Armed With a Toothless Law, the Plight of the Adivasi Worsens

Since coming into effect 21 years ago, PESA has been grossly misused and underutilised, disenfranchising Adivasi communities all over the country.

In India, tribal communities have had a long history of struggle, including during the colonial rule. In fact, the tribal war for independence has largely been ignored in the popular history of independent India. Today, most of us are not aware that the war of independence started as early as 1789 with Tilka Manjhi, the leader of the Mahal Pahadias. Since 1789, around 80,000 tribals lost their lives fighting for independence. British records of that time state that the tribal people did not have many weapons but they refused to surrender and fought till the end. The British recognised the importance of letting tribal communities govern their own areas. Schedules V and VI of the constitution of independent India reflects this point of view.

Genesis of PESA Act

India had created history in fiscal federalism via the landmark 73rd and 74th amendments to the constitution in 1992. These amendments introduced a three-tier local self government to the federal structure, giving constitutional recognition to rural local self-government institutions and enabling decentralised governance through Panchayati Raj institutions.

Nevertheless, there was not much interest in strengthening participatory democracy by way of making the gram sabha the corner stone of the Panchayati Raj system. While the constitution of gram sabhas was made mandatory in states, the powers and functions of the gram sabhas have been left to the discretion of the state legislatures. As a result, different states have developed powers and functions for this body differently.

Following the amendment, a high-level committee was constituted under the chairmanship of Dileep Singh Bhuria, charged with recommending how scheduled areas should be incorporated under the 73rd Amendment Act. As recommended by this committee, a Bill was introduced in parliament and passed on December 19, 1996. Subsequently, after getting the president’s assent on December 24, 1996, the 73rd Amendment Act was extended the Scheduled Areas mentioned under Clause (2) of Article 244 of the constitution. It became mandatory for the states to amend their existing Panchayat Acts to conform with the Extension Act within a year.

The Panchayatiraj Extension to Scheduled Areas Act, 1996 (PESA) has made it mandatory for states having scheduled areas to make specific provisions for giving wide-ranging powers to tribals on matters relating to decision making and development of their community.

Technically, when the Act refers to extending the provisions of Part IX of the constitution to the schedule V areas, politically, it gives radical governance powers to the tribal communities and recognises its traditional community rights over local natural resources. It not only accepts the validity of “customary law, social and religious practices, and traditional management practices of community resources”, but also directs the state government not to make any law which is inconsistent with these. Accepting a clear-cut role for the community, it gives wide-ranging powers to gram sabhas, which had hitherto been denied to them by the law makers of the country.

PESA has become a myth

As the situation stands at present, no gram sabha can hope to function without going through revenue officers at various levels, and in a majority of cases, required sanctions are denied by inordinate delays or outright refusals. No stretch of common property can in anyway be rightfully owned and controlled by any village, communities, groups, or people. And the gram sabha’s power to accord such ownership is never recognised. This is a direct violation of the PESA Act which clearly states that;

“A state legislation on the panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources. Every gram sabha shall 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”.

However, deflecting from a gram sabha-centric ethos, PESA has also provided for an “either-or option” between the gram sabha or the panchayat while deciding certain matters. Though the gram sabha remains the common forum of reference, consultation with the gram sabha can be substituted with an appropriate panchayat body prior to land acquisition or, settlement and rehabilitation of displaced people in scheduled areas. Additionally, under Section 4 (i) of the Act, the authority of both the gram sabha and other panchayat bodies have been whittled down by saying that actual planning and implementation shall be coordinated at the state level.

