FIFTH SCHEDULE, PESA AND FRA

PARIMAL SINGH

DEPUTY SECRETARY DEVELOPMENT BOARD

RAJ BHAVAN

Introduction

STs in India

More than 100 million population

More than 8% share of population

Large population in States of MP, Maharashtra, Orissa, AP, Gujarat, Chhatisgarh, Rajasthan, Jharkhand

Concentrated in Fifth Schedule and Sixth Schedule Areas

Introduction (contd)

Diversity of languages and cultural characteristics

Geographic dispersion, remoteness (Padas, Tolas/hamlets/habitations)

Particularly vulnerable groups

Lower than average performance in Social Indicators--- educational attainments, high mortality, morbidity, malnutrition.

Remote areas , poor connectivity

Developmental issues

Displacement

MoTA esimates – 85 lakh (population 8% but total 55% of the people displaced

The question of environment vs growth

Growth …………….for whom?

Who pays the price?

“ There has been a systemic failure in giving tribals a stake in the modern economic processes…. The systematic exploitation …of our tribal communities can no longer be tolerated”

PM of India, 2009 quoted in IRMA study initiated by MoPR

Developmental Issues

Jal, Jangal Aur Zamin

Land alienation

Widespread despite stringent laws

Rises out of the vulnerability of indebtedness

Access to Forests

Access to water resources

Developmental Issues

Indebtedness

High Migration

Persistent poverty

Poor social indicators (Health, Education, etc.)

ST Statistics

http://tribal.nic.in/WriteReadData/CMS/Documents/201305300323522984783TribalProfile.pdf

A ST child is more likely than the general population –To die within first day/Month/year of delivery

To be severely underweight

To be born and to live in a poor household

To not have a pucca house

To be born in a family with no or marginal land

ST statistics (contd.)

A ST child is more likely than the general population –

To drop out early from school

To be illiterate

To marry even before the chance of growing up

To be not immunized, to be anaemic, to be not covered by health insurance

To not have access to water supply or electricity

Constitutional provisions

Government of India Act, 1919- Backward tracts- Special responsibility for Governor-in-Council

Government of India Act, 1935- Special powers to Governor General and Governor-in-council about application or non-application of Laws

Provisions Post-Independence (contd.)

Art. 14(4)- Reservation in services

Art 29- Cultural and Educational Rights

Art. 46-State shall promote Educational and Economic interests; Protect from social injustice and exploitation

Art. 366 defines STs

Art. 342- President, in consultation, with Governor, specify who shall be STs

Provisions Post-Independence (contd.)

335- Consideration of Claims of STs in the appointment to services

332-Reservation of seats for STs in legislative assemblies

334- Reservation in Parliament and Assembly to continue till 40 years from commencement of Constitution

(contd.)

243 D- Seats reserved in Panchayats for STs

243 T- Seats to be reserved for STs in Municipality

338A- 2003; 89th Amendment--- Independent National Commission for Scheduled Tribes

(contd.)

Art. 339 – Control of the Union over administration of Scheduled Areas

Art. 275(1) – Special grant-in-aid by the Centre to the States for development in SA and for STs

Fifth Schedule

FIFTH SCHEDULE (Article 244(1))…..Nine States…

Governor has special responsibilities for Schedule Five areas (Maharashtra 12 districts , 59 Talukas)

Paragraph 3 - Report to President ( Attorney General's opinion)

Paragraph 4 - Tribes Advisory Council

Paragraph 5 - Governor's powers of regulation and notification...

Paragraph 6 - Scheduled Areas

Fifth Schedule (contd.)

Some important notifications issued

Important Regulations made…..

Act I of 1970 to prevent tribal to non-tribal land transfer in Agency (Scheduled tracts of Andhra / Telangana )

Need for more proactive use of Fifth Schedule

Examination of laws on the touchstone of whether they aid or impact adversely Scheduled Areas

PESA, 1996

Article 243(M) of Constitution

Dilip Singh Bhuria Committee

Extended provisions of Part IX of the Constitution relating to Panchayats to Scheduled Areas

With certain exceptions and modifications

Onus on states to make PESA compliant laws

Defined villages and Gram Sabhas (4b)

Every habitation shall have a village

Every village shall have a Gram Sabha

In effect, every habitation can have a Gram Sabha

PESA, 1996 (contd.)

