Scheduled Areas, because of their richness in natural resources, are, as a letter from the Ministry of Panchayati Raj stated, historically characterized as susceptible to pressure from “unscrupulous elements indulging in illegal mining & forest felling” leading to land alienation, exploitation and “dislocation of the communities and loss of major sources of livelihood.”
Therefore, it was vital that customs, rights and livelihoods of those living in Scheduled Areas were protected. Accordingly, the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, (PESA), was enacted, extending Part IX of the Constitution to the Schedule V Areas. In enabling the Panchayats to ‘function as institutions of self-government’, a state government is mandated to ensure that the Panchayats at various levels and the Gram Sabha are endowed inter alia with:
- 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
- ownership of minor forest produce
- power to enforce prohibition, or to regulate or restrict the sale and consumption of any intoxicant
- power to exercise control over money lending to the Scheduled Tribes
- power to exercise control over institutions and functionaries in all social sectors
- power to control local plans, and resources for such plans including tribal sub-plans
- power of prior recommendation in granting prospecting license or mining leases for minor minerals as well as for grant of concessions for the exploitation of minor minerals by auction
- right to be consulted on matters of land acquisition
- power to issue utilization certificates for government works undertaken in their village.
PESA is an acronym for the Provisions of Panchayats (Extension to Scheduled Areas) Act 1996. Article 243-M (4)(b) of the Constitution states that “Parliament may, by law extend the provisions of this Part (Part IX relating to Panchayats) to the Scheduled Areas…subject to such exceptions and modifications as may be specified in such law”. And “no such law shall be deemed to be an amendment of this Constitution…”. It bears reiteration that the provisions of the 73rd Amendment relating to Panchayats do not automatically apply in Scheduled Areas. They have to be extended to Scheduled Areas by Parliament subject to “exceptions and modifications”. [Article 243M (4)(b), Constitution of India] This was in recognition of “the unique characteristics of tribal communities in the Scheduled Areas”[Union of India v. Rakesh Kumar, ]
While Parliament has enacted a law in relation to Panchayats, there is as yet no law on Nagar Palikas in Scheduled Areas. Article 243-ZC (3) contains a provision parallel to Section 243-M(4)(b). The committee had their attention drawn to the proliferation of Nagar Palikas in Scheduled Areas and to the expansion of already established towns and municipalities. This is being done without the consent of Gram Sabhas which are affected by the proposal to establish or extend a Nagar Palikas or to be merged with one already in existence. This, as a report points out, creates pockets of `unscheduled areas’ [Shankar Gopalakrishnan, India and the Rights of Indigenous Peoples: Illusion and Disillusion; Constitutional, Legislative and Administrative Provisions Concerning Indigenous and Tribal Peoples, 2010.] within Scheduled Areas, as cities and towns lose the dynamic that animates villages and hamlets. In 2008, the Jharkhand High Court held that, despite Article 243-ZC, the law relating to municipalities that pre-existed
the 74th amendment would continue to apply in Scheduled Areas too, because that is what Article 243-ZF says should be done till the legislature or other competent authority amends or repeals it. This does not recognize that the 74th Amendment makes a distinction between other municipalities and those in Scheduled Areas, and that it is Parliament that has to make a law with `such exceptions and modifications’ so as to ensure that the constitutional protections that extend to Scheduled Areas do not get diluted or negated.
That Parliament has not performed the task of law making regarding municipalities in Scheduled Areas cannot be a reason for denying the protections to the tribals. This would be a way of defeating the purpose of the special status that has been given constitutional recognition in Article 243-ZC. The law relating to municipalities, without setting out the `exceptions and modifications’, cannot be constitutionally valid in Scheduled Areas. Till Parliament makes a law that sets out the `exceptions and modifications’ while extending the law relating to municipalities to Scheduled Areas, or it makes a fresh legislation for municipalities in Scheduled Areas, any extension of municipalities or the establishing of new municipalities would be legally untenable.
State wide incorporation of the PESA tenets has been largely absent. Forest Departments in several states continue to have control over forest produce, and deny access to the tribals. Further, Gram Sabha consultations have to be merely ‘considered’ by government officials when deciding land acquisition proposals. Though consideration is mandatory, the choice of words indicates that the final say rests with the Land Acquisition Officer and not the Gram Sabha. Forged and manipulated Gram Sabha
resolutions, lack of consent before land acquisition and other grave issues still persist in the implementation of the PESA.
The Rules framed by state governments are not compliant with PESA Definition of Village . Sec 4(b) of the PESA states that “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.” This is in keeping with the spirit behind the 73rd constitutional amendment and the PESA, since takes into consideration the smallest unit of democratic participation, i.e. a village. States have not respected this provision. In Orissa for example, the Orissa Gram Panchayat Act, 1964, stipulates that the ‘Grama’ shall have a population of 2000-10000, which, in the case of tribal habitations, is usually not the case since they have small populations.
The Himachal Pradesh Panchayati Raj (Extension to the Scheduled Areas) Rules, 2011 does not define village at all. It only states that the Gram Sabha shall consist of persons, whose names are on electoral rolls in the Gram Panchayat.
All these instances violate PESA and attack its very core of empowering the Gram Sabha of the village at the habitation/hamlet or group of habitations/hamlets.
Traditional System of Leadership
PESA also empowers the Gram Sabha under Sec.4 (d), “to 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.”
In Rajasthan, however, the meeting of the Gram Sabha is presided over by the Sarpanch of the Gram Panchayat concerned and, in his absence, by the Up-Sarpanch.
In Andhra Pradesh, the Sarpanch of the Gram Panchayat is to be the President of the Gram Sabha and only in his absence can the traditional village leader of the habitation preside. This is completely contrary to the PESA that preserves traditional methods of leadership.
Consultation on Acquisition of Land, Resettlement and Rehabilitation
Section 4(i) of the PESA states that 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; the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level.”
In Andhra Pradesh, such process is confined only to land owning displaced persons. It also states that only Mandal Parishads would be informed of such acquisition, displacement, rehabilitation and resettlement programs.
While PESA makes it mandatory for the government to follow recommendations of Gram Sabha and Gram Panchayat before granting of mining or prospective licenses and lease of exploration of minor minerals by auction, the state act instead reduces it to mere consideration of these recommendations at best and too as prescribed by the state.
In Himachal Pradesh, the rules in force vest power in the Land Acquisition Officer to ‘consider’ the recommendation of the Gram Sabha regarding the land acquisition proposal. Consultation and consent with the Gram Sabha are virtually non-existent. In Rajasthan, the recommendation of Gram Sabha shall be considered by the Government or the authority concerned. If after a second consultation, the Government or the authority concerned passes an order against the recommendations of the Gram Sabha, record
the reasons for doing so in writing. This is similar to the rules in Himachal Pradesh.
Access to and ownership of Minor Forest Produce is not PESA compliant under various state rules
The FRA defines minor forest produce as including “all non-timber forest produce of plant origin including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers and the like”.
The PESA confers the ownership of minor forest produce on the Gram Sabha. However, a Planning Commission report acknowledges that “in absence of a comprehensive national/central policy/approach, contradictory legal provisions still prevail while differential state regimes create some of the biggest
limitations which constrain a healthy growth of the Non Timber Forest roduce (NTFP) sector. Bamboo, for instance, is defined as a ‘minor forest produce’ in the Forest Rights Act, 2006 whereas the Indian Forest Act, 1927 treats it at par with timber.
PESA, 1996 gives ownership rights to local communities over MFPs whereas the regime created under Wildlife Protection Act doesn’t.” The report goes on to say that the then Minister for Environment and Forests wrote letters to state Chief Ministers to recognize bamboo as a minor forest produce and transfer ownership of the same to local communities, but the state Forest Departments were unwilling to accept that. Though monopoly rights of states are legally questionable they continue with this practice.
Gadchiroli, Maharashtra is seen an example of how control over bamboo was vested from the Forest Department and rightly handed over to the Gram Sabha. However, in Andhra Pradesh a state-owned agency, Girijan Cooperative Corporation (GCC), has obstructed tribals from taking away their non-timber forest produce (hill brooms) from the Scheduled Areas of East Godavari district. In response, the community submitted a memorandum to the concerned officials under the FRA. The Andhra Pradesh Rules on ownership and mode of disposal of minor forest produce states that it “shall vest with the individual members of Gram Sabha subject to monopoly rights of GCC … for procurement of MFP, except Bamboo and Beedi leaf. In respect of Bamboo and Beedi leaf, management, harvesting and disposal shall be done by the Forest Department…(which) shall pass on the net revenue from such disposal of the Bamboo and Beedi leaf harvesting from the area allotted to the Gram Sabha, to the respective Gram Sabha.”
While tribal communities may find support for marketing and investment of proceeds of sales helpful, the erosion of their autonomy is against the purpose for which PESA was enacted.