Similarly, under Section 4 (j), the planning and management of minor water bodies in the scheduled areas shall be entrusted to a panchayat at an appropriate level. The amendment also states that prior recommendation of a gram sabha or an appropriate panchayat shall be mandatory to grant concessions for the exploitation of minor minerals by auction. Such an ‘either-or’ approach in these respects has legitimised the centralising drives of most of the state legislatures for divesting the gram sabha of control and authority over certain crucial issues. Srinibash Das, a development professional working with the Adivasi communities of Odisha, points out,

“Ironically, now, tribal communities have been distanced so much that the eminent domain principle put into place by the British Colonial government rules even the tribal mindset, and all land, that is not private land, is ‘Sarkari Land’ (government land) with the local communities also assuming that their possession is temporary and by-default. The tribal communities have taken their default access for granted, but are aware of their high insecurity of tenure, as their very own government often acts against them, overturns their customary rights, whenever it suits the powers that be.”

Many questions, few answers

Is there a need to change existing revenue traditions so that they are in consonance with PESA? Can we envisage gram sabhas defining customary rights, usage and traditions over their land, forest, water resources? Can we imagine a revenue set up that would facilitate a ratification and legalisation of these? Can we envisage complete access, control and management of these resources by gram sabhas for its members?

For tribal communities, the answers to all the above questions will be no. Government officials, Panchayati Raj institutions and community members have very little information about PESA, and presently PESA is not truly implemented in schedule V areas. In these areas, the three tier Panchayat Raj system is given more importance. PESA’s importance in protecting traditional customs and a culture of tribal self-governance is ignored. Traditional leaders of the villages are ignored and the panchayat representatives are given more importance. Gram sabhas are convened at the panchayat level, and are not consulted for the planning and implementation of government programmes. The forest department has not adhered to the gram sabha resolution of collecting minor forest produce. Village development plans lack people’s involvement. Traditional practices of conflict resolution by the “village kutumba” have been abolished and people have started going to courts and police.

“Adivasi self-rule will be possible only if there is conscious community mobilisation at the grassroot level in support of this. Macro level policies since independence have led to the decay of the traditional communitarian practices of the Adivasi and so a revival will have to be attempted at a decentralised level by the Adivasis themselves,” emphasises Rahul Banerjee, a development researcher and social activist working with the Bhil Adivasi communities.

In the last two decades, numerous pro-poor acts and schemes have been launched by the Indian government and yet, very little has changed for tribal communities. Land is rarely settled in their favour, whereas, land acquisition is aggressively pursued by the governments in power for myriad projects, to which the tribals can scarcely relate. The right to education hardly makes any impact, as too few teachers are provided, and the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) provides employment, but not wages.

State Acts overrides the central PESA Act

In Odisha, as per PESA, the state government has made certain amendments in three panchayat laws – the Odisha Gram Panchayat Act 1964, the Panchayat Samiti Act, 1959, and Odisha Zilla Parisahd Act, 1991 – claiming that all the amendments were in line with the PESA. But in reality, all these acts of the state government are largely circumventing the true spirit of PESA.

“It has been observed that most of the so-called amendments in the Odisha Gram Panchayat Act 1964 and other panchayat related laws were not in conformity to the mandates of the central PESA Act 1996. For instance, in each of Odisha’s three principal panchayat laws, there is as of today, a chapter titled ‘Control’, which endows powers to bureaucrats from the lowest to the highest level to exercise control of various types and in various degrees over the panchayats at each level”, says Sandeep Kumar Pattanaik who works with National Centre for Advocacy Studies based in Bhubaneswar.

According to Basudev Mahapatra, a noted media activist and documentary film maker based in Bhubaneswar, “The PESA experience is just one example that only makes tip of the iceberg. Adamant and ‘different-from-others’ attitude of the bureaucracy are the bottlenecks in effecting decentralisation in Odisha. So, to make decentralised district planning a reality in the state of Odisha, what is primarily required is a change in the attitude of the bureaucracy and the people in power who design polices for the development of people. They must not rule of people but serve people and facilitate decentralised planning and development”. 

Ignored by the government, crushed by industrialisation

The scheduled areas are resource rich, as the Centre for Science and Environment’s report ‘Rich Land: Poor People’ has underlined. Nevertheless, these resources are garnered by the corporates, causing more harm than good to local communities. The overdrive for imposing development from the top has resulted in tremendous discontent among the tribals. There has been a real shrinkage of democratic space, as a consequence of which the tribals are no longer able to resolve their own issues of self-governance.

