The Panchayats (Extension to Scheduled Areas) Act, 1996, commonly known as PESA, was enacted to extend the provisions of Part IX of the Constitution, relating to the Panchayati Raj, to the Scheduled Areas of India. These areas are primarily inhabited by Scheduled Tribes and have traditionally had unique socio-cultural and administrative systems.
In states like Jharkhand, PESA plays a critical role in empowering tribal communities and protecting their rights. It works in conjunction with state-specific land laws such as the Chotanagpur Tenancy Act (CNT), 1908 and the Santhal Parganas Tenancy Act (SPT), 1949.
Key Features of the PESA Act, 1996
- Custom-Conforming Legislation: Any law made by the State Legislature for the Panchayats in Scheduled Areas must align with:
- Traditional customs and beliefs,
- Socio-cultural practices, and
- Traditional systems of community resource management.
- Establishment of Gram Sabha:
- Each village must have a Gram Sabha.
- It consists of all adults listed in the village’s electoral rolls.
- Powers of the Gram Sabha:
- Authority over customs, beliefs, and cultural identity.
- Control over conservation of community resources.
- Power to resolve disputes through traditional means.
- Approval of Development Plans:
- The Gram Sabha must approve any plans, programs, or projects for the village’s socio-economic development before implementation by the Panchayat.
- Selection of Beneficiaries:
- The Gram Sabha is responsible for identifying and selecting beneficiaries for poverty alleviation and other public welfare programs.
- Issuance of Utilization Certificates:
- After the implementation of development programs, utilization certificates must be obtained from the concerned Gram Sabha.
- Reservation in Panchayats:
- Reservation of seats in Panchayats within Scheduled Areas shall be in proportion to the population of the respective communities.
- Reservation for Scheduled Tribes must not be less than 50%, and all Chairperson positions at all levels must be reserved for STs.
- Nomination by State Government:
- The State Government may nominate members of the Scheduled Tribes who are not represented in the intermediate or district-level Panchayats.
- However, nominated members must not exceed 10% of the total membership.
- Land Acquisition and Rehabilitation:
- Consultation with Gram Sabha or Panchayats is mandatory before:
- Acquiring land in Scheduled Areas for development projects.
- Displacing or rehabilitating persons affected by such projects.
- The planning and execution of such projects must be coordinated at the state level.
- Consultation with Gram Sabha or Panchayats is mandatory before:
PESA and Management of Local Resources
- Planning & Management of Minor Water Bodies:
- Appropriate level Panchayat is assigned the responsibility for planning and managing minor water bodies.
- Minor Minerals:
- Prior recommendation of Gram Sabha or appropriate Panchayat is mandatory before granting:
- Licenses for minor mineral exploitation.
- Leases over areas containing such minerals.
- Any concessions in use of minor minerals also require prior approval.
- Prior recommendation of Gram Sabha or appropriate Panchayat is mandatory before granting:
- Regulation of Intoxicants:
- The Gram Sabha has the power to regulate or prohibit the sale and consumption of intoxicants within its jurisdiction.
- Ownership of Minor Forest Produce:
- The Gram Sabha holds ownership rights over minor forest produce.
- Control over Land Transfers:
- The Gram Sabha can take necessary steps to regulate land transfers and restore unlawfully alienated land back to Scheduled Tribes.
- Control over Village Markets:
- Gram Sabha has authority to manage village-level markets/haats.
- Regulation of Money Lending:
- The Gram Sabha can regulate lending activities to protect Scheduled Tribes from exploitative practices.
- Oversight of NGOs and Institutions:
- The Gram Sabha holds supervisory powers over the activities of NGOs, social workers, and local development programs.
Constitutional and Ministerial Provisions Related to PESA
- The Ministry of Panchayati Raj is mandated to:
- Monitor the implementation of PESA under Article 243ZD and Part IX-A of the Constitution,
- Ensure effective planning at the district level, and
- Uphold the rights of Scheduled Areas under Fifth Schedule of the Constitution.
- The 73rd Constitutional Amendment Act, 1992 (effective from April 24, 1993) gave constitutional status to Panchayats under Part IX, as institutions of rural self-governance.
- Article 243M(1) and 244(1)(2) provide exemptions from direct application of Part IX in Scheduled and Tribal Areas. However,
- Article 243M(4)(b) empowers Parliament to extend the provisions of Part IX (Panchayats) to such areas through a law (PESA),
- Any such extension does not require constitutional amendment under Article 368.
Proposed Amendments in CNT and SPT Acts
CNT Act (1908) and SPT Act (1949) are key to land rights in tribal regions of Jharkhand. Amendments proposed in 2016 sought to align with developmental needs but were met with public concern over tribal land rights.
Key Changes Proposed:
- Land Acquisition for More Purposes:
- Previously, land could be acquired only for industry and mining.
- Post-amendment, land could be acquired for:
- Infrastructure projects (e.g., roads, railways),
- Educational institutions (e.g., colleges),
- Transmission lines, etc.
- Land acquisition could also be done on behalf of corporations for development purposes.
- Compensation and Transfer:
- Earlier, land of tribals could be transferred to non-tribals via SAR courts with compensation.
- Under the amendment:
- Such transfers cannot occur solely on compensation.
- Land return cases must be filed in SAR courts.
- Change in Land Use:
- Earlier, owners could not change the nature of land use (e.g., from agriculture to commercial).
- After amendment:
- Landowners would be allowed to use agricultural land for housing, shops, or commercial activities.
Understanding PESA, Fifth Schedule Areas, and Tribal Land Rights in Jharkhand
What is PESA, 1996?
The Panchayats (Extension to the Scheduled Areas) Act, 1996, commonly known as PESA, is a landmark legislation that extends the provisions of Part IX of the Constitution (related to Panchayats) to Scheduled Areas governed under the Fifth Schedule.
