Report on Undermining and Betrayal of PESA

[Legal rights of adivasis have come into being through a long and hard process of struggles. Like the legal rights of working class, or land ceiling laws that benefit the peasantry, laws intended to safeguard the rights of tribals are, however, observed more in the breach than in actual implementation. But Governments cannot even allow studies commissioned by its own Ministries to mention this truth!

On April 24, Prime Minister Manmohan Singh released the State of Panchayat Report (SoPR) 2010. The study was commissioned in 2009 by the Ministry of Panchayati Raj to Institute of Rural Management (IRMA), Anand. It has come to light, however, that the Ministry of Panchayati Raj had deleted an entire chapter from the original report. The chapter (titled PESA, Left-Wing Extremism and Governance: Concerns and Challenges in India’s Tribal Districts) that the Ministry found too embarrassing to include in the report is authored by Ajay Dandekar and Chitrangada Choudhury of IRMA, and deals with the rights of tribals, especially with regard to the implementation of the Panchayat (Extension to Scheduled Areas) Act or PESA.

Why did the Ministry find the chapter inconvenient enough to censor? What does the UPA Government have to hide on the question of implementation of a law of the land that is central to the democratic rights of adivasis? We reproduce below excerpts from the censored chapter so that readers can make up their own minds. – Ed/-]

PESA: The Unfinished Legislative Agenda

When passed in 1996, the central PESA envisaged that the nine states with Schedule Five areas would enact their own legislations devolving power to their respective tribal communities, as well as amend pre-existing laws to bring them in harmony with PESA within a year...

In many instances, the states have diluted PESA’s power in the wording of their legislations, and the rules governing their implementation. Barring Madhya Pradesh and Chhattisgarh, most state legislations have given the bulk of the powers to the gram panchayat, and not the gram sabha. This runs contrary to Section 4 (n) of PESA. Moreover, neither the state legislations nor the rules adequately address how communities might exercise their powers with regard to the issues of land, displacement, liquor and so on. They have also failed to put in place redressal mechanisms that communities can access, when these powers are violated. Only the Madhya Pradesh Act’s provisions address this to some extent on the issue of land alienation, by allowing a community to seek official redressal after three months if it is unable to reclaim alienated land by itself.

On the other hand, some state acts in fact even put barriers to a Gram Sabha’s powers under PESA. For example, Subsection 10.8 of Jharkhand 2001 Gram Panchayat Act says that the powers of the Gram Sabha defined in section 10(1.a) i.e. formulating schemes for economic development, and section 10(5) i.e. powers of the Gram Sabhas in Scheduled Areas, will not affect the rules and jurisdiction of the government. Subsection 10.9 states that 'the state government by ordinary or by special order will be able to enhance the power of the Gram Sabha and withdraw them as well.' Similar provisions are there in the Act’s Sections 75(d), 76(d) and 77, which outline the village Panchayat, Panchayat Samiti and District Panchayats rights and duties. In these sections also, the same conditions have been repeated, thus ensuring that the government retains effective powers, rather than the gram sabha.

Some of the critical areas with regard to the unfinished legislative agenda are as under:

Resources

What is the status of the laws enacted with regard to the community resources by the state and the central legislative bodies? States have dealt with this in different ways. Madhya Pradesh has proceeded with accepting the provisions of PESA unequivocally as constitutional provisions.

Accordingly, the management of natural resources, under section 129c (iii) of the Madhya Pradesh Panchayat and Gram Swaraj Act, is envisaged to be ‘in accordance with its tradition and in harmony with the provisions of the constitution.’ Thus nothing in the tradition of the community can be invoked that may be against the basic tenets of the constitution. In so far as the ordinary laws on the subject are concerned, the said provision of the Madhya Pradesh Act envisages ‘due regard to the spirit of other relevant laws for the time being in force’.

