Scheduled Tribes - PESA -FRA - Role of Governor !

Scheduled Tribe community constitute more than 8 per cent of our national population  and are still waiting to receive the benefits of freedom even  after a lapse of more than sixty years since we achieved independence.  The tribal populations are placed at the lowest rungs of the society in terms of various developmental indicators.   The lowest literacy rates, high drop-out rates, widespread poverty,  high infant and maternal mortality rates, an alarmingly high incidents of malnutrition, the absence of basic facilities and scarce livelihood means have deprived them the opportunity to a dignified livelihood among the fellow citizens of our country.  It is not merely a matter of coincidence that Left-Wing Extremism is prevalent in the Schedule V areas while the insurgent movements have confined themselves to Schedule VI areas. It is necessary for us to introspect and get to the bottom of the reasons and causes which has led us to this place and situation.

Despite the various efforts that have been made a large gap still remains to be bridged.  The alienation of the tribal population has been growing rapidly mainly because they are being dispossessed of all their livelihood resources.  The diversion of forests and common property resources for the use of non-forest purposes has resulted in the displacement of tribals from their homeland.   The general apathy of official machinery, the escalating assaults related to their existing rights, the growing clout of market forces, the threat of mining and of course, the meager  advancement through planned development efforts have been responsible for the growing unrest amongst this most oppressed and depressed class of people. 

Towards Empowering STs

The Ministry of Tribal Affairs has the responsibility of reducing these glaring gaps by supplementing the efforts of the nodal Ministries in the Government and of the State Governments through need-based interventions.  It has taken up a series of programmes and schemes to empower the tribals socially, politically and economically.  However, in this context, it is pertinent to mention that Governors have a vital role to play.  The Governors have been endowed with certain special powers with regard the Fifth Scheduled Areas.  The judicious use of the provisions enshrined in the Fifth Schedule of our Constitution will certainly make a very positive impact on the tribals living in these regions.

Role of the Governor 

Under the powers conferred by the Fifth Schedule, the Governors can not only direct that any particular law or part thereof may not apply to a Scheduled Area that can also make regulation for good governance and peace in these areas.  The Governors can intervene in areas relating to-Prohibition or Restriction of the transfer of land by or among Scheduled Tribe members; regulation of allotment of land in such areas; and the regulation of money-lending activities.  The Governor has basically been given the legislative power to make regulations for the “peace and good government of any area which is a scheduled area.”The peace and good government are words of very wide importance and give wide discretion to the Governor to make laws for such purpose.   

One can recall the observations made by the President at the Governors’ Conference held on 16th and 17th of September, 2008 regarding the need for an authoritative legal opinion with respect to powers of Governors under the Fifth Schedule.      The matter has since been examined in consultation with Ministry of Law and Justice and Attorney General of India has opined that “in performance of the functions and exercise of the powers under the Fifth Schedule, the Governor  is not bound by the aid and advice of the Council of Ministers of the State”.  The provisions of Articles 244(1) and 244 (2) which provide for the administration of the Scheduled Areas within a State in accordance with a Fifth & Sixth Schedule respectively emerge from the Excluded and Partially- Excluded Areas as envisaged under the Government of India Act, 1935. 

Implementation of PESA

The focus of the the Panchayat Extension Scheduled Areas Act, 1996 (PESA) is to recognize theGram Sabha as a key unit of governance in the Scheduled V areas as this would in turn give the people a control over their own resources.  The Gram Sabhas under PESA are meant to be competent to safe-guard and preserve the traditions of their people, community resources and customary mode of dispute resolution.  The Gram Sabhas are to approve plans, select beneficiaries and give utilization certificates to the Gram Panchayat.   The Gram Panchayats further have - right to mandatory consultation in matters of land acquisition, resettlement and rehabilitation; right to recommend prospecting licenses/mining leases for minor minerals; power to prevent alienation of land and restore alienated land; power to regulate and restrict sale/consumption of liquor; power to manage village markets, control money lending to STs; ownership of minor forest produce; control over institutions and functionaries in all social sectors; control over local plans and resources for such plans including TSP, etc and planning and management of minor water bodies.