State legislation should be in consonance with customary law, social/religious practices, and traditional management practices of community resources

Reservation of seats in proportion of population but not less than one half (4g)

Consultation before land acquisition (4i), power to prevent land alienation ( Samatha judgement of Supreme Court)

Planning and Management of minor water bodies (4j)

PESA, 1996 (contd.)

Mandatory recommendation of Gram Sabha for Minor minerals (4l)

GS has powers to enforce prohibition (4m(i))

Ownership of minor forest produce (4m(ii))

Power to control over money lending (4m(v))

Control over local plans , resources, tribal sub-plan (4m(vii))

PESA, 1996 (contd.)

Ensure that Panchayats at higher level do not assume power of the lower levels (4n)

State Legislature shall endeavour to follow the pattern of Sixth Schedule while designing the administrative arrangements in the Panchayats in Scheduled Areas (4o)

Why PESA could not succeed

Awareness

Initial enthusiasm, later neglect

PESA rules , Other Acts not in line with PESA.

Convenient interpretation of central Act to make state laws in most states

The conflict about land and resources, between statement and intent

Lack of belief in the abilities of Panchayati institutions to carry out their responsibilities.

.

Preferring giving powers to Gram Panchayats instead to Gram Sabha through convenient interpretation

Lack of strengthening Gram Panchayats through funds , functions, functionaries

The logic of devolution and decentralisation not carried forward

Building up grass root leadership which can fight for their rights

The spurious debate of “decentralization promoting corruption”

Why PESA can succeed …………………..

PESA Rules passed by State Government

Realisation that devolution of rights and resources is necessary for development

Steps towards ownership of schemes by the community (NRHM, SSA, water supply)

Yet……..

Much more needs to be done ………

To create awareness, devolve funds, give rights

PESA Rules

PESA Rules

Definition of village and Gram Sabha compliant with small hamlets (Rule )

Process of village formation (Rule 4 )

Composition of Gram Sabha Kosh (Rule 14 )

Standing committees of Gram Sabhas (Rule 10 )

Rules for access to natural resources and sustenance (Chapter V )

Rules for prevention of land alienation (Rule 24 )

Rules for restoration of alienated land (Rule 25 )

PESA Rules…

Consultation before land acquisition (Rule 26 )

Planning and management of water resources (Rule 28 )

Permission of Gram Sabha mandatory for minor minerals (Rule 32 )

Provisions against exploitation of labour (Rule 35)

Regulation of intoxicants (Rule 36 )

Licence and continuance of liquor shops only through Gram Sabhas , majotity opinion of women to be considered opinion of Gram sabhas (Rule 36 to 39 )

PESA Rules…

Management of minor forest produce by committee of Gram Sabha (Rule 41 )

Control over local markets (Rule 43 )

Control over money lending (Rule 44 )

Gram Sabha to identify beneficiaries (Rule 45 )

Certification of expenses (Rule 48 )

Social audit and monitoring of development activities (Rule 51 )

State law to be in keeping with customs, and traditional management practices in Scheduled Area (Rule 52 )

Things to Do

1. Administrative restructuring

Mobilise Vastis/ hamlets/habitations to form new villages

Ensure that committees such as RPMC, Gram Kosh, peace and justice committee , social audit committee are formed

Try to form smaller Gram Panchayats, e.g., Nandurbar

Things to Do …

2. Training

Train extensively about the PESA Rules: Both staff and Gram sabhas ( Remember: the base for training is GS not GP)

RGPSA; But since PESA is multi-faceted converge training with all other schemes.

