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How a History of Broken Promises Has Let Down India's Scheduled Areas, The
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11/9/21, 4:06 PM How a History of Broken Promises Has Let Down India's Scheduled Areas

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POLITICS ECONOMY EXTERNAL AFFAIRS SECURITY LAW SCIENCE SOCIETY CULTURE

OPINION RIGHTS

How a History of Broken

Promises Has Let Down India's
Scheduled Areas
Only six states have the rules necessary to operationalise the PESA
Act's provisions – yet the myth that PESA is alive and kicking prevails.

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File photo of women attending a gram sabha meeting in Dungarpur district, Rajasthan. Credit: UN Women/Flickr CC BY-NC-ND
2.0

C.R. Bijoy

Listen to this article: 00:00 07:37

GOVERNMENT LAW RIGHTS 4 HOURS AGO

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A quarter century ago, on December 24, 1996, the Parliament

enacted a law unlike any other in the country. This was India’s
first law to actually recognise people’s powers, in the form of
the gram sabha at the hamlet level. This path-breaking
legislation was the Provisions of the Panchayat (Extension to
the Scheduled Areas) Act of 1996, or PESA. The habitations
where scheduled tribes (STs) were the preponderant social
group were notified as ‘scheduled areas’ by the President of
India under Article 244 of the Constitution.

For a gram sabha to be autonomous, PESA rightly insisted

that “panchayats at the higher level do not assume the powers
and authority of any panchayat at the lower level or of the
gram sabha” (Section 4n). This is possible only if the
structures above the gram sabha are autonomous in their own
domains. So PESA required that these structures also have
considerable political autonomy, by adopting “the pattern of
the Sixth Schedule of the Constitution” (Section 4o) with
legislative, judicial and administrative powers.

Predictably, both state and the Union governments have

worked to ensure these two crucial elements are unavailable –
lest vibrant, democratic gram sabhas undermine the
governments’ well-entrenched powers.

The 10 states with scheduled areas subsumed the gram sabhas

in the areas under the general ‘Panchayat Raj Institutions’
(PRIs), where a gram sabha is an ornamental afterthought at
best. The PRIs were already the emasculated appendages of
government departments and their programmes. India’s gram
sabha project was thus buried alive.

Scheduled areas

In the country, STs are not notified in Punjab and Haryana and
the UTs of Chandigarh, Delhi and Puducherry. Scheduled
areas have been notified in Andhra Pradesh, Chhattisgarh,
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Gujarat, Himachal Pradesh, Jharkhand, Odisha, Madhya

Pradesh, Maharashtra, Rajasthan and Telangana.

Also read: Interview | ‘Adivasi Culture and the Forest Are

Linked. PESA Looks After Both’

However, thousands of habitations in the states where STs are

the major social group have been left out. Of the 640
administrative districts, 104 have scheduled areas, 36 are fully
notified and 68 are partially notified. Some 11.3 % of the total
geographical area of the country is notified scheduled area.
And about 5.7 % of India’s population – both tribal peoples
and otherwise – resides here; but only about 35.2% of STs
reside in scheduled areas.

The majority of India’s STs continue to be denied their special

constitutional protections. About 53% of the population in
scheduled areas are STs – despite the massive influx of
outsiders, ‘development’ projects and the resulting
displacement.

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Source: Author provided

The process for scheduled area notifications has not been

carried out in 11 of the 12 remaining states eligible under the
Fifth Schedule of Article 244. Kerala submitted a proposal to
the Indian government to notify 2,240 habitations – the result
of a decade-long Adivasi struggle – in November 2014. It has
yet to bear any results. Assam, Meghalaya, Tripura and
Mizoram are not eligible because they are governed by the
Sixth Schedule, where autonomous districts and autonomous
regions are notified instead.

A betrayal

The Constitution (73rd Amendment) Act of 1992 empowered

state governments to enact suitable legislation to establish
PRIs as units of self-governance. But the amendment
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exempted its application to scheduled areas. The Parliament

was to extend the provisions of this amendment to scheduled
areas, with the requisite modifications, through suitable
legislation. So it enacted PESA. The provisions of PESA were
then to be incorporated into the state Panchayat Raj Acts in
eight states with scheduled areas within a year.

Also read: An Anti-Forest Policy: Rhetoric or Sleight of

Hand?

Andhra Pradesh, Gujarat, Himachal Pradesh, Madhya

Pradesh, Maharashtra, Odisha and Rajasthan amended their
state Panchayat Raj laws from 1997 to 1999 (see table).
Jharkhand brought PESA provisions in 2001 after it was
constituted in 2000. Chhattisgarh and Telangana were carved
out along with parts of scheduled areas in 2000 and 2014
respectively. None of these states bothered to operationalise
PESA for over a decade. In fact, most laws of both the state
and Union governments that are contrary to the state PESA
provisions are yet to be amended.

Only six of the 10 relevant states have rules to operationalise

PESA provisions (see table): Andhra, Telangana, Himachal
Pradesh, Rajasthan, Maharashtra and Gujarat. So PESA is
effectively nonexistent in these 10 states. Yet the myth that
PESA is alive and kicking prevails.

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PESA Rules

Sl. States with scheduled PESA provisions in state panchayat

Rules
no. areas law

1 Andhra Pradesh 1998 2011

2 Telengana 1998 2011

3 Himachal Pradesh 1998 with effect from 2004 2011

4 Rajasthan 1999 2011

5 Maharashtra 1997 2014

6 Gujarat 1998 2017

Yet to frame
7 Madhya Pradesh 1998
Rules

Yet to frame
8 Chhattisgarh 1998
Rules

Yet to frame
9 Odisha 1997
Rules

Yet to frame
10 Jharkhand 2001
Rules

Source: Author provided

The Constitution confers extraordinary powers under Section

5 of the Fifth Schedule to prevent the application of any law
passed by the Parliament or Assembly in scheduled areas, and
to modify them with regard to their applications. But most
governors have acted in ignorance of this power.

PESA’s tribulations don’t end there. In 1992, the 74th

Amendment to the Constitution mandated the government to
set up and distribute powers to urban local bodies. The
scheduled areas were once again exempted from its
application, and rightly so. Subsequently, the ‘Municipal
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(Extension to Scheduled Areas) Bill’ was introduced in

Parliament in 2001. The Parliamentary Standing Committee
on Urban and Rural Development examined it and
recommended its adoption in 2003. The Bill was last listed for
discussion in Parliament in 2010 – and hasn’t been heard of
since.

The Union government filled the resulting legal vacuum by

extending existing state municipal laws, thus creating illegal
civic bodies.

By 2010, more than 200 such bodies governed urban areas

within scheduled areas. More and more panchayats are also
being upgraded to municipalities. By denying the special
governance provisions to the population of scheduled areas,
the governments have been taking these areas out of the
purview of PESA, and the direct democracy of the gram
sabhas.

This, for all practical purposes, subverts the Constitution’s

intent and annuls the scheduled area provisions, while still
pretending to abide by the Constitution.

In March 2010, the Ministry of Panchayat Raj drafted three

sets of amendments to the Constitution to radically restructure
local governance. They aimed to usher in full-blown
democracy by fusing together the PESA of the Fifth Schedule
with the provisions of the Sixth Schedule, to be applied across
the country.

The ministry sent the proposal to the states for comments –

but again, there hasn’t been a peep about what happened next.

C.R. Bijoy examines natural resource conflicts and

governance issues.

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