Under the 73rd constitutional amendment , there is a provision under article 243 M (4)(b), whereby the parliament may by law extend the provisions of the Panchayats to the scheduled areas provided under Scheduled 5 and Scheduled 6. “Scheduled Areas” mean the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution. The Fifth Schedule of the Constitution of India, which mentions Scheduled Areas, is termed as a “Constitution within a Constitution”. The Act extended the provisions of Panchayats to the tribal areas of ten states that have Fifth Schedule Areas. To give effect to the above provisions the government established a committee under the chairmanship of Dilip Singh Bhuria. The recommendations given by the committee were codified in the form of Panchayats Extension to Scheduled Areas (PESA) enacted in 1996.
PESA: A brief overview
· Panchayat Extension to Scheduled Areas (PESA) was enacted in 1996 to ensure that the people inhibiting the Scheduled Areas engage in the local self governance through traditional Gram Panchayat.
· The act states that the state legislature of the concern state shall ensure that the Panchayats instituted in such scheduled areas are up to requisite standards and the Gram Sabhas are conferred with the ownership of the minor forest produce, power to private alienation of land and to take necessary action to restore any unlawfully alienated land of the scheduled community among others.
Which areas are recognised to be scheduled areas?
· 5th and 6th schedule of Indian constitution provides for a separate legal and administrative framework for certain tribal majority areas within the territory of India. The 5th schedule designates the tribal majority areas in 10 tribal minority states within peninsular India.
· On the other hand, the 6th schedule designates such tribal majority areas in north eastern states such as Assam, Meghalaya, Tripura and Mizoram. Of these, Meghalaya and Mizoram are tribal majority states.
Background of PESA
· After the 73rd Amendment Act, before the parliament could even enact the Panchayat extension to scheduled areas (PESA) Act, several state governments such as Andhra Pradesh, Himachal Pradesh and Rajasthan had already extended the part 9 to scheduled areas.
· Therefore, this was an unconditional act on the part of these states. This induced a fear among the tribal leaders that the state government was trying to erode the culture and autonomy of the tribal areas by meddling their affairs. It, thus, created a conflict between the Panchayati Raj bodies and the scheduled 5 bodies.
· The various tribal leaders of Andhra Pradesh High Court. The High Court held that the extension of the Andhra Pradesh Panchayati Raj Act, 1994 to the scheduled areas was in contravention to the constitution and thus unconstitutional and thus struck down the law.
· This incident caught the attention of politicians and legislators in the Parliament who sought to enact a law to extend the provision of the central act to scheduled areas using the provision of article 243 (M).
· To figure out the modalities and the areas to be covered under the act, the central government constituted a high level committee known as the Bhuria committee.
· On the basis of the recommendations of the committee, the central government fast the panchayat extension to schedule areas (PESA) Act in 1996.
· The act made it compulsory for the states to repeal or amend their existing Panchayat acts in conformity with the Panchayat Extension to Scheduled Areas (PESA) Act by 1997.
In order to ensure that PESA would be implemented, functional guidelines in the form of PESA rules are absolutely necessary. However, the lack of interest of state governments in publishing PESA rules impacted PESA adversely. In the past few years four states have been able to publish PESA Rules. Andhra was the first state to publish the rules in 2011, 15 years after the promulgation of PESA Himachal Pradesh, Rajasthan and Maharashtra have also published their PESA Rules. The remaining six states- Telangana, Jharkhand, Chhattisgarh, Madhya Pradesh, Odisha, and Gujarat have not yet succeeded in framing PESA rules.
Provisions of PESA Act
· According to the act, every village in scheduled areas will have a Gram Panchayat. The members of the panchayat will be on the people whose names have been enrolled in the electoral rolls.
· There would be at least 50% reservation for the schedule tribes at all the tiers of the Panchayat.
· As these are different tribal communities and each community has different population, such reservation would vary according to the proportion of their population.
· The position of chairperson of the Panchayat in the scheduled areas will be reserved for a scheduled tribe.
· If there is no person elected from the scheduled tribes at intermediate or District level, the government has the right to nominate members of the under-represented tribes.
· No legislation shall be enforced in tribal areas unless and until it is a conformity with the customary law and social, religious and traditional practises of the community.
Powers and authority conferred to Gram Sabha and Panchayats in scheduled areas under Panchayat Extension to Scheduled Areas (PESA) Act
· Power to safeguard and preserve the traditions and the customs of the people including their cultural identity, community resources and customary mode of dispute resolution.
· Power to approve plans, Programmes aren’t projects for social and economic development.
· right to be consulted in case of acquisition of land in these areas.
· mandatory recommendation by Gram Panchayat before any areas is granted for mining lease.
· Right to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
· Gram Sabha and Panchayat have the right to regulate the:
1. Ownership of minor forest project
2. To prevent alienation of land
3. to manage village markets
4. To exercise control over moneylending
5. to exercise control over institutions and functionaries in all social sectors
6. To control over local plans and resources for such plans including tribal sub plans
7. Planning and management of minor water bodies shall be entrusted to Panchayats at appropriate level.
State legislators may endow Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self governance (ISG). Therefore, the Panchayat Extension to Scheduled Areas (PESA) Act is an important act which provides greater control to the tribal communities over their land and resources and representation in the policies of the government.
· Ministry of Panchayati Raj-PESA, Government of India.
· Article 244 in the Constitution of India. 1950.
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