Samdarshi

ISSN: 2581-3986
Vol 16 Issue 3 (August 2023)

A Review exploration on Status of Panchayat Extension to Scheduled Areas

(PESA) Act 1996 in the States of Andhra Pradesh, Orissa, Jharkhand,
Gujarat and Chhattisgarh

1
Sashank Sekhar Dayal,
Research Scholar Department of Political Science, Galgotias University, Greater Noida (UP)
2
Dr Rakesh Kumar Yadav,
Assistant Professor, Department of Political Science, Galgotias University, Greater Noida (UP)

Abstract: The state of Jharkhand, rich in natural resources and home to a significant tribal population, has been
the focus of legislative measures aimed at empowering indigenous communities and safeguarding their rights.
This review article critically examines the implementation and impact of two key pieces of legislation, the
Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), and the Forest Rights Act, 2006 (FRA), in
Jharkhand's scheduled areas. Despite the legislative intent to promote tribal self-governance and protect land
rights, the actualization of these objectives faces numerous challenges, including bureaucratic hurdles, lack of
awareness, and conflicting interests. Drawing insights from empirical studies and scholarly literature, this
review underscores the urgent need for policy amendments, capacity-building initiatives, and public
mobilization efforts to bridge the implementation gap and realize the vision of inclusive development and tribal
empowerment in Jharkhand's scheduled areas.

Keywords: Jharkhand; scheduled areas; Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA); Forest
Rights Act, 2006 (FRA); tribal empowerment; indigenous rights; implementation challenges.

I. Introduction
Jharkhand, known as "The Land of Forests, Mountains, and Minerals," harbours a diverse population, with
around 26.22 percent belonging to various tribal groups. These tribes have historically faced exploitation by
both governmental and corporate entities, resulting in the erosion of their traditional self-governance systems
and rights over natural resources. Legislation such as the PESA Act of 1996 1 and the Forest Rights Act of 2006
aimed to empower tribal self-rule and protect their land and livelihoods. However, despite these legal
provisions, the reality of empowerment remains distant, with bureaucratic and political indifference hindering
effective implementation. Jharkhand, hailed as "The Land of Forests, Mountains, and Minerals," came into
existence on November 15, 2000, commemorating the birth anniversary of Dharti Aba Birsa Munda, after its
separation from Bihar. With a significant tribal population constituting 26.2 percent of its inhabitants, Jharkhand
has 16 out of its 24 districts covered under the Panchayat Extension to Scheduled Areas (PESA) provisions. The
enactment of PESA in 1996 aimed to empower local self-governance, particularly in regions like Jharkhand.
However, despite being in effect for 25 years, the state has yet to formulate its own regulations, impeding the
full realization of PESA's objectives. The Act, designed to recognize traditional decision-making systems and
promote self-governance, has only been partially implemented in Jharkhand, exacerbating the challenges faced
by tribal communities2 in governing themselves effectively.

II. Review of Literature

Sahu et.al., (2018). This article critically examines the implementation of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Rights) Act 2006 in Jharkhand. It sheds light on the challenges
faced at the enforcement level, highlighting issues such as uneven recognition of forest rights claims, lack of
transparency, and stagnation in the process. Drawing from data from 12 villages across three districts, the
analysis underscores the ambiguous role of implementing agencies, resource constraints, and administrative
shortcomings contributing to the current state of affairs. Overall, it provides valuable insights into the
complexities surrounding forest rights enforcement in Jharkhand.

1 Bijoy, C. R. (2012). Policy brief on panchayat raj (extension to scheduled areas) act of 1996. New Delhi, India:
United Nations Development Programme.
2 Patnaik, S. (2007). PESA, the Forest Rights Act, and tribal rights in India. In International Conference on

Poverty Reduction and Forests. Bangkok (pp. 3-7).

