The idea of the Gram Sabha (Village

Transcription

1 Gram Sabha in Fifth Scheduled Areas Precept and Practice Dr. Mahi Pal The idea of the Gram Sabha (Village Assembly) is not new, although it got more currency after the 73 rd Amendment to the Constitution and particularly after extension of this Act to 5 th Scheduled Areas by Provisions of the Panchayat (Extension to the Scheduled Areas) Act, 1996(hereafter referred to Extension Act). States of Himachal Pradesh, Rajasthan, Madhya Pradesh, Chhattisgarh, Jharkhand, Orissa, Maharasthra, Andhra Pradesh and Gujarat covered under fifth scheduled of the Constitution. In preindependence days also under British regime the idea of associating villagers with the panchayat administration was accepted and incorporated in some of the provincial panchayat legislations like Bombay Village Act of 1933, which had the provision of assembling all the adults at a common place where the panchayat would read out the report on the village administration for the preceding year and activities to be taken up in the ensuing year. But the Gram Sabha was not empowered to make changes in the proposals made by the Panchayats. This was obvious because not much was expected from the alien government. However, not much interest in strengthening participatory democracy by way of making Gram Sabha as corner stone of the Panchayati Raj System. As elections to the panchayats were not held regularly, the legal provisions made by some states regarding the Gram Sabha have remained on paper. The Article 243A of the 73 rd Constitutional Amendment Act has given the backing to make the constitution of the Gram Sabha mandatory 10 10

2 in the states. But the powers and functions of the Gram Sabha have been left to the discretion of the state legislatures. As a result, different states have developed powers and functions to this body differently. In some states it has been made a discussing body, in some others it is made a recommendatory body whereas some states have gone to the extent of making it is an approving body of the schemes and programmes taken up panchayats. But the Extension Act is a watershed in the sphere of devolution of powers and authority at local level, as it has empowered this corporate body in taking decisions about all vital issues including jal, (water), jungal (forests) and Jamin (land) in the hands of tribals. Present paper focus on provisions about powers and authority contained in the Extension Act and as to what extent these provisions have been interwoven in the State Panchayat Acts in the 5 th Scheduled Areas States of the country. Paper also focuses on as to what extent conformity legislations of the States have been amended to give effect of the provisions of the Extension Act. Salient Features of the Extension Act Although Article 243(1) of the Constitutions prohibits extension of provision of the 73 rd Constitutional Amendment Act 1992 to tribal areas and Scheduled Areas referred in Article 244 Clause (1) and (2) of the Constitution, Article 243M(4) (b) empowers the Parliament to make laws to extend the provisions of the Act to these Areas subject to certain conditions. But without making a law by the Parliament, the states like Andhra Pradesh, Himanchal Pradesh and Rajasthan have extended 73 rd Amendment Act to the Scheduled Areas. This was an unconstitutional step on the part of the states. Tribal leaders considered it another step by the state against the autonomy of the tribal people. They mobilized tribals around this issue. The matter was also taken up with the Andhra Pradesh High Court by the tribals and by some activists, which had termed State Act ultravirous to the Constitution. Keeping in view of the agitation by the tribals and judicial verdict of the Andhra Pradesh High Court, a need was felt for extending the provisions of part IX of the Constitution to the Scheduled Areas by enacting a law in the Parliament. This resulted in constituting of a high level committee under the chairmanship of Mr. Dileep Singh Bhuria with the purpose to recommend as to how the Scheduled Areas could be recovered under the provision of the 73 rd Amendment Act. Accordingly, in view of the recommendations of this committee a Bill was introduced in the Parliament and passed on December 19, 1996 which subsequently, after getting President s assent on December 24, 1996, extended 73 rd Amendment Act to the Scheduled Area mentioned under Clause(2) of Article 244 of the Constitution, It became mandatory on the part of the states to amend their existing Panchayat Acts in conformity with the Extension Act within a year i.e. by December 24, By the Extension Act panchayats have been extended to the tribal areas of the States mentioned above. Following are the salient features of the Act. (1) Every legislation on the panchayats in 5 th Scheduled Area be in conformity with the customary law, social and religious practices and traditional management practice of the community resources. (2) Gram Sabha has been vested with following powers: a) Ownership of minor forest produce. b) Approval of development plans and programmes. c) Selection of beneficiaries under various programmes. (d) (e) (f) (g) Prior consultation on land acquisition matter. Management on village markets. Control money lending to STs and prevention of alienation of land. Control on institutions and functionaries in all social sectors. (h) Give utilization certificate of funds used for the projects and programmes of social and economic development etc. to the village panchayats. (i) Prior recommendation for granting licence or mining lease for minor minerals

