UPSC Prelims Polity, Panchayati Raj and PESA 1996

Panchayati Raj and PESA 1996

The 73rd amendment Act 1992 had made constitutional provisions for the three tier Panchayats all over the country. However, this act is not applicable to Jammu and Kashmir, Nagaland, Meghalaya and Mizoram and certain other areas including scheduled and tribal areas. These other areas include

• scheduled areas and the tribal areas in the states
•  hill area of Manipur for which a district council exists
•  Darjeeling district of West Bengal for which Darjeeling Gorkha Hill Council exists.

At the same time, Article 243M (4) (b) of the part IX made the provisions that parliament may by law, extend the provisions of this Part to the scheduled areas and the tribal areas. Even before the Parliament could enact legislation, some states such as Andhra Pradesh, Himachal Pradesh and Rajasthan extended the Part IX to their scheduled areas. This means that it became an unconstitutional act on the part of these states. This irked the tribal leaders because they thought that the state government would erode the autonomy of the tribal people in their affairs because now, there would be a conflict between the Panchayati Raj bodies and Schedule 5 bodies. The tribal leaders of the Andhra Pradesh took this matter to the Andhra Pradesh High Court. The high court in its judgment held that extension of Andhra Pradesh Panchayati Raj Act, 1994, to scheduled areas is against the Constitution. 

This woke up the leaders sitting at center and now they felt that parliament should enact a law to extend the provisions of the Central Act to the scheduled areas using provisions of Article 243 (M). To clarify as to how the scheduled areas of Schedule V could be covered under the provisions of Part IX, the government established a high-level committee under the chairmanship of Dileep Singh Bhuria, which we call the Bhuria Committee. On the basis of the recommendations of Bhuria Committee, a bill was introduced in the parliament and passed on December 19, 1996, which was subsequently assented to by the president on December 24, 1996.  Thus, the Panchayats (Extension to the Scheduled Areas) Act 1996 has extended the Part IX of the Constitution to the scheduled areas of the fifth schedule. Via this act, it was made mandatory for the Andhra Pradesh, Himachal Pradesh, Bihar, Maharashtra, Madhya Pradesh, Gujarat, Rajasthan and Orissa to amend their existing Panchayat acts in consonance with the Extension Act within a year i.e. by 1997

Salient Provisions of PESA Act

•  In the Schedule areas, every village will have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayats at the village level.
•  In the schedule areas, there will be a minimum of 50% seats reservation for Scheduled Tribes (STs) at all the tiers of Panchayats.

•  If the area has different tribal communities, the reservation of different tribal communities shall be on the basis of proportion to their population.

•  The chairpersons at all levels of the Panchayats in Schedule areas shall be reserved for STs. 
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• If there are no ST members at intermediate or district level Panchayats, the state government shall nominate such underrepresented STs by maximum of one-tenth of the total elected members of the Panchayats. 
• Every legislation on the Panchayats in scheduled area shall be in conformity with the customary law, social and religious practices and traditional management practice of the community resources.

 Powers and authority of the Gram Sabha and Panchayats in Scheduled areas Gram Sabha has the power to safeguard and preserve the traditions and customs of people, their cultural identity, community resources and customary mode of dispute resolution. It also has power to approve plans, programmes and projects for social and economic development, to identify persons as beneficiaries under the poverty alleviation and other programmes, to give certificate of utilisation of funds for various plans and programmes. If there is an acquisition of land in these areas, Gram Sabha must be consulted. However, actual planning and implementation of the projects shall be co-ordinated at the state level. So, in land acquisition, the role of Panchayats in these areas is advisory only. The recommendation of the Gram Sabha or the Gram Panchayats is mandatory for grant of prospecting license or mining lease for minor minerals in that area. Gram Sabha has the right to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant. Gram Sabha and Panchayat have right to regulate the

•  ownership of minor forest produce;
•  to prevent alienation of land;
•  to manage village markets; 
• to exercise control over money lending; 
• to exercise control over institutions and functionaries in all social sectors;
•  to control over local plans and resources for such plans including tribal sub-plans. 
• Planning and management of minor water bodies shall be entrusted to panchayats at appropriate level. 

State legislations may endow Panchayats with such powers and authority as may be necessary to enable them to function as Institutions of Self-Governance (ISG). The state laws shall contain safeguards to ensure that Panchayats at higher level do not assume the powers and authority of any Panchayat at the lower level or of the gram Sabha. Thus, we see that the PESA Act has been an important legislative framework to be enacted by the state legislatures for the tribals to have their control and rights over natural resources and conserve and preserve their identity and culture and that too in a participatory manner through the institution of gram Sabha.