17 Aug PESA Act – A case of good governance or a hinderance to development
Gandhiji always said that India lives in its villages. He further argues that village republic is the solution for the independent India to become more prosperous. Keeping that in Mind parliament of India enacted the 73rd and 74th amendment to provide local self-governance. Later on, PESA act was enacted to expand the scope of 73rd constitutional amendment act 1993 to the 5th schedule states.
PESA Act 1996
- It expands the Panchayats (Part IX of the constitution) to the Fifth Schedule Areas. There are many tribal people living in these locations.
- It guarantees self-governance for those residing in Scheduled Areas through Gram Sabhas (village assemblies).
Powers provided to Gram Sabha under PESA:
- It is necessary to consult before the land acquisition, prior approval of all developmental projects and control over tribal sub-plan, maintenance of cultural identity and tradition, control over schemes affecting the tribals etc.
- It also gives gram sabhas judicial powers in form of dispute resolution as per traditional laws and customs.
- Ownership and management of natural resources: E.g. water, forest, common lands (‘Jal, Jangal, and Zameen’), minor forest produce, minor minerals, etc.
Status of implementation of PESA:
- Out of 10 states (Andhra, Telangana, Chhattisgarh, Gujarat, HP, Jharkhand, MP, Maharastra, Odisha, and Rajasthan) who have notified 5th Schedule Areas, only 7 states (including Chhattisgarh and Gujarat) have notified Rules to implement the PESA Act.
About 5th Schedule States:
- Every year, the President must receive a report from the governor of each state with Scheduled Areas (SA) on how those areas are managed there.
- It allows for the creation of a Tribes Advisory Council (TAC) in Scheduled Areas on the direction of the president.
- The Union Government shall have executive powers to make directions to the States as to the management of the Scheduled Areas.
- It must consist of not more than twenty members of whom, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.
- If the MLAs of the STs in the Legislative Assembly of the State is less than the number of seats in the TAC, then the remaining seats shall be filled by other members of those Tribes.
- The Governor may enact regulations governing the Council.
- The TAC shall advise the Governor on the welfare and advancement of the STs in the State.
- The Governor may direct that any particular Act of Parliament or of the Legislature of the State shall or shall not apply to a SA.
- The Governor may enact regulations to maintain the peace and promote good governance in any SA region, including restrictions on land transfers and rules governing money-lending activities. After receiving the President’s approval, the Governor may repeal or modify any Act of the State Legislature or the Parliament.
- No regulations shall be made unless the Governor, in case a TAC exists, consults such TAC.
Issue with respect to PESA Act:
XAXA committee has found out following issues –
- Government notifies rural areas as urban areas to keep them out of PESA coverage.
- The PPP (Public private partnership) model, is simply a backdoor method of tribal land alienation.
- Government agencies acquire land for “public purpose” but later transfer it to private companies at throwaway prices.
- Government has signed such MoUs with companies, Government officials became “dealers and negotiators” of tribal land. “Neutrality of the State” is forgotten.
- In scheduled areas, tribal’s land cannot be transferred to non-tribals. YET Cabinet Committee on Investment (CCI) sometimes hastens project files which directly/indirectly violate this provision.
- Development projects lead to influx of outsiders to tribal areas, thus harm tribal interests by money landing activities and pollution.
- They are being subjected to Predatory tourism.
- There are some tribes which do needs protection but are not covered under the three categories viz., ST, SC and OBC. Their population is dwindling fast.
- The creation of dams and subsequent submergence of the nearby tribal areas do account as alteration of boundary.
Thus, as can be seen from above analysis the PESA act was enacted with the intention of providing self-governance to the tribal regions of the country. However as highlighted by the XAXA committee it has been diluted by the government after government in name of development. Sometime this kind of development breads separatism, Naxalism and radicalization.