The Implementation and impact of PESA Act on Tribal Self-Governance

537 International Journal of Advance and Applied Research www.ijaar.co.in ISSN – 2347-7075 Impact Factor – 8.141 Peer Reviewed Bi-Monthly Vol. 6 No. 40 September - October - 2025 The Implementation and impact of PESA Act on Tribal Self-Governance Suhas Bhikaji Vidyagar Research Scholar, Dr. Babasaheb Ambedkar Marathwada University, Sambhaji Nagar Corresponding Author – Dr. Shaikh Shakil Rahim DOI - 10.5281/zenodo.17663980 Abstract: The concept of self-governance is considered important worldwide for the strengthening of democracy. Participation of people in the various political systems and institutions of the country, which govern their lives, is a fundamental human right for social and economic development. As a decentralized governance institution, the Panchayati Raj system worked to involve all stakeholders in the development process. The Panchayats Extension to Scheduled Areas (PESA) Act, 1996 was a long-awaited reform in the Panchayat system of the country. PESA deals with the traditional rights of tribal people, including cultural rights, language, identity, as well as rights to all resources within their area, such as land, water, forests and minerals. It emphasizes the rights of tribal people to maintain and strengthen their own institutions, culture and traditions and to develop them in accordance with their aspirations and needs. The Ministry of Panchayati Raj took up significant initiatives between 2 October 2009 and 2 October 2010, marking the period as the “Year of Gram Sabha”. Tribal communities constitute about 8.6% of India’s population (Ministry of Tribal Affairs, Government of India). The PESA Act, 1996 is considered to be the most powerful law among the various laws enacted by the state to provide significant support to the tribal community. This paper discusses the implementation and impact of the PESA Act of 1996 with the help of various studies, research articles, books, journals and columns. This research paper is based on secondary sources. This study carried out to critically analyse the existing gaps in implementation in the state Panchayat Raj law and the subject laws on the matters falling under the purview of PESA, to look at the implementation and impact of PESA in Scheduled Areas. Keywords: Self-Governance, PESA Act, Panchayati Raj, Development and Tribals. Introduction: Democratic decentralization is a key tool of governance that emphasizes people‟s participation in decision-making processes, thereby ensuring accountability and transparency in the implementation of development programmes. Decentralization is considered to be the process of strengthening grassroots governance by delegating political, administrative and fiscal powers to local administrative bodies through a legal institutional framework. Since governance is a process of decision-making, decentralization of administration from the national to the local level enables people to participate more directly in the decision-making process and creates a better environment for growth and development. Decentralized administration helps people to pay more attention to administrative matters and reduces the gap between people and administration. Decentralized administration has been envisioned as a tool of local government to promote development IJAAR Vol. 6 No. 40 ISSN – 2347-7075 Suhas Bhikaji Vidyagar 538 programmes in rural areas. To strengthen rural local self-government institutions, the Government of India has made provisions under the 73rd Constitutional Amendment Act of 1992 and the Panchayats (Extension to Scheduled Areas) Act of 1996. After the implementation of these two important acts, democratic decentralization has taken a new shape. According to Article 46 of the Constitution, the State shall take special care to promote the educational and economic interests of the weaker sections of society, particularly the Scheduled Castes and Scheduled Tribes communities, and shall protect them from all type of social injustice and exploitation. And the 5th and the 6th Schedule special provisions by delineating special administrative structure for tribal schedule area development. However, despite these provisions, the Scheduled Tribes are still considered as socially and economically backward and these arising many questions related to the failure of tribal development programmes in India. The constitution of India Articles 15,16, 19(5), 23, 29, 46, 164, 343(M), 243(ZC), 244 and also in 275, 330, 332, 334, 335, 338-A, 339, 342,366(25) contained commands protection to scheduled tribes of their identity and rights through various provisions. besides, The Fifth and The Sixth Schedules appended to the Constitution. PESA contains in itself the ethos and mandates of two remarkable constitutional provisions i.e. articles 243 and 244. So, in this context, the Panchayat (Extension to the Scheduled Area) Act – PESA has provided a democratic model of governance which is more participatory, more accountable and provides better administration in tribal areas. Government of India has defined certain schedules areas on the basis of their especial characteristics likeThey are totally dependent upon water, Forest and land (Jal, Jungle and Jameen) these are their identity and livelihood sources., residing in far rural areas and worshiping nature, and these areas are rich in natural resources, cultural traditions and a preponderance of the