PESA Act
PESA was enacted on 24 December 1996 to extend the provisions of Part IX of the Constitution to Scheduled Areas, with certain exceptions and modifications.
[2] PESA is an Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats and the Scheduled Areas.
Rampant land acquisition and displacement due to development projects had led to largescale distress in tribal communities living in Scheduled Areas.
The provision lays down the responsibility on the Governor to ensure that laws that are contrary to the interests of Scheduled Areas may be suitably modified.
[20] However, recently Maharashtra Governor has issued a number of notifications to bring the state subject laws in line with PESA and to guarantee minor forest produce to Gram Sabha.
The Group recommended a number of interventions such as constitution of a Tribes Advisory Council in Schedule V States on a uniform pattern, drafting of a uniform model for Tribal Sub Plan Budget Allocations, making TSP allocations non transferable and non lapsable, declaring all TSP districts as 'High Priority Districts' under National Rural Health Mission, protecting land rights of tribal communities, etc.
Many of the above Acts have been modified and brought in line with PESA by Notifications issued by the present Governor of Maharashtra Shri Ch.
In exercise of these powers, the Governor of Maharashtra has issued various notifications for welfare of tribal communities in Scheduled Areas.
[27] Because of these changes many Gram Sabhas in Scheduled Areas have been able to exercise their rights over minor forest produce, including high value products, such as bamboo and tendu.
Land alienation in such areas occurs because of various reasons such as threat, coercion, fraud, forgery, and the general indebtedness of tribal persons to money-lenders.
In order to bring the state revenue laws in line with section 4(m)(iii) of PESA, 1996, in exercise of powers conferred by sub paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution, by Notification dated 14/06/2016, the Governor of Maharashtra directed that section 36 A of the Maharashtra Land Revenue Code, 1966, in its application to the Scheduled Areas of the State of Maharashtra shall apply with the modifications mentioned in the said Notification and that no land can be alienated in Scheduled Areas without the prior consent of the Gram Sabhas.
Therefore, in exercise of the powers conferred by sub-paragraph (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, by Notification dated 30/10/2014, Governor of Maharashtra Shri Ch.
In pursuance to this Notification, the Rural Development Department by Government Resolution dated 31/03/2015 and 23/11/2015 has issued guidelines regarding Bamboo cutting and selling through Gram Sabhas.
A Planning Commission Report concluded that "in most cases, in the pre-PESA implementation phase, there was little if any difference between tribal and non-tribal areas with respect to the role of the Gram Sabha.
The report also noted that there has been " absolutely no groundwork in recognising the Gram Sabha’s jurisdiction over forests and in the creation of adequate mechanisms and support structures for them to play any significant role.
For example, the provisions, as explained in the Act, related to people’s control over livelihood resources have yet to be executed in the scheduled areas.
For example, the modern state and its legal apparatus do not recognise the customary ownership rights of land, which are by and large unwritten in the tribal community.
Therefore, if tribal communities cannot exercise ownership rights in their traditional fashion, the spirit behind the provision in PESA of managing land resources by Gram Sabhas is defeated.
It is this very attitude, along with an absence of Amendments in the Indian Forest Act, which is in conflict with the provisions of PESA and this problem could be solved in a war footing manner.
[38] Simultaneously, the Andhra Pradesh government moved the Tribes Advisory Council for amendment to the Land Transfer Regulation Act of 1959.
It is also alleged that the Ministry of Mines circulated a Secret Note to the committee of Secretaries proposing an amendment of the Fifth Schedule to overcome the Samata Judgement to facilitate the leasing of land to outsiders in tribal areas.
The Indian Express carried an article in the edit page exposing secret note of Ministry of Mines.
[39] The President Shri K R Narayanan in his Republic Day speech issued a veiled warning against plotting to amend the V Schedule of the Constitution.
[43] Unlike PESA, Section 41 of LARR 2013 provides for consent of Gram Sabhas before the process of land acquisition can begin.
"[43] The difference between PESA and the PRI structure established under the 73rd Constitutional amendment is that while the 73rd Amendment states that the States "may" transfer the 29 subjects enlisted in the Eleventh Schedule, PESA makes this transfer mandatory at least for those powers which are outlined in Section 4 of PESA, namely: Minor Forest produce, Social Forestry, Land Management, Fisheries, Village Markets, tribal development, Social Justice, Food and Civil Supplies, and subjects related to local institutions.
In a letter dated 13 February 2015, the Minister of Tribal affairs clarified that there is no conflict between FRA and PESA as far as ownership of MFP is concerned and has called both as "kindred statute".
it is expected that if and when such an Act is passed it shall through certain modifications in Part IX A of the Constitution provide adequate safeguards for the people of Scheduled Areas.
However, absence of MESA has not prevented many states from creating municipalities leading to much heartburn in scheduled areas and legal challenges.
Alok Pandey of PRIA, a Delhi-based non-profit that works on local governance, cites another reason for such upgrade.
The Ministry suggests special stress on minor forest produce rights to Gram Sabhas for this purpose.
