The Panchayats (Extension to Scheduled Areas) Act, 1996, commonly known as PESA, stands as a landmark piece of legislation in India’s efforts towards empowering its Tribal Communities and recognizing their unique governance systems. Born out of a nuanced understanding that the uniform application of the 73rd Constitutional Amendment Act, 1992, pertaining to Panchayati Raj Institutions, might not adequately serve the distinct socio-cultural fabric, customary laws, and traditional resource management practices prevalent in Scheduled Areas, PESA sought to provide a legislative framework tailored to these specific needs. It represented a significant departure from previous approaches to tribal development, shifting the focus from welfare to rights-based governance, and aiming to grant substantial autonomy to the Gram Sabhas in these regions.

The enactment of PESA marked a pivotal moment in India’s democratic decentralization journey, particularly concerning its indigenous populations. It acknowledged the historical injustices and marginalization faced by tribal communities and sought to rectify them by constitutionally enshrining their right to self-governance, control over their Natural Resources, and preservation of their Cultural Identity. The Act was conceptualized as a protective measure, ensuring that the spirit of local self-rule, as envisioned by the 73rd Amendment, was extended to tribal areas not through mere replication but through adaptation, prioritizing the traditional decision-making bodies and customary laws that had historically governed these communities.

Evolution of Panchayats and the Genesis of PESA

The journey towards PESA is intertwined with India’s broader administrative and constitutional history concerning its tribal populations. Before India’s independence, tribal areas were often administered under ‘excluded’ or ‘partially excluded’ categories, largely insulated from general laws, though this was primarily for administrative convenience rather than genuine self-rule. Post-independence, the framers of the Indian Constitution recognized the unique vulnerabilities and distinct cultural identities of tribal communities. This recognition led to the inclusion of the Fifth Schedule and Sixth Schedule, providing special provisions for the administration and control of Scheduled Areas and Tribal Areas, respectively, to protect tribal land, resources, and culture.

However, despite these protective measures, the general developmental approach often adopted a top-down model, overlooking traditional governance structures. The establishment of Panchayati Raj Institutions (PRIs) through various state legislations in the 1950s and 60s, while aiming for decentralization, often failed to adequately integrate or respect the deeply rooted customary systems of tribal communities. These traditional institutions, such as village councils, clan elders, and traditional courts, held significant sway in local decision-making, resource management, and dispute resolution within tribal societies. Imposing a uniform Panchayat structure without adapting to these realities was often seen as an imposition rather than an empowerment.

The 73rd Constitutional Amendment Act, 1992, and its Limitations

The watershed moment for local self-governance in India came with the 73rd Constitutional Amendment Act, 1992, which granted constitutional status to Panchayati Raj Institutions. This amendment sought to establish a uniform three-tier system of local self-governance (Gram Panchayat at the village level, Panchayat Samiti at the block level, and Zila Parishad at the district level) across the country, making elections mandatory, ensuring reservations for Scheduled Castes, Scheduled Tribes, and women, and devolving significant powers and responsibilities.

However, the architects of the 73rd Amendment were acutely aware of the unique context of Scheduled Areas. Article 243M of the Constitution explicitly provided that the provisions of Part IX (Panchayats) would not apply to Scheduled Areas and Tribal Areas unless Parliament by law provided for such application, subject to such exceptions and modifications as it might specify. This constitutional carve-out was a crucial recognition that a ‘one-size-fits-all’ approach would be detrimental to the distinctive social, cultural, and economic life of tribal communities. The concerns were manifold: the potential erosion of customary laws and traditional institutions, the alienation of tribal land and resources by external forces, and the imposition of governance structures that might not align with indigenous ways of life.

The Bhuria Committee Report, 1995

In light of the constitutional proviso and the growing demand for genuine tribal self-rule, the Ministry of Rural Development, Government of India, constituted a high-level committee in 1995 under the chairmanship of Dileep Singh Bhuria, a Member of Parliament. The committee was tasked with examining the application of the provisions of Part IX of the Constitution to Scheduled Areas.

The Bhuria Committee’s report, submitted in 1995, was instrumental in shaping the PESA Act. It strongly advocated for the recognition of the inherent right of tribal communities to self-governance and for the protection of their traditional resource management systems. Key recommendations of the committee included:

  • Empowering the Gram Sabha: Emphasizing that the Gram Sabha (village assembly) should be the pivot of self-governance in tribal areas, vested with substantive powers, particularly over natural resources.
  • Respecting Customary Laws: Insisting that any legislation for tribal self-rule must respect and protect the customary laws, social and religious practices, and traditional management practices of community resources.
  • Control over Land and Resources: Recommending that tribal communities, through their Gram Sabhas, should have control over local plans, resources, and particularly minor forest produce, minor minerals, and water bodies.
  • Checks on Alienation: Proposing measures to prevent land alienation and ensure the restoration of unlawfully alienated land.
  • Protection against Exploitation: Suggesting mechanisms to control money lending and ensure proper management of local markets.

