PESA Act 1996

The provision of PESA (Panchayat Extension to the Scheduled Areas) Act 1996

Background of PESA

Tribes ,the indigenous minority of india constitutes 8.2% (over 84 million people) of nation's population.The bulk of population lives in V th schedule and VI th schedule areas. These are described in the constitution as Scheduled areas and Tribal areas respectively. They are predominantly distributed in hilly and forest areas and over centuries they have developed an organic relationship with nature and are referred as protector of the nature, therefore deserve the right over the natural resources and their management. Their traditional decision making process is truly democratic in nature.Women are also empowered in these traditional  equity based societies. Based on these characteristics, these societies  demand Panchayati Raj system which is not in conflict with their own culture and tradition. Realizing the felt need the GOI required making provision in the constitution of  India beyond 73 rd constitutional amendment act 1992.

With regard to V th schedule areas, under article 243 M of the constitution of india, Parliament is required to pass legislation for extending the provision of part IX of these areas. Based on the recommendation of the Duleep singh Bhuria Committee, PESA Act was passed by the Parliament and came into effect on 24 Dec 1996 for areas mentioned in V th schedule of the constitution of india.

Main features of the Act

The act defines a village as ordinarily consisting of habitation or a group of habitation or a hamlet or a group of hamlets comprising a community and managing its affair in accordance with tradition and customs. Every village has to have a Gram Sabha which is competent to safeguard and preserve the tradition and customs of the people,their cultural identity, community resources and customary mode of dispute resolution. PESA enjoins upon the state the obligation to consult tribal communities and their elected representatives in evolving criteria for the constitution of village panchayat and Gram Sabha in scheduled V Areas and to ensure that tribal communities on the basis of ethnic identities are constituted  into different Gram Sabhas even within a Gram Panchayat area.

PESA  stipulates that reservation for scheduled tribes shall not be less than half the total number of seats and that all seats of Chairperson of Panchayats at all level shall be reserved for the ST's.It also provides that state govt can nominate persons belonging to such scheduled tribes who have no representation in Panchayat at the intermediate or the district Panchayat level to an extent of 1/10 th of the total number  to be elected to that Panchayat.

A duty has been cast on the state legislature to ensure that the Gram Sabha and Panchayats at the appropriate level are endowed with such powers and authority as to enable them to function as institution of self - government. These are :

• Power to enforce prohibition;
• Ownership of minor forest produce;
• Power to prevent alienation of land;
• Power to manage village markets;
• Power to exercise control over money lending;
• Power to exercise control over institutions and functionaries in all social sector;
• Power to control local plans and resources including Tribal sub- plan.

The act also prohibits Panchayats at the higher level to assume the power and authority of any Panchayat at the lower level.It also provides that any law which is inconsistent with its provision shall cease to be in force at the expiry of  one year from the date on which the act receives the assent of the President (24 Dec 1996)

Under PESA Gram Sabha and Panchayats are given wide functions, power and responsibilities as follows:

Mandatory executive functions and responsibilities:

Panchayats at village level has to take approval of all plans and programmes  from the Gram Sabha before their implementation. Gram Sabha(GP)  shall issue certification of utilization of funds by Panchayat(GP) at village level. Panchayat shall undertake planning and management of minor water bodies.

Mandatory consultation:

The Gram Sabha or Panchayat at appropriate level shall always be consulted before acquisition of land in the Scheduled Areas for development project and before resettling rehabilitated persons affected by such projects.

Mandatory recommendations:

The recommendation of the gram Sabha or the Panchayats are mandatorily required prior to to grant of prospective license or mining lease  or grant of concession for the exploitation of minor minerals by auction.

Current scenario of Indian states

While all nine state have enacted requisite compliance legislation by amending the respective Panchayati Raj Acts, certain gaps still exists.Further  most states are also yet to amend the subject laws and rules such as those relating to money lending, forest and minor forest produce ,mining and excise. Though  the provision of any law which is inconsistent with those in PESA are legally invalid after Dec 12, 1997 are still continued to be followed by departments  for want of clear guidelines.

The gaps identified between the central legislation and provisioning at the state level may be summarized as follows:

• Continuance of existing laws relating to money lending ,forest, excise etc
• Incomplete transfer of ownership of minor forest produce and planning and management of minor water bodies to GP and GS
• Inadequate action on preventing alienation of tribal lands recognized in PESA to be the traditional rights of tribals living in Scheduled Areas.
• Powers statutorily devolved to the Gram Sabha and Panchayats are not supplemented by the transfer of funds resulting in non-existence of such powers.