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P. R. Memorial Foundation (1996) The report submitted by Planning Commission, highlights the pivotal role
of tribal communities in India's social justice struggles, often overlooked in historical narratives. It underscores
the significance of the Panchayats (Extension to the Scheduled Areas) Act (PESA) in empowering tribal self-
governance, recognizing Gram Sabhas' authority in preserving cultural identity and community resources.
However, the study reveals significant gaps in PESA's implementation, notably the lack of awareness and
capacity among Gram Sabhas, bureaucratic resistance, and conflicts with existing laws. It emphasizes the urgent
need for policy amendments, capacity-building, and public mobilization to actualize PESA's objectives
effectively. The article provides valuable insights into the challenges and action points for improving tribal
governance and resource management in India's scheduled areas.

Sahoo (2016) published an article on the Forest Rights Act (FRA) of 2006 which has sparked debates with its
introduction of novel concepts like Community Forest Rights, aiming to secure forest dwellers' rights while
promoting sustainability. Amidst failed development schemes, this paper argues for inclusive tribal
development, emphasizing promotion over imposition. Drawing on case studies from the Pauri Bhuinyan
community in Odisha, it assesses the FRA's effectiveness in tribal development. Concluding, the paper suggests
improvements for future legislation, advocating for amendments to enhance the existing framework. Overall, it
offers valuable insights into the challenges and potential of the FRA in fostering sustainable development and
tribal empowerment.

Kindo et.al. (2019). The paper comprises into the critical examination of the Panchayat Extension to Scheduled
Areas (PESA), 1996, and the Forest Rights Act (FRA), 2006, aiming to ensure tribal self-rule and protect land
ownership for forest dwellers in scheduled areas of India, particularly in Jharkhand. With 26.2 percent of
Jharkhand's population belonging to tribes, the study assesses whether these acts contribute to achieving
sustainable management of natural resources, aligning with Sustainable Development Goal 12. Utilizing case
studies, secondary data, and discussions with officials, the paper offers recommendations to address
shortcomings and enhance the effectiveness of these legislations in promoting tribal self-governance and
safeguarding their livelihoods.

Bachan (2015). The paper presents a comprehensive analysis of the Forest Rights Act (FRA) 2006, particularly
its implications for Scheduled Tribal Grama Sabhas (GS) in Kerala. It adeptly contextualizes the FRA within the
constitutional framework, emphasizing its role in empowering village-level governance structures as mandated
by Article 40 of the Constitution. The discussion underscores the need for synergy between FRA provisions and
existing governance mechanisms to ensure effective implementation and meaningful participation of ST
communities. The paper's emphasis on harmonizing legal frameworks for inclusive governance in tribal areas is
both timely and insightful, offering valuable recommendations for policy enhancement.

Sahu et.al. (2018). This report offers a detailed examination of the implementation of the Forest Rights Act
(FRA) 2006 in Jharkhand, shedding light on the plight of forest dwellers and their struggle for land rights. The
findings underscore the uneven and discriminatory nature of the recognition process, with a stark increase in
implementation preceding elections, followed by a sharp decline thereafter. The analysis highlights significant
gaps between claimed and recognized areas, particularly concerning Community Forest Rights (CFR).
Moreover, it brings attention to the prevailing challenges in ensuring effective implementation and emphasizes
the need for sustained efforts beyond the recognition phase.

Prasad, S., & Sole, N. A. (2023). The paper emphasized the Pathalgadi movement as an important means of
Gram Sabha's empowerment. The importance of local government in fifth scheduled regions had been brought
to light by a recent argument from the Jharkhand High Court about tribal self-governance. In addition, the
Jharkhand High Court had issued an edict confirming the Gram Sabha's authority under the state's Panchayat
Extension to Scheduled Areas (PESA). Incorporating tribal self-governance and PESA Jharkhand's provisions
into Panchayati Raj was the study's stated goal. Examining the ways in which the Forest Rights Act of 2006 and
the PESA Act of 1996 had empowered the Gram Sabha to make democratic decisions, the article delved into the
historical context of the Gram Sabha and its current status, and examined the validity of the Pathalgadi
movement as a critical means of empowering the Gram Sabha. The text stated that the indigenous peoples' rights
should not be infringed upon by the government.