tribal population. These areas are defined in the Fifth Schedule of the Constitution on the basis of their population, tribal culture, customs, and connection with nature. Their distinctive culture closely linked to nature. Objectives of the Study: The study will be carried out to fulfil the following objectives: To understand the Implementation of PESA Act and its impact on Tribal Self-Governance. Link between the decentralised self-governing institutions and their contribution towards the process of the socioeconomic developments of the scheduled tribe‟s area. The study also understands the nature and extent of implementation of the PESA Act, and how the process of implementation of this Act has been led the way towards the change of governance system (structure and function) in the tribal areas. Sources of Data: The data collection process will depend on secondary data bases like books, journals, state and district plan documents, government publications, census reports, economic survey reports, district and state human development reports, annual reports of various departments, reports/records of district administration, block administration and PRIs. Review of Literature: After the arrival of the British in India, a new era began in the functioning of traditional rural self-government with the establishment of British administration. The traditional local self- IJAAR Vol. 6 No. 40 ISSN – 2347-7075 Suhas Bhikaji Vidyagar 539 government system of the state began to decline. Throughout this period of British rule, the Scheduled Areas of Odisha were protected as “Partially Excluded Areas” under the provisions of the Government of India Act, 1935. In addition to this Act, the Government of India Acts of 1919 (Montague-Chelmsford Amendments) and 1929 were passed to give more powers to the local governments in the state. Tribal communities were among the first to oppose the British colonial policy of occupation during the Indian freedom struggle. Still, tribal communities in India face many forms of oppression and problems regarding social justice. Even after the British left, the Indian government maintained the same harsh laws regarding the tribals and continued the colonial policies. The role, struggle and agitation of organizations like the Indian People's Movement, National Front for Tribal Self-Rule, Adivasi Sangamam and Indigenous and Tribal People's Initiative succeeded in changing the colonial approach and policies of the government. Regarding Scheduled Areas “The Constitution‟s Fifth Schedule (Clause 3) states that the Governor of any state with Scheduled Areas must report annually or whenever the President requests it to keep the Union Government informed of the administration in Scheduled Areas. The Union Government offers directives to the respective State Governments based on this Report for improved administration of the Scheduled Areas.” (A.K. Monditoka, Decentralised Governance in Tribal India: Negotiating Space Between the State, Community and Civil Society) According to the Mungekar Committee (2009) report: “Recognizing that the most sensitive aspect of tribal life is self-government, the British also had to adapt to it. That is why they adopted the path of creating „Excluded Areas‟ through the Government of India Act, 1919. However, later the British managed to secretly enter these areas by making some agreements with them and extending the laws made by the British to these areas. These areas later came to be called „Partially Excluded Areas‟. In 1950, after the adoption of the Constitution, all the laws of the Centre and the respective states were extended to the „Scheduled Areas‟ (Partially Excluded Areas) regularly. This marked a qualitative change in the legal system of the tribal areas in the later period. There was no place for the tribal community and a system of self-governance according to their customs and traditions in the new Indian legal system.” Shirsath (2014) notes that in Jharkhand, under the Indian Constitution, 50% quota has been provided for the Fifth Scheduled Panchayats, but very few tribals are aware of this policy. There is no clear difference in terms of poverty, illiteracy and malnutrition. The representatives representing the communities in Panchayati Raj are not informed about the government programmes that benefit them. Pandit Jawaharlal Nehru, the first Prime Minister of independent India, proposed regarding the tribal community that- • The rights of tribals in land and forests should be respected. • Many projects should not be imposed on tribal communities and tribal associations should be trained in administration and development work. PESA (Panchayat Extension to Scheduled Areas) Act, 1996: The 73rd Constitutional Amendment Act gave a dignified place to the tribals in the functioning of the Panchayati Raj system. However, it did not succeed in making the tribal communities the sole masters of their socio-political destiny in their homeland. To address the problems that were noticed after its implementation, the Government of India appointed a political committee under the chairmanship of Dilip Singh Bhuria. This committee suggested suitable and IJAAR Vol. 6 No. 40 ISSN – 2347-7075 Suhas Bhikaji Vidyagar 540 necessary reforms and changes for the tribal community sector, which were approved by the Parliament. Thus, the Panchayat (Extension to Scheduled Areas) Act or PESA Act 1996, was enacted under Article 40 of the Central Act for