PESA Act of 1996 (Extension Act)
Village level democracy became a real prospect for India in 1992 with the 73rd amendment to the Constitution, which mandated that resources, responsibility and decision making be passed on from central government to the lowest unit of the governance, the Gram Sabha or the Village Assembly. A three tier structure of local self government was envisaged under this amendment.
Since the laws do not automatically cover the scheduled areas, the PESA Act was in acted on 24 December 1996 to enable Tribal Self Rule in these areas. The Act extended the provisions of Panchayats to the tribal areas of nine states that have Fifth Schedule Areas. Most of the North eastern states under Sixth Schedule Areas (where autonomous councils exist) are not covered by PESA, as these states have their own Autonomous councils for governance. The nine states with Fifth Schedule areas were:
- Andhra Pradesh
- Himachal Pradesh
- Madhya Pradesh
Objectives of the PESA Act
The fundamental spirit of the Panchayat Extension Act for tribal areas under 5th Schedule is that it devolves power and authority to Gram Sabha and Panchayats rather than delegation; hence it paves way for participatory democracy.
The provision under constitution and the composition under this act call for every legislation on the Panchayat in 5th Schedule area be in conformity with the customary law, social and religious practices and traditional management practices of the community resources.
It also directs the state government to endow powers and authority to make Gram Sabha and Panchayats function as Institutions of Local Self Governance, specifically on matters of enforcing prohibition of sale and consumption of intoxicant; ownership of minor forest produce; power to prevent alienation of land and restoration of unlawfully alienated land, management of village markets, control over money lending, etc.
PESA also empowered gram sabha of the Scheduled Areas to approve plans, programmes for social and economic development, identify beneficiaries under poverty alleviation programmes, certify utilization of funds by gram Panchayats, protect natural resources, including minor forest produce and be consulted prior to land acquisition.
PESA make sure that each tier of the Local Governance is independent and Panchayats at higher level should not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha. Further, it also calls for creating the appropriate levels of Panchayats similar to 6th Schedule area, where the Administrative boundaries are Autonomous enough for self-rule.
All the states with scheduled areas within their geographical boundaries were mandated to amend their existing Panchayati Raj acts incorporating provisions of PESA within a year, that is, by 24 December 1997.
Provisions under PESA include the following:
- Gram Sabha at the Para, Majra and Tola levels.
- Gram Sabha to protect the traditions, beliefs and culture of the tribal communities.
- Local disputes to be resolved by the Gram Sabha.
- Gram Sabha to manage and protect common properties based on their traditional systems of management and protection.
- The administration to seek permission from the Gram Sabha in case of land acquisition.
- Gram Sabha to have the rights over minor forest produce; powers to restore land to the tribals and control over money-lending to tribals, tribal welfare activities by social organizations and local plans and sub-plans for the development of tribal areas and communities.
- Gram Sabha to have the control over local markets and melas.
- Gram Sabha to have rights to control the distillation, prohibition and manufacture of liquor.
- District panchayats to have rights and powers similar to the district panchayats falling under Sixth Schedule.
The Fifth Schedule suggests that the Governor and the Tribes Advisory Council (TAC) should protect/promote the welfare and advancement of the Scheduled Tribes. It follows that the correct or harmonious interpretation of PESA would be the recognition of the traditional tribal political institutions of self governance.
Such a conclusion also follows since the PESA must be read in conjunction with the Fifth Schedule, which deals with the Scheduled Tribes of the Fifth Schedule Areas and given the fact that PESA has as its backdrop the recommendations of the Bhuria Committee, which was instrumental in formulating the PESA.
Key Features of the Model PESA Rules
- The Gram Panchayat shall be deemed to be the Executive Committee of the Gram Sabha. The Secretary of the Gram Panchayat will be deemed to be the Secretary of the Gram Sabha and the Gram Sabha will hold a meeting at least once in two months.
- A person who is a member of a Scheduled Tribe will be selected as chairperson for the meeting of the Gram Sabha for one year by consensus. In the case of non-consensus, amongst the members present, the oldest lady from the Scheduled Tribes would be the chairperson.
- The quorum of the meeting of the Gram Sabha will be one fifth of the total members. There shall be a separate quorum for women, which will be one third of the general quorum.
- The Gram Sabha may constitute Standing Committees viz. Peace Committee, Justice Committee, Resource Planning and Management Committee, Intoxication Control Committee, Debt Control Committee, Market Committee, Sabha Kosh Committee and others as deemed appropriate by the Gram Sabha in order to fulfil its responsibilities regarding various aspects of the working of the village, whose members shall be elected in an open meeting of the Gram Sabha among members of the Gram Sabha. Besides, temporary and ad-hoc committees may be constituted as per requirement. The tenure of all the Standing Committees will be of one or two years as decided by the Gram Sabha.
- If under any Act on any subject such as forest, irrigation management, etc., a body or committee is constituted by any government department, the same will be treated as a Standing Committee of Gram Sabha on that subject. Notwithstanding the provisions in the concerned Act, that body or committee will be accountable to Gram Sabha.
- The Gram Sabha will maintain a Gram Sabha Kosh which will consist of the contribution received in any form including voluntary contributions of cash and goods and the labour of villagers; amount received through the government from minor forest produce, minor minerals etc; and surcharges imposed on the consumption of the resources or fines levied by the Gram Sabha. The Gram Sabha will have the complete right of its usage as per its own decisions.
- Process of dispute resolution by the Gram Sabha has also been listed out in the Model Rules.
- The Gram Sabha will ensure that resources are utilized in such a way that:
- Livelihood means are sustained.
- Inequality among the people does not increase.
- Resources are not confined to a few people.
- The Gram Sabha will ensure that no land belonging to Scheduled Tribes is transferred to non ST persons. It shall be competent to enquire into any land transactions, or authorize the Peace Committee to do so, on the basis of complaints or suo motto. If the Gram Sabha is of the opinion that attempts are being made to alienate lands belonging to STs, it may issue instructions to prohibit the transaction and its decision in such cases shall be final.
- Gram Sabha shall be mandatorily involved in all decision relating to land-acquisition; peace & security and dispute resolution; management of natural resources; agriculture and land; mines and minerals; intoxication control; minor forest produce; management of markets; money lending; identification of beneficiaries; approval of plans; supervision and review of social sector schemes as well as local institutions such as schools, hospitals, etc.
- Gram Sabha is competent to maintain separate registers for the details of the
- Persons going outside the village to make livelihood.
- It will be mandatory for the Gram Panchayat to obtain a certification of utilization of all funds from the Gram Sabha for works undertaken in its areas.
- If a Gram Sabha is of the opinion that any State Legislation is not in consonance with the customary law, social and religious practices and traditional management practices of the community resources, it may pass a resolution to that effect, and forward it to the State Government through the District Collector. The State Government shall take necessary action on it.