Issues important for Tribals and Scheduled Areas missing from agendas of Gram Sabhas
The Chhattisgarh State PESA rules, notified under the Provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA), grant extensive powers to the Gram Sabhas for preservation of the traditions and customs of tribals and for ensuring that the Tribals have rights over their forests and land. But even 23 years after the promulgation of the Act, the government machinery is making a mockery of the stipulations of the Act.
With a clear objective of weakening the Tribals by ruining their traditions and customs and ensuring that the loot of the forests and the land belonging to them continued unabated, the meetings of the Gram Sabhas were never held under the provisions of PESA and in some cases, where, a Gram Sabha, acting on its own, took a decision, it was not implemented. Left without a recourse, the hapless Tribals took to Patthalgadi – their innovative method of registering their protest and raising awareness. Gram Sabhas were held at various places and the issues relating to tribal rights – and especially PESA – documented on stone in words and pictures. This was Patthalgadi. The government machinery responded by branding the movement as a conspiracy of Christian missionaries and as a handiwork of the Naxals and took to repression. About a month ago, FORWARD Press published an article titled “Patthalgadi movement: Adivasis fighting a decisive battle” on the movement and its implications.
It’s quite clear that despite activating its repressive machinery, the state has been unable to stop the Patthalgadi movement from gaining strength. The Tribals have become aware of their rights and whenever they hold events – be it cultural or religious – they give prominence to issues related to tribal rights, customs and traditions and PESA. This explosion of anger and resentment against the government and its machinery among the Tribals in an election year was a warning bell for the government.
Acting in haste, the state government dusted the 23-year-old PESA and asked for special Gram Sabhas to be held on 10-11 June under the provisions of the Act. The Gram Sabhas are to be held in the Fifth Schedule areas of the state. These areas include 13 of the 27 districts and parts of other six districts. There are 5,055 village panchayats in these areas. On the face of it, this seems like a victory of the protesting tribals.
But has the Patthalgadi movement really won? Has the government surrendered before it? There is a need to look deeper into the government’s order and to remain vigilant. The government order, issued under PESA, authorizes the Gram Sabhas to take decisions on issues falling under the jurisdiction of four departments – Panchayats and Rural Development, Food and Civil Supplies and Forest and Tribal Welfare. But issues crucial to Scheduled Areas such as grabbing of tribal lands, deceitful sale of their land, community forest rights, survey for and mining of minor minerals, taking prior consent of Gram Sabhas before acquisition of land, illegal constitution of urban civic bodies in the Scheduled Areas, etc are missing from the agenda prepared for the meetings of the Gram Sabhas. Thus, the government has merely handed a lollipop to the Tribals by issuing an order to hold meetings of Gram Sabhas under PESA while placing issues of crucial importance for the Tribals and the Scheduled Areas out of the purview of these meetings. This seems like an attempt to counter the brewing resentment among the Tribals in view of the approaching elections. However, Vinod Nagvanshi, president of the Sarva Adivasi Yuva Prabhav, still sees it as a victory of the Patthalgadi movement. He says: “It is due to the Patthalgadi movement that the government was forced to issue orders to hold meetings of Gram Sabhas under PESA. We held talks with the government in which, among others, two retired IAS officers were part of the delegation of the Sarva Adivasi Samaj. The first thing we asked them was to hold Gram Sabha meetings under PESA. Our second demand was for the entire government staff to study the Act because they seem to know nothing about it. Now, the government won’t decide what the Gram Sabhas will do. The Gram Sabhas will take decisions and the government will implement them. In this sense, it is our first victory.”
Tribal rights and PESA
A series of laws has been enacted for the welfare of the Tribals but the governments never implemented them. The situation today is such that the district collectors in Chhattisgarh do not even understand the difference between a Gram Sabha held under PESA and a normal Gram Sabha. The administration thrusts the law applicable to non-scheduled areas on Scheduled Areas while holding Gram Sabhas. PESA was aimed at assuaging the feeling of alienation in tribal areas and strengthening democracy by ensuring direct participation of the local residents in decision-making, while bringing public resources under their control. In a case pertaining to Kerala, the Supreme Court had given a clear ruling that those who own the land also own the minerals mined from it. The slogan of Maharashtra’s Tribals is “Mava Nate Mava Raj Mava” (Our village, our rule). In a 2012 judgment on the Vedanta case, the Supreme Court said that in Tribal areas, the Gram Sabha, and not the Vidhan Sabha or the Lok Sabha, is the highest body. The central or the state governments do not own an inch of land in Scheduled Areas. In its decision in the “Kailash versus the State of Maharashtra” case, the apex court said that the 8 per cent Tribals are the original inhabitants of India and the rest of the Indians are descendants of immigrants. It was after a long and the bitter battle waged by the Tribals that PESA was enacted under the 73rdConstitutional Amendment Act.