Panchayati Raj in Scheduled Areas. The 73rd Amendment to the Constitution of India in 1993 aimed to strengthen democratic decentralization and ensure people's participation in the development process. This amendment recognized the need to protect and preserve tribal traditions, cultural identities, traditional relationships and resolve minor disputes. The cultural identity, cultural traditions and customs of the tribal community have been protected and preserved. However, in India‟s decentralized governance system, tribals have not been given much power to control resources, with the aim of empowering people for effective participation in local governance. Tribals have been marginalized due to issues such as land transfer, deforestation and displacement. As per the Panchayat provisions for Scheduled Areas, this Act states that a tribal village in a Scheduled Area shall consist of a settlement or group of settlements or a village or group of villages, comprising a community and its affairs shall be managed in accordance with tradition and customs. The provisions of this Act were expanded by Parliament with some amendments and exceptions, after the Act came into force, till 2013 there were ten States with Fifth Scheduled Areas; Andhra Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana, Chhattisgarh, Gujarat, Himachal Pradesh. (Ministry of Panchayat Raj, Government of India). All these States amended the Panchayati Raj Act to incorporate the PESA Act, 1996. There are some certain visions behind this expanded Panchayati Raj Act. • Extending the provisions of Part IX of the Constitution relating to Panchayats to Scheduled Areas with some amendments. • Mainstreaming the majority of tribal areas by providing self-government to the tribal population. • Preserving and protecting the customs and traditions of tribal communities. • Strengthening democracy by increasing people‟s participation in village administration by making the Gram Sabha the centre of all activities. • To provide tribal local representatives with authority related to tribal interests at appropriate levels. • To prevent higher level Panchayats of Gram Sabha from assuming the powers and authority of lower-level Panchayats. • Developing a strong administrative framework according to established procedures. The main objective of this PESA Act is to empower the local governments in the Scheduled Areas to manage and preserve their traditional customs, socio-religious practices and traditional community resources. This enables each Gram Sabha to uphold and preserve the traditions and customs, cultural identity, community resources and traditional methods of dispute resolution of their people without external interference. Significance of Gram Sabha: According to PESA, the tribal community in the Scheduled Areas shall be a coherent and united body in the form of a „Gram Sabha‟. The role of the Gram Sabha is the centre of all activities and it is vested with specific and extensive powers and functions which are not covered by the main provisions of Part IX of the Constitution. IJAAR Vol. 6 No. 40 ISSN – 2347-7075 Suhas Bhikaji Vidyagar 541 The State Governments having Schedule V areas, have provisions to make laws/amendments relating to the following subjects to bring them into line with the provisions of the Panchayats (Extension of Schedule Areas) Act (PESA), 1996.  Land acquisition  The right to prevent alienation of land in scheduled areas  Grant of prospecting licences or mining leases for minor minerals  Grant of concessions for mining minor minerals through auction  Planning and management of water resources  Ownership of minor forest produce  Power to regulate or prohibit the sale, use or consumption of intoxicants  The right to prevent alienation of land in scheduled areas  Authority to manage rural markets  Power to control moneylending in Scheduled Areas Technically, while the Act refers to the extension of the provisions of Part IX of the Constitution to the Scheduled V; Politically, it grants fundamental governance rights to the tribal community. It recognises their traditional community rights over local natural resources. By adopting a clear role for the community, it gives broad powers to the Gram Sabha. It not only accepts the validity of “law, social, religious practices and traditional management practices of community resources”, but directs state governments not to enact any law against them. Issues and Challenges: Although the PESA Act 1996 has strengthened the struggle of the tribal people on issues of natural resources, mega projects displacement and self-rule, the situation is in reality satisfactory. Despite several restrictions in the Fifth and Sixth Schedules, tribal areas are being encroached upon through the law without any change. In Odisha, it is seen that critical issues like grant of licenses for mines, minerals etc. have been given to Zilla Parishad instead of Gram Sabha and decisions are being taken without knowledge and consultation of local people. It is seen that the junior Gram Sabha/Gram Panchayat in the Scheduled Areas has been given very little power. Most of the schemes are implemented by the general Panchayats. Efforts have been made to empower the grassroots people but there is a lack of awareness and information about this Act among a large number of tribals. This leads to ignorance about the benefits of the Act and the changes that are being made. Direct participation of tribals in the decision-making process gives real meaning to PESA. If the power of Gram Sabha is strengthened, it can actually be said that PESA is being implemented in the true sense. Impact on Tribal Self-Government: Positive Impacts:  Legal recognition of tribal autonomy in decision-making.  