What is the PESA Act and how Madhya Pradesh Chattisgarh dilutes it's provisions?

As the states of Chhattisgarh and Madhya Pradesh gear up for elections, the implementation of the Panchayat (Extension to Scheduled Areas) Act, 1996, or PESA, has become a focal point of campaign promises. However, the question remains: will the implementation of PESA rules meet the demands of the tribal communities?

What is the PESA Act

The Panchayats (Extension to Scheduled Areas) Act, 1996, or PESA Act, is a law enacted by the Government of India to ensure self-governance through traditional Gram Sabhas for people living in the Scheduled Areas of India.

Scheduled Areas are areas identified by the Fifth Schedule of the Constitution of India. The PESA Act allows for the establishment of village panchayats in these areas, with special provisions to protect the autonomy of tribal communities.

The Act was enacted to extend the provisions of Part IX of the Constitution relating to Panchayats to the Scheduled Areas. It recognises the right of tribal communities to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources.

The PESA Act allows for the establishment of village panchayats in the Fifth Scheduled Areas, areas specially notified under the Constitution to protect tribal communities, with special provisions to protect the autonomy of these communities. Despite this, Chhattisgarh and Madhya Pradesh, home to over 230 lakh tribal people, only enacted their rules last year.

Election focus leaves villagers uninformed about PESA

According to the report of Land Conflict Watch, over half of the 80 ongoing land conflicts in these states occur in Fifth Schedule districts. Many of these conflicts span decades, overseen by multiple state governments ruled by different political parties. These conflicts primarily see the violation of the right to Free Prior Informed Consent (FPIC) – indigenous people’s right to have a say over projects affecting their land.

23 out of 42 land conflicts from the two states see the provisions of PESA Act being applicable. Particularly, Section 4(i) which says that prior consent of the Gram Sabha or panchayat is necessary before land acquisition. But what do the rules say about this prior consent requirement?

The Chhattisgarh rules use of the word ‘sahmati’, which means consent, in the section header, but change it to ‘paramarsh’, which means consultation, in the operative rules. Community activists have noted that changing the power to decide consent to merely giving recommendations based out of consultation is a dilution.

The MP PESA Rules do not dilute the consent requirement. The rules refer to the process established in the state land acquisition rules of 2015, which in turn mandate prior consent to be taken from Gram Sabha.

Yet both states undermine the autonomy of the Gram Sabha through other provisions in the rules. For example, the post of Gram Sabha secretary is government-appointed and from the Gram Panchayat. This would take power away from the GS as the secretary handles important GS records.

PESA Act implementation faces dilution

However, it appears that the implementation of the PESA Act has been diluted in some states, including Madhya Pradesh and Chhattisgarh.  Four states – Chhattisgarh, Jharkhand, Madhya Pradesh, and Odisha have not yet framed the rules. Even states that have formulated the rules do not show a different situation. States should have amended their law to incorporate the provisions of PESA. Some states have managed to formulate rules, but their performance in ensuring their implementation has been quite poor.

In Chhattisgarh, it has been noted that those states which drafted the PESA rules have also watered down the spirit by adding several absurd clauses. In Madhya Pradesh, the PESA Act is under implementation and will empower the Gram Sabhas to take decision on the rules and regulations with regard to all natural resources in the forest areas. However, the effectiveness of these implementations remains to be seen.

Both state rules allow for any person or government department to appeal a Gram Sabha decision. If claimant is not satisfied, an appeal may be made before revenue authorities. The Union-proposed model PESA rules suggest a more collaborative method as norm for dispute resolution.

You gave shape to the arms and the legs, but someone took away the spirit of the Act,” says Ashwani Kange, advocate from Kanker, Chhattisgarh. Kange also states that only the GS can give consent. He says that the collector merely exercises executive authority.

In MP, the government has sidelined the PESA rules because they are busy with the elections, leaving villagers unaware of their rights. Advocate Rahul Shrivastava complains that people in protected areas are unaware of the rules and the appointed secretary does not fully understand them either.

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