Nearly three decades after Parliament enacted a law to empower gram sabhas in Adivasi areas, Jharkhand is slowly inching closer to finalising draft rules required to implement the Panchayats (Extension to Scheduled Areas) Act, 1996.
However, the draft rules circulated among civil society groups in December have ignited a debate as many activists have pointed out that they are not based on PESA. Instead, they draw upon a different state law – the Jharkhand Panchayati Raj Act, 2001.
This opens a window for state authorities to override crucial provisions of PESA that are meant to safeguard the land and governance rights of Adivasi communities, the activists say.
For instance, since the Jharkhand Panchayati Raj Act does not extend to municipalities, if passed in their current form, the draft rules will not apply to cities like Ranchi and Jamshedpur, even though they fall in Adivasi-dominated areas. Activists suspect that state authorities could simply declare Adivasi villages to be towns to take them outside the purview of PESA.
Worse, the activists point out that draft rules framed under the Jharkhand Panchayati Raj Act would allow the authorities to acquire tribal land without the protections accorded under PESA.
“Through the draft rules, the state government essentially wants to implement the Jharkhand Panchayati Raj Act and not the PESA,” said activist Walter Kandulna referring to the state law, which was enacted in 2001. “We consider this unconstitutional.”
He added, “The very spirit of the PESA has been killed by the JPRA. If this is allowed to pass then the loot of land and resources by the mafia in Jharkhand will continue.”
Senior advocate Rashmi Katyayan argued that if PESA was implemented in accordance with its intention, it could empower Adivasis across Jharkhand – but he noted, those with vested interests in land in scheduled areas would likely obstruct this process. “Jharkhand possesses about 40% of the mineral wealth of the country,” he said. “And everybody is after it.”
A long history
PESA has a long and intricate history, tracing back to at least 1950, the year that the Indian Constitution was adopted. The fifth schedule of the Constitution identified certain areas of the country that had a high population of Scheduled Tribes and laid out special provisions to protect their interests.
Large parts of Bihar that would later form the new state of Jharkhand were included in the fifth schedule.
Decades later, in 1992, the country saw a shift towards greater decentralisation of power, when parliament passed the 73rd and 74th amendments of the Constitution. They mandated the establishment of panchayati raj institutions in rural areas and municipalities in urban areas.
But the amendments specifically excluded from their ambit “scheduled areas”, or areas under the fifth schedule.
At the same time, the act stated that the parliament could by law extend the provisions of these amendments to these areas.
In July 1994, the union government set up the Bhuria committee comprising tribal leaders and other experts to make recommendations for how these amendments could be extended to scheduled areas.
In its report, the committee noted that “certain unique characteristics of tribal societies and tribal areas” needed to be considered while framing systems of self-governance for them. These included “customary laws, traditional practices, community ethos, political and administrative systems”.
Taking into account pre-existing self-governance bodies in several tribal areas, the committee noted that “it is desirable to blend the traditional with the modern by treating the traditional institutions as the foundation on which the modern supra-structure should be built”.
The committee also observed that the Indian state had largely failed to protect tribal land and resources after Independence. “Since, by and large, the politico-bureaucratic apparatus has failed in its endeavour, powers should be devolved on the people so that they can formulate programmes which suit them and implement them for their own benefits,” it stated.
Therefore, it recommended that the bodies in these areas should be vested with the power to administer matters such as the management of forests and forest produce and the appointment or succession of chiefs or heads.
The committee submitted its report to the ministry of rural development and Prime Minister PV Narasimha Rao in January 1995. Two years later, in December 1996, the parliament enacted PESA. While the law laid out a broad framework to achieve this goal, it directed the ten states that had scheduled areas to frame rules for its implementation.
Jharkhand’s delay
Despite this direction from the Centre, states dragged their feet over implementing PESA.
By 1999, only the state of Rajasthan had modified its state panchayat laws to extend them to scheduled areas.
A 2012 policy brief by the United Nations Development Programmes noted that many of the challenges that had arisen, “such as control of Gram Sabhas over Minor Forest Produce, consultation before land acquisition, right of Gram Sabha to preserve community resources etc. are extremely touchy”.
Further, it noted that there were conflicts between the state panchayati raj departments and some other departments, including the forest, mining and excise departments. As a consequence, it stated, “The important capacity building of Gram Sabhas and Panchayats has not been forthcoming.”
In 2009, the union government circulated draft “model PESA rules” to encourage states to formulate their own respective rules – states began to act in the years that followed. Himachal Pradesh and Andhra Pradesh formulated their rules in 2011, while Gujarat formulated its rules in 2017. Madhya Pradesh and Chhattisgarh were the latest to formulate their rules, in 2022. Today, only Jharkhand and Odisha are yet to formulate their rules for the implementation of PESA.
Activists and experts cite a range of reasons for Jharkhand’s inordinate delay on this front.