Strengthened role of Gram Sabhas in managing forests, water, and social issues.  Enhanced identity and dignity for tribal communities.  Resistance tool: Tribals use PESA to challenge illegal land acquisitions (e.g., Niyamgiri case in Odisha where Gram Sabhas rejected bauxite mining). Negative/Limited Impacts:  Weak implementation has made the Act symbolic in many regions. IJAAR Vol. 6 No. 40 ISSN – 2347-7075 Suhas Bhikaji Vidyagar 542  Continued displacement due to mining, dams, and industrial projects.  Erosion of customary rights when state interests‟ conflict.  Fragmented governance as traditional tribal institutions are not fully integrated with Panchayati Raj structures. Conclusion: According to the 73rd Amendment, Panchayat Raj has established itself as an important component of the democratic system of governance in India. The PESA Act, 1996 is the most important law in India for the upliftment of tribals and tribal areas to mainstream them. The government, calling the PESA Act historic, expressed its hope that this law would help the tribals to prove their rights over land, forest and water. However, the political will to implement the provisions of the PESA Act 1996 and the Forest Rights Act 2006 is very weak, which is creating obstacles to achieving the expectations in the law. Besides, non-tribals, self-interested, in connivance with public officials who are quick to take advantage of loopholes in laws, try to deprive poor tribals of their basic rights. It is the need of the tribal community to protect their cultural heritage and to be consistent with the overall policies of the government. Unless the government establishes adequate infrastructure, ensures the importance and benefits of the laws to the tribals, as well as the effective implementation of the provisions of the laws, the objective of implementing PESA will continue to be problematic and the benefits available under it will remain a mirage for the tribals. To protect the identity and culture of Scheduled Five areas, Parliament has enacted the Forest Rights Act, Land Acquisition Act and several other laws. These laws are primarily for the protection of the tribal community. However, the PESA Act, 1996 is considered to be comprehensive. It empowers local bodies like Gram Sabhas to take their own decisions related to their culture, identity and minor forest rights. In reality, after 25 years of implementation, the state government is failing to implement it properly, or is not making proper rules related to the law. In some cases, tribals in these areas have approached the Supreme Court against government decisions. But the government ignored the PESA Act with the help of laws like the old Coal Bearing Act, 1957 and allotted land and various mineral resources to industrialists without taking the consent of the Gram Sabhas of those areas. The PESA Act has immense potential to strengthen tribal self-government by legally empowering Gram Sabhas. However, due to poor implementation, state resistance, and external pressures, its impact remains limited. Strengthening awareness, ensuring strict compliance, and integrating traditional tribal systems with constitutional governance structures are crucial for realizing the vision of true tribal self-rule (self-determination within the Constitution). Therefore, it can be said that the idea of giving local administration to the Scheduled Areas through the PESA Act, 1996, has so far been a fraud due to ineffective implementation. Therefore, this law is still far from being a reality for the tribal community. References: 1. Behura, N.K. and Nilakantha Panigrahi (2006), Tribals and the Indian constitution, New Delhi: Rawat Publications, pp.6-7. 2. Joshi, R.P and G.S Narawani, Panchayat Raj in India, Rawat Publ, Jaipur & N Delhi, 2002 IJAAR Vol. 6 No. 40 ISSN – 2347-7075 Suhas Bhikaji Vidyagar 543 3. Mohanty, Bijoyini, Glimpses of local governmentspost amendment scenario, Gyanajuga Publ, Odisha, 1999 4. Palanithurai.G (ed), Dynamics of New Panchayati Raj system in India, Vol II, Concept Publishing Company, New Delhi, 2002. 5. Pal, Mahi (200), panchayats in Fifth schedule Areas‟, Economic and political weekly, 35(19), pp.1602-1606. 6. Purohit, B.R. (2002), the panchayats of the scheduled Areas‟, in G.palanithurai (ed.), Dynamics of new panchayati Raj system in India, vol.1, New Delhi: concept publishing company, pp.6382. 7. Rajnesh, Salini and S.L Goel, Panchayati Raj in India, Deep & Deep Publications Pvt. Ltd., New Delhi, 2003. 8. Singh Yatindra (2002) Decentralised Governance in Madhya Pradesh: Experiences of the Gram Sabha in scheduled areas, Economic and political weekely, 37, pp.4100-4104. 9. Venkatesan V., “Institutionalizing Panchayati Raj in India”, ISS Publication, New Delhi, 2002. Reports: 1. Activity report, ST & SC Development and minorities backward classes welfare Department, Govt. of Orissa. 2. Annual Report, Panchayati Raj Dept, Govt. of Orissa. 3. Annual report, Panchayati raj dept, Govt. of Orissa, 2004 – 05. 4. Annual Report (2000-01), Ministry of Rural Development, Government of India, p.7. 5. Annual Report (2009-10), Ministry of Tribal Affairs, Government of India, p.33.77