States have been urged repeatedly to expedite compliance with PESA

Role of Central Government

Despite an explicit provision in PESA that any law which is inconsistent with those in PESA are legally invalid after Dec 12, 1997 are still continued to be followed by departments. Among the laws that warrant particular attention are the following :

1. The land acquisition act 1894
2. Mines and minerals(Development and regulation) act 1957
3. The Indian forest act 1927
4. The forest conservation act 1980
5. The Indian registration act 1908

Apart from aforesaid acts following national policies are very much in conflict with the provision of the PESA  and require urgent re-examination

• The national policy on resettlement and rehabilitation of project affected persons,2003
• The national water policy,2002
• The national mineral policy,2003
• The national forest policy,1988
• The wild life conservation strategy,2002
• The national environment policy,2006

As per recommendation of the working group on democratic decentralization following steps may be taken by the Central Govt:

1. Issuing of specific directions to states for implementation of PESA in letter and spirit on the basis of Governor's report on Schedule V areas.
2. Incorporation of suggested changes in Tribal Rights Bill to further strengthen implementation of PESA
3. PESA states to have a cell to monitor its implementation and provides support towards these , a small annual budget.

If the Central Govt takes necessary steps to harmonize the central legislation as well as national policies it will go a long way in protecting the legitimate interest of tribals in V th Schedule areas and will send an appropriate signal to state govt ,motivating them to implement the provisions of PESA with great sense of purpose.

Role of State Government

All nine states have enacted or amended their State Acts but not in consonanace with the letter and spirit of the Central PESA,the comparative analysis of State PESA and Central PESA yields the fact that the PESA Act has been diluted and much of the power of GS has been given to the district administration

or to the Zila Parishad

As per recommendation of the working group on democratic decentralization following steps may be taken by the State Govt:

4. State law requires thorough analysis and harmonization with PESA.
5. Annual status reports must be prepared by each state that has Schedule V th areas on the current status of implementation.
6. Programmes such as BRGF which base themselves on local planning and implementation through Panchayats should be used to catalyze the full implementation of PESA in states.

The road ahead

• If any state is not implementing the provisions of PESA in letter and spirit ,the GOI should issue specific direction in accordance with its power to issue direction under proviso 3 of part A of the V th schedule.
• To establish a forum at the Central level so that the violation of the provisions of the enactment could be brought before it and corrective measure be taken.
• Practice of taking regular annual reports from the Governors.
• In order to ensure that women are not marginalized in the meetings of GS, provision in PESA should ensure that for quorum of 33% women ought to be present in the GS.

Problems of tribal education in india

For the development of society there is a need of equitable and balanced progress of all sections of community esp. weaker , deprived and discriminated ST's to the forefront of educational revolution. Education imparts knowledge, knowledge of self identity and human environment.


Profile of tribal literacy-


Since independence there is an increase in tribal education but not as per national average.It is 47% where as national average is 65% .Tribal male accounts 59% (75 % national),Tribal female 35% (53% national).
There is a wide variation of tribal education at state.Mizoram tops with 89% followed by Lakshadeep, Manipur, Nagaland , Andaman & Nicobar,Himachal Pradesh. The most poor performing states are Bihar (28%),UP (35%) and Orissa (37%) {Courtesy :Census of India 2001}


Problems associated with tribal education :


1. Poverty - Almost all the tribes whether food gatherers, hunters, shifting cultivators or settled cultivators lack adequate food to maintain the family for the whole year so they find it difficult to afford their children to go to school. They see their children as economic assets in the family.Boys work in the field and girls help their mother in household work. Further system of education and economic benefit accrued from it is of 15 - 20 years of education from school and colleges so parents have neither patience nor foresight to wait for such a long time.


2. Apathy of parents - Tribal's are more concerned with the present than future. It is practical, vocational aspect of education along with immediate economic returns appeal to parents. Besides this scattered population with low density and far location of school has resulted into indifference of parents to send their children's.


3. Apathy of childrens - In many state tribal education is taught from the same syllabus which are for the non-tribals. A tribal child who lives in far flunked area untouched  by civilisation hardly gets interest in history,geography,polity, economical development of country do not understand what they are taught as they have nothing to do with their tribal history and surroundings.


4. Superstition and prejudice - There is widespread feeling in tribals that education makes their children defiant and alienates them from  their own society.


5. Problems of suitable teacher - Non tribal teachers treat themselves civilized and tribals as uncivilized, so there is little appreciation of tribal values and ways of life.Even tribal teachers of one community looks at students and parents of another community hesitantly.


6. Problem of language-Language provide social , psychological and emotional expression of an individual in a society but in the absence of knowledge of tribal dialect both student and teachers face problem of communication.Tribal students are often humiliated for speaking in their mother tongue. Although there is a need of introduction of tribal dialect in the curriculum yet there is paucity of books in tribal dialects.


7. Inadequate facilities in educational institutions - The school basically have thatched roofs, dilapidated walls and floors. In residental schools there is no place for children to sleep as a consequence classroom turns into dormatory and vice versa.


8. Wastage and stagnation - Wastage is the withdrawal or dropping of a student before completion of the academic course.Stagnation is when a student takes more than one year to pass a class. School timing ie clash of school hours with working hours is the main reason for wastage and stagnation.


Conclusion -


Education is the most effective instrument for ensuring equality of opportunity  but tribal people are lagging far behind the non tribal due to above reasons.