GS Notes

Polity Notes 36

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PESA ACT, 1996

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, commonly known as PESA, is a landmark legislation that extended the provisions of Part IX of the Constitution, pertaining to Panchayats, to the Scheduled Areas of the country, with certain modifications and exceptions.

  • Exclusion under the 73rd Amendment: The 73rd Constitutional Amendment Act, 1992, which institutionalised the Panchayati Raj system, was not automatically applicable to the areas listed under the Fifth and Sixth Schedules of the Constitution. Article 243M of the Constitution explicitly exempts Scheduled Areas and tribal areas in the states of Nagaland, Meghalaya, and Mizoram from the application of Part IX. It also excludes the hill areas of Manipur with a District Council and the Darjeeling Gorkha Hill Council in West Bengal. This exclusion was a deliberate constitutional measure to protect the unique socio-cultural fabric, customary laws, and traditional governance mechanisms of tribal communities.

  • Bhuria Committee and Legislative Intent: Recognising the need for a formal system of local self-governance in tribal areas that respects their traditional systems, the Government of India constituted the Dilip Singh Bhuria Committee in 1994. The committee submitted its report in 1995, recommending a legal framework that empowers tribal communities and enables them to govern themselves according to their customs and traditions. The PESA Act, 1996, was enacted based on the recommendations of this committee, embodying the principle of “governance with the consent of the governed.”

  • Key Features of the PESA Act, 1996:

    • Primacy of Traditions and Customs: The Act mandates that state legislation on Panchayats in Scheduled Areas shall be in harmony with the customary law, social and religious practices, and traditional management practices of community resources. This is a foundational principle of the Act.
    • Empowerment of the Gram Sabha: Unlike in non-Scheduled areas where the Gram Sabha has a recommendatory role, PESA legally recognises the Gram Sabha as the primary unit of self-governance.
      • It is vested with the authority to safeguard and preserve the traditions, customs, and cultural identity of the people.
      • It holds the power to approve all development plans and projects before they are implemented by the Panchayat at the village level.
      • The Gram Sabha is responsible for identifying beneficiaries under poverty alleviation and other government programmes.
    • Financial Accountability: Every Panchayat is required to obtain a Utilization Certificate from the Gram Sabha for the funds used on projects and schemes. This provision is designed to ensure transparency and social audit at the grassroots level.
    • Reservations: The Act stipulates that the reservation of seats in Scheduled Areas at every Panchayat level shall be in proportion to the population of the communities. Crucially, the reservation for the Scheduled Tribes shall not be less than one-half (50%) of the total number of seats. Furthermore, all posts of Chairpersons of Panchayats at all levels are reserved for the Scheduled Tribes.
    • Control over Resources:
      • Water Bodies: The planning and management of minor water bodies in the Scheduled Areas are entrusted to the appropriate level of Panchayats.
      • Minor Minerals: The Act makes the recommendation of the Gram Sabha or the Panchayat at the appropriate level mandatory for granting prospecting licenses or mining leases for minor minerals. The term ‘minor minerals’ is defined under the Mines and Minerals (Development and Regulation) Act, 1957.
      • Minor Forest Produce (MFP): The Gram Sabha is given ownership of MFP. This provision aims to secure the livelihoods of tribal communities who are heavily dependent on forest resources. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 further strengthens this right.
    • Conflict Resolution and Social Control: The Gram Sabha is empowered to manage local disputes according to customary practices and to exercise control over institutions and functionaries in all social sectors. It also has the power to control money lending to Scheduled Tribes and prevent the alienation of their land.
    • Hierarchical Inversion of Power: A key principle of PESA is to ensure that Panchayats at higher levels do not usurp the powers and authority of Panchayats at lower levels, particularly the Gram Sabha. This upholds the spirit of decentralised governance.