Chhattisgarh has also followed this approach. Jharkhand has also gone by the same precedent. The tenor in Orissa’s law is different. The competence of the grama sasan under section 5(6) of the Orissa gram panchayat act is qualified by the clause ‘consistent with the relevant laws in force and in harmony with basic tenets of the constitution’. A plain reading of this clause would suggest that the relevant laws are superior, and accordingly PESA should be adapted suitably.

In most states, the enabling rules for the gram sabha’s control over prospecting of minor minerals, planning and management of water bodies, control and management of minor forest produce, dissent to land acquisition are not yet in place, suggesting reluctance by the state governments to honour the mandate of PESA. In states like Andhra Pradesh and Gujarat the rules are yet to be framed for PESA. In Andhra Pradesh, draft rules were prepared in 2007, but they have still not been notified because they have to be put for approval before the state Tribal Advisory Council. Without the rules, the operation of PESA on the ground becomes null and void. As one analyst pointed out, ‘In such situations, panchayats work as extensions of bureaucracy, rather than representatives of the people.’ (IRMA conference on PESA, February 2010)

Land

The power envisaged for the gram sabha in respect of ‘prevention of land alienation as also restoration of illegally alienated land’ is unequivocal. However suitable provisions in the Panchayati Raj Acts or the relevant land regulations have not been made. The only exception is to that is the state of Madhya Pradesh and now Chhattisgarh. A clear and categorical provision has been added in the Madhya Pradesh Land Revenue Code after the enactment of PESA, which empowers the gram sabha to restore the unlawfully alienated lands to the tribal landowners. A unique feature of this law is that in case the gram sabha is unable to restore such lands it has been empowered to direct the sub-divisional officer in this regard who shall restore the possession within 3 months.

Thus 170-b (2a) ‘if a gram sabha in the scheduled area…finds that any person, other than a member of an aboriginal tribe, is in possession of any land of a bhumiswami belonging to an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to that person to whom it originally belonged …provided that if the gram sabha fails to restore the possession of such land, it shall refer the matter to the sub- divisional officer, who shall restore the possession of such land within three months from the date of receipt of the reference’. This radical provision has remained virtually unimplemented for the simple reason that no rules have been framed in this regard. Further, to ensure actual devolution, a state’s pre-existing laws had to be amended in line with the provisions of PESA. In all the states barring Madhya Pradesh and Chhattisgarh, land acquisition acts have not been amended in line with the provisions of PESA.

The process of consultation before acquisition of land, as envisaged under section 4(i) of PESA, has not been formalized in most of the states. The state of Madhya Pradesh (including Chhattisgarh), however, has made elaborate rules in the year 2000 about consultation with concerned gram sabhas before acquisition of land. These rules envisage ‘consultation with gram sabha before issuing notification under Section 4 of the Land Acquisition Act.’ A detailed procedure has been prescribed so that consultation is transparent and informed. The objective is to enable the people to come to a rational decision based on facts. The collector and a representative of company are mandated under rule 3(vi) to attend the final meeting of the gram sabha before it formally adopts a resolution for or against the acquisition. Thus, theoretically there is a paradigm shift in a crucial aspect of governance concerning acquisition of land in favour of the people. The proceedings in the open assembly of the gram sabha precede the proceeding in the court of the collector. The collector is expected to satisfy the people in the natural familiar setting of the gram sabha, where the people feel empowered, before he starts the formal process of land acquisition.

It is, however, a matter of deep regret that these rules are not being followed in their true spirit. There are cases where the formal resolutions of gram sabha expressing dissent have been destroyed and substituted by forged documents.

What is worse, no action has been taken by the state against concerned officials even after the facts got established. The message is clear and ominous. There is collusion in these deals at numerous levels.

Even in these two states, which have done the most extensive work among the PESA states on their legislations, the gram sabhas are only given the power of consultation and not consent, thus diluting the principle of self-governance. Further the gram sabhas are being convened at a level much larger than a habitation. The progressive edge of PESA gets diluted further as the term consultation is not defined properly nor have state governments outlined the ways of recognizing a negative response from the community towards acquisition.

