Power and the Panchayat

For the briefest of flickers, the words ‘panchayati raj’ trended on Twitter when PM Modi addressed the nation on National Panchayati Raj Day on April 24th. The PM, besides suggestions such as ‘taking pride in the village’ by celebrating its birthday, “urged Panchayat members to work with a five-year vision with concrete development plans to bring about positive changes in their village.”

The idea of panchayati-raj institutions defining and implementing their own development plans is not a new one. In India’s Constitutionally-protected tribal areas, this finds legal backing in an 18-year old act called the Panchayat (Extension to Scheduled Areas) Act, or the PESA Act. The Act applies to local-governance institutions in indigenous districts identified in the Vth Schedule of the Indian Constitution.

gram sabha

Powers and protections

According to PESA:
every Gram Sabha shall- i. approve of the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level; ii. be responsible for the identification or selection of persons as beneficiaries under the poverty alleviation and other programmes;

And much before the current Land Acquisition Act, the PESA Act empowered gram sabhas to take decisions around development projects, land acquisition and rehabilitation:
(i) 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 re-setling or rehabilitating persons affected by such projects in the Scheduled Areas;

It also states that State legislature must ensure that panchayats at the appropriate level and the Gram Sabha are endowed with: (iii) the 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;

The PESA Act gives local bodies the powers to regulate mineral prospecting and make recommendations for leases for minor mineral leases:

(k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas; (l) the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of concession for the exploitation of minor minerals by auction;

PESA in Practice

 

In India’s Schedule V coal mining districts, PESA has been one of the most ignored and subverted pieces of legislation, followed in breach, if implemented at all. Many states with a majority of Schedule V districts states are yet to develop rules for the Act.  “If Odisha has not even drafted the rules for PESA, how are we supposed to monitor its implementation?” asked the Divisional Panchayat Officer in the V-Schedule District of Sundergarh, the home constituency of India’s Tribal Affairs Minister Jual Oram. “So even if we conduct gram sabhas, there is no

Women, governance and PESA

The PM, in his speech, also hailed the contribution of women sarpanches, and warned against the exercise of undue influence by their husbands. In my travels and fieldwork, I’ve met extraordinary women sarpanches held in high esteem by their comunities, who stand out because they’ve tried to engage with a system that won’t equip them with the legal knowledge to empower their villages. In panchayats across Korba, Latehar and Sundergarh, I asked women sarpanches if they were aware of PESA or the Forest Rights Act, or if they were aware of the right to consent or determine rehabilitation plans for coal mining projects and drew blanks in all conversations.

“There is a law I’ve heard, but it has not been implemented here,” says Kamlabai, sarpanch of the Pali Panchayat in Korba that lies on the edge of some of India’s biggest coal mines. “There is absolutely no awareness here of these laws which are created by the government in Delhi. They leave their policies in some office where it is of no use to anyone.” Despite the lack of training however, they are sometimes better informed than district administration. The District CEO who oversees oversees all local-government institutions and special tribal development schemes, drew a blank when asked if this was a Schedule V district or whether people’s consent was needed . “Wait a minute, I’ll have to check the district website.” Latehar is widely known as a Left-Wing Extremist district and other militant factions, such as the Tritiya Prastuti Committee.

Village sarpanches are often excluded from Rehabilitation and Peripheral Development Committees, that help formulate and finalise rehabilitation plans.

A special committee set up under the UPA government headed to look into issues in India’s Schedule V districts observed that:

Screen Shot 2015-04-24 at 5.28.07 pm

This also recognised that state Panchayati Raj Acts are often in great divergence from the central Act.

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The PESA Amendment Bill:

Recognising deficiencies in the existing Act, the Draft Amendment Panchayats (Extension to the Scheduled Areas) Bill, 2013 was put together including recommendations by the National Advisory Council (NAC). The draft was readied on December 02, 2013 and circulated to Central Ministries and PESA States for their comments.

It put to rest the ambiguity around consent and consultation- it replaced ‘consultation’ with ‘Free Prior Informed Consent’, in tune with international standards on Indigenous Peoples rights.

Importantly, it granted communities the power to  to exercise their ‘Free Prior Informed Consent’ over not just minor mineral leases, but major mineral leases- such as coal and bauxite.The amended PESA Act would have made the consent of communities in Schedule V districts mandatory under the PESA before auctions of major and minor minerals. Consent would’ve been mandatory before the granting of mineral prospecting licenses or mining leases:

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This would have had significant repercussions, as neither the new coal auction process nor the new mining bill have in-built provisions for seeking the consent of communities. Besides this, the draft bill also ensured that state governments would have to frame rules that reflected the spirit of the Central Act, unlike those that are in force.

The bill would have given the 18-year old Act much needed teeth. Instead, unsurprisingly the Bill gathered dust and was allowed to lapse by the Modi government without fanfare. The report by the committee that pithily recommended the bill be admitted and made key suggestions on empowering village institutions was also kept under wraps, until it was leaked into the public domain.

This is unsurprising- given the government’s moves to weakens norms on seeking the consent of panchayats and gram sabhas or consulting with them at all levels. From doing away with gram consent for linear and other projects, mineral prospecting, removing public hearings as part of the social impact assessment provisions of the Land Acquisition Act for a wide set of industries, removing environmental public hearings for coal mine expansions.

While the Prime Minister urged Panchayati members “to instil pride about the village” and that “this required a firm resolve, rather than any budgetary provision”, we at CoalScam humbly suggest that empowering Panchayats takes a lot more than a birthday celebration- it means respecting and strengthening their powers and ‘firm resolve’ in the decisions they take over their own development.

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