After the 73rd amendment, the Government also enacted the Panchayat (Extension to the Scheduled Areas) Act in 1996 (or simply the PESA Act, 1996). It mainly aims to protect the tribal population from exploitation by making Gram Sabhas centers of self governance. It is the most progressive legislation for the tribal regions, recognizing the traditional rights of the indigenous communities over the natural resources. As per PESA, the Gram Sabha will be involved in approval of development plans and programs, all decisions related to land acquisition as well as rehabilitation of affected persons, and in management of the minor forest produce. The Act specifically entrusts the Gram Sabha with the following functions:
Section 4.d: Gram Sabha shall safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution
Section 4.e (i): Gram Sabha shall be responsible for approval of plans, programs and projects for social and economic development
Section 4.e (ii): responsible for the identification or selection of persons as beneficiaries under the development programs
Section 4.i: Consultation with Panchayat prior to land acquisition and Rehabilitation & Resettlement activities in the scheduled areas
Section 4.m(ii): Endows ownership of minor forest produces (MFPs) to Panchayats
Section 4.m (iii): endows power to prevent alienation of land in Scheduled areas and to take appropriate action to restore any unlawfully alienated land of STs
Implementation of the law has been severely hampered by the reluctance of most State Governments to make laws and rules that conform to the spirit of the PESA Act. Weak political will has allowed the bureaucrats to continue to work as usual and PESA provisions have remained appealing on paper only. Probably the most glaring act of bureaucratic subversion is about the concept of ownership of minor forest produce (MFP). Forest officials have creative arguments to keep the tribal population away from the MFP which has always been a major livelihood support for them.
For example, officials argue that the power of Gram Sabhas can extend only to the forest located within the revenue boundaries of a village. The ground reality is that a reserved forest in generally not located within the revenue boundary of a village. The spirit of the law is clearly to provide the usual access to MFP from forests located in vicinity of the village.
Another argument against giving ownership of MFPs to Gram Sabhas is that it would lead to destruction of forests. Therefore, the ownership of MFP should mean the right to net revenues from MFP, after retaining administrative expenses of the Forest Department. This is also contrary to a whole body of empirical evidence from the national and international experience of JFM and community control of forests. Worldwide administrators are recognizing that the forest dwellers are the most suited people to entrust the well being of the forests along with all their biodiversity.
Such fanciful interpretations have almost killed the concept of ownership and control of local resources by the Gram Sabha.
There is yet another widespread tendency to see land and natural resources separately. Globally, there is a similar mindset amongst “environmentalists” and “forest conservators” who somehow see “forests” is isolation of biodiversity and forest dwellers. It becomes yet more comical when we talk about carbon-traders, speculators who trade in carbon credits; for them the forests are no more than a collection carbon sticks! Such ludicrous thinking comes from commoditization of natural resources that is becoming widespread in today’s world run largely by transnational corporations.
When the Fifth Schedule provisions offer protection to tribal culture and their traditional way of living, which is reaffirmed by various others laws including the PESA and Forest Rights Act, the idea is to allow them freedom to manage their socio-cultural affairs on their own. Since their lifestyle is intrinsically centered around land and surrounding natural resources, vital for their survival, it is clearly implied that they should be in the position to assert control on land, forests, and natural resources.
Ground reality however is strikingly different. It is a fact that the average size of the land holding by the tribals has been shrinking due to the State led acquisitions and the ill-designs of powerful non-tribal land mafia despite the fact that the sale of tribal lands to the non-tribals in the Scheduled areas is prohibited. Post liberalization-cum-privatization alienation of tribal land has become more perceptible and attack of natural resources of their regions has become rapacious.
If only Union and State Governments had honored the Samata Judgment (Supreme Court, 1997), a model of sustainable mining as well as “development” that was more respectful towards the tribal community would have evolved and most of the unlawful displacements, conflicts and suffering would have been avoided. Forest Rights Act (FRA) of 2006 was another recent legislative effort to enable tribals and other forest dwellers to assert rights over the forest land they had traditionally dependent upon. It also provided for empowering Gram Sabhas in asserting these rights, in line with PESA provisions. But again strong opposition of powerful vested interests and forest bureaucrats has been putting endless hurdles in its implementation.
What the short-sighted ruling elites and the plethora of governing bodies and tribal related departments have missed is that these tribal laws have offered them a one step strategy for development of the Fifth Schedule regions. As envisaged both in PESA and FRA, hand over control as well as management of land and natural resources to the Gram Sabhas of the Fifth Schedule areas and make all the parallel developmental activities subservient to the Gram Sabhas. This will also put a full stop to forced migration of tribals to urban areas in search of livelihoods.
You may also like to know how the tribal areas of the Sixth Schedule Areas are being governed: Governance in the Sixth Schedule Areas