Mining and Mineral Resources

Sub-sections 4(k) and 4(l) of PESA envisage prior consultation with gram sabhas before grant of leases etc, of minor minerals. Despite the directions issued by the ministry of Mines and Minerals the action in respect of consultation before lease of minor minerals is granted has been rather poor. The rules made by the government of Madhya Pradesh (including Chhattisgarh) concerning minor minerals, however, can be said to be most progressive. The rules made under the Mines and Minerals (Regulation & Development), Act 1975 have formally divided minor minerals into two categories: (i) Schedule-i (specified minerals) and (ii) Schedule ii (other minerals). All quarries of annual value up to Rs 2.5 lakhs; above Rs 2.5 lakhs but up to 5 lakhs and above Rs 5 lakhs but up to 10 lakhs in respect of minerals specified in schedule ii except stone quarries for crushers and clay quarries for tiles and bricks in chimney bhattas, have been transferred to gram panchayats/ janpad panchayats/zila panchayats respectively. The rules further envisage that ‘quarry permits shall be granted and renewed by the respective panchayats, after obtaining prior approval of the gram sabha of the panchayat in which the quarry area is situated.’ In the case of other minerals in Schedule (i) or Schedule (ii), however, consultation with gram panchayat alone, ignoring the gram sabhas totally, has been made obligatory. This is a blatant negation of the spirit of PESA.

To sum up, a comparative analysis suggests that the legislations in the States of Madhya Pradesh and Chhattisgarh are nearest to the original provisions of PESA. Other states have significant legislative work left to undertake to actualise the Act. However, all the states are faring poorly on implementing these provisions meaningfully on the ground. It is tragic that in none of the states, the Governor, who is accorded limitless powers by the Constitution to ensure the upholding of PESA, has monitored or intervened.

There seems to be no explanation for these widespread delays other than the fact that PESA is low on the political and executive agenda.

PESA: Challenges on the Ground

There is a veritable crisis in several PESA areas of the country today – a damaging mix of misgovernance, alienation, violent insurgency, and counter-violence by the state as well as non-state actors, such as the Salwa Judum in South Chhattisgarh. In the words of one analyst, ‘some tribal communities, such as those in Bastar, are probably witnessing the most severe crisis since their existence’ (ibid). While every state has its own specificities, our fieldwork suggests that the challenge has the following broad and inter-linked dimensions across central India. Together, they are rendering PESA weak, or even meaningless, on the ground:

Conflicts over Natural Resources

Official studies have pointed out that the size of the operational holding in the tribal lands is eroding due to the state led acquisition and marketisation process. (Observations at the macro level are based on the report of the ‘Committee on State Agrarian Relations and Unfinished Task of Land Reforms. Vol. 1 Draft Report, Ministry of Rural Development, as well as our fieldwork) This is also perhaps due to the fact that the rising poverty levels have directly impacted the tribal community in a way where the landholding pattern is changing for the worse (The 61st Round of the NSSO provides evidence to the deepening levels of poverty.) This process is most pronounced in the states of Orissa, Chhattisgarh and Jharkhand. The report notes elsewhere that the existing framework of law is formidable on paper but is operated to the disadvantage of the tribals. The sale of tribal lands to non-tribals in the Schedule Five areas is prohibited in all these states. However, transfers continue to take place and have become more perceptible in the post liberalization era. The principal reasons are — transfer through fraudulent means, unrecorded transfers on the basis of oral transactions, transfers by misrepresentation of facts and misstating the purpose, forcible occupation of tribal lands, transfer through illegal marriages, collusive title suites, incorrect recording at the time of the survey, land acquisition process, eviction of encroachments and in the name of exploitation of timber and forest produce and even on the pretext of development of welfarism. (Many of these reasons are documented by the National Institute of Rural Development in S.K Singh ed, ‘Self-Governance for Tribals Vol I, Tribal Lands and Indebtedness, 2005.) The BN Yugandhar Committee (2002-3) has referred to the process of enclavement, whereby the tribal retreats into the interior areas on the incursion of the non-tribals leaving his home and hearth behind, as a major factor of alienation.

PESA provisions are intended to intrinsically protect the resources of the tribal communities, and empower them to act against forcible acquisition. But today, acquisition of the individual’s and the community’s natural resources for (mostly private) industry in violation of these provisions is the leading flashpoint in several PESA areas. This is creating conflicts, which tribal communities are tragically ill equipped to navigate, even though in several sites, communities are taking on suffering to engage in a difficult movement to resist the loss of their livelihoods and resources, and way of life. Despite their efforts, the current resource clash is shifting an already skewed balance of power from the people to the state and the moneyed. The state is also emerging as a principal violator of the very laws it is meant to uphold – e.g. ignoring a gram sabha’s opposition under PESA to land acquisition, and calling village assemblies under heavy police presence to push through land acquisition plans.

The central Land Acquisition Act of 1894 has till date not been amended to bring it in line with the provisions of PESA and to recognize the gram sabha, while a newer bill meant to replace it is yet to be tabled in parliament. At the moment, this colonial-era law is being widely misused on the ground to forcibly acquire individual and community land for private industry. In several cases, the practice of the state government is to sign high profile MOUs with corporate houses (Government of Jharkhand 2008 and IANS, 2010), and then proceed to deploy the Acquisition Act to ostensibly acquire the land for the state industrial corporation. This body then simply leases the land to the private corporation - a complete travesty of the term ‘acquisition for a public purpose’, as sanctioned by the act. In some cases, administrations run through the motions of a PESA consultation, but in no instance has the opposition expressed by tribal communities to acquisition of their land resulted in a plan for industry being halted, suggesting the disempowerment of the gram sabha. One official currently engaged in such a process of acquisition said, ‘Once I declare anyone’s land for acquisition under the (1894) act, it becomes the government’s’ (Personal interview, July 2009). There is inadequate sensitivity to the fact that tribal communities often cannot take advantage of specialised employment opportunities in the new industry because of their low literacy levels, and face the prospect of being reduced to informal, casual labour. Nor is there a recognition that sometimes communities might simply not want to part with their land, no matter how attractive the compensation, because it will be disruptive of their way of life. When it comes to acquiring mineral resources for industry, the stakes are similarly loaded against the functioning of the PESA Act. The past decade has witnessed a boom in mining, and the sector is exhorted by the government to grow at an annual rate of 10% a year. Yet, there is still no legal framework in place for communities to dissent to such activity in their area if they so desire, or to secure a direct stake in the earnings, through instruments such as jobs or debentures. Successive governments have systematically ignored the Samata judgment (Supreme Court, 1997), to the severe detriment of tribal communities. The order’s highlights are worth reiterating here to indicate how the country could have adopted a model of sustainable mining, which was respectful of the tribal communities living in mineral-rich areas, and thus avoided many of the current conflicts witnessed on the ground today:

1. As per the 73rd Amendment Act, 1992,. ‘every Gram Sabha shall be competent to safeguard…..Under clause (m) (ii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of a scheduled tribe.’

2. Minerals to be exploited by tribals themselves, either individually or through cooperative societies with the financial assistance of the state.

3. In the absence of total prohibition, the court laid down certain duties and obligations to the lessee, as part of the project expenditure: at least 20% of net profits as permanent fund for development needs, apart from reforestation and maintenance of ecology.

4. Transfer of land in Scheduled Areas by way of lease to non-tribals, corporation aggregate, etc stands prohibited to prevent their exploitation in any form.

5. Transfer of mining lease to non-tribals, company, corporation aggregate or partnership firm, etc is unconstitutional, void and inoperative. State instrumentalities like APMDC (Andhra Pradesh Mineral Development Corporation) stand excluded from prohibition.