Pandit, S. (2023). Since the beginning of time, some form of self-governance had been practiced by the tribal
hamlet. Tribal self-governance was nearly as old as the tribespeople who practiced it. It was assumed that the
indigenous people had established the village republic as a means of governing the settlement and preserving

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social cohesion. With a few tweaks and exclusions, it was believed that the PESA Act brought the provisions of
Part IX of the Constitution to the Fifth Schedule Areas. In Schedule Areas, the land, forest, and water resources
were traditionally managed by the Gram Sabha. Nevertheless, it was understood that the terms of the current
land laws governed this authority. Since most tribal peoples made their homes in or near natural environments, it
was not surprising that they had strong emotional ties to plants and animals. Natural resources were essential to
their life, and they had a responsibility to preserve them. The purpose and effectiveness of tribal self-governance
in Jharkhand's fifth Schedule Area were investigated in this paper. It also considered the ways in which the
indigenous people of Jharkhand handled the state's natural resources and the protections afforded to them by
various laws. The paper explored how much the legislation recognized and upheld the sovereignty of indigenous
communities, including their property rights and customs regarding the administration of natural resources.

Aki, E. A., & Ali, Q. A. (2022). Since the word "scheduled areas" was not clearly defined in the Indian
constitution, several questions remained. The idea had been rephrased as "those areas which the president of
India may proclaim as scheduled areas and regulate under the central Act" by an executive order. From October
2, 2009, to October 2, 2010, a time dubbed the "year of Gram Sabha" by the Panchayati Raj ministry, saw the
implementation of many important projects. In a letter detailing the program's failure and inadequate execution,
the MoPR secretary slammed every PESA state. Considering the growth of left-wing extremism in these states
and their efforts to influence and disenfranchise the local population, it was clear that they were determined to
undermine the national democratic process. The percentage of Indians who identified as belonging to a tribal
group was close to 9% (Ministry of Tribal Affairs, Government of India). The PESA Act of 1996 was widely
regarded as the most powerful legislation that the state had passed to date in order to aid the general public.
Several states had yet to finalize the PESA regulation structure, including Odisha, Jharkhand, Chhattisgarh,
Madhya Pradesh, and Chhattisgarh. The fact that certain states' dire situations persisted long after these
regulations had been adopted was, however, a serious cause for worry. While some governments were able to
administer their regulations, the results of their execution were less than satisfactory. In this paper, using a
variety of sources such as studies, research papers, books, journals, and columns, we would examine what
happened and draw attention to the facts, problems, and worries surrounding the PESA Act of 1996. The sources
used to compile this research study were secondary.

Prasad, B. D. (2015) The Indian government had pledged to use the Panchayat Raj system as its foundation for
self-governance, as stated in Article 40 of the Indian Constitution. The Eleventh Plan text acknowledged
Panchayat Raj Institutions (PRIs) as the "main means of delivery of essential services that are critical to
inclusive growth." Locally elected representatives were granted additional power and jurisdiction over a number
of issues brought up by the 73rd Amendment to the United States Constitution. One notable aspect of the 73rd
Constitutional Amendment was that Article 243-M allowed the Parliament to enact appropriate laws regarding
Panchayat Raj organizations in Scheduled Areas and exempted them from its restrictions with regard to
Schedule V Areas. Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh,
Maharashtra, Orissa, and Rajasthan were the nine states that had their Panchayats (Extension to Scheduled
territories) Act (PESA) of 1996 extended to their respective Schedule V territories. Extreme poverty,
exploitation, a lack of infrastructure, illiteracy, and marginalization defined the Schedule V locations that PESA
was expanded to. Actually, 32 of the 94 PESA districts were considered EADs, or Extremist Affected Districts.
There were 76 Extremist Affected Districts (EADs) in the nation; 32 of them were PESA districts. Additionally,
16 of the 33 MEADs were PESA districts. According to the Ministry of Panchayat Raj (2010), the only way to
achieve people-centric governance in these places and thereby control left-wing extremism was to fully
implement PESA. Upadhyay (2010) noted that severe shortcomings persisted despite the significance of
implementing PESA in these sectors. In this light, the study's overarching goal was to pinpoint where the sample
states fell short on both the legal and implementation fronts so that advocates and policymakers could better
push for the thorough and equitable application of PESA in all areas covered by Schedule V.

