What is PESA Act?

Context:

The Chhattisgarh government has formulated draft rules under PESA Act, 1996, terming it the Chhattisgarh Panchayat Provisions (Extension of the Scheduled) Rules, 2021.

Relevance:

GS-II: Polity and Constitution, GS-II: Governance (Government Policies and Initiatives)

Dimensions of the Article:

1. History of the Panchayati Raj system / Local Governance
2. Various Committees regarding Panchayati Raj
3. Amendments that “made” the Local Government level
4. PESA Act of 1996
5. Why are its rules being formed in Chhattisgarh now?
6. Why are rules under PESA important?

History of the Panchayati Raj system / Local Governance

In Ancient History

• In the old Sanskrit scriptures, word ‘Panchayatan’ has been mentioned which means a group of five persons, including a spiritual man. Gradually the concept of the inclusion of a spiritual man in such groups vanished.
• In the Rigveda, there is a mention of Sabha, Samiti and Vidatha as local self-units. These were the democratic bodies at the local level. The king used to get the approval of these bodies regarding certain functions and decisions.
• There is a mention of village panchayats in Kautilya’s Arthashastra. The town was referred to as Pur and its chief was the Nagarik. Local bodies were free from any royal interference.
• During the Mauryan and Post-Mauryan periods too, the headman, assisted by a council of elders, continued to play a prominent role in the village life.
• The system continued through the Gupta period, though there were certain changes in the nomenclature, as the district official was known as the vishya pati and the village headman was referred to as the grampati.

However, it is significant to note that there is no reference of women heading the panchayat or even participating as a member in the panchayat.

In Medieval History

• During the Sultanate period, the Sultans of Delhi divided their kingdom into provinces called ‘Vilayat’.
• For the governance of a village, there were three important officials – Mukkaddam for administration, Patwari for collection of revenues, and Choudhrie for settling disputes with the help of the Panch.
• Casteism and feudalistic system of governance under the Mughal rule in the medieval period slowly eroded the self-government in villages. It is again noteworthy to note that even in the medieval period there is no mention of women participation in the local village administration.

In Modern History

• The famous Mayo’s resolution of 1870 gave impetus to the development of local institutions by enlarging their powers and responsibilities. The revolt of 1857 had put the imperial finances under considerable strain and it was found necessary to finance local service out of local taxation. Therefore, it was out of fiscal compulsion that Lord Mayo’s resolution on decentralization came to be adopted.
• Realising that seamless administration is impossible without power sharing, the British, in 1884, passed the Madras Local Boards Act. Following the footsteps of Mayo, Lord Rippon in 1882 provided the much-needed democratic framework to these institutions.
• The Madras Local Boards Act of 1884 is considered to be the Magna Carta of local democracy in India. All boards (then existing) were mandated to have a two-thirds majority of non-officials who had to be elected and the chairman of these bodies had to be from among the elected non-officials.
• With this, the British formed unions in both small towns and big cities and began to appoint members to ensure better administration.
• Local self-government institutions received a boost with the appointment of the Royal Commission on centralisation in 1907 under the Chairmanship of C.E.H. Hobhouse.
• It is in this backdrop that the Montagu Chelmsford reforms of 1919 transferred the subject of local government to the domain of the provinces. The reform also recommended that as far as possible there should be a complete control in local bodies and complete possible independence for them from external control.
• However, by 1925, eight provinces had passed the Panchayat Acts and by 1926, six native States had also passed panchayat laws. Local bodies were given more powers and functions to impose taxes were reduced. But, the position of the local self-government institutions remained unaffected.

In Post-Independent Indian History

• After the Constitution came into force, Article 40 made a mention of panchayats and Article 246 empowers the state legislature to legislate with respect to any subject relating to local self-government.
• However, this inclusion of panchayats into the Constitution was not unanimously agreed upon by the then decision-makers, with the major opposition having come from the framer of the Constitution himself i.e., Dr. B. R. Ambedkar. It was after much discussion among the supporters and opponents of the village panchayat that the panchayats finally got a place for themselves in the Constitution as Article 40 of the Directive Principles of State Policy.
• Since the Directive Principles are not binding principles, the result was the absence of a uniform structure of these bodies throughout the country.
• After independence, as a development initiative, India had implemented the Community Development Programmes (CDP) on the eve of Gandhi Jayanti, the 2nd October, 1952 under the major influence of the Etawah Project undertaken by the American expert, Albert Mayer. It encompassed almost all activities of rural development which were to be implemented with the help of village panchayats along with the participation of people.
• There were various reasons for the failure of CDP like bureaucracy and excessive politics, lack of people participation, lack of trained and qualified staff, and lack of local bodies interest in implementing the CDP especially the village panchayats.
• In 1957, the National Development Council constituted a committee headed by Balwant Rai Mehta to look into the working of community development programme.

Various Committees regarding Panchayati Raj

Balwant Rai Mehta Committee & Panchayati Raj

The committee was appointed in 1957, to examine and suggest measures for better working of the Community Development Programme and the National Extension Service. The committee suggested the establishment of a democratic decentralised local government which came to be known as the Panchayati Raj.

Recommendations by the Committee:

1. Three-tier Panchayati Raj system: Gram Panchayat, Panchayat Samiti and Zila Parishad.
2. Directly elected representatives to constitute the gram panchayat and indirectly elected representatives to constitute the Panchayat Samiti and Zila Parishad.
3. Planning and development are the primary objectives of the Panchayati Raj system.
4. Panchayat Samiti should be the executive body and Zila Parishad will act as the advisory and supervisory body.
5. District Collector to be made the chairman of the Zila Parishad.
6. It also requested for provisioning resources so as to help them discharge their duties and responsibilities.

The Balwant Rai Mehta Committee further revitalised the development of panchayats in the country, the report recommended that the Panchayati Raj institutions can play a substantial role in community development programmes throughout the country.

• As a result of this scheme of democratic decentralization was launched in Rajasthan on October 2nd, 1959.
• In Andhra Pradesh, the scheme was introduced on 1st November, 1959. The necessary legislation had also been passed and implemented in Assam, Gujarat, Karnataka, Madhya Pradesh, Maharashtra, Orissa, and Punjab etc.

Ashok Mehta Committee & Panchayati Raj

The committee was appointed in 1977 to suggest measures to revive and strengthen the declining Panchayati Raj system in India.

The key recommendations of the Ashok Mehta Committee are:

1. The three-tier system should be replaced with a two-tier system: Zila Parishad (district level) and the Mandal Panchayat (a group of villages).
2. District level as the first level of supervision after the state level.
3. Zila Parishad should be the executive body and responsible for planning at the district level.
4. The institutions (Zila Parishad and the Mandal Panchayat) to have compulsory taxation powers to mobilise their own financial resources.

In order to use planning expertise and to secure administrative support, the district was suggested as the first point of decentralization below the state level.

Based on its recommendation, some of the states like Karnataka incorporated them effectively.

Other Committees: In subsequent years in order to revive and give a new lease of life to the panchayats, the Government of India had appointed various committees. The most important among them are the Hanumantha Rao Committee (1983), G.V.K. Rao Committee (1985), L.M.Singhvi Committee (1986) and the Sarkaria Commission on Centre-State relations (1988), P.K. Thungan Committee (1989) and Harlal Singh Kharra Committee (1990).

G V K Rao Committee & Panchayati Raj

The committee was appointed by the planning commission in 1985. It recognised that development was not seen at the grassroot level due to bureaucratisation resulting in Panchayat Raj institutions being addressed as ‘grass without roots’. Hence, it made some key recommendations which are as follows:

1. Zila Parishad to be the most important body in the scheme of democratic decentralisation. Zila Parishad to be the principal body to manage the developmental programmes at the district level.
2. The district and the lower levels of the Panchayati Raj system to be assigned with specific planning, implementation and monitoring of the rural developmental programmes.
3. Post of District Development Commissioner to be created. He will be the chief executive officer of the Zila Parishad.
4. Elections to the levels of Panchayati Raj systems should be held regularly.

L M Singhvi Committee & Panchayati Raj

The committee was appointed by the Government of India in 1986 with the main objective to recommend steps to revitalise the Panchayati Raj systems for democracy and development. The following recommendations were made by the committee:

1. The committee recommended that the Panchayati Raj systems should be constitutionally recognised. It also recommended constitutional provisions to recognise free and fair elections for the Panchayati Raj systems.
2. The committee recommended reorganisation of villages to make the gram panchayat more viable.
3. It recommended that village panchayats should have more finances for their activities.
4. Judicial tribunals to be set up in each state to adjudicate matters relating to the elections to the Panchayati Raj institutions and other matters relating to their functioning.

Amendments that “made” the Local Government level

• The Amendment phase began with the 64th Amendment Bill (1989) which was introduced by Rajiv Gandhi seeking to strengthen the PRIs but the Bill was not passed in the Rajya Sabha.
• The Constitution (74th Amendment) Bill (a combined bill for the PRIs and municipalities) was introduced in 1990, but was never taken up for discussion.
• It was during the Prime Ministership of P.V.Narasimha Rao that a comprehensive amendment was introduced in the form of the Constitution 72nd Amendment Bill in September 1991.
• 73rd and 74th Constitutional Amendments were passed by Parliament in December, 1992. Through these amendments local self-governance was introduced in rural and urban India.
• The Acts came into force as the Constitution (73rd Amendment) Act, 1992 on April 24, 1993 and the Constitution (74th Amendment) Act, 1992 on June 1, 1993.

Salient Features of the Constitution 73rd and 74th Amendments

• These amendments added two new parts to the Constitution, namely, added Part IX titled “The Panchayats” (added by 73rd Amendment) and Part IXA titled “The Municipalities” (added by 74th Amendment).
• Basic units of democratic system-Gram Sabhas (villages) and Ward Committees (Municipalities) comprising all the adult members registered as voters.
• Three-tier system of panchayats at village, intermediate block/taluk/mandal and district levels except in States with population is below 20 lakhs (Article 243B).
• Seats at all levels to be filled by direct elections Article 243C (2).
• Seats reserved for Scheduled Castes (SCs) and Scheduled Tribes (STs) and the chairpersons of the Panchayats at all levels also shall be reserved for SCs and STs in proportion to their population.
• One-third of the total number of seats to be reserved for women.
• One third of the seats reserved for SCs and STs also reserved for women.
• One-third offices of chairpersons at all levels reserved for women (Article 243D).
• Uniform five year term and elections to constitute new bodies to be completed before the expiry of the term.
• In the event of dissolution, elections compulsorily within six months (Article 243E).
• Independent Election Commission in each State for superintendence, direction and control of the electoral rolls (Article 243K).
• Panchayats to prepare plans for economic development and social justice in respect of subjects as devolved by law to the various levels of Panchayats including the subjects as illustrated in Eleventh Schedule (Article 243G).
• 74th Amendment provides for a District Planning Committee to consolidate the plans prepared by Panchayats and Municipalities (Article 243ZD).
• Budgetary allocation from State Governments, share of revenue of certain taxes, collection and retention of the revenue it raises, Central Government programmes and grants, Union Finance Commission grants (Article 243H).
• Establish a Finance Commission in each State to determine the principles on the basis of which adequate financial resources would be ensured for panchayats and municipalities (Article 243I).
• The Eleventh Scheduled of the Constitution places as many as 29 functions within the purview of the Panchayati Raj bodies.

The following areas have been exempted from the operation of the Act because of the socio-cultural and administrative considerations:

1. Scheduled areas listed under the V Schedule in the states of Andhra Pradesh, Bihar, Gujarat, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa and Rajasthan.
2. The states of Nagaland, Meghalaya and Mizoram.
3. The hill areas of district of Darjeeling in the state of West Bengal for which Darjeeling Gorkha Hill Council exists.

In conformity with provisions in the Constitution Amendment Act, an Act called the Provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 passed by the Government of India.

PESA Act of 1996

The provisions of Part IX are not applicable to the Fifth Schedule areas. The Parliament can extend this Part to such areas with modifications and exceptions as it may specify. Under these provisions, Parliament enacted Provisions of the Panchayats (Extension to the Scheduled Areas) Act, popularly known as PESA Act or the extension act.

Objectives of the PESA Act:

1. To extend the provisions of Part IX to the scheduled areas.
2. To provide self-rule for the tribal population.
3. To have village governance with participatory democracy.
4. To evolve participatory governance consistent with the traditional practices.
5. To preserve and safeguard traditions and customs of tribal population.
6. To empower panchayats with powers conducive to tribal requirements.
7. To prevent panchayats at a higher level from assuming powers and authority of panchayats at a lower level.

Why are its rules being formed in Chhattisgarh now?

• PESA, was enacted by the Centre to ensure self-governance through gram sabhas (village assemblies) for people living in scheduled areas.
• It legally recognises the right of tribal communities, residents of the scheduled areas, to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources.
• In pursuance of this objective, PESA empowers gram sabhas to play a key role in approving development plans and controlling all social sectors.
• This includes the processes and personnel who implement policies, exercising control over minor (non-timber) forest resources, minor water bodies and minor minerals, managing local markets, preventing land alienation and regulating intoxicants among other things.
• State governments were required to amend their respective Panchayat Raj Acts without making any law that would be inconsistent with the mandate of PESA.
• Six states have formed the PESA laws, and Chhattisgarh would become the seventh state if the rules are enacted.

Why are rules under PESA important?

• PESA rules enable the residents of scheduled areas to strengthen their village-level bodies by transferring power from the government to the gram sabha, a body of all the registered voters of the village.
• The powers of gram sabhas include maintenance of cultural identity and tradition, control over schemes affecting the tribals, and control over natural resources within the area of a village.
• The PESA Act thus enables gram sabhas to maintain a safety net over their rights and surroundings against external or internal conflicts. Without proper rules, its implementation is not possible as it is an exercise in decentralising the power from institutionalised structures, back to the village residents.
• The laws, once formed, will give gram sabhas the power to take decisions not only over their customs and traditionally managed resources, but also on the minerals being excavated from their areas.
• The rules state that the gram sabha will have to be kept informed by any and all agencies working in their village, and that the gram sabha has the power to approve or stop the work being done within the village limits.
• The rules also give power to the gram sabhas over:
  1. management of resources over jal, jangal, zameen (water, forest and land), the three major demands of tribals;
  2. management of minor forest produce;
  3. management of mines and minerals;
  4. management of markets;
  5. management of markets human resources;
  6. monitoring and prohibition of the manufacturing, transport, sale and consumption of intoxicants within their village limits;
  7. maintenance of peace and resolving conflicts arising in the village;
  8. protecting tribal customs and traditions;
  9. encouraging customs like ghotul.

-Source: Indian Express