6. Renewal of lease is a fresh grant of lease and therefore, any such renewal stands prohibited.

7. In States where there are no acts which provide for total prohibition of mining leases of land in Scheduled Areas, Committee of Secretaries and State Cabinet Sub Committees should be constituted and a decision taken.

8. Conference of all Chief Ministers, Ministers holding the Ministry concerned, and Prime Minister and Central Ministers concerned should take a policy decision for a consistent scheme throughout the country in respect of tribal lands. The great boom in mining – for example, in the past years, companies paid a royalty to the state of Rs 26 per tonne of iron ore, selling it for over 100 times that, or an average of Rs 3,000 – means profits run into crores of rupees. Thus there is a great financial incentive to ignore the PESA law and the Samata judgment, or ensure that they do not get in the way. A former Chief Minister (of Madhya Pradesh) explained the mindful neglect of PESA thus: ‘Its implementation would put an end to mining projects’. Communities not only have to bear the brunt of this violent mining/industrialization process, but they also testify that its immense profitability skews the political and administrative agenda in favour of industry, and away from protective laws like PESA.

In Kuchaipada village in Rayagada, Orissa, an area where 3 villagers were killed in a police firing on anti-industry protests, a sarpanch’s account was reflective of this widespread sense of helplessness and powerlessness in the face of an invincible clique of interests: ‘A lot of money is being spent to build a big police station right opposite the factory (an under-construction aluminum plant), even though none of the villagers asked for it. Instead, we have been giving regular resolutions to the administration for better education and health facilities and for the implementation of NREGA. Not a single public health centre or hospital in our block has a malaria testing kit, even though malaria is so common here. We have to go to private doctors for that. Do our people need better police facilities or better healthcare? What is the administration’s priority? This is being done only because the company wants police stations, which can beat us if we ever protest against land acquisition’ (Personal interview, December 2009). Another sarpanch said, ‘There is so much money floating around everywhere, which is deciding everything. But who is listening to our troubles? No one honours our decisions under PESA, or do they listen to us because we do not have such money’ (Personal interview, July 2009). A senior politician argued, ‘In any democratic polity, the recasting of power as signified by PESA should have happened without as much confrontation as we are witnessing today. But the very strong commercial interests seeking out the resources of this area have ensured that PESA is up against a lobby with very deep pockets’ (IRMA conference on PESA, February 2010). The ongoing investigations by relevant agencies underway in Orissa and Jharkhand, probing illegal mining, suggest the extent to which tribal communities are being defrauded, and the powerful interests they find themselves up against when they attempt to assert their constitutional rights.

The Case of Narayanpatna in Koraput, Orissa

(The case studies narrated here are based on fieldwork carried out by the authors for this study)

PESA empowers the gram sabha to prevent the alienation of tribal land by non-tribals. The Orissa Scheduled Areas Transfer of Immovable Property Act reinforces this principle. But these laws are non-functional on the ground, as acknowledged in a 2002 amendment. In Narayanpatna, a successful grassroots movement for land reclamation has resulted in polarization on the ground, widespread arrests, and deployment of security forces, leading up to the death of two tribal men during a police firing on a protest march in November 2009.

Over the past five years, the Narayanpatna and Bandhugaon blocks of Koraput district in Western Orissa have been the site of a tribal movement of agricultural labourers called the Chasi Mulia Adivasi Sangh (CMAS). Over the last three years, the movement has gained strength and spread to the neighbouring blocks of Laxmipur and Similiguda. It has built on alienation, which has a three-decade-long history, when these communities lost their lands to hydropower projects and industries, and had to endure displacement. The situation worsened over the years as moneylenders and traders forced the tribals into debt traps, took advantage of their inability to read or write or access land revenue records, and took over many of their land holdings....