Choubey, K. N. (2015). This piece delved into the history of a statute that had been passed in the wake of
liberalization and applied to the regions of India that were inhabited by tribal peoples, also known as Scheduled
Areas [SAs] according to the Indian Constitution. Because it granted the gram sabha of SAs some important
privileges, the Panchayat (Extension to Scheduled Areas) (PESA) Act, 1996 had been hailed as "historic" and
"progressive" by several grassroots tribal groups. Focusing on Rajasthan as a case study, the article provided
background on the law's passage and its provisions before evaluating the overall pattern of experiences with its
implementation. This law had a public life and had raised tribal awareness for their rights, which had led to the
emergence of 'legalism from below' and deeper democratization in these areas, even though its implementation
had been very dismal.

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III. Insights of PESA Act

The PESA Act, enacted with the aim of establishing local self-governance, has faced significant challenges in its
implementation in Jharkhand. Despite being in force for over two decades, its complete realization remains
elusive, primarily due to political and bureaucratic apathy. The act bestows significant powers upon Gram
Sabhas, the village councils, but these powers have not been fully actualized. Moreover, attempts to dilute tribal
rights, such as the proposed amendments to tenancy acts, have sparked widespread protests, indicating the
importance of these legal safeguards for tribal communities. The recent resurgence of movements like
Pathalgadi, asserting tribal autonomy under PESA3, underscores the ongoing struggle for effective
implementation. Recommendations include the allocation of funds for Gram Sabha capacity development,
adherence to provisions in resource schemes, and electoral reforms to align with PESA guidelines. Ultimately,
comprehensive implementation of PESA and allied legislation is crucial for realizing the vision of tribal self-
governance and safeguarding their rights in Jharkhand's scheduled areas. The implementation of the PESA Act
in Jharkhand reveals a significant gap between legislative intent and practical application. Despite being
endowed with substantial powers, Gram Sabhas in scheduled areas have not been fully empowered due to
administrative lapses and political indifference. The failure to draft specific regulations tailored to Jharkhand's
needs has hindered the Act's efficacy, leaving tribal communities vulnerable to exploitation and marginalization.
The partial implementation of PESA has not only failed to uphold tribal self-governance but has also
perpetuated existing power imbalances and hindered socio-economic development. The need for an empowered
Gram Sabha, as envisaged under PESA4, remains paramount for ensuring the meaningful participation of tribal
communities in decision-making processes. Without comprehensive implementation of PESA, the vision of
tribal self-governance and sustainable resource management in Jharkhand's scheduled areas will remain elusive.

The literal provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 5, commonly known as the
PESA Act, delineate a robust framework aimed at empowering tribal communities residing in Scheduled Areas
of India. Central to the Act is the establishment of Gram Sabhas, constituting all adult members of a village or a
cluster of villages, as the primary decision-making entities. These Gram Sabhas are endowed with significant
powers, including the regulation of land transfers, management of common resources like land and forests, and
oversight of social sector programs such as education and healthcare. Additionally, Gram Sabhas is tasked with
safeguarding the customary rights and cultural heritage of tribal communities, thereby preserving their distinct
identities. The Act also mandates mechanisms for dispute resolution, emphasizing the importance of traditional
and customary methods recognized by the community. Furthermore, prior consultation with Gram Sabhas is
required for any development projects or activities affecting the land, resources, or livelihoods of tribal
communities, ensuring their active participation in decision-making processes. States are granted the flexibility
to modify their laws concerning local governance to align with the objectives of the PESA Act. However, the
responsibility for implementing the Act lies primarily with the state governments, which are entrusted with
facilitating the establishment and functioning of Gram Sabhas, providing necessary support, and ensuring
compliance with the Act's mandates. Penalties are stipulated for violations of the Act, underscoring the
imperative of respecting the authority of Gram Sabhas and upholding the rights of tribal communities. In
essence, the literal provisions of the PESA Act embody a comprehensive legal framework aimed at promoting
self-governance, autonomy, and inclusive development in Scheduled Areas, thereby addressing historical
injustices and fostering the socio-economic advancement of tribal communities. The PESA Act, or the
Panchayats (Extension to Scheduled Areas) Act, 1996, is a legislation aimed at extending the powers of local
self-governance to tribal areas, also known as Scheduled Areas, in India. These areas are predominantly
inhabited by tribal communities, and the Act seeks to empower them in matters of governance and decision-
making within their traditional territories. Jharkhand, being a state with a significant tribal population, holds
particular significance in the context of the PESA Act. The key provisions of the PESA Act in both letter and
spirit, with a focus on how it applies to Jharkhand.

