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*PESA, Left-Wing Extremism and Governance: Concerns and Challenges in* *India’s Tribal Districts* * “There has been a systemic failure in giving tribals a stake in the modern economic processes that inexorably intrude into their living spaces…The systematic exploitation and social and economic abuse of our tribal communities can no longer be tolerated.” ** Manmohan Singh, Prime Minister of India, November 2009 ** “When I told a govt. official that PESA allows us to determine our policy on liquor trade in the village, he shot back, “Are you trying to teach me the law? If you are so knowledgeable about the law, why are you living here in your village in the forest? Why don’t you go and speak in the Orissa assembly?” ** Fulsingh Naik, resident of Mandibisi (Rayagada, West Orissa), December 2009, *recounting a conversation he had from inside a prison cell with a policeman, who had jailed him for leading community protests against a country liquor shop in their village. * “Is government meant for the people or the powerful?” ** Mahangu Madiya, a resident of Dhuragaon (Bastar, south Chhattisgarh), July 2009, *on the government’s efforts to forcibly acquire his village’s farmland for the private steel-manufacturing giant, Tata Steel Limited, ignoring opposition by village gram sabhas. This chapter explores the functioning of the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA from here on), which governs areas in nine states1 of India, covered by the Fifth Schedule of the Indian Constitution. Tribal communities make up 8.2% or approximately 8 in 100 Indians – an economically and culturally vulnerable and distinctive group. The 1996 landmark law recognized this, and the historic injustices meted to them. Its passage—an act of great political commitment—attempted to shift the balance of power towards the communities by providing a mechanism for self-protection and self-governance. By recognizing that tribal communities are ‘competent’ to self-govern, we were, in effect, recognizing the validity of their way of life, value systems and worldview (*See Annexure 1 - The Act*). Today, it is universally acknowledged that the law has much to achieve on its promise of securing people’s participation, as the keystone of a meaningful democracy. The Ministry of Panchayati Raj mandated the Institute of Rural Management to make an independent assessment 1 Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Maharashtra, Madhya Pradesh, Orissa and Rajasthan of ‘the correlation between *the promise and the reality of self-governance *in selected states, especially those which have witnessed difficulties due to alternate mobilisations (and countermobilisations)… The report will seek to build an assessment of issues and some common grounds for institutionalisation of local self-governments in such extremist affected states.’ This analysis starts by sketching a brief background to PESA, and outlining how the act intended to improve the lives of some of India’s most beleaguered sections, when it was passed in 1996. It then analyses the key challenges to the effective functioning of PESA today. The second section then analyses in detail the unfinished legislative agenda regarding the PESA. It does this by firstly looking at the unfinished legislative and executive work on the law in some key states of India.2 The third section moves to the ground in order to put a human face to the neglect of the act through selected case studies. It thus attempts to capture some of the big themes that currently militate against PESA, as expressed by people, for whom life is increasingly a quest for survival. Placing at the centre stage, peoples’ experiences of PESA and governance might make the analysis appear skewed, or even one-sided. But we believe that these voices from the ground are poorly heard in policy making and implementation—for a complex of reasons, from the community’s entrenched marginalisation to the absence of written traditions for communication—and hence need be given primacy. It looks at the failure of PESA and the ‘alternate mobilisation’ that has happened. Though not included in this report, the larger research elsewhere also outlines the complex intersection of what would be justifiably called governance failure and alienation, and its coterminous relationship with the phenomenon of left-wing extremism, i.e. the currently banned Communist Party of India - Maoist (However, there are a range of left-wing Naxal groups operating on the ground in PESA areas). The experience of fieldwork, which even entailed physical dangers, suggests that there is a veritable crisis in several PESA areas, with despair, insecurity and a breakdown of the rule of law, and access to justice within the constitutional framework. A final section lists some ideas, which would help institutionalize and actualize PESA in letter and spirit. These are entirely collaborative, and have emerged through IRMA’s fieldwork among communities, as well as in the course of many conversations with distinguished and tireless workers in the field. While the former, namely the people, sought policies that respected their dignity and ways of living, most tribal rights advocates stressed that a PESA-centric approach was essential to bring in the inclusive governance, which would be critical for the success of India’s current attempts for inclusive growth. 2 This was primarily done by speaking to officials in the central and state governments (Andhra Pradesh, Chhattisgarh, Gujarat, Jharkhand, Madhya Pradesh and Orissa). Unfortunately, and despite repeated written and oral requests, some of the state officials, particularly in the district administrations, were extremely unresponsive to the exercise. The urgency and indispensability of this approach has already been cogently made by recent committees such as the Planning Commission-appointed group’s report, ‘Development Challenges in Extremist Affected Areas’ (2008). Prime Minister Manmohan Singh (2009) has seconded this perspective: ‘We cannot have equitable growth without guaranteeing the legitimate rights of these marginalized and isolated sections of our society. In a broader sense we need to empower our tribal communities with the means to determine their own destinies, their livelihood, their security and above all their dignity and self-respect as equal citizens of our country, as equal participants in the processes of social and economic development.’ * 1. PESA: Recasting the Balance of Power * Post-independence India’s policymakers, starting most notably with the then Prime Minister Jawaharlal Nehru, have been continually seized by the issue of crafting public policies sensitive towards the vulnerable tribal communities. Through the decades however, there has also been a constant awareness of the wide gulf between the stated intent of protection in the Constitution, and the ground reality of routine exploitation. This is evidenced in the series of reports the government commissioned from time to time, which pointed to the deepening marginalisation of these communities. Having lived since generations in a close and dependent relationship with nature in mostly resource-rich areas, they were paying an inordinate, and often devastating price, for India’s chosen development model. Violation of their land and forest rights, even leading to complete displacement or dispossession; exploitative economic relations with the world at large; and the erosion of their cultural practices were some of the harsh, yet common realities in the life of the tribal community. In 1996, the Parliament passed the Panchayats (Extension to Scheduled Areas) Act or PESA, with the political class acknowledging the dire need to protect the rights and resources of the communities in Schedule V areas, by recognizing and upholding their right to self-governance. The law, according to Dileep Singh Bhuria, the Chairman of the committee that worked on it, could ‘mark the beginning of a new era in the history of tribal people...’ How was this act a departure? PESA recognized the gram sabha (a habitation was the natural unit of the community, and its adult members constitute the gram sabha, as against the elected gram panchayat) to be pre-eminent. The gram sabha was recognized as being *competent *to act on a range of powers, including: - 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 - the ownership of minor forest produce - the power to enforce prohibition, or to regulate or restrict the sale and consumption of any intoxicant - the power to exercise control over money lending to the Scheduled Tribes - the power to exercise control over institutions and functionaries in all social sectors - the power to control local plans, and resources for such plans including tribal sub-plans - the power of prior recommendation in granting prospecting license or mining leases for minor minerals as well as for grant of concessions for the exploitation of minor minerals by auction - the right to be consulted on matters of land acquisition - the power to issue utilisation certificates for government works undertaken in their village PESA thus constructs tribal self-governance around certain key features. The first feature through Sec. 4 (b) fundamentally departs from colonial praxis by affirming that an organic selfgoverning community rather than an administrative unit like a village is the basic unit of selfgovernance. PESA also recognizes a habitation to be a natural unit of the community, whose adult members constitute the gram sabha. In Sec. 4 (d) and 4 (m)(ii), communities are declared competent to safeguard and preserve their culture and tradition, exercise command over natural resources, enjoy ownership of minor forest produce and adjudicate their disputes. Under Sec. 4 (m) (vi), the village assembly is empowered to monitor all state institutions within its jurisdiction e.g. schools, health centres etc, with the functionaries under its control. Sec. 4 (i), (j), (k) & (l) mark a departure from colonial laws like the Land Acquisition Act, Forest and Mining Acts, and ordain that communities must be consulted on acquisition of, or access to land and land based resources. They also affirm that the tribal community has the capability and competence to adjudicate on, and act in its wisdom to put an end to all exploitative relations including land alienation, money lending, market relations and alcohol trade. This establishes the supremacy of the gram sabha, whose power cannot be usurped by a superior body. Thus PESA is a unique legislation, often described as a Constitution within the Constitution, which attempts to bring together in a single frame two totally different worlds - the simple system of tribal communities governed by their respective customs and traditions, and the formal system of the State governed exclusively by laws. The second important aspect of PESA is that it spells out a general frame of reference for governance in the Scheduled Areas. It envisages a number of options that may be exercised in each case by the concerned authorities depending on the local situation. It is presumed that the alternative chosen will not violate the general spirit of PESA. In the words of a key figure involved in the grassroots movement for the passing of the legislation, ‘PESA moved from development delivery to empowerment; from implementation to planning; from circumscribed involvement to conscious participation (Prabhu, 2004).’ However, in the decade-and-a half since it was passed, the experience of PESA has been tragically stilted. The legislative and executive work, which state governments were meant to undertake, still remains incomplete. Further, as the above reading of the law shows, PESA envisaged a radical shift in the balance of power - from the state apparatus and from economic and political elites, to the community. However, a community can exercise this wide range of powers meaningfully only when they have access to adequate information and capabilities, in alliance with other arms of the state. All this has been given inadequate attention. In a way thus, the entire effort of all organs of government ought to have been directed towards building up the necessary capabilities such that the ‘constitutional/statutory’ competence mandated in communities get fullest play. This does not seem to have happened. On the contrary legal and administrative subterfuge has kept the provisions of PESA as a set of aspirations and the agenda of self governance remains postponed. Given that the challenges to the tribal community’s way of life have severely intensified in the past decade with a liberalizing economy, wooing of private capital for industry, the profitable rush for natural resources (in particular, minerals and farmland) along with the phenomenon of left-wing insurgency, which evokes people’s problems, the neglect of PESA has had particularly tragic and violent implications. Having built up over the past decade, they now demand a sensitive and urgent redressal by us as a people. * 2. PESA: The Unfinished Legislative Agenda * When passed in 1996, the central PESA envisaged that the nine states with Schedule Five areas would enact their own legislations devolving power to their respective tribal communities, as well as amend pre-existing laws to bring them in harmony with PESA within a year: “A State legislation on the Panchayats…may be made…in consonance with the customary law, social and religious practices and traditional management practices of community resources.” (PESA, 4.a) =================================== *Note: For full report, please download the attached file.* *===============*