Key Features of PESA, 1996:
- Traditional Practices to Be Respected: Laws made by the State Legislature related to Panchayats must align with traditional beliefs, social customs, and community resource management practices.
- Gram Sabha Structure:
- Every village shall have a Gram Sabha consisting of all persons listed in the Panchayat electoral rolls of that village.
- Gram Sabhas act as custodians of culture, traditions, and local dispute resolution systems.
- Gram Sabha’s Approval Required:
- Plans, programmes, and projects for social and economic development of the village must receive prior approval from the Gram Sabha before implementation by Panchayats.
- Gram Sabhas are responsible for identifying beneficiaries for poverty alleviation and welfare schemes.
- Utilization certificates must be obtained by Panchayats from Gram Sabha post-implementation of schemes.
Reservation Under PESA:
- Seats in Panchayats in Scheduled Areas are to be reserved in proportion to the tribal population.
- At least 50% of total seats in Scheduled Areas must be reserved for Scheduled Tribes, including all Chairperson positions across all levels.
Nomination and Representation:
- The State Government may nominate members from ST communities to intermediate or district Panchayats if no elected representation exists. However, nominated members must not exceed 1/10th of the total membership.
Land and Resource Rights under PESA:
- Consultation Mandatory before:
- Land acquisition for development plans.
- Resettlement and rehabilitation of project-affected tribal people.
- Control of Minor Resources:
- Minor water bodies to be planned and managed by Panchayats at appropriate level.
- Prior recommendation of Gram Sabha/Panchayat required for granting leases, licenses, or concessions for mining operations.
- Regulation Rights:
- Sale and consumption of intoxicants can be regulated by the Gram Sabha.
- Ownership rights of minor forest produce (MFP) belong to the Gram Sabha.
- Power to regulate land transfers, restore illegally transferred lands, and manage local markets and haats.
- Control over lending to tribal members and over activities of social workers, institutions, and local plans including Tribal Sub Plans.
Fifth Schedule and Its Relevance to Jharkhand:
- The Fifth Schedule of the Indian Constitution provides for governance of Scheduled Areas excluding Assam, Meghalaya, Tripura, and Mizoram.
- PESA extends Part IX of the Constitution to Fifth Schedule areas under Article 244(1) with specific exceptions and modifications.
- States with Fifth Schedule areas:
- Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana.
Definition of Village and Gram Sabha under PESA:
- Village (Article 4(b)): Comprises a habitation or group of habitations, often forming a community with shared traditions and customs.
- Gram Sabha (Article 4(c)): Includes all persons listed in the electoral roll at the village level.
PESA Powers to Gram Sabhas:
- Preserve tribal culture, customs, and identity.
- Protect traditional dispute resolution systems and community resources.
- Approve development projects and identify scheme beneficiaries.
- Issue utilization certificates for fund usage by Panchayats.
Extended Powers to Gram Sabha/Panchayats:
- Mandatory consultation for land acquisition and rehabilitation.
- Planning and managing water bodies.
- Mining-related recommendations.
- Control over sale of liquor and intoxicants.
- Ownership of minor forest produce.
- Restoration of alienated tribal land.
- Village market management.
- Regulation of credit to tribals.
- Oversight of development plans and institutions.
Chronology of Tribal Land Events and Uprisings in Jharkhand
Key Historical Events Related to Land and Tribal Resistance:
Year | Event | Region | Key Persons |
---|---|---|---|
1765 | British entry into Jharkhand | – | – |
1772 | Entry of East India Company | – | – |
1772-1780 | Pahariya Rebellion | Rajmahal | Jagannath Dev |
1780 | Military Collectorship in Ramgarh | Ramgarh | – |
1773-1785 | Tilka Movement | Santhal Pargana | Tilka Manjhi |
1793 | Introduction of Permanent Settlement | – | Lord Cornwallis |
1800-1808 | Chero Rebellion | Palamu | Thakur Bhukhan Singh |
1806 | Establishment of Zamindari Police | – | – |
1807 | Munda Rebellion | Tamar | Dukhan Manki |
1819-1820 | Munda Rebellion | Tamar | Rughu and Konta |
1820-1821 | Ho Rebellion | Singhbhum | – |
1824 | Demarcation of Damin-i-Koh begins | Santhal Pargana | – |
1831-1832 | Kol Rebellion | Chotanagpur | Sinderai and Binderai |
1832 | Establishment of Damin-i-Koh | Santhal Pargana | Captain Tanner |
1830-1833 | Revolt in Manbhum and Singhbhum | Manbhum/Singhbhum | Ganga Narayan |
1834 | Establishment of South-West Frontier Agency | – | – |
1837 | Singhbhum declared a district | Singhbhum | – |
1854 | Establishment of Chotanagpur Division | Chotanagpur | – |
1855-1857 | Santhal Rebellion | Santhal Pargana | Sidhu and Kanhu |
1856 | Establishment of Santhal Pargana District | Santhal Pargana | Sidhu and Kanhu |
1869 | Chotanagpur Tenancy Regulation enacted | Chotanagpur | – |
1869 | Bhuihari Survey and Settlement | – | – |
1872 | Santhal Pargana Settlement Rebellion | Santhal Pargana | – |
1874 | Scheduled Districts Act enacted | – | – |
1880-1891 | Growing discontent among Santhals | Santhal Pargana | – |
1885 | Arrival of missionaries (Louis & Hoffmann) | Chotanagpur | – |
1895-1900 | Birsa Munda’s Ulgulan (Revolution) | Chotanagpur | Birsa Munda |
1897 | Recognition of Chotanagpur Assignment Act | Chotanagpur | – |
1908 | Implementation of Chotanagpur Tenancy Act | Chotanagpur | – |