  • Challenges in Implementation:

    • Legislative Dilution: A study by the Ministry of Panchayati Raj (2010) and a more recent analysis by NITI Aayog have highlighted that most state governments have enacted conformity legislations that dilute the spirit of PESA. For instance, many states have not clearly defined the powers of the Gram Sabha, leading to its authority being undermined by the Gram Panchayat or higher administrative bodies.
    • Bureaucratic Apathy and Corruption: The colonial mindset of the bureaucracy often results in resistance to devolving power to tribal communities. As noted by scholar B.D. Sharma in his extensive work on tribal governance, the administrative machinery often views Gram Sabhas as an obstacle rather than a partner. This leads to practices like forging Utilization Certificates and approving projects without genuine Gram Sabha meetings.
    • Lack of Awareness and Political Will: There is a significant lack of awareness about the provisions of PESA among the tribal communities themselves, as well as among government officials. This is compounded by a lack of political will to genuinely empower these communities, often due to a nexus between political actors, administration, and corporate interests, especially in mineral-rich states like Jharkhand, Odisha, and Chhattisgarh. The Vedanta Aluminium mining case in the Niyamgiri Hills of Odisha is a prominent example where the Supreme Court in its 2013 judgment upheld the supremacy of the Gram Sabha’s decision under PESA and the Forest Rights Act, preventing mining in the sacred hills.
    • Definitional Ambiguities: State laws have often created ambiguity around terms like ‘minor water bodies’ and ‘minor minerals’, allowing state departments to retain control over these resources.

  • Way Forward:

    • Capacity Building and Awareness: There is a critical need for large-scale awareness campaigns and capacity-building programs for Gram Sabha members and elected representatives in Scheduled Areas.
    • Strengthening Legal Frameworks: State governments must amend their conformity acts to align them with the letter and spirit of the PESA Act, clearly defining the powers and procedures for the functioning of the Gram Sabha.
    • Administrative Reforms: Sensitisation training for bureaucrats and forest officials is essential to change their attitudes from being ‘rulers’ to ‘facilitators’ of tribal self-governance.
    • Convergence of Laws: Effective implementation requires convergence between PESA and other related legislations like the Forest Rights Act, 2006, and the Land Acquisition Act, 2013, to create a robust legal shield for tribal rights.

URBAN LOCAL GOVERNANCE

Urban Local Governance refers to the system of governance for urban areas, which was granted constitutional status through the 74th Constitutional Amendment Act of 1992.

  • Central Administrative Structure: Unlike Panchayati Raj, which is primarily under the Ministry of Panchayati Raj, urban local governments (ULGs) are overseen by multiple central ministries:

    1. Ministry of Housing and Urban Affairs: Manages urban development policies, programmes, and financing for most ULGs.
    2. Ministry of Defence: Administers Cantonment Boards established for civilian populations living in cantonment areas.
    3. Ministry of Home Affairs: Administers ULGs in Union Territories.

  • Historical Evolution of Urban Local Bodies:

    • Pre-Independence Era:
      • 1688: The first Municipal Corporation in India was established in Madras by the East India Company, primarily to levy taxes for local infrastructure development.
      • 1726: Municipal Corporations were established in Bombay and Calcutta on the Madras model.
      • Lord Mayo’s Resolution of 1870: This resolution on financial decentralisation was a significant step. It aimed to strengthen municipal institutions by transferring certain services like education, health, and roads to their control, along with corresponding financial grants.
      • Lord Ripon’s Resolution of 1882: Hailed as the ‘Magna Carta of Local Self-Government’ in India, this was the most definitive step in establishing local self-governance. Lord Ripon, known as the ‘Father of Local Self-Government in India’, proposed establishing a network of local boards with a majority of non-official, elected members, chaired by a non-official chairperson. It advocated for financial and administrative autonomy for these bodies.
      • Government of India Act, 1919: Under the system of Dyarchy, local self-government became a ‘transferred’ subject, placed under the control of Indian ministers in the provinces. This provided a stimulus to their development.
      • Government of India Act, 1935: With the introduction of Provincial Autonomy, local self-government was declared a provincial subject, giving provincial legislatures greater power over these bodies.
    • Post-Independence Constitutional Efforts:
      • Despite their historical presence, ULGs had a weak and inconsistent status post-independence. They were often superseded by state governments and suffered from irregular elections.
      • The 65th Constitutional Amendment Bill, 1989, introduced by the Rajiv Gandhi government, was the first major attempt to grant constitutional status to ULGs. It was passed by the Lok Sabha but failed to get the requisite majority in the Rajya Sabha.
      • Finally, the P.V. Narasimha Rao government successfully enacted the 74th Constitutional Amendment Act in 1992, which came into effect on June 1, 1993.

