COMMENTARY

Enhancing PESA
The Unfinished Agenda
Kamal Nayan Choubey

Amendments proposed by the

previous Congress-led union
government to the Panchayat
(Extension to Scheduled Areas)
Act 1996 had the potential of
improving upon this progressive
legislation. Unfortunately, with its
successor pursuing different
priorities, the possibility of the
amendments being passed
remains rather low.

Kamal Nayan Choubey (kamalnayanchoubey@

gmail.com) is with the Nehru Memorial
Museum and Library, New Delhi.
Economic & Political Weekly

EPW

febrUARY 21, 2015

bill for an amendment to the Panchayat (Extension to Scheduled

Areas) Act (PESA) 1996 was
released for public discussion by the
Ministry of Panchayati Raj (MoPR) on
2 December 2013. This bill, titled the
Panchayat (Extension to Scheduled
Areas) Bill, 2013, was formulated on the
basis of exhaustive recommendations by
the Sonia Gandhi-led National Advisory
Council (NAC) in December 2012. However, for many months, the government
did not initiate any concrete measure to
implement these recommendations and
only six months before elections the
MoPR released the bill for public discussion. The crucial point is that after the
formation of the Narendra Modi-led
Bharatiya Janata Party (BJP) government at the centre, the bill is still available on the MoPR website seeking public
comments and opinion. It is pertinent to
ask that whether the provisions of the
new bill would be able to rectify the
vol l no 8

shortcomings of the PESA? What might

be the future of the bill during the term
of the BJP government?
The PESA has been recognised by many
activists and scholars as a progressive
law, because it gives some crucial rights to
village-level communities to manage their
lives and resources. The PESA, enacted
by Parliament in 1996, extends Panchayat Raj institutions to Schedule V (of the
Constitution) areas. In many parts of
Madhya Pradesh, Jharkhand and Maharashtra, the Bharat Jan Andolan and
some other organisations mobilised people and created public pressure for the
enactment of the PESA. It is crucial to
note that the Dileep Singh Bhuria Committee, constituted in 1995 to prepare
reports for the extension of panchayati
raj in Schedule V areas, presented two
reports. One was for rural areas and the
other one was related to urban areas.
However, only recommendations related
to rural areas were accepted and the
PESA was passed by Parliament. There is
still no separate law for the urban areas
corresponding to Schedule V.
The PESA defines the gram sabha as an
organic self-governing community rather
than just a basic administrative unit of
self-governance. The member of a habitation is the natural unit of the community,
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COMMENTARY

whose adult member constitutes the gram

sabha. The PESA has created a framework for autonomous and empowered
gram sabha in the Schedule V areas.
Communities are declared competent to
safeguard and preserve their culture
and tradition, exercise command over
natural resources, enjoy ownership of
minor forest produce and adjudicate their
disputes (Section 4(d), and 4(m)(ii)). It
empowers the village assembly to monitor
all state institutions, within its jurisdiction, such as schools and health centres,
with functionaries placed under its
control (Section 4(i), (j), (k) and (l)).
The PESA, however, has not been implemented in its true spirit and it has
been violated at many levels. First, since
the panchayat is a subject in the state list,
all states with Schedule V areas had to
change their panchayat acts in accordance
with the central act of PESA passed by
Parliament. In many states, this was only
partially implemented and some states
took many years to make rules for
Schedule V areas. Rajasthan is a prominent example of this case, where a state
act, based on the central PESA was
passed in 1999, but rules were not formulated until 2011. Since there were
many limitations in these rules, tribal
activists challenged it in the high court
and the issue is still unresolved.
Second many states formulated rules
according to PESA provisions and created a framework for the panchayat system in Schedule V areas, but some major
provisions were not fully incorporated in
these rules. For example, the central PESA
states that the gram sabha or panchayat
at the appropriate level shall be consulted
before acquiring land. While the Andhra
Pradesh act has made the provisions to
consult the mandal (block) parishad
before acquiring land, the Jharkhand
act has no provision in this regard. The
Gujarat act provides that taluka panchayats are to be consulted before acquiring
land and the Odisha act mentions that
the district panchayat shall be consulted
before acquiring land.
Third, provisions related to the powers
of gram sabhas regarding land acquisition have been rampantly violated by
many states. For example, in 2006 in
Belar village of Lohandiguda, Bastar,
22

