PESA ACT

1. Context

Aam Aadmi Party (AAP) leader Arvind Kejriwal on Sunday (August 7) declared a six-point “guarantee” for tribals in Gujarat’s Chhota Udepur district, including the “strict implementation” of The Panchayats (Extension to the Scheduled Areas) Act (PESA Act)

2. Background for PESA Act

The PESA Act was enacted in 1996 “to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas”. (Other than Panchayats, Part IX, comprising Articles 243-243ZT of the Constitution, contains provisions relating to Municipalities and Cooperative Societies.)
Under the PESA Act, Scheduled Areas are those referred to in Article 244(1), which says that the provisions of the Fifth Schedule shall apply to the Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram. The Fifth Schedule provides for a range of special provisions for these areas

3. Provisions of the PESA Act

The PESA Act was enacted to ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas.
It recognises the right of tribal communities, who are residents of the Scheduled Areas, to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources
In pursuance of this objective, the Act empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors.
This includes the processes and personnel who implement policies, exercising control over minor (non-timber) forest resources, minor water bodies and minor minerals, managing local markets, preventing land alienation and regulating intoxicants among other things.
State governments are expected to amend their respective Panchayati Raj Acts without making any law that would be inconsistent with the mandate of PESA
Ten states-Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana have notified Fifth Schedule areas that cover (partially or fully) several districts in each of these states
After the PESA Act was enacted, the central Ministry of Panchayati Raj circulated model PESA Rules. So far, six states have notified these Rules, including Gujarat

4.Key features of PESA Act

Key features of the PESA Act include:

Local Self-Governance: The Act grants tribal communities in Scheduled Areas the power to manage their own local affairs through traditional institutions such as Gram Sabhas and Panchayats.
Customary Laws: PESA recognizes and respects the traditional customs, cultural practices, and community traditions of the tribal population. It empowers Gram Sabhas to decide on matters related to social customs, land management, and disputes resolution.
Land and Resources: The Act provides for the ownership of minor forest produce and minerals by the tribal communities, giving them control over local resources. It also emphasizes the role of Gram Sabhas in granting permission for prospecting or mining operations.
Consultation: Any development project or plan that affects the interests of the tribal community should be discussed with and approved by the Gram Sabhas.
Village Councils: PESA mandates the establishment of a Gram Sabha, which is a village council consisting of all adult members of the village. This council plays a key role in decision-making regarding local development and administration.
Protective Measures: The Act aims to prevent the exploitation and alienation of tribal communities by ensuring that their rights are protected during land acquisition, relocation, and development processes.

5. Gujarat Issue

Gujarat notified the State PESA Rules in January 2017, and made them applicable in 4,503 gram sabhas under 2,584 village panchayats in 50 tribal talukas in eight districts of the state

However, while the provisions of the law deem the Gram Sabhas as “most competent” to deal with matters related to their territories for safeguarding their customs, traditions as well as the natural resources in the tribal areas, the Act has not been enforced in letter and spirit, legal experts say

Advocate Bhushan Oza, who has been representing tribal groups in their petitions pending before authorities and courts with respect to the tribal rights, says that the implementation of the Act is in contrast to what it promises

5. Way forward

The PESA Act was enacted to address the specific needs and concerns of tribal communities living in Scheduled Areas, recognizing their unique cultural, social, and economic contexts. It seeks to empower these communities to participate in the governance and development of their own regions while safeguarding their rights and traditional way of life

For Prelims: PESA Act 1966, Panchayat and Municipilities, 73 & 74 Amendments of Indian Constitution

For Mains: 1.Examine the role of Gram Sabhas under the Panchayats (Extension to Scheduled Areas) Act, 1996. How do these institutions contribute to decision-making, resource management, and cultural preservation in tribal regions? Analyze the impact of Gram Sabha empowerment on tribal communities' governance and development

2.Critically assess the effectiveness of the PESA Act in safeguarding tribal land and resources. Explore the conflicts and complexities that arise between traditional tribal land rights and the development aspirations of the nation. Provide examples of cases where the Act has played a pivotal role in addressing such conflicts.

Previous Year Questions

1. Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1966 (PESA) (UPSC CAPF 2018)

A. Extends greater say to local tribe community over common resources

B.Provides greater devolution of powers to Scheduled Tribes

C.Extends Provisions of 73rd Constitutional Amendment to Scheduled Areas

D. Bring Scheduled Areas under the better control of Local Panchayats

Answer (C)

Source: indianexpress

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