The Act recognising the right of tribal communities in Scheduled Areas was enacted in 1996. Despite being formed 22 years ago, Jharkhand is yet to implement PESA
Photo: Kundan Pandey / CSE The Department of Panchayati Raj under the Jharkhand government recently published the draft rules for wide-ranging public consultation for implementing the provisions of the Panchayats (Extension to Scheduled Areas) Act of 1996 or PESA in the state.
People living in Scheduled Areas in Jharkhand will be able to self-govern through Gram Sabhas, according to the draft provisions. Gram Sabhas will be able to form committees on their own for education, health, agriculture, public property, village defence, infrastructure, among others.
The rights for use of forest land, minor water bodies, minor minerals, intoxicants and natural resources have also been defined under the PESA Act.
This will mean Gram Sabhas could make plans for minor minerals like soil, stone, sand, moram etc. and use them. It will be the operator of the “sand ghat” (where sand is mined), or can use it for local needs at its own level.
Permission from Gram Sabhas will also be mandatory for mining of any mineral, meaning no mining lease or opencast mining permit for minor minerals will be issued without prior consultation with it. All residents shall have equal rights to fish and collect resources like fox nuts in natural water resources like ponds.
The Sabhas can also reject rules by the central and state governments that harm traditional customs and practices of the areas under the Fifth Schedule of the Constitution. Any tribal land can be acquired only after the Gram Sabha gives its permission.
Over a quarter of Jharkhand’s population (26.3 per cent) consists of tribals — 8.64 million people. Over half of these people live in 12,164 villages. In Jharkhand, 14 of 24 districts are under the Fifth Schedule and over 6.86 million tribals live there.
But the big question is whether the Jharkhand government will be able to implement PESA.
A former member of the state’s tribal advisory committee, Ratan Tirkey, pointed out the Act was made in 1996. The state came into being 22 years ago — but to date, PESA has not been enacted in Jharkhand.
“Now that the draft provisions are up for public consultation, there will be objections and the draft provisions will be changed again. However, the Act was one of Chief Minister Hemant Soren’s major election promises, so the government will implement it at any cost,” Tirkey said.
Jharkhand received Rs 26,000 crore every year by the Centre under the Tribal Sub-Plan for the development of Fifth Schedule areas, he said.
“However, bureaucrats form Indian Administrative Service clubs with the money and the poor tribal villagers see none of it,” Tirkey alleged. “Once PESA is implemented, this will change.”
The PESA Act faces a tough task. A section of the tribal population has been vehemently opposing Panchayat elections or Panchayati Raj in the Fifth Schedule areas. There are concerns about how the elected Gram Panchayat and the traditional Gram Sabha will come together to work for the development of these marginalised regions?
There can be a problem if there is no flexibility in the views of some tribal groups who do not recognise the state legislative assembly or the lower house of the Parliament of India apart from the Gram Sabha, said Sudhir Pal, another member of the drafting committee.
“Coordination between the representatives elected by the Panchayat elections and the Gram Sabha is necessary. The Gram Sabha should easily accept that their traditional system will not be harmed in any way,” said Pal.
The role of the Gram Sabha will be that of the legislature and the role of the Gram Panchayat will be that of the executive, he explained. This means the Gram Sabha will decide where to implement a government scheme, who will be the beneficiary and the Gram Panchayat will be responsible for its implementation.
This sounds simple on paper, but tussles between the village heads and panchayat heads along with other representatives are likely.
The PESA Act has been implemented in Himachal Pradesh, Andhra Pradesh, Telangana, Rajasthan, Gujarat, Chhattisgarh, Madhya Pradesh and Maharashtra out of the 10 states under the Fifth Schedule, but Odisha and Jharkhand are still out of its purview.
However, the Rajya Sabha on August 2, 2023 passed the Forest (Conservation) Amendment Bill, 2023, according to which the permission of the Gram Sabha will no longer be necessary for any kind of construction or development work in non-notified forest areas.
In such a situation, how effective will the authority to the Gram Sabha under PESA be? Down To Earth had spoken to forest rights expert Sunil Minj before the bill was passed.
“If the government passes and implements the Forest (Conservation) Amendment Bill, there will be no coordination between its own two laws,” Minj said. “The flow of money will be affected too. Not a square inch of land in Fifth Schedule regions belongs to state or central governments.”
Chapter four of the draft provisions state the Gram Sabha can conduct hearings at the local level on issues covered under the Indian Penal Code, 1860. Under this, it can hear cases of riots, theft, obscene acts or songs, use of words to hurt religious sentiments, etc.
This will mean cases with imprisonment under the Indian Penal code of not more than six months The Gram Sabha can also impose a maximum penalty of Rs 5,000.
Chapter eight states that for approval of mining lease of minor minerals, the priority will be given to the first Scheduled Caste Cooperation Committee. So if a cooperative of tribals is running in any village, it will get priority for leases.
If there are no such applicants, Schedules Tribe applicants, followed by Scheduled Caste applicants would be preferred and the last preference would be a private company.
The draft provisions are open for suggestions for a month. The Soren government is likely to win over the tribal voters in the state if he manages to implement the PESA before upcoming elections, November–December 2024.
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