Background of PESA, 1996
The Constitution (Seventy-Third Amendment) Act, 1992, which came into force w.e.f. 24th April, 1993, inserted Part IX in the Constitution of India and accorded Panchayats a Constitutional status as institutions of local self-governance for rural India.
Article 243M (1) of the Constitution exempts Scheduled Areas and tribal areas referred to in Clause (1) and (2) of article 244 from application of the provisions of Part IX of the Constitution. However, article 243M (4) (b) empowers the Parliament to legislate and extend the provisions of Part IX to Scheduled Areas and tribal areas referred to in clause (1), subject to such exceptions and modifications as may be specified in such law and no such law shall be deemed to be an amendment of the Constitution for the purpose of article 368.
Scheduled Areas in India are predominantly inhabited by the tribal population who have been managing their natural resources and governing social, economic and political life in their habitat through a well-knit system of ancient customs and practices. In the era of this unprecedented social change, the imperative need was felt to usher the tribals in the mainstream of development efforts without disturbing or destroying their cultural identity and socio-economic milieu to meet this challenge.
The Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas as well as of Scheduled Tribes residing in any State other than the States of Assam, Meghalaya, Tripura and Mizoram.
To achieve this objective, the Government of India constituted a Committee under the chairmanship of Shri Dilip Singh Bhuria in 1994, popularly called “Bhuria Committee” to examine various dimensions of self-rule for tribals, the constitutional requirements and to make recommendations for extending the provisions of Part IX of the Constitution to the Scheduled Areas. Important recommendations of Bhuria Committee, inter alia, included:
- The Gram Sabha at the hamlet/village level should exercise traditional functions such as management of land, forest, water and air.
- States should consider reorganisation of the boundaries based on ethnic, demographic and geographic considerations.
- Tribal aspirations can be satisfied if tribal regions are conferred sub-state status. Grant of autonomous district council status for districts in central Indian tribal tracts will be in the nature of sub-federalism.
- The basic lacunae in the Land Acquisition Act have
- The schemes should pre-eminently be related to participative democracy, particularly at the grassroots and district levels.
- to be removed. The consent of the local village community should be obligatory. The rehabilitation package should be operated with the consent of the local village community. Viable and acceptable package of livelihood should be offered as a means of rehabilitation to the affected families.
- The lower functionaries of departments/government servants posted in the autonomous districts should be under the control of the district councils.
- The tribal community should be regarded as in command of the economic resources. The districts and other councils should make appropriate laws for regulation of land and other resources for industries.
On the basis of report of Bhuria Committee submitted in 1995, the Parliament enacted the Provisions of the Panchayats (Extension to the Scheduled Areas) (PESA) Act, 1996 for its applicability to Fifth Schedule Areas as per article 243M of the Constitution.
Salient Features of the PESA Act
- Every village shall have its own Gram Sabha. A village may consist of one or more habitations or hamlets comprising a community and managing its affairs in accordance with traditions and customs [Sec 4 (b) and Sec 4(c)].
Gram Sabha is “competent” to safeguard and preserve the
- traditions and customs of the people, and their cultural identity,
- community resources, and
- customary mode of dispute resolution [Sec 4(d)]
Gram Sabha has mandatory executive functions to
- approve plans, programmes and projects for social and economic development [Sec 4(e) (i)]
identify persons as beneficiaries under the poverty alleviation and otherProgrammes [Sec 4(e) (ii)]
issue a certificate of utilisation of funds by the Panchayat for the plans; programmes and projects referred to in clause (e) above ;[Sec 4(f)]
Powers exclusive to Gram Sabha/Panchayat at appropriate level
- right to mandatory consultation in land acquisition, resettlement and rehabilitation of displaced persons [Sec. 4(i)]
- Panchayat at an appropriate level is entrusted with planning and management of minor water bodies [Sec. 4(j)]
- Mandatory recommendations by Gram Sabha or Panchayat at appropriate level for prospective licenses/lease, concessions for mines and minerals [Sec. 4(k), (l)]
Powers endowed to Gram Sabha and Panchayat at appropriate level to
- regulate sale/consumption of intoxicants [Sec. 4 (m) (i)]
- ownership of minor forest produce [Sec. 4 (m)(v)]
- prevent land alienation and restore alienated land [Sec. 4(m) (iii)]
- manage village markets [Sec.4 (m)(iv)]
- control over money lending to STs [Sec.4 (m)(v)]
- 'control over institutions and functionaries in social sector, local plans including Tribal sub plans and resources [Sec. 4(m)(vi)(vii)]