Jharkhand: Why Are Tribal Organisations Opposing PESA Rules?

Patras Gudia has been the village head of Kamra, a remote settlement in Khunti district, for the past three decades. Tribal organisations in Jharkhand have recently raised concerns about PESA Act๊ [Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996], and Patras is among those supporting these voices of opposition.

☂“We do not want the PESA legislation drafted by the state government. We want the one by the central government exactly as it is. The Act enacted under Article 244 of the Constitution is the right one. Whatever laws the government makes should include all 23 provisions mentioned in the existing PESA law,” says the 68-year-old village head.

🉐Like many others, Patras is also advocating for ban on elections, except for the state and national legislatures, in areas covered under the Fifth Schedule of the Constitution.

🎐Jharkhand is one of the 10 states covered by the Fifth Schedule, which includes special laws for tribal areas. Enacted in 1996, the PESA law aims to preserve the traditional self-governance structures in tribal villages.

When And Why Was PESA Enacted?

෴One needs to look at its origin to understand why PESA came into being. The Panchayati Raj Act of 1992 was enacted under the 73rd Constitutional Amendment, which introduced a three-tier panchayat system for rural areas. However, as soon as this bill was passed, tribal organisations began protesting. They argued that it would undermine their traditional self-governance structures. This led to a stronger movement against the law, resulting in the formation of a 22-member committee, headed by tribal MP Dilip Singh Bhuria, in 1994-95.

🉐The committee conducted a study of tribal-majority areas and, within months, submitted a report that laid the foundation for the PESA Act. The law essentially is an extension of the 73rd Amendment, modified to suit the needs of tribal areas.

𒊎According to PESA, the Panchayati Raj Act cannot be applied in its entirety to tribal areas covered under the Fifth Schedule. Instead, the provisions in PESA must be followed. This law requires state governments to create specific rules for conducting panchayat elections in scheduled areas, which has yet to happen in Jharkhand.

ﷺOf the 10 states that are part of the Fifth Schedule, eight have already implemented PESA’s rules. The two exceptions are Odisha and Jharkhand.

ꦆHowever, the Jharkhand Panchayati Raj Department states that while the draft rules for PESA have been prepared, they have not yet been implemented.

Arguments Of The Opponents

♔Tribal organisations are opposing the rules drafted by the state government. They argue that the rules are not based on the central government’s PESA but rather on the Jharkhand Panchayati Raj Act (JPR Act) of 2001, which they claim is unconstitutional for Fifth Schedule areas.

Walter Kunduluna, who filed a petition in the High Court 🔥in 2021 regarding the implementation of PESA in the state, says, “PESA is a special law. Section 244 of the Constitution has specific provisions for tribal areas. In Jharkhand, PESA should apply to the Fifth Schedule areas, and the JPR Act 2001 should apply to general areas. But they have merged both. Our demand is that the law for scheduled areas is unconstitutional. Either the government should cancel it or amend it.”

✤Of Jharkhand’s 24 districts, 14 are covered under the Fifth Schedule. The tribal population in these areas is 86.45 lakh, out of which 68.66 lakh are tribals. Khunti has the highest proportion of tribals in the state, with 73.25 per cent of its population being tribal. The most vocal opposition to the three-tier panchayat system has come from these tribal-majority districts.

Walter further elaborates on PESA, saying, “Section A of PESA specifies that laws will be made according to the customs of the tribals. There will be a traditional self-governance system. According to PESA, the village head will hold both executive and legislative powers. In the Fifth Schedule areas, no elections will take place except for the Lok Sabha and Vidhan Sabha.”

꧑The Adivasi Area Security Council has been holding meetings in opposition to the state government’s PESA rules.

💝Gladson Dungdung, the council’s president, accuses the government of trying to implement the JPR Act under the guise of PESA. “The government wants to show that it has made rules for the scheduled areas, but these rules are not in line with PESA. They follow the JPR Act 2001, which is unconstitutional,” he says.

The Constitutionality Of JPR Act 2001

﷽The validity of the JPR Act 2001 has been questioned. According to Section 131 of the JPR Act, the state government is allowed to create its own rules for PESA. Tribal organisations, however, consider this unconstitutional.

✤Sudhir Pal, coordinator of the Jharkhand Forest Rights Forum and an expert on PESA law, argues that the provisions of JPR Act 2001 are constitutional. “Section 4A of PESA states that the state has the right to make laws concerning panchayats, but those laws should not contradict local customs, traditions and religious practices,” he explains.

👍Sudhir also emphasises that the existence of a three-tier panchayat system is essential for PESA’s implementation in scheduled areas. “Without a three-tier panchayat system in scheduled areas, PESA has no existence. It is an extension of the Panchayati Raj Act, which will apply with exemptions and modifications. Only when there is a panchayat system in place will the Gram Sabha and PESA have any real function.”

💮He further elaborates on the power of the Gram Sabha under PESA, adding that in matters like land acquisition, transfers, development and usury, no action can be taken in scheduled areas without the consent of the Gram Sabha. “But the state government is carrying out everything without consulting the Gram Sabha. If the Gram Sabha is empowered and functions properly, the panchayats and even the state governments will be under its control,” he says.

The Legitimacy Of JPR Act 2001

Nisha Uraon, director of the Jharkhand Panchayati Raj Department, responded to the question of the legality of the JPR Act and PESA’s rules. “After the challenge to the validity of the JPR Act 2001, the High Court and the Supreme Court ꦐruled that it is fully constitutional for the Fifth Schedule areas of Jharkhand. The PESA rules were framed in line with the provisions of the PESA 1996 Act. Now, the question is whether the central government’s PESA can be implemented directly in Jharkhand. The answer is no,” she says.

🌌She further explains, “The Constitution’s Seventh Schedule divides the power to make laws between the state and central government. When you look at the state list, local government is listed at number five, which gives the state government the right to make laws concerning it.”

How Self-Governance Works In Tribal Villages

𒈔In the eight states where PESA’s rules are already in place, all Fifth Schedule areas have a three-tier panchayat system. Jharkhand, too, has had such a system in the past, but it is still not governed by PESA’s rules. The tribal organisations in the state are opposing the state’s rules, claiming they are unconstitutional and would end the traditional self-governance system.

🍬Member of the Jharkhand United Pahada Committee, Shibu Munda, argues, “Our traditional governance system will survive only if we get the PESA law as it is from the central government. Our customs are different from the mainstream, and we need PESA to preserve our traditions.”

💙The traditional self-governance system in Jharkhand’s tribal villages has existed for centuries. Positions such as Munda, Maniki, Tana Bhagat, Pahada Raja and Majhi Paragana are of significant cultural and religious importance. These roles are not elected; rather, they are passed down from generation to generation. The village head or Munda is responsible for resolving disputes within the village. A Maniki oversees multiple villages, and if a Munda cannot resolve an issue, it is escalated to the Maniki.

📖In South Chotanagpur, Kolhan and Santhal Pargana, tribal populations are significant. These regions have their own systems of governance. In Kolhan, for example, there are 75 Manikis and 1,200 Mundas. Similarly, the ‘22 Pahada Sabha’ covers areas in Gumla, Khunti, West Singhbhum, Ranchi and Simdega, where 22 Pahada Rajas oversee multiple villages.