November 13, 2023
Chhattisgarh and Madhya Pradesh go to poll this week. Politicians campaigning promise implementing rules under the Panchayat (Extension to Scheduled Areas) Act, 1996 or PESA, if elected.
Will implementing PESA rules fulfil the demands of the tribal communities?
In Chhattisgarh, Arvind Kejriwal stated that AAP will implement PESA within a month of coming into power. In Madhya Pradesh, Rahul Gandhi accused the BJP of removing the Gram Sabha's right to consent from the state PESA laws.
The PESA Act allows for the establishment of village panchayats in the Fifth Scheduled Areas, areas specially notified under the Constitution to protect tribal communities, with special provisions to protect autonomy of tribal communities
Rules were meant to be passed by each of the ten states where the PESA Act would be applicable. However, Chhattisgarh and MP – where over 230 lakh tribal people reside and make up more than 20% of the states' population – only enacted their rules last year.
Over half of the 80 ongoing land conflicts in these states as per the Land Conflict Watch database occur in Fifth Schedule districts (https://landconflictwatch.org/all-conflicts). Many of these conflicts span decades, overseen by multiple state governments ruled by different political parties.
These 42 conflicts primarily see the violation of the right to Free Prior Informed Consent (FPIC) – indigenous people's right to have a say over projects affecting their land. This is required by multiple Indian laws, such as PESA, Forest Rights and Land Acquisition Acts.
23 out of 42 land conflicts from the two states see the provisions of PESA Act being applicable. Particularly, Section 4(i) which says that prior consent of the Gram Sabha or panchayat is necessary before land acquisition.
But what do the rules say about this prior consent requirement?
The Chhattisgarh rules use of the word ‘sahmati’, which means consent, in the section header, but change it to ‘paramarsh’, which means consultation, in the operative rules.
Community activists have noted that changing the power to decide consent to merely giving recommendation based out of consultation is a dilution. The former includes the power to veto the latter doesn't. Section 41 of the LARR recognises this.
The MP PESA Rules do not dilute the consent requirement. The rules refer to the process established in the state land acquisition rules of 2015, which in turn mandate prior consent to be taken from Gram Sabha.
Yet both states undermine the autonomy of the Gram Sabha through other provisions in the rules. For eg., the post of Gram Sabha secretary is govt-appointed and from the Gram Panchayat. This would take power away from the GS as the secretary handles important GS records.
Both state rules allow for any person or government dept to appeal a Gram Sabha decision. If claimant is not satisfied, an appeal may be made before revenue authorities. The Union-proposed model PESA rules suggest a more collaborative method as norm for dispute resolution.
“You have given shape to the arms and the legs, but the spirit of the Act has been taken away,” says Ashwani Kange, advocate from Kanker, Chhattisgarh. Kange also states that consent can only be given by the GS. The collector, he says, is merely an executive authority.
In MP, the PESA rules have been sidelined as the govt is busy with the elections, leaving villagers unaware of their rights. Advocate Rahul Shrivastava complains that people in protected areas are unaware of the rules and the appointed secretary lacks understanding as well.