Build training convergence with State Livelihood Mission and schemes like MGNREGS

Build PESA into ICDS, Health, Education training

Things to Do…

3. Fisheries

Transfer water bodies to Gram Panchayats

Ask actively for funds from TSP for fishery , GR has been changed accordingly

Fishery department is understaffed, need to involve Gram Sevaks

Things to Do…

4. Minor Forest Produce

Ensure that RPMC and the Forest Rights Committees under Rule 4(1) e in FRA are formed

Ensure that all decision making is by Gram Sabhas

Provide value addition structures and market linkages through funds and schemes- MVM, TSP, cess funds

Training in making micro plans and in access to forests

Remember : Bamboo and Tendu is property of Gram Sabhas, read relevant GRs

Things to Do…

5. Land Alienation

Organise Gram Sabhas to identify illegal land transfers from STs to non-STs

Review land records and ensure farmer’s names are correctly recorded

Put before Gram Sabha all matters of mortgage

6. Prohibition

7. Control of Usurious money lending

8. Identification of Beneficiaries of Government Schemes

Things to Do…

9. Approval of programs and schemes

10. Certification of expenses/ Utilisation Certificates

11. Social Audit of all Social Sector Schemes ( Periodic and Recurrent)

12. Rule 52- Laws to be in keeping with customs and practices of the community

Remember: All the above are de facto transferred subjects

Forest Rights Act

Scheduled Tribes and Other Traditional Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)

• Published in 2007

• Addresses historical injustice

Historical Injustice

• Series of laws in colonial times

• Dispossession: breaking of links with water, forest and land

• Large dams, Big projects

• Land Acquisition , concept of private property

BASIC PRINCIPLES

• Rights include responsibilities

• STs & OTFDs have been traditionally conserving forest ecosystems

• FORESTS & PEOPLE CAN EXIST TOGETHER

THE ACT

Section 3 defines “Forest Rights”

Forest Rights both individual and Community

For both STs and OTFDs

Cut off date 2005

Rights Individual Forest Right (IFR) upto 10 acres (4

hectares)

IFR for self-cultivation

Community Forest Rights (CFRs)

Two types

CFRs (under section 3(1); True Community Rights

CFRs (under section 3(2)

Infrastructural rights

CFRs under Section 3(1)

Nistar

Right to MFP

Fishing and other products of water bodies

Conversion of Pattas into legal rights

Right to protect, regenerate or conserve or manage any community forest resource

Rights of access to Bio-diversity

Right of community to intellectual property and traditional knowledge

CFRs under section 3(2)

13 community facilities

Schools, dispensary or hospitals, anganwadis, fair price shops, drinking water supply etc.

Section 5

Right to protect wild life, forest , and biodiversity

Right for Gram Sabhas to regulate access to community forest resources

Stop any activity which adversely affetcts the wild animals, forest and biodiversity

All rights available also in National Parks, Protected sanctuaries unless……….

……. they are declared inviolate by following due process

Duties of forest right holders

Protect wild life, forest and bio-diversity

Prevent destructive practices

Comply with the decisions of Gram Sabha

PROCESS

Convene Gram Sabha/Sabhas Forest Rights Committee Chairperson and Secretary

Filing, determination & verification of claims (Rule 11)

Verification of claims

MARK CUSTOMARY BOUNDARIES with the help of Gram Sabha including elders

FRC shall record findings; present before Gram Sabha

If more than one Gram Sabha and conflict, joint Gram Sabha

Evidences (Rule 13) More than one evidences

Public documents, Gazetteers census, survey and settlement reports, maps, micro-plans

Government authorised documents

Quasi judicial and judicial records

Research studies, documentation of

Statements of Elders other than claimants

What more needs to be done

Communities require funds for value addition, marketing, etc.

Communities require hand holding and non-adversarial positions to be taken by government departments

Communities require training in silvicultural practices

(At the same time , they have a lot to share and teach us )

Akola Collector residence

Challenges

Change in mindset of officials from “Only we can protect forests” to ………

Spreading the language of rights deep inside the forest dwelling communities

Talking about shared responsibilities

Avoiding any attempts to sabotage

Policy for tribal communities- Dos and Dont’s Avoid One size fits all approach

Provide community ownership -----of schemes, manpower, resources

Decentralise ------ functions, funds, functionaries.

Invest heavily in health, education, social services.

Consult

Respect and recognise ownership of land, water, and forests.

“Small is beautiful”---- To the extent possible avoid disruption, displacement, and disenchantment.

Thank You