Administration knows nothing about PESA
Young social activist Anubhav Shourie, who has been working on forest rights in the Scheduled Areas of Bastar, says: “Under PESA, the sarpanch, the panchas and the panchayat secretaries are not the decision-makers. They are accountable to the Gram Sabha and can remain in office as long as the Gram Sabha wishes them to. It is the Gram Sabha which is supreme. All the powers are vested in it and the sarpanchas and the panchayat secretaries are only agents of the government. But what is happening in practice is just the opposite. The administration, unaware of the Constitutional provision regarding the Scheduled Areas, seems to believe that the sarpanchas and the panchas are supreme and is turning down the decisions and resolutions of the Gram Sabhas, quoting the stance of the sarpanchas and the panchas instead. This is against the spirit of the Constitution.”
Dhananjay Devangan, collector of Bastar, says that PESA provides for Gram Sabha but insists that the Panchayati Raj Act, 1984 also applies to these areas. He claims that during his training, he was told about PESA. On the other hand, a collector posted in a Scheduled Area, on condition of anonymity, said that during his training at the Academy of Administration, he was not told about PESA. It was only after he was posted in a Scheduled Area that he came to know that PESA accords the highest status to the Gram Sabha. But he is also insistent that even in the Scheduled Areas, the Panchayati Raj Act governs the Gram Sabhas while recognizing that the powers of the Gram Sabhas in Scheduled Areas are different from those in non-scheduled areas.
Chhattisgarh government is operating illegally
Vijay Bhai, who worked with B.D. Sharma during the drafting of PESA, says Chhattisgarh government’s actions are patently illegal. “To date, the government has not granted community forest rights,” he says. “And it is for the first time that Gram Sabhas are being held in Chhattisgarh under PESA.” He says that a long battle was waged for bringing about PESA but now all state governments are making a mockery of it. “PESA, 1996, passed under article 244(1) of the Fifth Schedule of the Constitution, and the Forest Rights Act, 2006 have been notified by the President of India and the Governor of Chhattisgarh respectively but out of ignorance, the executive, which is bound by the Constitution, is not only bypassing the two laws but also breaking them,” he says. This is discrimination against the residents of the Scheduled Areas, due to which comprehensive development of these areas hasn’t taken place and peace eludes them. Since Independence, a big chunk of government funds has been spent on these areas but where and how they are spent is still unknown.
What is PESA 1996?
PESA lays great stress on the preservation of traditions and customs of people, their cultural identity, community resources and the customary mode of dispute resolution.The law is a simple yet comprehensive piece of legislation that gives greater control to the Gram Sabhas of Scheduled Areas on the natural resources. It extends theprovisions of Part IX of the Constitution, related to Panchayats, to the Scheduled Areas. Its chief objective is to equip villagers with the right to self-governance through decentralized self-government machinery.
Powers of PESA Gram Sabhas, or the rights of Tribals
According to section 4(d) of PESA, every Gram Sabha will be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution, and will be required to maintain the basic principles of self-governance. Only the PESA Gram Sabhas have the right to preserve the traditions.
- Section 4(d) of PESA says that the PESA Gram Sabha will have the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe. In this context, a new section 2(a) has been added to the Land Revenue Code 1959 by amending section 170 (b).
- Under section 4(d) the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant is vested in the Gram Sabhas.
- The PESA Gram Sabhas have the right to impose a complete ban on moneylending in the Scheduled Areas. No one is allowed to give or accept loans and any violation will be punishable with imprisonment of up to two years or a fine up to Rs 10,000 or both.
- Section 4(i) of the Act says that the Gram Sabha or the Panchayats at the appropriate level must be consulted before acquiring land in the Scheduled Areas for development projects and before resettling or rehabilitating people affected by such projects in the Scheduled Areas.
- Section 4 (k) says that the recommendations of the Gram Sabha or the Panchayats at the appropriate level will be mandatory prior to granting prospecting licence or mining lease for minor minerals in the Scheduled Areas.
- The Act empowers the Gram Sabhas to regulate collection, price and sale of all minor produce (ie forest produce except wood).
- The Gram Sabhas are also entrusted with the responsibility of preservation and protection of forests in the villages.
- They have control over the village markets.
- They have the power to preserve and protect traditional customs of the Tribals.
Translated by Amrish Herdenia
Forward Press also publishes books on Bahujan issues. Forward Press Books sheds light on the widespread problems as well as the finer aspects of Bahujan (Dalit, OBC, Adivasi, Nomadic, Pasmanda) society, culture, literature and politics. Contact us for a list of FP Books’ titles and to order. Mobile: +919968527911, Email: firstname.lastname@example.org)
The titles from Forward Press Books are also available on Kindle and these e-books cost less than their print versions. Browse and buy: