The provisions
of Part IX of the constitution relating to the Panchayats are not applicable to
the Fifth Schedule
areas. However, the Parliament may extend these provisions to such
areas, subject to such exceptions and modifications as it may specify. Under
this provision, the Parliament has enacted the “Provisions of the Panchayats (Extension to the Scheduled Areas) Act”,
1996, popularly known as the PESA Act or the Extension Act.
At present
(2013), nine states have Fifth Schedule Areas. These are: Andhra Pradesh, Chhattisgarh,
Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and
Rajasthan. All the nine states have enacted requisite compliance legislations
by amending the respective Panchayati Raj Acts.
Objectives of the Act
1. To extend
the provisions of Part IX of the Constitution relating to the panchayats to the
scheduled areas with certain modifications
2. To provide
self-rule for the bulk of the tribal population
3. To have
village governance with participatory democracy and to make the gram Sabha a nucleus
of all activities
4. To evolve a
suitable administrative framework consistent with traditional practices
5. To safeguard
and to preserve the traditions and customs of tribal communities
6. To empower
panchayats at the appropriate levels with specific powers conducive to tribal requirements
7. To prevent
panchayats at the higher level from assuming the powers and authority of panchayats
at the lower level of the gram Sabha
Features or Provisions of
the PESA Act
1. A state
legislation on the Panchayats in the Scheduled Areas shall be in consonance
with the customary law, social and religious practices and traditional
management practices of community resources.
2. A village
shall ordinarily consist of a habitation or a group of habitations or a hamlet
or a group of hamlets comprising a community and managing its affairs in
accordance with traditions and customs.
3. Every
village shall have a Gram Sabha consisting of persons whose names are included
in the electoral rolls for the Panchayat at the village level.
4. 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.
5. Every Gram
Sabha shall—
(i) approve of
the plans, programmes and projects for social and economic development
before they are
taken up for implementation by the Panchayat at the village level; and
(ii) be
responsible for the identification of beneficiaries under the poverty
alleviation and other programmes.
6. Every
Panchayat at the village level shall be required to obtain from the Gram Sabha
a certification of utilization of funds for the above plans, programmes and
projects.
7. The
reservation of seats in the Scheduled Areas in every Panchayat shall be in
proportion to the population of the communities for whom reservation is sought
to be given under Part IX of the Constitution. However, the reservation for the
Scheduled Tribes shall not be less than one half of the total number of seats.
Further, all eats of Chairpersons of Panchayats at all levels shall be reserved
for the Scheduled Tribes.
8. The state
government may nominate such Scheduled Tribes which have no representation in the
Panchayat at the intermediate level or the Panchayat at the district level. But
such nomination shall not exceed one-tenth of the total members to be elected
in that Panchayat.
9. The Gram
Sabha or the Panchayats at the appropriate level shall be consulted before
making the acquisition of land in the Scheduled Areas for development projects
and before resettling or rehabilitating persons affected by such projects in
the Scheduled Areas. However, the actual planning and implementation of the
projects in the Scheduled Areas shall be coordinated at the state level.
10. Planning
and management of minor water bodies in the Scheduled Areas shall be entrusted
to Panchayats at the appropriate level.
11. The
recommendations of the Gram Sabha or the Panchayats at the appropriate level
shall be mandatory for grant of prospecting licence or mining lease for minor
minerals in the Scheduled Areas.
12. The prior
recommendation of the Gram Sabha or the Panchayats at the appropriate level
shall
be mandatory
for grant of concession for the exploitation of minor minerals by auction.
13. While
endowing Panchayats in the Scheduled Areas with such powers and authority as
may be
necessary to
enable them to function as institutions of self-government, a State Legislature
shall ensure
that the Panchayats at the appropriate level and the Gram Sabha are endowed
specifically,
with –
(i) the power
to enforce prohibition or to regulate or restrict the sale and consumption of
any intoxicant
(ii) the
ownership of minor forest produce
(iii) the power
to prevent alienation of land in the Scheduled Areas and to take appropriate
action to
restore any unlawfully alienated land of a Scheduled Tribe
(iv) the power
to manage village markets
(v) the power to
exercise control over money lending to the Scheduled Tribes
(vi) the power
to exercise control over institutions and functionaries in all social sectors
(vii) the power
to control local plans and resources for such plans including tribal sub-plans
14. The 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.
15. 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.
16. Any
provision of any law (relating to Panchayats in the Scheduled Areas) which is inconsistent
with the provisions of this Act shall cease to be in force at the expiry of one
year from the date on which this Act receives the assent of the President7.
However, all the Panchayats existing immediately before such date shall
continue till the expiry of their term, unless dissolved by the State
Legislature sooner.
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