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Mainstream, Vol XLVII, No 52, December 12, 2009

Need to Realise Full Benefits of the Protective Law for Tribals

Saturday 12 December 2009, by Bharat Dogra

At a time when there is growing concern about the causes of increasing discontent and alienation among tribals, it is important to recall a very important law for improving the governance of the Scheduled Areas in such a way as to protect the interests of tribals. The reference here is to the Panchayats (Extension to Scheduled Areas) Act 1996 (briefly called the PESA law). If this Act had been properly implemented then many causes of discontent and alienation could have been removed by now in the Scheduled Areas. In addition it was desirable that the spirit of this legislation should be honoured in other areas with a significant adivasi population, even if these are not formally listed as Scheduled Areas. The main idea of this law is to provide greater strength to the village community to protect the community interests, and it should be possible to get the support of most villagers for this. But unfortunately the PESA law could not function in a very effective way even in the Scheduled Areas.

Bharat Jan Andolan, an organisation bringing together several people’s movements, and its co-ordinator Dr B.D. Sharma played an important role in the enaction of this legislation. Dr B.D. Sharma had a distinguished career in govern-ment the highlight of which happened to be the reports he prepared to draw attention to the problems of the tribal communities in India. He served as the Vice-Chancellor of the North-Eastern Hill University and then as the Commissioner for Scheduled Castes and Tribes. During the last decade he has worked as a social activist devoted to strengthening the village community and particularly the tribal community.

Dr B.D. Sharma argues that the real basis of democracy should be the entire village community, consisting of all village units. The village for this purpose is to be defined not as a revenue village as mentioned in the government records but as a living reality of people sponta-neously thinking of themselves as one unit, of people working and living together. Dr Sharma recognises the problems that exist within several villages due to sharp inequalities and exploi-tative practices within the communities. These should be resisted and socio-economic equality established. Therefore in the initial phase he concentrated mainly on those village communities where already a great deal of equity within the community exists. For this the ideal choice would be the many tribal communities which to a considerable extent have equity within the community. There is an additional reason for prioritising the tribal communities. They are the ones which have suffered the most due to the neglect of their traditions and the forced imposition of an alien system on them.

The PESA Act firmly establishes the Gram Sabha as the most basic unit of the Panchayati Raj set-up. For example, Section 4(d) of this Act says:

Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.

Section 4(e) (i) says every Gram Sabha shall approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the panchayat at the village level. Section 4(f) says:

Every Panchayat at the village level shall be required to obtain from the Gram Sabha a certifi-cation of utilisations of funds by that Panchayat for the plans, programmes and projects referred to in clause (e).

Other clauses give the Gram Sabha important rights before any village land can be acquired for various projects or before any village land can be auctioned for its minor mineral. Similarly, the Gram Sabha has been given significant power regarding the ownership of minor forest produce, preventing alienation of land and restricting the sale of liquor.

The tribals also have inherent strengths which should receive a creative outlet. The most remarkable reality concerning the tribal people, Dr B.D. Sharma asserts, is “the vibrant community behind the veil of outward silence which has provided the only protection to people, albeit not complete, in a strange hostile world”.

To demand separate laws for tribal areas, Bharat Jan Andolan (BJA) formed a National Front for Tribal Autonomy (NFTA). The NFTA campaigned relentlessly for new laws, including a prolonged fast by thirty leading activists in Delhi. On December 24, 1996 the President of India finally put his signature on the legislation on extension of the panchayat laws to the Scheduled Areas. Describing these changes as historic and epoch-making, Dr B. D. Sharma said that he had waited for this for a long time.

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One of the most important features of the this legislation is the empowerment of the entire tribal community as distinguished from the village councils which consist of only a few elected members. This village community will be given substantial power on matters affecting its present and future well-being including

1. Significant rights of ownership over minor forest produce

2. Better rights over water management

3. Right to prevent land-alienation among tribals

4. Right over functioning of local markets

5. Right to oversee the government’s development expenditure in the area.

Clearly an attempt has been made to empower the tribal community in those areas where they have suffered the worst exploitation in the past.

It has also been provided that the village community and the village council will be consulted regarding the decision to acquire any land for development projects or for any mining activity.

Some provisions of this legislation are open to more liberal interpretation, in which case the rights of tribals will increase further, particularly in relation to forests. As Dr. Sharma said,

If someone is given rights to eggs, then this person automatically gets rights to look after the health and well-being of the hen. So if the tribal gets rights to minor-forest produce, then he automatically gets rights to look after the well-being of forests.

A limitation of the PESA law is that it is applicable only to those areas which are legally regarded as Scheduled Areas. A significant number of tribals living outside the scheduled areas are not covered by this legislation.

Despite these limitations, there is no doubt that the changes initiated by this legislation are quite significant. These can empower millions of tribals to protect their livelihood and way of life from such threats as land-alienation, displace-ment and environmental ruin.

All over the world there is a new interest in the tribal way of life and how it can prove very educative for evolving a more harmonious and sustainable development path. This legislation increases the possibilities of tribals maintaining their distinct way of life and therefore will be welcomed by all those persons and organisations who are keen to learn from the tribal way of life.

The author is currently a Fellow at the Institute of Social Sciences, New Delhi.

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