The PESA Act was enacted in 1996 to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas. (Other than Panchayats, Part IX, comprising Articles 243 - 243 ZT of the Constitution, contains provisions relating to Municipalities and Cooperative Societies.) Under the PESA Act, Scheduled Areas are those referred to in Article 244 (1), which says that the provisions of the Fifth Schedule shall apply to the Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram.

The Fifth Schedule provides for a range of special provisions for these areas. The PESA Act gives special powers to the Gram Sabhas in Scheduled Areas, especially for the management of natural resources. The PESA Act was enacted in 1996 to provide for the extension of the provisions of Part IX of the Constitution related to the Panchayats to the Scheduled Areas. Part IX of the Constitution, which consists of Articles 243 - 243 ZT, covers legislation related to municipalities and cooperative societies in addition to Panchayats. The Panchayats Extension to Scheduled Areas (PESA) Act, 1996 was intended to guarantee self-governance through Gram Sabhas (village assemblies) for those residing in Scheduled Areas.

The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA is a law enacted by the Government of India for ensuring 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. Scheduled Areas are found in ten states of India which have predominant population of tribal communities.

The Scheduled Areas, were not covered by the 73rd Constitutional Amendment or Panchayati Raj Act of the Indian Constitution as provided in the Part IX of the Constitution. PESA was enacted on 24th December, 1996 to extend the provisions of Part IX of the Constitution to Scheduled Areas, with certain exceptions and modifications. PESA is an Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats and the Scheduled Areas.

PESA was viewed as a positive development for tribal communities in Scheduled Areas who had earlier suffered tremendously from engagement with modern development processes and from the operation of both colonial laws and statutes made in independent India. The loss of access to forest, land, and other community resources had increased their vulnerability.

Rampant land acquisition and displacement due to development projects had led to large scale distress in tribal communities living in Scheduled Areas. PESA was seen as a panacea for many of these vulnerabilities and sought to introduce a new paradigm of development where the tribal communities in such Scheduled Areas were to decide by themselves the pace and priorities of their development.

Scheduled Areas mean the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution. The Fifth Schedule of the Constitution of India, which mentions Scheduled Areas, is termed as a "Constitution within a Constitution". The Act extended the provisions of Panchayats to the tribal areas of ten states that have Fifth Schedule Areas.

What is PESA Act?

PESA Act acknowledges the right of tribal communities, who live in Scheduled Areas, to rule themselves using their own systems of self-government. The Act gives Gram Sabhas the authority to play an important part in approving development plans and managing all social sectors. Ten states- Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana- have declared Fifth Schedule areas that include (completely or partially) a number of their districts.

The PESA Act was enacted in 1996 to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas. Part IX, comprising Articles 243 - 243 ZT of the Constitution, contains provisions relating to municipalities and cooperative societies.

Provisions:
The PESA act directed the state government to make Gram Sabha and Panchayats function as Institutions of Local Self Governance, specifically on matters of:

1. Enforcing the prohibition of sale and consumption of intoxicants
2. Ownership of minor forest produce
3. The authority to oversee village markets
4. Restore unlawfully alienated land, and prevent land alienation
5. Control over money lending, etc.

The PESA also gave the Scheduled Areas Gram Sabha the authority to approve plans and programs for:

1. Social and economic development
2. Certifying utilization of funds by gram Panchayats
3. Identification of beneficiaries under poverty alleviation programs
4. Protect natural resources, including minor forest produce
5. Gram Sabha is to be consulted before land acquisition

Some other provisions:

1. Gram Sabha to preserve indigenous traditions, beliefs, and culture
2. Gram Sabha to resolve the local disputes
3. Management and protection of common properties based on their traditional systems is to be done by Gram Sabha
4. The administration must consult gram Sabha before land acquisition
5. Gram Sabha holds the right to control the distillation, prohibition, and manufacture of intoxicants / liquor.

Objectives:

1. To ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas.
2. It recognises the right of tribal communities, who are residents of the Scheduled Areas, to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources.
3. Empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors.

