The year 2020 brought many challenges and threats in the form of the COVID-19 lockdown, deaths due to the pandemic, economic crisis, job loss, agriculture reform bills, farmers protest, etcetera. However, during this time of uncertainty, the government of Chhattisgarh in a welcome move, formulated the process of the Provision of the Panchayat Extension to Scheduled Area (P-PESA). P-PESA is a special Act formulated by the Union government in 1996 for the ease of the management and governance of Scheduled Areas. Till date very few states in our country have implemented it. PESA gives special provisions to Gram Sabha for self-governance and rule to manage, control, and administer the territory and resources falling within its area.
Last year (2020) the Honorable Governor of Chhattisgarh, Madam Anusuiya Uikey, took the bold initiative by using the power conferred in the 5th Schedule of the Constitution of India to call for inputs in the formulation of PESA structure and rules in Chhattisgarh. With this, there was a sense of excitement and hope among the tribals. Many tribal organizations, civil society organizations, and NGOs came forward to take the lead but each organization expressed a different understanding of the PESA Act and its structure. Few proposed PESA structure based on the three-tier system of Panchayat Raj with few amendments such as the proposal that the Chairperson of the Gram Sabha would be the elected representative of the Panchayat. Some others suggested PESA to be based on the 6th Schedule format which gave autonomy to the tribals. Few indigenous organizations neglected PESA and considered that scheduled areas should be only governed under the clauses given in Article 244(1) and 5th Schedule of the Constitution of India. Lack of understanding and coordination among the tribals have made this task more tedious. Looking at this as an opportunity, the Panchayat Raj Minister of Chhattisgarh, Mr. T. S. Singhdev also initiated the process to formulate the P-PESA by conducting various consultation meetings in tribal areas with the help of NGOs, asking suggestions from the tribal experts and organizations. Therefore, one can see that there are two groups involved in the formulation process of P-PESA; one group is working with the Governor of Chhattisgarh and the other is working with the Panchayat Raj Minister of Chhattisgarh.
The fundamental question is who has the authority to formulate P-PESA in the State? Is it the State Government, the Governor, or the tribal organizations/experts? What should be the structure of the P-PESA? And what is the process of the formulation of P-PESA? According to Article 244(1), Fifth Scheduled Areas has separate provisions for Administration and Control of Scheduled Areas and Scheduled Tribes. Section 5(2) of Part B of the Fifth Schedule says that “the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.” In this perspective, it seems that the Governor has the authority to make laws and regulations for Scheduled Areas including P-PESA. But before enactment, the law has to be passed in the State Legislative Assembly in the form of a bill and then after has to be ratified by the Governor. However, Section 5 of Part B of the Fifth Schedule says that “(1) Notwithstanding anything in this Constitution, the Governor may by public notification directs that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any directions given under this sub-paragraph may be given so as to have retrospective effect.” Based on this statement it is clear that the Governor has the power to repeal or allow any Act or rules made by the Central or State government or can make necessary amendments in it keeping in mind the integrity of the tribal territory or Schedule Area. In this context, the Governor of Chhattisgarh has the power to either repeal central P-PESA, or make necessary modifications in it or formulate entirely a new law or regulations that could help in the smooth governance, administration, and control of Scheduled Areas in its State. Then what about the initiative taken by the State Legislature of Chhattisgarh in the formulation of P-PESA? Is it the right thing to do or is it legal or constitutional? One has to understand that even if the draft of ‘Chhattisgarh PESA’ is made by the State Legislature, the Governor has to take the final call on the matter related to Scheduled Areas. Therefore, the Governor has the upper hand over the State Assembly on the Fifth Schedule Areas.
According to the central P-PESA 4(a) “a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources” and 4(o) “the State Legislature shall endeavor to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.” This means that the State Legislature should follow both the structure of the Sixth Schedule and customary, social, religious, and traditional management practices of the tribal community while forming PESA laws for Chhattisgarh. In that case, if one goes according to the customary laws of the tribals then the process of conducting election to choose a community leader or representative does not prevail. Rather, tribals follow the selection process in choosing their leaders. In this process, the whole community assembles to select the suitable and eligible candidate to lead their community. In the same manner, any decisions related to the land, territory, and resources are taken democratically by the whole community.
The Sixth schedule has the provision of Autonomous District Council and Regional Council. These councils have the power to make laws with respect to industries, infrastructure, education, agriculture, fisheries, water bodies, social security, health, irrigation, land, revenue, trade and commerce, markets, alienation of land, protection of culture and traditions etcetera. The role of the State Legislature in these councils is negligible.
Therefore, if we try to incorporate both customary laws and pattern of the sixth schedule while designing Chhattisgarh PESA then the concept of ‘Self Governance of Tribals or Tribal Autonomy’ should be incorporated in the Scheduled Areas. In this concept the Village Council (Gram Sabha) will become the smallest unit, followed by the Block Autonomous Council (BAC), followed by the District Administrative Council (DAC) which will ultimately lead to the Schedule Area Council (SAC). The members of the SAC could also be given the status of the Member of Legislative Assembly (MLA). Few selected members of the SAC could be appointed in the Tribes Advisory Council (TAC) that will work directly with the Governor. In this sense, the schedule areas should have autonomous councils at various levels in which the members should be selected and not elected. One has to be also cautious about the fact to have the representation of all the tribal communities and other communities in the council provided that atleast 50% of the members should be from the tribal communities including women. Apart from designing PESA Act for the state, one has to also form ‘Schedule Area Governance, Administration and Control Rules (SAGACR)’ that will comprise of the rules and regulations to govern a scheduled area.
It is difficult to imbibe the idea of the proposed PESA structure mentioned above because it gives autonomy and self-rule to the tribals in their Scheduled Areas which might unlikely give a threat feeling to the non-tribals residing there. However, one has to also think about the diminishing identity of the tribals and the challenges they face to protect their culture, language, land, territory, and resources. A middle path has to be explored which will come from consultation with the various stakeholders residing in the scheduled areas of Chhattisgarh. All these things should be done democratically and peacefully.
About the Author: Dr. Anabel Benjamin Bara is a Social Scientist at the Indian Social Institute, New Delhi. He is associated with various tribal organizations like India Indigenous Peoples, Adivasi Ekta Parishad, Adivasi Samanway Manch Bharat, etc. He has also represented tribal issues at many United Nation forums. He is working with the Government of Jharkhand and the Government of Chhattisgarh on the formulation of Customary Laws and P-PESA Act.