Tribal rights under Panchayat (Extension to Scheduled Areas) Act 1996

Dr Konbrailatpam Ratnabali *

Gandhiji envisaged that "Independence must begin at the bottom. Thus every village will be a republic or panchayat having full powers" In line with this thought, the Parliament made the 73rd Amendment to the Constitution of India by adding Part IX in the Constitution in 1993. Clauses (1) and (2) of Article 243M, Part IX of the Constitution of India which provides for the establishment of 'Panchayat' are not made applicable in the Scheduled Areas and tribal areas.

Accordingly on the basis of report of Bhuria Committee, a separate legislation called Panchayat (Extension to the Scheduled Areas) Act, 1996 (hereinafter referred to as PESA) was enacted so as to make Part IX of the Constitution applicable to the Scheduled Areas along with some restrictions imposed on the State legislature in applying the laws relating to Part IX (Panchayat) of the Constitution of India in the Scheduled Areas.

PESA was made applicable to 9 states viz. Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan and not to other Scheduled Areas including those in Manipur.

PESA imposed restriction on the State Legislature and decentralized more power in the hands of the Gram Sabha or Panchayat. It may be observed that the powers that can be exercised by the Gram Sabha under this Act relates to the tribal's customs, traditions, religion, land and mineral resources.

Of the various restrictions imposed upon the powers of the State legislature with regard to the Scheduled Areas where PESA is made applicable, the following are relevant from the perspectives of the preservation of cultural and religious spaces of the tribal whose significance has already been highlighted in the first two articles:

State legislation on Panchayat should be in consonance with the customary law, social and religious practices and traditional management practices of community resources;

The independence and competency of every Gram Sabha to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution should be maintained;

The Gram Sabha have the power to approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level;

The Gram Sabha shall be responsible for identification or selection of persons as beneficiaries under the poverty alleviation and other programmes;

The Gram Sabha or the Panchayats at the appropriate level should be consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas. The actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level;

The recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas.

Some clarity is required regarding the powers of Gram Sabha and Panchayat pertaining to grant of approval for socio-economic development or prospecting licence or mining lease in Scheduled Areas. Since the population of an area governed by a Gram Sabha and that of the remaining areas comprising the same Panchayat area may not be homogenous, there is possibility of conflict of interest between a Gram Sabha and its higher administrative institution i.e. the Panchayat.

For instance, if a Gram Sabha does not recommend granting of licence for mining in a hill/area which the tribe of that village revered it as sacred then, will a contrary recommendation given by the concerned Panchayat override the decision of the Gram Sabha? In the face of such contradictory decisions at the two levels of administration, what will the government at the state/ Centre do? No straight answer is provided by PESA Act.

The Act provides that 'recommendation of the Gram Sabha or Panchayat, at the appropriate level, shall be mandatory'. But the question is 'who will be that authority which will determine the appropriate level to give recommendation to a project; and 'what basis/criteria will be used by such authority to determine the 'appropriate level'.

There is no guideline for determining the same and in such a case, question arises as to whether it has to be left to the discretion of the government or should some guidelines be made for the same for the sake of clarity. Leaving at the hands of the government to decide is not a good proposition keeping in mind the fact that the spirit of Panchayat is decentralization and not re-centralization.

Any activity that may affect the cultural and religious spaces of the tribals may be approved or denied according to consensus. The approval may be best given by the authority at the lowest level that are in touch with the grassroots level common people whose rights would be affected by such project. Any interference with this power will diminish the essence of PESA.

Even though the Gram Sabhas and Gram Panchayats are empowered in the Scheduled Areas to protect and preserve their traditions, culture, identity, and community resources of the tribals, yet there is increasing violation of the Act. Implementation of this Act in the real spirit will go a long way in empowering the marginalized tribals to decide for themselves the route to development which they would like to adopt which not only respects their culture and ethos but also their identity.