What is the Significance of Implementing the Act?

1. Democratic Decentralisation:
   PESA empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors.
   
   This includes management of:
   
   1. Resources over Jal, Jangal, Zameen (water, forest and land)
   2. Minor forest produce
       
2. Human resources: Processes and personnel who implement policies:
   
   1. Managing local markets
   2. Preventing land alienation
   3. Regulating intoxicants among other things
       
3. Preserving Identity:
   The powers of Gram Sabha's include maintenance of cultural identity and tradition, control over schemes affecting the tribals, and control over natural resources within the area of a village.
    
4. Conflict Resolution:
   The PESA Act thus enables Gram Sabhas to maintain a safety net over their rights and surroundings against external or internal conflicts.
    
5. Public Watchdog:
   The Gram Sabha would have the powers to monitor and prohibit the manufacturing, transport, sale and consumption of intoxicants within their village limits.

What are the Issues Related to PESA?

1. Partial Implementation:
   The state governments are supposed to enact state laws for their Scheduled Areas in consonance with this national law
   
   1. This has resulted in the partially implemented PESA.
   2. The partial implementation has worsened self-governance in Adivasi areas, like in Jharkhand.
       
2. Administrative Hurdles:
   Many experts have asserted that PESA did not deliver due to the lack of clarity, legal infirmity, bureaucratic apathy, absence of political will, resistance to change in the hierarchy of power, and so on.
    
3. Followed in Letter Rather than Spirit:
   Social audits conducted across the state have also pointed out that in reality different developmental schemes were being approved on paper by Gram Sabha, without actually having any meeting for discussion and decision making.
    
4. PESA Act only applies to areas that are recognized as Scheduled Areas by law. This legislation does not apply to a sizable portion of tribals who reside outside the areas regarded as the scheduled areas.
    
5. Panchayats have not been given enough authority to levy and collect taxes, fees, or other levies.
    
6. State Finance Commission decisions are only selectively implemented, giving Panchayats no real power in practice.
    
7. Gram Sabha is the primary tool for successfully implementing PESA by empowering the tribal people to manage their own affairs in a mostly autonomous manner. Though, in reality, they are subordinate to other state legislatures and extraneous forces like the forest department. It compromises PESA's primary objectives.

How are Tribals and their Rights Protected in India?

1. In India, most of the tribes are collectively identified under Article 342 (1&2) as "Scheduled Tribes".
2. Their right to self-determination is guaranteed by Part X: The Scheduled and Tribal Areas - Article 244: Administration of Scheduled Areas and Tribal Areas.
3. That is, Fifth and Sixth Schedules of the Indian Constitution.
4. The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA.
5. The Tribal Panchsheel Policy (non-imposition by encouraging self-governance)
6. Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 concerns the rights of forest-dwelling communities to land and other resources.

About PESA Act, 1996

1. To promote local self-governance in rural India, the 73rd constitutional amendment was made in 1992.
2. Through this amendment, a three-tier Panchayati Raj Institution was made into a law.
3. However, its application to the scheduled and tribal areas under Article 243 (M) was restricted.
4. After the Bhuria Committee recommendations in 1995, Panchayat Extension to Scheduled Areas (PESA) Act 1996 came into existence for ensuring tribal self-rule for people living in scheduled areas of India.
5. The PESA conferred the absolute powers to Gram Sabha, whereas State Legislature has given an advisory role to ensure the proper functioning of Panchayats and Gram Sabhas.
6. The power delegated to Gram Sabha cannot be curtailed by a higher level, and there shall be independence throughout.
7. The PESA is considered to be the backbone of tribal legislation in India.
8. PESA recognises the traditional system of the decision-making process and stands for the peoples' self-governance.

Following powers and functions have been provided to the Gram Sabhas:

1. Right to mandatory consultation in land acquisition, resettlement and rehabilitation of displaced persons.
2. Protection of traditional belief, the culture of the tribal communities
3. Ownership of minor forest products
4. Resolution of the local disputes
5. Prevention of land alienation
6. Management of village markets
7. Right to control production, distillation, and prohibition of liquor
8. Exercise of control over money-lending
9. Any other rights involving the Scheduled Tribes.