Gram Sabha consent is frequently overridden and forest land is illegally diverted, as the examples below will indicate:
Example 1: Essel and Mining Company Ltd case in Keonjhar district, Orissa
It appears that no recognition of rights under the FRA is taking place in the mineral rich mining areas of districts like Keonjhar (under Schedule V). Instead, the administration has been facilitating illegal diversion of forest land to mining companies by engineering fraudulent Gram Sabhas of the concerned villages. In a case concerning diversion of forest land for Essel and Mining Company Ltd., an MLA from Jharsuguda, Naba Kishore Das, wrote a complaint to the Union Tribal Affairs Secretary, MoTA. The Union Secretary called for records pertaining to the alleged Gram Sabha approval of the forest land diversion. During his visit to the area, the Secretary examined Gram Sabha records and found that Gram Sabhas were held in
Jalahari, Bholbeda, Jajanga Jurudi, Banspani and Khuntpani villages coming under Joda –Badbil Tahasil on 1st Nov 2013 for obtaining their consent for the diversion of 342.602 ha of forest land out of the total area of 456.1 ha for Essel Mining and Industries Ltd. It was found that in the same meeting it was decided that the villagers had no forest rights and that they had no objection to the diversion of the concerned forest land. His observations were as follows:
“The notice which had been issued showed that a meeting had been convened to obtain approval of Gram Sabha for transfer of forest land to Essel Mining and Industries Limited. In the same meeting, forest rights were to be ascertained. The minutes of the meeting show that in the same meeting it was decided that the villagers have no forest rights. It was also decided that they had no objection to transfer of forest land to the firm. This is in complete violation of FRA. The process envisaged under FRA has to be completed before the transfer of forest land for non-forest use is considered under the Forest Conservation Act. Therefore, the transfer of forest to the firm is invalid.”
Terming the procedure in violation of the FRA as completion of the recognition of rights needs to be undertaken prior to any discussion on the diversion of forest land, the Secretary termed the approval for diversion invalid and advised the Collector to withdraw the approval.
On further investigation, the district administration has claimed that no claims were received for forest rights during Gram Sabha meetings held earlier and it is only after that that the Gram Sabhas seeking consent for forest diversion were held. The matter is under further investigation as a large number of the tribal families in the above villages have no titles for the land they are cultivating yet none of them ostensibly filed any claims for recognition of forest rights.
Example 2: Mahan Coal block in Singrauli district, Madhya Pradesh
The Mahan coal block was granted in-principle (Stage I) forest clearance by the MoEF on 18th October 2012, after substantial pressure from the Group of Ministers (GoM) on coal mining, after the MoEF had rejected it on environmental and ecological grounds. This approval was for the diversion of 1182.351 ha of forest land and was conditional on, among others, completion of the recognition of forest rights.
Yet, not a single community forest right has been recognized in the Singrauli district where there are a large number of forest land diversions taking place for non-forest use. Several representations written by the affected parties to the authorities on the issue of non-implementation of FRA in this region have yielded no results whatsoever.
Villagers in Amelia and Suhira were not allowed to make their CFR claims at the Gram Sabha meeting held on 15th August 2012 despite the fact that 300 people attended the meeting that day. Stage- I conditional forest clearance was granted for mining of the Mahan Coal Block in Madhya Pradesh on 30th October 2012 without detailed assessments of social and ecological impacts or obtaining Gram Sabha consent required under MoEF’s 2009 order.
Following this, the administration organized a special Gram Sabha on March 6, 2013 which was attended by only 184 persons. However, over 11000 signatures were forged onto the resolution which included the
signatures of some dead people. Despite strong protests by the villagers, including letters written in their support by the Minister of Tribal Affairs to the Madhya Pradesh Governor and Chief Minister, MoEF granted final forest clearance for the Mahan coal block in February 2014.
Example 3: Polavaram Project
The Polavaram Project has now been given national status. The Union Cabinet has approved the setting up of the Polavaram Project Authority, where the Centre will provide funds for the project and help in getting environmental and forest clearances. The Environmental Impact Assessment (EIA) of the project says 276 villages will be affected; an estimated 177,275 people live in these villages. The Polavaram Project Environmental Impact Appraisal Report of 1985 expected 150,697 people to be displaced in 226 villages. But the population of these villages according to the Census 2001 is much higher—236,834. State officials find it hard to explain the difference of 59,559 while estimating the number of people who will be displaced.
The Central Government shall execute the project and obtain all requisite clearances including environmental, forests, and rehabilitation and resettlement norms.” Though, the clearance of the project is subject to the settlement of claims under the Forest Rights Act, a number of people have had their claims
rejected. The reason was that their villages were going to be submerged anyway. A fact finding team comprising toured areas that are to be affected by the Polavaram Dam Project between 3nd March and 6th March, 2007. They reached the following conclusions:
In Maredubaka village in Kukunoor Mandal, people passed resolutions against Polavaram dam and the Resettlement& Rehabilitation package offered by the Government. Resolutions were ignored, suppressed and manipulated. Some Mandal Praja Parishads (MPP) also have passed resolutions against the construction of the dam but time and again over the last one year the officials have not accepted or recorded the written resolutions sent by the MPPs.