Felix Padel and Samarendra Das, in their book Out of This Earth, provide a comprehensive analysis of the social and environmental impacts of the mining boom in Odisha. The authors show how companies split tribal communities by bribes and coercion, such that a division emerges between “accepters” and “refusers”. They document the extensive collusion, between politicians and bureaucrats and the private companies, which displaced scores of tribal from the land they inhabited for generations. The autonomous and non-violent resistance of tribals to destructive mining has often been misinterpreted by the state, corporate interests, and even by the media at times to label it as a “Maoist threat”. Then this label is cunningly used “to crush all kinds of spontaneous opposition by tribals to be displaced”, leaving the displaced at the mercy of fate.

“Ignored by the government, crushed by industrialisation, rebellion has become a culture among the deprived and marginalised Adivasi communities in Jharkhand. This is also applicable to other tribal populated states in India where in the name of the development, the government is hijacking lands from the innocent Adivasi communities for industrialisations and various developmental projects. But, this injustice against the Aadivasi will not be accepted silently”, says Neraaj Lakra, an Adivasi activists hailing from Jharkhand.

Jharkhand is a crucial state, where 22 out of 24 districts are under the control of “left-wing-extremists” and the centre is spending huge amounts of money in the name of uprooting “Naxalism”. Interestingly, when the state was separated from Bihar in November 2000, there were only eight Naxal-infested districts.

“There is lacuna in central PESA itself. PESA is known for legally validating the tribal self-rule, but at grassroot, the situation is completely different. For instance, ownership rights on minerals and management of natural resources, etc. The gram sabha is not given decisive role in the land acquisition process.” says Gladson Dundung, a Jharkhand based human rights activist and writer.

Chutka and Manda areas of Madhya Pradesh come under PESA, but a nuclear project has been proposed, people are at risk of being displaced. Recently, an RTI revealed that the PESA provisions are being respected, but in reality, the proposed project has been rejected by three gram sabhas. Residents say that the forest department has taken to filing fake cases against tribals in both areas.

Commenting in this regard, Manohar Chauhan, an activist associated with Campaign for Survival and Dignity, Odisha, says that despite the existence of PESA and the Forest Rights Act, the scheduled areas have remained under the thrall of the forest department bureaucracy, against whom, tribal leaders have been able to do little for their communities.

As per the constitution, the governor of a state is the actual protector of the tribals in the scheduled areas for peace and good governance. In contrast, the governors have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there hasn’t been even a single instance where the governors have responded to petitions for interventions. As far as the Tribes Advisory Council is concerned, it never meets on a regular basis and has been of no use to tribals since its inception. 

Assertion

The state brands every ‘tribal assertion’ as an instigation. In the name of law and order, such assertion has been brutally suppressed. The numbers of cases, the number of prisoners in jail from schedule V areas are indicative of the state’s apathy. The Indian government takes pride in being one of the largest democratic countries in the world but it has failed miserably failed in understanding the relationship that the Adivasis have with land, water and forest.

“Abandoned by government, threatened by corporate goons, suppressed and harassed by police and military platoons, we Adivasi are losing our homes, land, forest, water. We have been protesting this injustice for the last 20 years and in response what have we got? Three innocent Adivasi were shot dead by the police firing in Maikanch during a peaceful dharna against the Bauxite mining at Baphlimali,”says Sumani Jhodia, a renowned tribal leader of Kashipur in Odisha.

It has been 21 years since PESA was enacted in 1996. By now, many consider it to be dead and defunct. It is imperative to revisit its status and its presence for the tribal communities, as a set of constitutionally guaranteed rights. The tribals have had a bitter experience with the violations of PESA. At the same time, they feel that given a chance, PESA can address many injustices in the tribal regions.

Abhijit Mohanty is a development professional currently based in Gurugram, India. He has extensively worked with the indigenous communities of India and Cameroon especially on the issues of land, forest and water.