Letter of the Law

❖ The PESA Act provides for the extension of the provisions of Part IX6 of the Constitution relating to
Panchayats to the Scheduled Areas with certain modifications and exceptions.

3
Bara, A. H. (2017). A critical inquiry of the rule of PESA in Jharkhand. SRSC
4
Choubey, K. N. (2015). Enhansing PESA: The unfinished agenda. Economic and Political Weekly, 21-23. Retrieved from
https://www.epw.in/system/files/ pdf/2015_50/8/Enhancing_PESA.pdf
5
Dube, M. P., & Padalia, M. (Eds.). (2002). Democratic Decentralisation and Panchayati Raj in India. Anamika Pub & Distributors.
6
Bijoy, C. R. (2012). Policy brief on panchayat raj (extension to scheduled areas) act of 1996. New Delhi, India: United Nations
Development Programme.

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❖ It mandates the establishment of Gram Sabhas or village assemblies in Scheduled Areas to serve as the
primary decision-making bodies.
❖ Gram Sabhas is empowered to manage natural resources, regulate customary and community
resources, and exercise control over local institutions and resources for the welfare of the community.
❖ The Act also aims to safeguard and preserve the traditional customs and cultural identity of tribal
communities.

Spirit of the Law

❖ The underlying spirit of the PESA Act is to promote self-governance7 and autonomy among tribal
communities. It recognizes their unique socio-cultural practices and traditional methods of governance.
❖ It intends to address historical injustices and marginalization faced by tribal populations by granting
them the authority to manage their local affairs.
❖ The Act seeks to ensure equitable distribution of resources and benefits within tribal communities,
thereby promoting inclusive development.
❖ It encourages participatory democracy by empowering Gram Sabhas to make decisions on matters
affecting their lives and livelihoods.

Special Reference to Jharkhand

❖ Jharkhand has a significant tribal population, with a majority residing in Scheduled Areas.
❖ The implementation of the PESA Act in Jharkhand is crucial for upholding the rights and autonomy of
tribal communities.
❖ Given the state's rich natural resources and tribal heritage, effective implementation of the Act can
contribute to sustainable development and inclusive growth in Jharkhand.
❖ However, challenges such as bureaucratic hurdles, lack of awareness among tribal communities, and
conflicting interests with external stakeholders may hinder the full realization of the Act's objectives in
Jharkhand.

The PESA Act, 1996, embodies the principles of self-governance, autonomy, and empowerment for tribal
communities in Scheduled Areas, including Jharkhand. Reviewing the law in both letter and spirit entails not
only understanding its legal provisions but also appreciating its broader objectives of social justice and inclusive
development. In Jharkhand, effective implementation of the PESA Act is essential for promoting the rights and
welfare of tribal populations and fostering sustainable development in the region.