Senior advocate Rashmi Katyayan explained that several petitions had been filed in the Jharkhand High Court challenging provisions of PESA, such as the reservation of all seats of chairpersons in the three tiers of the panchayat system in scheduled areas for Scheduled Tribes. Alongside, development studies scholar Anju Bara notes that “political apathy, internal conflict of Maoism and the lack of knowledge of people” are also to blame for the delay.
The draft rules
In July 2023, Jharkhand’s Panchayat Raj Department released draft rules for PESA and invited responses from the public. According to a state government official who requested anonymity because they were not authorised to speak to the media, the department received more than 400 suggestions, some of which it incorporated.
On December 24, 2024, the Jharkhand government held a national workshop on PESA in Ranchi with the aim of spreading awareness about the act. Activists say that an improved draft was circulated in this event, though it wasn’t officially released by the panchayat raj department.
It was these proposed rules that activists examined, and which they argue are seriously flawed.
Activists note that the very first line of the draft rules state that in formulating them, the state government is exercising its powers under section 131 of the Jharkhand Panchayat Raj Act, 2001, and not PESA. They argue that this is of significant concern because some provisions of the 2001 act conflict with PESA.
For instance, one clause of PESA states that state legislations “shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha” – but the JPRA has no such provisions.
In fact, Gladson Dungdung, an activist and chairperson of the Adivasi Area Security Council, described the JPRA itself as unconstitutional.
He explained that there were several reasons that he held this view. Chief among them, he said, is that under the constitution, state legislatures do not have the independent right to make laws related to panchayats for scheduled areas – it is only under the provisions of PESA that they can do so.
However the JPRA contains several provisions that deal with matters pertaining to scheduled areas, such as control over local development plans and the management of local water sources in tribal areas. These provisions make no mention of PESA.
Thus, he argued in a Facebook post, “The JPRA has been implemented ‘unconstitutionally’ in the scheduled areas of Jharkhand for the last 24 years, but Jharkhand bureaucrats, NGO groups and other public organisations are not ready to accept this.”
Walter Kandulna concurred with this view. “If the rules are based on the JPRA, then in cases of disputes, it is the JPRA which will be considered superior,” he said. “The JPRA should be scrapped or amended and the draft rules should be made according to the PESA alone.”
On January 29, the Jharkhand Janadhikar Mahasabha, a coalition of activist groups, issued a statement noting that the debate around PESA was leading to the spread of confusion, and that the state government seemed to be avoiding its responsibility and commitment towards tribal rights. It demanded that both the JPRA and PESA rules be amended in accordance with the provisions of the PESA.
But not all activist groups in the state agree that the rules should be kept in abeyance. Bijay Kujur, the president of the Adivasi Mahasabha, explained that he wanted to see PESA implemented in the state as soon as possible. “This is an Adivasi government and it is for the people,” he said. “One needs to find a middle way to work with it. The rules can be amended even after implementation. If we keep fighting this way then it could take 20 more years to implement the PESA. And by then there might be nothing left to fight for.”
The question of municipalities
The provision of the JPRA that pertains to municipalities states that it extends to the entire state except areas where several laws pertaining to municipal areas apply, such as the Patna Municipal Corporation Act, 1951 (Bihar Act XIII, 1952). (Several such municipal laws that were enacted for Bihar also applied to Jharkhand after the latter was carved out in 2000.)
“The PESA says it extends to the entire scheduled areas,” said lawyer and activist Robert Minz – in contrast, he noted, the JPRA states that it will not be applicable in municipalities. Thus, rules formulated under JPRA would not apply to these areas.
Minz explained that as a result of this clause, scheduled areas in Jharkhand that have municipal corporations would not receive the benefits that other scheduled areas would receive.
Minz, in fact, argued that the very establishment of municipalities in scheduled areas is unconstitutional. He noted that in the part of the constitution that deals with municipalities, one clause states that, “Nothing in this Part shall apply to the Scheduled Areas.” Minz interprets this to mean that, “municipalities are forbidden in scheduled areas”.
But municipal bodies have come up in several scheduled areas across the country. A 2013 report by the magazine Down To Earth found that “at least 181 municipalities are functioning unconstitutionally in scheduled areas of seven states”. Where this has happened, activists argue, it is crucial that the rights of tribal communities under PESA are protected.
Kandulna worries that if the new rules do not have provisions to protect tribal communities in scheduled areas in municipalities, the government could misuse the omission to take over land or extract resources that should otherwise belong to the communities. “For instance, Tamar block in Khunti, which has been in the news for having vast reserves of gold, comes under a scheduled area,” he said. “If the government wanted to, it could convert this to a municipality and the people living there would no longer have rights over their land.”
In fact, the Bhuria committee had anticipated the problem of municipalities in scheduled areas. In the recommendations it made in 1995, along with PESA, it also recommended a similar act for urban areas, which would be called the Municipalities Extension to the Scheduled Areas, and which would protect the rights of scheduled tribes in municipal areas.
But while the Centre introduced a draft bill for MESA in the parliament in 2001, it has not yet been enacted.