In June 2009, the agitation under the banner of the CMAS gained momentum as it took back and ploughed more than 2000 acres of reclaimed land, and declared that it would release Mali Parbat (a mountain range, with rich mineral deposits) from the bauxite mining companies. The other main site of action was ending liquor trade in the area, pointing to the deep links between alcoholism, tribal exploitation, land alienation and debt. Remarkably, they managed to get all the liquor shops boycotted in the blocks, leading to a fall in business for the liquor and moneylender lobbies....

On 20th November, CMAS members went to the Narayanpatna Police Station again to protest against the combing operations and the high-handedness of security forces in the villages. During the protests, the police opened fire on the crowd, and killed CMAS members Kendruka Singanna and Nachika Andru, and injured several people. Police claim the firings were necessary for self-defence. On the other hand, independent observers term it a needless and pre-planned killing, pointing in particular to evidence such as bullet wounds at the back, shot from close range....

... Men in the (Baliaput) village spoke articulately and calmly about their rights and their actions, and denied having or wanting links with the Maoists. They said, “We have no arms. We only have our agricultural implements. The police is trying to end the CMAS. If the organization ends, alcohol will return to the area. The police will again become oppressive. We will again be exploited.”

Poor Recognition of Forest Rights

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) was a result of the polity responding to protracted struggles by tribal communities and movements to assert rights over the forestlands they were traditionally dependent on. The Act turned colonial forest policy on its head, which had established the rights of the state over the forests over the traditional rights of the community. Further, by recognizing the validity of the gram sabha to give effect to these rights, this Act has great synergy with PESA’s provisions. However continuing bureaucratic control, resistant attitudes of the forest department officials to give ownership to communities, and inadequate efforts at awareness have led to the slow implementation of the Act. The law lays down a clear three-stage process for recognition of people's rights. It also defines what constitutes admissible evidence. The Forest Department has a role at the district and sub-divisional levels, but only as one of the parties involved. But the department has made every effort to give itself illegal veto powers to deny rights. In most states the department is refusing to be present at the time of verification by the Forest Rights Committee, and then demanding that the claim be rejected at the screening stage as they did not attend. (Interviews with community and people June 2009.)

...The Forest Rights Act requires that all rights be recognised through a transparent, public process, where the gram sabha or village assembly is central. Instead of following that process, government officers are imposing their own diktats. Gram sabhas are being deliberately called at the panchayat level or even larger units in Andhra Pradesh, Chhattisgarh and elsewhere – where they are too large for adivasis and forest dwellers to have their voices heard. This is in direct violation of the Act, especially in Schedule Five areas. Even where gram sabhas have functioned and recommended claims, in Madhya Pradesh, Gujarat, Andhra Pradesh and other States, the area over which rights are being recognised is being arbitrarily reduced. People cultivating an acre of land file claims for it, have their claims duly verified, and find that the actual title is given for a tenth of the area....

Shrinking Space to Resolve People’s Issues under PESA

A raft of people's movements are currently underway on the ground, either to assert legitimate rights, or to resist their violation – e.g. for land reclamation and forest rights, or against the takeover of resources, corruption, or displacement. In one way, these could be seen as the community’s efforts for self-determination and self-governance. These efforts are emblematic of the principles of direct and participatory democracy as was envisioned in the 73rd amendment, and then taken forward by PESA, by recognizing gram sabhas to be constitutionally valid bodies of local self-government. However, in most cases, and particularly against the backdrop of the state’s efforts against left-wing extremism, they are being dubbed as Maoist....

... Through the past year, some sections of government have stated that the PESA areas will see ‘an injection of speedy and aggressive development’, or that ‘these areas will be saturated with development.’ However, this approach suggests continuing bureaucratic control and ignores the principles of self-governance and community control over resources, as enshrined in PESA. In the current context of the people’s mistrust of the state, the term ‘aggressive development’ needs to be abandoned, and if not, then clearly defined for the consent of the community. ...