villagers were protesting against their

land being acquired for a steel plant. On
the day set aside for official consent-taking,
a legal provision prohibiting assembly
(Section 144) was imposed on the whole
area to prevent villagers from gathering.
The villagers were then taken one by
one and forced to sign their consent.1
There are many such examples where
land has been acquired through false or
forced consent in Schedule V areas.
Though there have been many shortcomings in the implementation of the
PESA, the agitations and movements that
have strived for its implementation to be
better, particularly the ones led by the
Bharat Jan Andolan and other local
organisations, have created enormous
political awareness in many places. As
mentioned earlier, there are many areas
where the PESA has not been properly
implemented and there are many examples where the state has violated the
spirit of this act. That said, this law has
created enormous political consciousness
in many areas. When Parliament passed
this act, grass-roots organisations had
started what was called pathargadhi (stone
inscription) in many areas of Jharkhand
and Maharashtra. Through this they
inscribed the entirety of the PESA on big
stone pedestals, translating the clauses
in the act into Hindi. This created a lot of
awareness about the provisions of this
law and in many areas people used the
term hamara kanoon (our law) for the
PESA. Interestingly, in Rajasthan and
Jharkhand activists began the stone

inscribing process even before the enactment of the state-level act or the formulation of rules related to PESA. For instance,
during my fieldwork in the Udaipur district of Rajasthan I found that the nongovernmental organisation Aastha and the
Jungle Zameen Andolan established
shilalekh (another term for pathargadhi)
in more than 350 villages of Udaipur
district and declared village self-rule in
these PESA areas. It was a process of
political education for the villagers as they
informed concerned authorities in the
forest department and the block development officer about these actions. In many
villages, on the basis of the central law,
people asserted their rights over common
resources of their village and non-timber forest produce (NTFP) in their traditional Nitstar forests. They stopped the
intervention of local administration and
forest department in their day-to-day activities. Interestingly, since Rajasthan
has not formulated rules till 2011, their
claim regarding village self-rule (gaon
ganarajya) was contestable.
In recent years, many reports The
Report of Expert Group of the Planning
Commission on Development Challenges
in Extremist Affected Areas (2008), the
Sixth Report of the Second Administrative Reforms Commission (2007),
the Balchandra Mungekar Committee
Report (2009), etc have clearly underlined the dismal situation of the implementation of PESA. These and many other
reports prepared by many peoples organisations have recommended that the state

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vol l no 8

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Economic & Political Weekly

COMMENTARY

should implement PESA in its true spirit

in order to counter the Maoist challenge
to the Indian state.
PESA Amendment Bill

implementation of this act and its rules.

Both the changes are necessary for
making PESA an effective law.
Fourth, the bill repeals Section 5 of
the Principal Act. This states that laws
related to the panchayats in scheduled
areas, which are inconsistent with the
provision of this act should be amended
or repealed by state legislative assemblies within one year from the date on
which this act receives the assent of the
president (Section 5). However, the bill
proposes another section (Section 7) in
lieu of existing Section 5, which says
that any union or state acts dealing with
subjects covered under this amendment
act shall be null and void if they contravene this act, unless brought in conformity within one year of this amendment
taking place (Section 7 of the bill).
Obviously, the bill tries to rectify
many drawbacks and criticisms of the
existing PESA law and it gives more power to the central government to avoid
arbitrary behaviour of many states. Indeed in the matters of land acquisition it
proposes to give more certain powers to
gram sabhas, and proposes to make the
prior informed consent necessary for
any mining or land acquisition.