The law does not automatically cover the Scheduled Area, so, on the recommendation of the Bhuria Committee Report submitted in 1995, PESA Act was enacted. The Act was enacted in December 1996 for the extension of laws made under the 73rd constitutional amendment to the scheduled areas, to enable Tribal Self Rule in these areas.

The PESA Act extended the provisions of Panchayats to the tribal areas. The act passed on the resources, responsibility, and decision-making from the central government to the lowest unit of governance, the Gram Sabha or the Village Assembly. Most of the North-eastern states under the 6th Schedule where autonomous councils for governance exist are not covered by PESA.

The Adivasi self-governance system has disappeared from most of the areas in Jharkhand. During most of the time in history, most of the Adivasis (India's tribal communities) had their own federal governance system. However, the administrative systems during the colonial period and after independence affected the Adivasi governance system to a great extent. The Panchayat Extension to Scheduled Areas (PESA) Act, 1996 was supposed to uphold the traditional decision-making process.

Key Highlights:

Case Study - Tribal Governance System of Jharkhand:

1. Jharkhand was carved out as the 28th state of India from the Southern part of Bihar in 2000. This part was distinctively different from the northern part of Bihar in terms of geography and social composition. It has 32 different tribes, including the nine Particularly Vulnerable Tribal Groups (PVTG).
2. According to Census 2001, Santhal (34%), Oraon (19.6%), Munda (14.8%) and Ho (10.5%) are among the major tribes in terms of numbers. The entire social system was organised into three functional levels across major tribal communities in the state.
3. The first one is at the village level; the second at the cluster of five-six village levels and the third at community levels.
4. These decision-making processes were considered people-centric and democratic, although women were mostly not allowed to participate in such processes.
5. They had their own system of governance, which was, unlike the caste system, non-hierarchical. Every tribal village had a village council as the basic unit for self-governance.
6. These forums used to act as the decision-making bodies for all matters related to administration, the Parliament and judiciary.
7. The administrative matters were related to maintenance of village commons (such as lands, forests and water bodies), labour sharing, agriculture activities, religious events and festivals, etc.
8. The parliamentary matters were related to upholding and interpreting norms and unwritten laws and traditional values.
9. The judiciary matters were related to managing conflict, disciplinary actions, etc guided by unwritten norms and values.
    

Gradual Collapse of the System:

1. After the introduction of the Bihar Panchayat Raj System (BPRS) in 1947, these Adivasi traditional governance systems became weak.
2. BPRS was formed keeping the non-Adivasi areas in view.
3. As a result, due to the non-priority and neglect, the process of the traditional governance system was affected.
4. This was aggravated by industrialisation, displacement of Adivasis and urbanisation.

Bhuria Committee

The government appointed a committee headed by Mr. Dileep Singh Bhuria to work out the details as to how structures similar to Panchayati Raj Institutions can take shape in Tribal Areas and Scheduled Areas and define their powers. The Bhuria Committee submitted its report in January 1995.

The Committee recommended a three-tier structure of self-governance in the tribal areas, those are:

1. Gram Sabha - Every habitation community to have a Gram Sabha which will exercise command over natural resources, resolve disputes and manage institutions under it like schools and cooperatives.
2. Gram Panchayat - An elected body of representatives of each Gram Sabha, also functions as an appellate authority for unresolved disputes at the lower level.
3. A block or taluka level body is the next higher level.

Role of governors in Scheduled Areas and in implementation of PESA

PESA is implemented in Scheduled Areas. The Scheduled Areas are governed by the provisions of the Fifth schedule of the Constitution. The Fifth schedule gives to the governors of the ten scheduled area states very important functions. While, constitutionally, in most matters of governance the governors are aided and advised by the Council of Ministers, it may not be so in matters concerning the Scheduled Areas.

As per Para 3 of the Fifth Schedule "the Governor of each State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas."