Example 4: Public hearings are mandated both under the Environmental Impact Assessment Notification, 2006 as well as the PESA
In an appeal before the National Green Tribunal (NGT) challenging the Environmental Clearance (EC) granted to a Coal Mining Project by M/s Jindal Steel and Power Limited at Raigarh District of Chhattisgarh State by the Ministry of Environment and Forests, the NGT in an order dated 20th April, 2012 held that the public hearing conducted on 5.1.2008, was a “farce” and a “mockery” of the procedure required to be followed.
The Tribunal went on to say that: “the way in which the proceedings are conducted is nauseating and no reasonable person would accept that it was conducted fairly and much less properly. This is not a case where there are a few ignorable procedural lapses in conducting the public hearing. This is a case of a
mockery of public hearing, one of the essential parts of the decision making process, in the grant of Environmental Clearance. This is a classic example of violation of the rules and the principles of natural
justice to its brim.”
Similarly, in Chhattisgarh, Korba district, villagers are resisting 36 coalfired power plants that seek to acquire close to 40,000 acres. In 2010, after a Gram Sabha hearing to discuss the land acquisition proceedings, the District Collector there reportedly recorded that there is no legal basis for the Gram Sabha’s objections and the issues raised.
Amendment to the PESA
The proposed PESA Amendment seeks to change the existing law by providing for “prior informed consent” of the Gram Sabha to be mandatory before any land acquisition, which will bring it in tune with
international developments where free prior informed consent has evolved as a precondition to the location of projects, and its consequences. The proposed amendment also mandates “prior informed
consent” of the Gram Sabhas before granting of prospecting license or mining lease for minor minerals in the Scheduled Areas and before granting of concession for the exploitation of minor minerals by auction.
Linear Projects
On 5 February 2013, a letter was issued from the MoEF exempting linear projects from the requirement of obtaining consent from Gram Sabhas under the Forest Rights Act: ‘This ministry has received representations from various ministries to exempt projects … where linear diversion of forest land in several villages are involved, from the requirement of obtaining consent of Gram Sabha, as stipulated in this ministry’s said letter dated 3-8-2009.’
The matter has also been examined by an inter-ministerial committee. The committee, after examination of the matter had inter alia recommended that a resolution of the Gram Sabha of the area based on full and prior information of the project and a public hearing, endorsing that the project is in the interest of the people living on forest land, use of which is proposed to be diverted for non-forest purposes may not be required for the projects like construction of roads, canals, laying of pipelines/optical fibres and transmission lines etc. where linear diversion of use of forest land in several villages are involved, unless recognized rights of Primitive Tribal Groups(PTG) and Pre-Agricultural Communities (PAC) are being affected.” The letter says that the Minister for Tribal Affairs had agreed with this recommendation.
There were further circulars to this effect on 3rd August, 2009 and 15th January, 2014. On 7th March, 2014, the Ministry of Tribal Affairs had to issue a notice to all Chief Secretaries clarifying ‘the correct position in law’. It said: The FRA “does not provide any exemption to any category of projects”.
“Compliance with the provisions of FRA in no way counters the provision of basic developmental initiatives, particularly in less developed Scheduled Areas. In fact, Section 3(2) of the Act expedites projects meant for forest dwellers”. “The central role of the Gram Sabha in the developmental
initiatives is not unique to the FRA 2006. It also finds mention in the PESA where consultation with Panchayats is a necessary precondition for alienation of any land in the Scheduled Areas for development projects. The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 also requires consent of the Gram Sabha for acquisition of land in Scheduled Areas for development”.
The Supreme Court, in its 2013 decision where the tribal hamlets in Niyamgiri were asked to be consulted in their Gram Sabha, has reiterated that the proper process has to be followed for the determination of community forest resource rights and that the decision has to be taken by the Gram Sabha.
“In view of the above, compliance with FRA is a mandatory requirement before forest land can be diverted. Failure to do so would be a violation of law.”
This was issued with the approval of the Minister, Tribal Affairs and Panchayati Raj.
This instance is symptomatic of the disregard for laws that have been enacted to protect the interests of Scheduled Tribes and Other Traditional Forest Dwellers. There is no answerability when this deliberate disrespect for the law is manifest. It was pointed out to us that the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 prescribes punishment where a person, not being a member of a Scheduled Caste or Scheduled Tribe “wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water”. The serious consequences of depriving tribals of their land is recognized in the Atrocities Act, 1989, and must inform public policy. Development projects and infrastructure projects are being allowed to relegate laws made to safeguard tribal interests to irrelevance.
Any land that may have been taken over by following the letters/notices of the MoEF dated 5th February, 2013, 5th July, 2013 and 15th January, 2014 must be restored to the community.