The purpose of  implementing  PESA in the Scheduled V Areas is to promote self-governance in order to address the problem of exploitation.  But unfortunately, the implementation of PESA has not been satisfactory despite the guidelines that have been issued in this regard to State Governments by the Ministry of Panchayati Raj.

Key Issues under PESA

A process of notifying villages as PESA and constituting Gram Sabhas accordingly needs to be undertaken at the earliest.  Applications may be invited from the community and inquired into by an official designated by the State Government in terms of whether or not the villages proposed are as envisaged in PESA.  Villages proposed as per PESA may be so notified and a Gram Sabha constituted for each village.

Recently, Ministry of Panchayati Raj has commissioned studies on laws and rules in each State, pointing out the gaps and possible new formulations.  These have already been shared with the State Governments of Jharkhand, Chhattisgarh and Orissa.  Studies  of remaining States will also  be shared.  These studies  can be used for making necessary amendments.

Ministry of Panchayati Raj has framed model rules which can be used as a reference point for making rules under the relevant State Acts so that the procedures to be followed by Government functionaries are clear.

The National Institute of Rural Development (NIRD) has recently prepared a training module on PESA and shared  it  with the States. States may adapt this training module as per their needs and intensify their efforts in capacity building.

Gram Sabha and FRA

The Gram Sabha is a congregation of the entire body of a village and cultivating this basic unit will give an opportunity to all citizens including those who have not been elected to any post to participate in the process of development and governance. It should be our earnest endeavor to ensure that the people who have been neglected for several years are made to feel that they are also a part of our democratic process.

Forest Rights Act for Scheduled Tribes and other  Traditional Forest Dwellers is a land mark legislation which gave a new hope to millions of tribals who have been living in forests for generations.  For the first time ever, this Act seeks to recognize and regularize the pre-existing rights of tribals living in the Scheduled Areas.  The Governors of the Fifth Scheduled States may ensure the speedy implementation of the Forest Rights Act through their respective State Governments as this would reduce a lot of tension arising out of land related issues in these areas.  Under the provisions of para-3 of the Fifth Schedule wherein the Governors of Scheduled Areas States are expected to make an assessment of the administration of the Scheduled Areas and send an annual report to the President of India.  The said reports should also deal with the observations made by the Tribal Advisory Council of the State and indicate steps taken with respect to the recommendation of the TAC.  As per the records available with the Ministry of Tribal Affairs, the Governor’s Report of the administration of the Scheduled Areas for the year 2009-10 is yet to come from some States.   It is urged that the Governors to send this annual report in a timely manner as this would help the Ministry to evaluate the progress that has taken place in the Scheduled Areas of the States. 

The Sixth Schedule of the Constitution among other things provides for the administration of tribal areas through District/Regional Councils in the States of Assam, Meghalaya, Mizoram, Tripura in exercise of powers given under the Constitution, the Governors of the Sixth Scheduled Areas may hold consultations with State Governments and Councils to emphasise need for having the democratic and decentralized governance at the village level.  

Some of the provisions that could be considered may include 

(i) creation of elected Village Councils where they do not exist; 

(ii) making Village Councils answerable to Gram Sabha; 

(iii) recognize Gram Sabha under the law and specify their powers and functions; 

(iv) mandatory and regular election for the Village Council through the State Election Commission 

(v) vesting of more powers to Village Councils and Gram Sabha.

These measures will help in strengthening the democratic process and the empowerment of women which would consequently result in improved health services, education and nutrition programmes.  This would also increase transparency in the process of planning, implementation and monitoring the developmental programmes. 

The Ministry of Tribal Affairs is actively pursuing the matter relating  to  the constitution of a Cell in the Governor’s Office with the State Governments in order to handle the constitutional responsibilities of the Governor relating to the rights of Scheduled Tribes in the Scheduled Areas.   It is high time that the Governors should personally intervene when necessary to deliver to the tribal population the dreams of our Founding Fathers