The Bhuria Committee’s recommendations formed the bedrock of the PESA Act, translating the constitutional recognition of tribal distinctiveness into a concrete legislative framework aimed at ensuring participatory democracy and social justice in Scheduled Areas.

Salient Features of the Panchayats (Extension to Scheduled Areas) Act, 1996

The PESA Act, 1996, enacted by the Parliament, extended Part IX of the Constitution to the Scheduled Areas with specific modifications and exceptions, reflecting the recommendations of the Bhuria Committee. Its primary objective was to ensure that tribal communities have greater control over their own destiny and natural resources. The salient features of the Act are detailed below:

1. Gram Sabha as the Central Pillar of Self-Governance

PESA fundamentally transforms the Gram Sabha into the most powerful unit of self-governance in Scheduled Areas. It is not merely a deliberative body but an empowered decision-making authority. The Act mandates that:

  • Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources, and the customary mode of dispute resolution. This provision is crucial for protecting the unique socio-cultural fabric of tribal societies.
  • The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects. This gives communities a strong voice in land matters affecting them.
  • The recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be mandatory prior to the grant of prospecting license or mining lease for minor minerals in the Scheduled Areas. This vests significant control over mineral resources with the local community.
  • The Gram Sabha shall have the ownership of minor forest produce. This provision recognizes the traditional rights of tribal communities over forest resources, which are central to their livelihoods.
  • The Gram Sabha or the Panchayats at the appropriate level shall have the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
  • The Gram Sabha or the Panchayats at the appropriate level shall have the power to manage village markets by whatever name called.
  • The Gram Sabha or the Panchayats at the appropriate level shall have the power to exercise control over money lending to the Scheduled Tribes in the Scheduled Areas. This aims to curb exploitation by traditional moneylenders.
  • The Gram Sabha or the Panchayats at the appropriate level shall have control over institutions and functionaries in all social sectors. This includes primary schools, health centers, and other public services.
  • The Gram Sabha or the Panchayats at the appropriate level shall have the power to control local plans, resources for such plans, and tribal sub-plans. This ensures that development initiatives are community-driven.

2. Respect for Customary Laws and Traditional Practices

A foundational principle of PESA is the recognition and protection of customary laws. The Act mandates that State Legislatures, while making laws relating to Panchayats in Scheduled Areas, shall ensure that such laws are in consonance with the customary law, social and religious practices, and traditional management practices of community resources. This is a powerful provision aimed at preventing the erosion of indigenous governance systems and cultural identity. It implies that the traditional decision-making processes and norms of tribal communities should be given legal sanctity.

3. Special Provisions for Reservations

To ensure effective tribal representation and leadership, PESA lays down specific rules for reservations in Panchayats in Scheduled Areas:

  • The reservation of seats for the Scheduled Tribes in every Panchayat in the Scheduled Areas shall be in proportion to the population of the Scheduled Tribes in that Panchayat, provided that the number of seats reserved for Scheduled Tribes shall not be less than one-half of the total number of seats. This ensures that tribal communities have a majority stake in their local governance bodies.
  • Further, all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes. This critical provision ensures that the leadership of these local bodies remains in the hands of tribal representatives, aligning with the spirit of self-rule.

4. Powers over Natural Resources

One of the most significant aspects of PESA is its emphasis on community control over natural resources, which are vital for the survival and sustenance of tribal communities.

  • Minor Forest Produce (MFP): The Act unequivocally vests the ownership of minor forest produce with the Gram Sabha. This is a radical shift from the earlier state control, recognizing tribal communities as owners rather than merely collectors or beneficiaries.
  • Minor Minerals: As mentioned, the Gram Sabha’s prior recommendation is mandatory for obtaining prospecting licenses or mining leases for minor minerals. This gives the community a veto power over exploitation of their land for minor minerals.
  • Minor Water Bodies: Panchayats at the appropriate level shall be endowed with the power to plan and manage minor water bodies. This allows local communities to manage a critical resource for agriculture and livelihood.

5. Land Alienation and Restoration

PESA attempts to address the historical issue of tribal land alienation. It mandates that State Legislatures shall make laws to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe. While the Act itself doesn’t provide the enforcement mechanism, it places a clear responsibility on state governments to enact and implement laws in this regard.

6. Control over Local Institutions and Functionaries

The Act empowers the Gram Sabha or Panchayats at the appropriate level to exercise control over institutions and functionaries in all social sectors. This includes the power to approve plans and programs for social and economic development, identify beneficiaries for poverty alleviation and other schemes, and certify the utilization of funds for such plans. This ensures that development initiatives are aligned with local needs and priorities and that there is transparency and accountability at the grassroots level.

7. Higher-Level Panchayats and Non-Usurpation of Powers

PESA specifically states that the State Legislature shall ensure that the Panchayats at a higher level do not usurp the powers and authority of any Panchayat at the lower level or the Gram Sabha. This provision reinforces the supremacy of the Gram Sabha and the village-level Panchayat, preventing bureaucratic or political interference from higher administrative tiers.