  • The 74th Constitutional Amendment Act, 1992:

    • It added a new Part IX-A to the Constitution, titled ‘The Municipalities’, comprising Articles 243P to 243ZG.
    • It also added the Twelfth Schedule, which lists 18 functional items that can be devolved to municipalities, such as urban planning, regulation of land use, roads and bridges, and slum improvement.
    • Three-Tier Structure: The Act provides for three types of municipalities:
      1. Nagar Panchayat: For a transitional area (an area in transition from a rural to an urban area).
      2. Municipal Council: For a smaller urban area.
      3. Municipal Corporation: For a larger urban area.
    • Definition of Urban Area: The Governor of a state is empowered to specify these areas based on criteria such as population size, population density, revenue generated for local administration, percentage of employment in non-agricultural activities, and other factors of economic or historical importance.

  • Salient Features of the 74th Amendment:

    • Composition: All members of a municipality are to be elected directly by the people of the municipal area, which is divided into territorial constituencies called wards.
    • Wards Committees: The Act mandates the constitution of Wards Committees in all municipalities with a population of three lakh or more.
    • Reservations: Provides for reservation of seats for Scheduled Castes and Scheduled Tribes in proportion to their population. It also mandates that not less than one-third of the total seats be reserved for women.
    • Tenure: A fixed tenure of five years for all municipalities. If a municipality is dissolved before its term, fresh elections must be conducted within six months.
    • Elections: The superintendence, direction, and control of elections to the municipalities are vested in the State Election Commission.
    • Powers and Functions: State legislatures are to endow municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government, including the preparation and implementation of plans for economic development and social justice.
    • Financial Provisions:
      • A State Finance Commission (SFC) is to be constituted every five years to review the financial position of the municipalities and make recommendations on the distribution of taxes between the state and municipalities, grants-in-aid, and measures to improve their financial position.
      • Municipalities are empowered to levy, collect, and appropriate taxes, duties, tolls, and fees. They can also raise funds through mechanisms like municipal bonds.

  • District Planning Committee (DPC):

    • Constitutional Mandate: Article 243ZD mandates the constitution of a DPC in every state at the district level to consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole.
    • Composition: The Act stipulates that not less than four-fifths (80%) of the total members of a DPC shall be elected by and from amongst the elected members of the district-level Panchayat and the Municipalities in the district, in proportion to the ratio between the rural and urban populations of the district.
    • Challenges to Decentralised Planning:
      1. Non-Constitution of DPCs: As pointed out by the Second Administrative Reforms Commission (ARC) in its 6th Report (‘Local Governance’), many states have been tardy in constituting DPCs.
      2. Irregular SFCs: The irregular constitution and non-acceptance of recommendations of State Finance Commissions cripple DPCs, as planning without a clear financial framework is futile. The lack of a ‘fifth SFC’ in most states by the corresponding period indicates a systemic failure.
      3. Dominance of Centralized Schemes: The proliferation of Centrally Sponsored Schemes and state-level schemes with rigid guidelines leaves little room for DPCs to engage in genuine bottom-up planning. This perpetuates a top-down developmental approach.
      4. Capacity Deficits: Elected representatives, especially from disadvantaged groups, often lack the technical expertise and knowledge required for complex district-level planning. They require significant capacity-building support.
      5. Bureaucratic Hegemony: The district administration, led by the District Collector, often continues to dominate the planning process, rendering the DPC a symbolic rather than a functional body. This reflects a persistent reluctance to cede power to elected local representatives.

DIFFERENT TYPES OF URBAN LOCAL BODIES

  • Municipal Corporation:

    • Created for large cities like Delhi, Mumbai, and Bengaluru. They are established by acts of the state legislature (or by an Act of Parliament in the case of UTs).
    • Authorities:
      • The Council: The deliberative and legislative wing, composed of directly elected Councillors. It is headed by a Mayor, who generally has a ceremonial role.
      • The Standing Committees: Created to facilitate the work of the Council, they deal with specific areas like public works, health, taxation, etc.
      • The Municipal Commissioner: The chief executive authority, responsible for the implementation of the Council’s decisions. The Commissioner is usually an IAS officer appointed by the state government and acts as a link between the state government and the Municipal Corporation.

  • Notified Area Committee:

    • It is a statutory body established by a notification in the state government gazette. It is not an elected body but a fully nominated one.
    • It is created for two kinds of areas:
      • A fast-developing town that does not yet fulfil all the conditions necessary for the constitution of a municipality.
      • A town that is important for a specific reason (e.g., industrial township) but is not yet ready to be governed by a full-fledged municipality.
    • Its powers and functions are specified in the government notification under which it is created.