Gram panchayats and gram sabhas
Another contentious clause in the latest version of the draft rules pertains to the heads of the gram panchayats that will be established under the new system, and that will co-exist with traditional governance bodies. The clause states that the secretary of a gram panchayat in a village within a scheduled area will also be the secretary of the gram sabha, which the constitution defines as a body comprising all the registered voters in a village.
Most tribes in Jharkhand have customary gram sabhas and self-governance bodies similar to panchayats. But the latter, which include the manjhi pargana system of the Santals and the manki munda system of the Mundas, also differ from panchayats in key ways – for instance they have customary heads, who typically inherit the position, rather than elected heads, like panchayats do.
In effect, activists say, the proposed rule will place a government official who is the executive head of the panchayat as the executive head of customary gram sabhas also.
Activists argue that this clause overlooks a key provision of PESA, which upholds the customary governance systems of Adivasi communities. Specifically, PESA states that state laws “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”. They hold that granting a panchayat head authority over a customary gram sabha as well would violate this provision.
Further, they argue, appointing a single secretary for both the bodies would result in that individual wielding too much power over villagers, particularly since the panchayat head is an official post backed by governmental authority.
Activists believe that this would, in effect, weaken gram sabhas, and allow gram panchayats to dominate them. “All this is being done to convert traditional gram sabhas to government-run gram sabhas,” Dungdung said in a public meeting on January 3. He argued that such a move would “snatch the rights” of customary heads and vest them in a government official instead. “This would continue the loot of land and natural resources by the land and mineral mafia that has been going on for 24 years,” he said.
In fact, Robert Minz argued that according to the provisions of PESA, the new panchayats should be headed by the heads of traditional governance bodies, rather than elected individuals. “The panchayat members should be elected, but not the heads,” Minz said. “Otherwise the customary head will be completely sidelined by the panchayat head.”
Minz explained that he held this view because a traditional head and their family would typically have a long history of administering a village in accordance with the wishes of its gram sabha and are therefore more likely to be loyal to it. “In traditional Adivasi self-governance systems, the head of a village was a hereditary position and so the PESA rules should follow this custom,” he said.
Overriding the need for quorum
Perhaps the most controversial clause in the draft rules is one that cites another state law, and pertains to gram sabha meetings that precede the acquisition of land in villages.
The draft rules state that “before land acquisition in scheduled areas, free, prior, informed advice or unanimous advice will be taken from the Gram Sabha”. However, it states that this process should be in accordance with the “Jharkhand Rights to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules”.
These are the rules that currently govern the land acquisition process. But a key problem with them, activists noted, is that they set the quorum required to obtain consent for land acquisition at just “one third of the total members of the Gram Sabha”. These rules further state that, “if in the first Gram Sabha meeting, the quorum is not available, then in subsequent meeting, quorum is not necessary”.
Activists are concerned that this rule could offer an easy route to land grabbing in scheduled areas.
Kandulna said that even now, “In many places, if consent for the gram sabha is required for an upcoming project, then authorities just get a few people to sign the necessary documents by bribes or other means and get the project passed. Others in the village don’t even hear about it.”
He added, “Many gram sabhas don’t function properly and the local administration takes advantage of this.”
Dungdung criticised these provisions in a Facebook post. “To form the government, one needs to win 50% of seats, and to amend the constitution one needs 66% majority, but it will take only 33% of the gram sabha’s support for land acquisition!” he wrote.
The government official conceded that this was “a fair objection”. But, the official added, “The original rules need to be challenged to make any changes to this.”
The state of self-governing bodies
Activists note that their concern that customary self-governing bodies will be dominated by the new panchayats in scheduled areas is particularly serious because while these bodies are strong in some districts, like Khunti and Chaibasa, and the districts of the Santal Pargana division, in many parts of the state, they are not very stable.
“The parha system is functional here, but it is not empowered,” said Sanjay Oraon, a member of the parha system in Puggu village of Gumla district. He explained that there were several reasons for this, including a lack of awareness among villagers of their rights under the fifth schedule and the PESA.
Where the bodies are stronger, community members are more optimistic about the implementation of PESA. Mahadeo Munda, the disom gomke, or customary head, of a cluster of governance bodies of the Munda community in Khunti district, noted that he wanted to see PESA enforced as soon as possible.
Munda explained that the customary governance system in his area was sufficiently strong that for land disputes people would often give up on courts and approach the governance bodies for resolutions. “The implementation of the PESA will strengthen our powers,” he said. “The law should be implemented as soon as possible, with or without amendments.”
Oraon and others linked to traditional local-governance systems were pessimistic about the implementation of PESA in the state, arguing that that the promise of PESA had long been used to give the illusion of autonomy to Adivasi communities, while real power continues to be vested with the administration. “PESA is like a lollipop for Adivasis,” he said.
Referring to severe deforestation that occurred in Chhattisgarh’s Hasdeo forest to enable coal mining, he said, “They enacted the PESA in Chhattisgarh, but were the people able to save Hasdeo? No.”
Kunal Minz, another member of a traditional governance system, said, “In order for the PESA to be enacted effectively, the Fifth Schedule needs to be implemented properly first and that itself has not happened.”