The MoPR website informs that the PESA

does not specify rule making power or provide a time period by which states have to
frame rules. The language of some sections
of the PESA has been interpreted against
the spirit of the Act. This bill proposed
many important changes in the act. Some
of the vital changes are as follows.
First, it proposes a change in the Section 4(i) of the Principal Act (i e, existing
law) and renumbered it as 4(i) (i). According to the provision of Principal Act, the
gram sabha or panchayat shall be consulted before land acquisition in Schedule V Areas. However, the bill proposes that
prior informed consent of gram sabha or
panchayat should be taken before land
acquisition. It also mandates rehabilitation and sustainable livelihood plan for
the persons affected by projects in the
Schedule V Areas. However, the bill gives
rights to states to determine the processes
of taking prior and informed consent.
Second, Section 4(k) of the Principal
Act provides that the recommendations
of the gram sabha and panchayats at the
appropriate level shall be made mandatory prior to grant of prospecting license
or mining lease for minor minerals
(Section 4(k)) and for grant of concession for exploitation of minor minerals
by auctions (Section 4(l)) in Schedule V
Areas. However, according to the bill the
words prior informed consent would
substitute the word recommendations
and major minerals would also be
included in the purview of the PESA (see
Section 4(k) and 4(l) of the bill).
Third, the bill also intends to insert
two new sections (Sections 5 and 6) in
the PESA. Section 5 of the bill proposes
that both the central government and
the state governments have the powers
to notify rules for the implementation of
the act. However, no provisions of the
state government rules shall be in contravention of the central government
rules (Section 5 of the bill). Section 6 of
the bill empowers the central government
to issue general or special directions to
the state governments for the effective

First, it should be noted that the bill is

not making any provision to secure the
rights of minority groups in the villages
of Schedule V areas. It would lead to a
situation of dominance of the numerically
strong groups and increase the marginalisation of numerically smaller Scheduled
Tribes (STs) and non-ST groups. Second,
considering the experience of the PESA in
the last 16 years, there must be an autonomous body to monitor the implementation
of this act because it has been frequently
violated by government officials. Besides,
centralisation of power, as proposed by
the bill, is not a solution. Third, there have
been many demands for the extension of
Schedule V to newer areas. Such demands
have been made for areas in Kerala, West
Bengal, Karnataka, Rajasthan and other
states, which are tribal-dominated but not
presently covered under Schedule V. The
bill, however, is silent on these crucial
issues. Fourth, as mentioned earlier, the
Bhuria Committee presented another

Economic & Political Weekly

vol l no 8

EPW

febrUARY 21, 2015

Inherent Limitations of the Bill

report which was related to urban areas

under Schedule V. Interestingly a bill
was introduced in Parliament in 2001 in
this regard and it was given to the standing committee on urban development,
which submitted its report in July 2003
and recommended the enactment of this
bill. However, after that session, this bill
was enlisted for debate in every session,
till 2010, but could not get passed or was
debated by Parliament. Though the NAC
also recommended the enaction of a separate law for the urban areas of Schedule V, the bill released for the discussion
is silent on this aspect.
Agenda for the Future
Though both the Congress and the BJP
have expressed their commitment towards
decentralisation of powers, particularly
in tribal areas, the actual behaviour of
these parties has left much to be desired.
While on the one hand, the MoPR released
the PESA amendment bill in December
2013, on the other hand, in the same
month, the Ministry of Environment and
Forests (MoEF), led by Veerappa Moily,
gave clearance to 73 projects without
following the procedure established by
laws like PESA and the Forest Rights Act
(FRA). This dichotomy in policy created
apprehensions about the actual motive
behind releasing the bill for public discussion. Perhaps the United Progressive
Alliance (UPA) government wanted to
use it as an election gimmick. Again, the
present BJP government has accelerated
the process of giving clearance to various
projects. Within 100 days of the formation
of the government, the MoEF has given
environmental clearance to 240 of the
325 projects that had been in limbo as
the previous government slowed down the
process of giving clearances to various
projects due to a variety of reasons. Of
course the PESA is seen as a big obstacle
to those interested in extractive investment in forest areas. One cannot expect
the present government seeking to pass
the amendments to the PESA.
Note
1

Letter from the Struggle Committee of Belar

village, Lohandiguda, Bastar district and the
Dantewada Bhumkal Samiti to the Chairman,
National Commission for Scheduled Tribes,
October 2006.

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