Prelims Pointers

  • The 73rd Amendment does not apply to Nagaland, Meghalaya, Mizoram, and certain hill areas of Manipur and Darjeeling.
  • The PESA Act was enacted in 1996 based on the recommendations of the Dilip Singh Bhuria Committee (1995).
  • PESA is applicable to the Fifth Schedule areas in ten states: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan.
  • Under PESA, reservation for Scheduled Tribes in Panchayats shall not be less than 50% of the total seats.
  • All chairpersons of Panchayats at all levels in Scheduled Areas shall be reserved for the Scheduled Tribes.
  • The Gram Sabha under PESA has mandatory consultation rights over land acquisition and mining of minor minerals.
  • The Gram Sabha has ownership of Minor Forest Produce (MFP).
  • The first Municipal Corporation in India was set up in Madras in 1688.
  • Lord Ripon is known as the ‘Father of Local Self-Government in India’. His resolution of 1882 is called the ‘Magna Carta of Local Self-Government’.
  • The 74th Constitutional Amendment Act, 1992, added Part IX-A and the 12th Schedule to the Constitution.
  • The 12th Schedule contains 18 functional items for municipalities.
  • Three types of municipalities are: Nagar Panchayat, Municipal Council, and Municipal Corporation.
  • Article 243ZD of the Constitution mandates the setting up of a District Planning Committee (DPC).
  • At least four-fifths (80%) of DPC members must be elected from amongst the members of the district panchayat and municipalities.
  • A Notified Area Committee is a fully nominated body created by a state government notification.
  • The Municipal Commissioner is the chief executive authority of a Municipal Corporation and is appointed by the state government.
  • Wards Committees are mandatory for municipalities with a population of 3 lakhs or more.

Mains Insights

  • GS Paper 2: Governance and Polity
    • PESA Act - A Case of Form over Substance: While PESA is a progressive legislation intended to institutionalise participatory democracy and tribal self-rule, its effectiveness is severely hampered by an ‘implementation gap’.
      • Cause-Effect: The primary cause is the reluctance of state governments to devolve real power, rooted in colonial administrative traditions and vested economic interests in resource-rich tribal areas. The effect is the dilution of PESA’s provisions through weak state conformity acts, rendering Gram Sabhas toothless and perpetuating the exploitation of tribal communities.
      • Historiographical Viewpoint: The debate on tribal policy has historically oscillated between the ‘isolationist’ approach (advocated by Verrier Elwin) and the ‘integrationist’ approach. PESA represents a middle path, aiming for integration on the tribes’ own terms by empowering their traditional institutions. Its failure signifies a triumph of the top-down, state-centric integration model over genuine self-governance.
  • GS Paper 2: Devolution of Powers and Finances
    • Challenges of Functional Devolution to ULBs (The 3 Fs): The 74th Amendment was a constitutional mandate for decentralisation, but urban local bodies remain weak.
      1. Funds: ULBs are crippled by financial dependency on state and central governments. State Finance Commissions (SFCs) are often constituted late, and their recommendations are frequently not implemented, leading to inadequate and unpredictable fund flows.
      2. Functions: Although 18 functions are listed in the 12th Schedule, states have not uniformly devolved these functions. Critical areas like urban planning and water supply often remain with state-level parastatal bodies (e.g., Development Authorities, Water Boards), creating overlapping jurisdictions and undermining the authority of elected ULBs.
      3. Functionaries: ULBs lack the administrative and technical staff to perform complex urban functions effectively. State governments retain control over the recruitment, transfer, and disciplinary action of municipal staff, making them accountable to the state rather than the local government.
  • GS Paper 1: Social Empowerment
    • PESA as a tool for Social Empowerment: PESA is not just an administrative reform; it is a tool for reversing historical injustices against tribal communities. By granting control over land, resources, and cultural practices, it aims to empower them socially and economically. The failure to implement PESA directly impacts efforts to reduce poverty, alienation, and left-wing extremism in tribal belts, as it denies communities their rightful agency.
  • GS Paper 3: Urbanisation and Infrastructure
    • Decentralised Planning and Urban Chaos: The ineffective functioning of District Planning Committees (DPCs) and Metropolitan Planning Committees (MPCs) is a major reason for the chaotic and unsustainable nature of urbanisation in India. A top-down planning approach fails to address local needs and integrate rural-urban linkages, leading to issues like unplanned peri-urban growth, overwhelmed infrastructure, and environmental degradation. Empowering DPCs is crucial for integrated and sustainable regional development.

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