, with the Chief Minister as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments’ policies.
- The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses.
- Lack of coordination at Centre:Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence on the implementation of PESA and they function almost without any coordination.
- Lack of operationalization:In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests that the state governments are reluctant to operationalize the PESA mandate.
- Ignoring the spirit of PESA:The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realised. For instance, the premise in PESA that state legislations on Panchayats shall be in consonance with customary laws and among other things traditional management practices of community resources is ignored by most of the state laws.
- Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books. The states in their conformity legislations have also not defined the term leading to ambiguity and scope of interpretation by the bureaucracy.