IV. Overview of the Panchayats (Extension to Scheduled Areas) Act, 1996

The Panchayats (Extension to Scheduled Areas) Act, 19968, commonly known as the PESA Act, is a legislative
measure designed to address the historical marginalization of tribal communities residing in Scheduled Areas of
India. Enacted by the Government of India, this law aims to grant autonomy and self-governance to these
indigenous populations within their traditional territories. The Act establishes Gram Sabhas or village
assemblies as the primary decision-making bodies at the grassroots level in Scheduled Areas. These Gram
Sabhas are endowed with significant powers, including the management of natural resources, regulation of
customary and community resources, control over local institutions, and protection of tribal rights. Additionally,
the Act mandates the resolution of disputes within Gram Sabhas and necessitates prior consultation with them
for any projects or activities that may impact their land, resources, or livelihoods. In its implementation, the
responsibility for enforcing the PESA Act primarily lies with state governments, which are tasked with ensuring
the effective functioning of Gram Sabhas and facilitating the participation of tribal communities in local
governance processes. However, challenges such as bureaucratic resistance, lack of awareness among tribal
communities, and inadequate resource allocation have hindered the Act's full realization. Despite criticisms and
challenges, the PESA Act remains significant for its role in promoting grassroots democracy, empowering tribal
communities, and fostering inclusive development in Scheduled Areas. It serves as a crucial legal framework for
protecting the rights and interests of indigenous peoples in India, signalling a commitment to addressing
historical injustices and promoting the socio-economic advancement of tribal communities.
V. Conclusion
the review of the implementation and impact of the Panchayats (Extension to Scheduled Areas) Act,
1996T(PESA), and the Forest Rights Act, 2006 (FRA), in Jharkhand's scheduled areas reveals significant

7Madhu, A. (2017). PESA: A Mere Mirage of Independent Local Self-Governance. NUJS J. Regul. Stud., 2, 82.
8Bijoy, C. R. (2012). Policy brief on panchayat raj (extension to scheduled areas) act of 1996. New Delhi, India:
United Nations Development Programme.

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challenges in realizing the legislative intent of promoting tribal self-governance and safeguarding land rights.
Despite the legal framework aimed at empowering indigenous communities, bureaucratic hurdles, lack of
awareness, and conflicting interests have impeded effective implementation. The literature underscores the
urgent need for policy amendments, capacity-building initiatives, and public mobilization efforts to bridge the
implementation gap and realize the vision of inclusive development and tribal empowerment in Jharkhand's
scheduled areas. Ultimately, comprehensive implementation of PESA and FRA is crucial for upholding tribal
self-governance, protecting land rights, and fostering sustainable development in the region.

References

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Extension to Schedule Areas (PESA) Act, 1996.
2. Bachan, K. A. (2015). Powers And Functions of Tribal Gram Sabha Under the Forest Rights Act 2006
In Forest Land-Resource Governance, Conflict with Existing Institutions and Possible Synergies.
Meridian, 4 (2), 88-92.
3. Choubey, K. N. (2015). The public life of a ‘progressive ’law: PESA and Gaon Ganarajya (Village
Republic). Studies in Indian Politics, 3(2), 247-259.
4. Kindo, D. P., & Bhowmick, P. K. (2019). Panchayati Raj In Scheduled Areas of Jharkhand and Natural
Resource Management. Jharkhand Journal of Development and Management Studies, 17(2), 8069-
8086.
5. P. R. Memorial Foundation. A Report on Status of Panchayat Extension to Scheduled Areas (Pesa) Act
1996 In the States Of Andhra Pradesh, Orissa, Jharkhand, Gujarat and Chhatisgarh. Planning
Commission, Government of India Yojana Bhawan, Sansad Marg, 1-119.
6. Pandit, S. (2023). Tribal self-governance and natural resource management in schedule areas of
jharkhand: a critical analysis. Agpe the royal Gondwana research journal of history, science, economic,
political and social science, 4(3), 121-128.
7. Prasad, B. D. (2015) Assessment of Implementation of PESA in Schedule V Areas.
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Implementation of Self-Rule through Pathalgadi Practices. Contemporary Voice of Dalit,
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9. Sahoo, A. (2016). Forest Rights Act in ensuring Tribal Development.
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11. Sahu, G., Toppo, A. & Ganguly, A. (2018). Forest Rights Act Implementation in Jharkhand Promise
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