The Attorney General of India had advised the Home Ministry that the role of the Governor in sending this report is discretionary. An even more significant role of the Governor in scheduled areas arises out of the powers inherent in Sub-Para (1) of Para 5 of the Fifth Schedule. As per the sub-Para "5.

Law applicable to Scheduled Areas:

1. Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect." It has been alleged that Governors of most states have not been able to send all reports on time and the content of the reports also does not do justice to this Constitutional responsibility.

The above provision gives to the Governor of a Schedule Areas a very significant power "notwithstanding anything in the Constitution". This power, unlike the power in Sub-Para (2) of Para 5 (regulation making powers) is bound neither by the advice of the Tribes Advisory Council or the assent of the President. The provision lays down the responsibility on the Governor to ensure that laws that are contrary to the interests of Scheduled Areas may be suitably modified.

However, it has been alleged that Governors of Scheduled Areas (barring a few exception) have hardly ever used these powers independently. There have been also demands that the Reports prepared by the Governors should be made public. However, recently Maharashtra Governor has issued a number of notifications to bring the state subject laws in line with PESA and to guarantee minor forest produce to Gram Sabha. Certain steps have also been taken to ensure peace and good governance in such areas.

A Group of Governors on the Areas under Schedule V of the Constitution and Related Issues'- was constituted by President Pranab Mukherjee, included Governors of Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Odisha, Rajasthan and Madhya Pradesh, with Governor of Maharashtra and Minister of Tribal Affairs, Government of India - as special invitees.

The Group recommended a number of interventions such as constitution of a Tribes Advisory Council in Schedule V States on a uniform pattern, drafting of a uniform model for Tribal Sub Plan Budget Allocations, making TSP allocations non-transferable and non-lapsable, declaring all TSP districts as 'High Priority Districts' under National Rural Health Mission, protecting land rights of tribal communities, etc. The Prime Minister of India in the Conference of Governors held in 2013 advised the Governors of Fifth scheduled States to use their Fifth schedule powers and to implement PESA effectively.

How is the PESA Act, 1996 supposed to work?

The PESA Act was enacted to ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas. It recognises the right of tribal communities, who are residents of the Scheduled Areas, to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources.

In pursuance of this objective, the Act empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors. This includes the processes and personnel who implement policies, exercising control over minor (non-timber) forest resources, minor water bodies and minor minerals, managing local markets, preventing land alienation and regulating intoxicants among other things.

State governments are expected to amend their respective Panchayati Raj Acts without making any law that would be inconsistent with the mandate of PESA. Ten states - Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana - have notified Fifth Schedule areas that cover (partially or fully) several districts in each of these states. After the PESA Act was enacted, the central Ministry of Panchayati Raj circulated model PESA Rules. So far, six states have notified these Rules, including Gujarat.

What is the issue in Gujarat?

Gujarat notified the State PESA Rules in January 2017, and made them applicable in 4,503 Gram Sabhas under 2,584 village panchayats in 50 tribal talukas in eight districts of the state.

At an event held in the tribal district of Chhota Udepur in December 2020, then Chief Minister Vijay Rupani hailed the Act as the golden period of tribal development, promising a separate security force for the Gram Sabhas that would have complete power to decide their issues.

However, while the provisions of the law deem the Gram Sabhas as most competent to deal with matters related to their territories for safeguarding their customs, traditions as well as the natural resources in the tribal areas, the Act has not been enforced in letter and spirit, legal experts say.

Advocate Bhushan Oza, who has been representing tribal groups in their petitions pending before authorities and courts with respect to the tribal rights, says that the implementation of the Act is in contrast to what it promises.

Oza had told The Indian Express in 2020 that Despite Section 4 (a) and 4 (d) stating explicitly that the government cannot make any law at the state level or the Central level in matters concerning the tribal areas, tribals have never been taken into confidence before their lands are acquired or projects planned in their places of habitat. The PESA Act is rooted in the cultural and traditional practices of the tribal community, and vests ultimate power to the Gram Sabha to make administrative decisions. But that is not the ground reality.