Challenges in Implementation and Impact

Despite its transformative potential, the implementation of PESA has been uneven and fraught with significant challenges since its enactment in 1996.

Major Challenges:

  • Lack of Political Will: Many state governments with Scheduled Areas have been slow or reluctant to enact PESA-compliant laws or fully devolve powers to Gram Sabhas. The fear of losing control over lucrative natural resources often underlies this reluctance.
  • Ambiguity and Weak State Rules: Where state PESA rules have been framed, they often suffer from ambiguities, dilution of powers, or are not in complete consonance with the spirit of the central Act. Some states have simply replicated the provisions of the 73rd Amendment without the necessary PESA modifications.
  • Bureaucratic Resistance: The traditional administrative machinery often resists the decentralization of power, viewing empowered Gram Sabhas as a challenge to their authority. Lack of awareness among officials about PESA’s provisions and intent further compounds this issue.
  • Lack of Awareness and Capacity Building: Many tribal communities and Gram Sabha members themselves are unaware of their rights and powers under PESA due to inadequate dissemination of information and lack of capacity-building initiatives. This gap makes it difficult for them to assert their rights effectively.
  • Conflict with Other Laws: PESA’s provisions sometimes clash with other central or state laws, particularly those related to forests, mining, land acquisition, and excise. For instance, the Forest Rights Act (FRA), 2006, also empowers Gram Sabhas over forest resources, leading to overlapping jurisdictions or confusion in implementation. Harmonization of these laws remains a critical challenge.
  • Inadequate Financial Devolution: Even where powers are nominally devolved, the lack of corresponding financial resources and dedicated budgetary allocations for Gram Sabhas hinders their ability to undertake development activities independently.
  • External Interference and Exploitation: Despite PESA, tribal areas continue to face challenges from external actors seeking to exploit their land and resources, often through dubious means or by manipulating local power structures.
  • Internal Dynamics: While PESA seeks to empower Gram Sabhas, internal dynamics within tribal communities, including the influence of traditional elites or the emergence of new power structures, can also affect its effective functioning.

Positive Impacts (where effectively implemented):

  • Empowerment of Gram Sabhas: In areas where PESA has been genuinely implemented, Gram Sabhas have emerged as powerful decision-making bodies, leading to greater community participation in local governance and development planning.
  • Protection of Land and Resources: There have been instances where empowered Gram Sabhas have successfully resisted unlawful land alienation, prevented destructive mining projects, and asserted their rights over minor forest produce.
  • Recognition of Traditional Institutions: PESA has provided a legal framework for recognizing and integrating traditional tribal institutions and customary laws into the modern governance structure, fostering a sense of ownership and cultural preservation.
  • Enhanced Accountability: The requirement for Gram Sabha approval for development projects and beneficiary identification has improved transparency and accountability in the utilization of public funds.
  • Reduced Exploitation: The provisions related to control over money lending and management of village markets have, in some cases, helped reduce the economic exploitation of tribal communities.

Conclusion

The Panchayats (Extension to Scheduled Areas) Act, 1996, is a visionary piece of legislation that represents a profound commitment to tribal self-rule and the protection of their unique socio-cultural identity. Born out of the constitutional recognition of the distinctiveness of Scheduled Areas and informed by the recommendations of the Bhuria Committee, PESA sought to extend the spirit of the 73rd Constitutional Amendment to these regions, not through mere imposition but through sensitive adaptation. Its core intent was to empower the Gram Sabhas as the pivotal institutions of self-governance, vesting them with substantive control over their traditional resources, customary laws, and local development processes.

PESA’s significance lies in its radical departure from a welfare-oriented approach to tribal development, instead adopting a rights-based framework. By legally recognizing the Gram Sabha’s ownership of minor forest produce, its mandatory consultation in land acquisition and mining, and its role in safeguarding traditions, PESA laid the groundwork for tribal communities to shape their own destiny. It acknowledged that true decentralization in tribal areas necessitates respect for indigenous knowledge systems, collective resource management practices, and traditional dispute resolution mechanisms. While the Act provides a robust legal framework, its full realization remains contingent upon sincere political will and administrative reforms.

Despite its progressive provisions, PESA’s implementation has faced considerable hurdles, including legislative inconsistencies, bureaucratic inertia, lack of awareness, and resistance to genuine devolution of power and resources. The ongoing challenge is to translate the letter of the law into its true spirit, ensuring that state governments enact and implement PESA-compliant rules effectively, provide adequate financial resources, and build the capacity of tribal communities to exercise their rights. Fully realizing PESA’s promise requires a continuous commitment to harmonizing laws, fostering awareness, and empowering tribal communities to assert their rightful place as self-governing entities, thereby upholding the constitutional vision of inclusive and participatory democracy.