PESA: Panchayat Extension to Scheduled Areas Act (1996)
Article 243M of the Constitution of India states that nothing in Part IX of the Constitution relating to Panchayat shall apply to Scheduled Areas referred to in Clause (1) of Article 244, that is, areas included in the Fifth Schedule that today lie in the 9 States of Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan.
However, Article 243M(4)(b) goes on to say that ‘Parliament may, by law extend the provisions of this Part to the Scheduled Areas’ and this was done in 1996 when Parliament enacted ‘The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996’ (PESA). However, the extension of Part IX was—subject to certain exceptions and modifications. The most significant of these relate to definition of a Village and Gram Sabha, rules, responsibilities and powers of the Gram Sabha, Principle of Subsidiarity and Consistency of other Laws with PESA.
Land Alienation and Land Acquisition: A clear and categorical provision should be made in the Panchayati Raj Act or the Revenue Law through a notification under Para 5(1) of the Fifth Schedule to empower the Gram Sabha to restore the unlawfully alienated land to its lawful owner.
Community Resources: The term ‘community resources’ which is used in section 4(d) of PESA has not generally been defined. Section 129c (iii) of Madhya Pradesh Panchayat Raj Act does, however, provide a definition that could be commended to other States: ‘natural resources including land, water and forest within the area of the village’.
Mines and Minerals: The mineral rules should be amended on the pattern of Madhya Pradesh transferring all quarries with annual lease value up to Rs 10 lakhs to the Gram Sabha and panchayats at different levels. This dispensation should cover all minor minerals.
Intoxicants: In all matters concerning intoxicants such as establishment of liquor shops, manufacturing units and so on, the views of women members in the Gram Sabha should be decisive, irrespective of the strength of their presence in the relevant meeting.
Non-Timber Forest Produce (NTFP): There is great scope to set up an NDDB-type institution (with deep pockets) to become a major player in the market for NTFPs that can support collectors of minor forest produce. Traditional Non-Timber Forest Produce (TNTFP) policies should be aimed at maximizing state revenues and the welfare of gatherers rather maximizing state revenues.
Institutionalised Mechanism of Conflict Resolution: There is also need to facilitate creation of institutional mechanisms of conflict resolution in India of the kind that exist across the world in countries which have faced conflicts over use of natural resources, especially in the context of indigenous people.