Oza also said that although the PESA Act lays down that the state must conduct elections in such a way that the tribal representation is to be dominant in the Gram Sabha Committees, there has been no attempt to proportionally increase the representation.

Robust implementation of PESA in areas notified under the Fifth Schedule in Gujarat has been a major contention of the Bharatiya Tribal Party (BTP) led by MLAs Chhotu Vasava and Mahesh Vasava. BTP chief Chhotu Vasava has said the implementation of PESA was an absolute condition for his party's alliance with the AAP for the Assembly elections scheduled for later this year.

Implementation of PESA at certain State Level

Implementation of PESA in Maharashtra and Role of Governor under the Fifth Schedule
A number of steps have been taken in the past few years by the Governor of Maharashtra to fulfil his mandate under the Fifth Schedule and to ensure implementation of PESA in Maharashtra.

1. Change in Village definition in Maharashtra Village Panchayats Act:
   Since the hamlets and habitations in Scheduled Areas are dispersed and are apart from each other, section 4 (b) of PEA recognised the right of such habitations to become a village and to have their own Gram Sabhas. Accordingly, Maharashtra Government, by Notification dated 25/06/2014, inserted in chapter III-A of the Maharashtra Village Panchayats Act, special provisions relating to Village and Gram Sabha, namely:
   
   54-1A. Notwithstanding anything contained in sections 4, 5 or any other provisions of this Act, in the Scheduled Areas:
   
   1. A habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs, and which is declared as a village in the prescribed manner shall be the village for the purposes of this chapter;
       
   2. every village, so declared under clause (a), shall have a 'Gram Sabha' consisting of persons whose names are included in the electoral rolls for the Panchayat at the Village level and a Panchayat may comprise of one or more than one of such villages."
       
2. Promulgation of PESA Rules for Maharashtra:
   In order to ensure that PESA was implemented in letter and spirit, there was also a need to put in place PESA rules in the state. This task had been long pending and was coming in the way of implementation of PESA. However, in March 2014 the State Government finally published PESA rules to ensure detailed directions about the various aspects of PESA.
    
3. Bringing State Acts in conformity with PESA
   Changes were required in various State Acts of Maharashtra State to bring them in conformity with PESA. This was necessary as PESA requires its implementation through the Panchayati Raj Act of the State and the State subject laws. By a series of notifications, the Governor of Maharashtra ensured that most of these state legislations were brought in line with PESA. Many of the above Acts have been modified and brought in line with PESA by Notifications issued by the Governor of Maharashtra.
    
4. Notifications issued by the Governor of Maharashtra under sub-para (1) of Para 5:
   Under sub-paragraph (1) of paragraph 5 of the Fifth Schedule of the Constitution of India, the Governor may by Public Notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the state subject to the exceptions and modifications specified in the notification. In exercise of these powers, the Governor of Maharashtra has issued various notifications for welfare of tribal communities in Scheduled Areas.
   
   
   1. Notification under sub-para (1) of Para 5 ensuring ownership of minor forest produce, including Bamboo and Tendu.
      The definition of Minor Forest Produce (MFP) under the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Recognition of Trade) (Amendment) Act, 1997 did not include many of the minor forest produce recognized under the subsequent the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, (FRA).
      
      Hence, despite the powers vested in them under PESA, the Gram Sabha's were not able to access many important MFPs such as Tendu and Bamboo. In fact, the list included in the state subject law pertained to only 33 low value MFPs. This anomaly had led to denial of livelihood opportunities to Village Communities in the Scheduled Areas, primarily the members of the Scheduled Tribes. By Notification dated 19/08/2014, the Governor of Maharashtra made modifications to the Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Regulation of trade) (Amendment) Act, 1997 and modifications to the Indian Forest Act, 1927, in its application to the State of Maharashtra.
      
      Because of these changes many Gram Sabhas in Scheduled Areas have been able to exercise their rights over minor forest produce, including high value products, such as bamboo and tendu. Using these rights in consonance with FRA, more than 100 Gram Sabhas in Gadchiroli have exercised for the first time their rights over bamboo and more than 500 have exercised their rights over tendu and earned income ranging from 10 lakh to 80 lakh per Gram Sabha, leading to a positive impact in the Left-Wing Extremist (LWE) affected district.
       
   2. Notification regarding prevention of land alienation by Gram Sabhas through modification to the Maharashtra Land Revenue Code, 1966:
      The Scheduled Areas are often plagued with land alienation from tribal persons to non-tribal persons. The tribal communities have been steadily losing land in scheduled Areas and their population vis-a-vis non-tribal persons is dwindling in such areas.
      
      Land alienation in such areas occurs because of various reasons such as threat, coercion, fraud, forgery, and the general indebtedness of tribal persons to money-lenders. In order to bring the state revenue laws in line with section 4(m)(iii) of PESA, 1996, in exercise of powers conferred by sub paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution, by Notification dated 14/06/2016, the Governor of Maharashtra directed that section 36 A of the Maharashtra Land Revenue Code, 1966, in its application to the Scheduled Areas of the State of Maharashtra shall apply with the modifications mentioned in the said Notification and that no land can be alienated in Scheduled Areas without the prior consent of the Gram Sabhas.
       
   3. Notifications under sub-para (1) of Para 5 of Fifth Schedule bringing certain State Acts in consonance with PESA
      The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996) had been enacted with intention of extending the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas, and to ensure a large degree of self-governance to the appropriate Panchayats and the Gram Sabhas in the Scheduled Areas. Since the provisions of PESA also requires that all the State Acts shall ensure that the appropriate Panchayats and Gram Sabhas are endowed with a number of powers outlined in the said Act, it is expedient to bring certain State Acts in consonance with the PESA. Therefore, in exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, by Notification dated 30/10/2014, Governor of Maharashtra directed that the Markets and Fairs Act, 1862 (Bom. IV of 1862), Indian Forest Act, 1927 (16 of 1927), in its application to the State of Maharashtra, the Maharashtra Village Panchayats Act (III of 1959), the Maharashtra Land Revenue Code, 1966 and the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) in its application to the State of Maharashtra, shall apply to the Scheduled Areas with the exceptions and modifications mentioned in the said Notification. By the notification, a special chapter was introduced in the Indian Forest Act, 1927 to ensure the rights of the minor forest produce of Gram Sabhas was carried out without any hindrance.
      
      All decisions about collection, sale and sharing of income proceeds are now taken by Gram Sabhas. The definition of social sector in the Maharashtra Village Panchayats Act was also amended so that all line departments dealing in social sector could also be reviewed by the Panchayati Raj sector.
       
5. Guidelines regarding Bamboo cutting and selling through Gram Sabha:
   As per the Notification dated 19/08/2014, Bamboo has been added in the list of Minor Forest Produce in Scheduled Areas. In pursuance to this Notification, the Rural Development Department by Government Resolution dated 31/03/2015 and 23/11/2015 has issued guidelines regarding Bamboo cutting and selling through Gram Sabhas.
    
6. Seed capital from Manav Vikas Mission to ensure meaningful access to Minor Forest Produce:
   Planning Department by Government Resolution dated 21/08/2014 and 01/08/2016 has issued instructions to make available the one-time seed capital to the Gram Sabhas for this purpose through MVM.
    
7. Direct devolution of 5% of Tribal Sub Plan fund to Gram Panchayats
   By Notification dated 30/10/2014, the Maharashtra Village Panchayats Act (III of 1959) has been modified. A new clause (o) in section 54 B is inserted that Gram Panchayats and Gram Sabhas shall " be competent to exercise control over local plans and resources for such plan including the Tribal Sub Plan, provided that not less than 5% of the total Tribal Sub Plan funds of the respective annual plan shall be devolved to the Gram Panchayats in Scheduled Areas in proportion to their population."

In pursuance to this Notification, a Government Resolution has been issued on 21 April 2015 and then on 21 August 2015 by Tribal Development Department regarding direct devolution of 5% of Tribal Sub Plan funds to Gram Panchayats in Scheduled Areas of Maharashtra State. This step is significant as it ensures a greater degree of democratic decentralization in such areas.

PESA in Andhra Pradesh, Orissa, Jharkhand, Gujarat and Chhattisgarh

Planning Commission Report concluded that "in most cases, in the pre-PESA implementation phase, there was little if any difference between tribal and non-tribal areas with respect to the role of the Gram Sabha. The Sarpanch and other influential Gram Panchayat members dominate the often irregular and scantily attended Gram Sabha meetings. The common people possess little awareness about its functioning." The report recommended awareness generation among the tribal community on the provisions provided in PESA Act.

The report also noted that there has been " absolutely no groundwork in recognising the Gram Sabha's jurisdiction over forests and in the creation of adequate mechanisms and support structures for them to play any significant role. The advent of PESA in 1996 was a welcome event that conferred relatively greater autonomy to Gram Sabhas. However, PESA's sincere implementation has not been seriously attempted by the government, which is still dominated by centralized structures and laws that are in contradiction with the progressive provisions of PESA.

For example, the provisions, as explained in the Act, related to people's control over livelihood resources have yet to be executed in the scheduled areas. In a few places, since the appearance of PESA, an attempt has been made to restore control over the village resources to the people. Following these efforts, people have faced sometimes violent reactions from the ruling class.

As such, conflicting areas were identified prior to advocating the implementation of various provisions of PESA." The Planning Commission report noted that "there are policy loopholes between self-governance laws and existing laws that give power to various departments to control resources, and many other functions that Panchayats are supposed to manage by themselves (as per the provisions of PESA).

For example, the modern state and its legal apparatus do not recognise the customary ownership rights of land, which are by and large unwritten in the tribal community. Therefore, if tribal communities cannot exercise ownership rights in their traditional fashion, the spirit behind the provision in PESA of managing land resources by Gram Sabhas is defeated.

So more focused and nuanced work should be done in this regard. Similar conflict is prevalent with regard to ownership rights of water resources. Most village ponds are either on community land, revenue land or forestland. Under existing conditions, local people are either prohibited or have restricted use of these ponds. Hence there is some overlapping of ownership rights, and clarity on such issues is possible only after the Indian Forest Act and other related Acts are amended to accommodate the provisions of PESA."

The report lamented the fact that "the situation regarding forest resources is still worse, as forests have been under total control of the Department of Forests until now. Years of autocratic control over the profit-yielding forest resources have made the Department reluctant to yield control over forests. It is this very attitude, along with an absence of Amendments in the Indian Forest Act, which is in conflict with the provisions of PESA and this problem could be solved in a war footing manner."

PESA, Scheduled Areas and Part IX A of the Constitution

As per article 243 ZC of the Constitution Part IX A of the Constitution relating to urban local bodies shall not be applicable to Scheduled Areas unless Parliament by law makes "Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368".

In pursuance to this requirement, the Municipal Extension to Scheduled Areas Act (MESA) was introduced in Parliament. However, it was never passed. technically, no areas in Scheduled Areas can be converted into a municipality till the Act is passed. it is expected that if and when such an Act is passed it shall through certain modifications in Part IX A of the Constitution provide adequate safeguards for the people of Scheduled Areas.

Role of NGOs and Civil Society Organisations

The organizations that work with PRIs are best suited to take on the PESA-related issue. Poor tribals must have a voice for their complaints, and they must be made aware of the rights guaranteed under the PESA Act. A requirement for the success of PESA is the strengthening of PRIs.

It is shocking that so few people know that the Gram Sabha is the governing power and that it has control over natural resources. In such situations, civil society organizations are the best place to intervene as they can organize campaigns to raise awareness about PESA Act and its importance. The vested interests of corporate entities represent a significant barrier to the proper implementation of PESA. Tribals are most defenceless in front of state and money power.

Civil society's careful watch can be quite important in this situation. Another action civil society can take is to draw attention to state governments' faulty laws and their interference with the implementation of the PESA.

Written By: Bhaswat Prakash, Ajeenkya DY Patil University, Pune (B.A.LL.B)

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