Government ’s failure to implement Vth Schedule and PESA Act is the reason for Gram Sabhas asserting their rights through Pathalgadis in Jharkhand.
The Government’s failure starts with the non-implementation of the Vth Schedule of the Constitution which prescribes that every State having Scheduled Areas should have a Tribes Advisory Council (T.A.C.) composed of 20 members, all of whom should be Adivasis and it shall be its duty to advise the Governor on matters pertaining to the welfare and advancement of the Adivasis. Based on the advice of T.A.C. the Governor may make regulations for the peace and good governance of the people in Scheduled Areas. Vth Sched. [244(1) Part A,4(1), (2),5(2)]
Sad but true, Jharkhand govt has consistently violated the Vth Sched. Here, the Chief Minister of the ruling party has taken on the role of the Governor in convening T.A.C., sets the agenda and presides over the meetings which are few and far between. In the case of Jharkhand, presently the CM who is a non-adivasi, presides over T.A.C. meetings! A serious aberration indeed.
Panchayats (Extension to Scheduled Areas) Act, 1996 [PESA] is the next casualty
Let us recall the salient features of PESA Act: Powers of Gram Sabha
- It is part of Part IX of our Constitution, and not just an ordinary legislation
- It stipulates that in Scheduled Areas, the State legislation shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources [PESA,4(a)]
- A village community managing its affairs in accordance with traditions and customs [4(b)]
- Every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls [4©]
- Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and customary mode of dispute resolution[4(d)]
- Every Gram Sabha shall approve the plans, programmes and projects for social and economic development by the Panchayat [4(e)(i)]
- Be responsible for the identification and selection of persons as beneficiaries under the poverty alleviation and other programmes[4(e)(ii)]
- The Gram Sabha / Panchayat shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling and rehabilitating persons affected by such projects [4(i)]
- The recommendations of the Gram Sabha or the Panchayat shall be mandatory prior to the grant of prospecting license or mining lease for minor minerals[4(k)] and for grant of concession for the exploitation of minor minerals by auction[j]
- The Legislature shall ensure that Gram Sabha is endowed with the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a scheduled tribe [m(iii)], the power to control village markets [(iv)], the power to exercise control over money lending in Scheduled Areas[(v)], the power to exercise control over institutions and functionaries in all social sectors[(vi)], the power to control over local plans and resources[(vii)]
These above provisions are to take effect from the day the President gives his assent to this Act. Any amendment to the above Act by the State legislature has to take place within one year of the President’s assent, failing which the PESA Act becomes binding as it is.
The President gave his assent to PESA on December 24, 1996. Erstwhile Bihar govt did not ever pass any legislation regarding implementing the PESA Act. Jharkhand became a separate State in November 2000. It enacted a belated ‘Jharkhand Panchayat Raj Adhiniyam’ in 2001 which watered down both the letter and spirit of PESA 1996. Rather, it forcefully conducted Panchayat election thereby breaking up coherent village communities into numerical wards. Promises were made that significant power and finance will be made available to the panchayats. But nothing has happened. People are only getting frustrated. Now of late, Jharkhand govt has announced plans to set up Adivasi / Gram Vikas Samitis in all the villages of the state. This is completely illegal and can be challenged in court.
No wonder, then, that some Adivasi communities have decided to assert their right to self-governance through the Gram Sabha. It would be highly desirable if the govt, the educated Adivasis settled in towns and cities and other intellectuals, activists will reach out to the rural folk and have a dialogue with them. It would be highly erroneous to look at this as a ‘law and order’ problem, call it ‘sedition’ and therefore the leaders should be punished by the state.