3 (3) Reservation for the scheduled tribes shall not be less than half of the total number of seats at all tiers (i.e. Gram Panchayat, Panchayat Samiti and Zila Panchayats) of Panchayati Raj System and reservation for other communities mentioned in part IX of the Constitution shall be on the basis of proportion to the population of these communities. (4) The chairpersons at all levels of the panchayats shall be reserved for STs. (5) In case of STs have no representation at intermediate or district level panchayats,the state government shall nominate such underrepresented Scheduled Tribes but such nomination should not exceed one tenth of the total elected members of that panchayat. (6) State legislatures while devolving powers and authority to panchayats to enable them to function as institution of self-government, it should be ensured that the panchayats at the higher level do not assume the powers and authority of any lower level panchayats or the Gram Sabha. (7) The state legislatures shall follow the pattern of the Sixth Scheduled areas to the Constitution while designing the administrative arrangement for the panchayats at district level. Thus, the Extension Act has given an important legislative framework for the tribal to have their control and rights over natural resources and conserve and preserve their identity and culture in participatory manner through the institution of the Gram Sabha. The state legislatures should keep in mind the following aspects while amending their respective Panchayat Acts. a) Gram Sabha should be made a corner stone of entire scheme of decentralized governance, planning and development by way of awarding independence in managing, protecting and preserving natural resources and formulation of socio-economic development programmes, projects and schemes for tribal people. b) Relationship between the Gram Sabha and panchayat should be similar to the one existing between legislatures and the government. In the other words, panchayats should take approval of the Gram Sabha in all matter effecting rural economy and society. c) The underlying spirit of the Extension Act is on devolution of powers and authority (rather than delegation of powers) to the Gram Sabha which represent participatory democracy rather than empowering representative decentralized democracy in the form of gram panchayats and higher tiers of Panchayati Raj System. And while devolving powers and authority on panchayat or Gram Sabha, state legislature should ensure that panchayats at higher level do not assume the powers and authority of any panchayat at lower level or of the Gram Sabha. In other words, principle of subsidiary is to be followed i.e the function which can be performed better should be given to that tier of the government and not to the other tiers of it. Such provisions are not contained in the 73 rd Amendment Act. State Panchayat Raj Acts As the tribal societies are homogenous and monolithic and have the cultural and tradition to work collectively, the participatory democracy through the Gram Sabha is very appropriate for them. Keeping in view of the participatory culture of tribal the Bhuria Committee has recommended to make the Gram Sabha the corner stone of entire scheme of decentralized governance. In view of above, let us examine as to what extent the conformity legislations contained this philosophy of decentralized governance for these areas. Table 1 presents state wise details whether the provisions of the State Panchayat Acts have been legislated in conformity with the Extension Act. As per section 4(d) of the Extension Act every Gram Sabha (GS) shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of disputes resolution. Secondly, as per section 4(e) of the Extension Act GS approve the, plans, programmes and projects for social and economic development. Thirdly, as per section 4(f) of the Extension Act every panchayat at village level

4 shall be required to obtain utilization certificate of the work done in the areas from the GS. It may be seen from table 1 that these provisions have been made in the State Panchayat Acts. Section 4(i) of the Extension Act says that GS or Panchayats at appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects. This is very important provision of the Act as issue of land is involved, which is very important for the point of view tribal. It may be seen from table that this provision has been provided in all the State Acts except Chhttisgarh, Jharkhand and Madhya Pradesh States. Section 4(k) of the Extension Act says that recommendation of the GS or the Panchayat at the appropriate level shall be made mandatory prior to grant of prospective licence or mining lease for minor minerals in these areas. About this, the table shows that States of Chhattisgarh, Gujarat, Jharkhand and Madhay Pardesh have not legislated these provisions in their Panchayat Acts. Section 4(m) of the Extension Act says that while endowing Panchayats in Scheduled State Areas, State Legislature shall ensure that the Panchayats at the appropriate level and the GS are endowed with powers enumerated in para 2 under salient features of the Extension Act. Table 2 depicts state- wise status of these powers to GS. It may be seen from the table that enforcement of prohibition has not been provided in the States of Chhattisgarh, Gujarat, Jharkhand and Madhay Pardesh. Ownership of minor forest produce has been endowed in GSs in all the States except Chhattisgarh and Madhay Pradesh, Another important power is prevention of alienation of land. Out of nine States, this provision has been provided only in four States namely Andhara Pradesh, Odisha, Maharathra and Rajasthan. Power of managing village markets has been given to GS in all the states except Maharathara. Power of control over money lending to GS has not been provided in the State Acts of Chhattisgarh, Jharkhand and Madhya Pradesh. The power of control over institutions and functionaries in all the social sectors has been given to the GS in all the States except Gujarat. Table 1: Compliance of State Panchayati Raj Act with Section 4 of Extension Act (d) Gram Sabha s competency for safeguard (e) GS s Approval plans etc. and identification of beneficiaries under Poverty Alleviation Programmes (f) Utilisation Certificate from Gram Sabha (i) Consultation with Gram Sabha for acquisition of land for Development Projects & before re-settling or rehabilitating persons affected (k) Recommendation of Gram Sabha prior to grant of Licence or minimum Lease for minor minerals Andhra Pradesh Yes Yes Yes Yes Yes Chhattisgarh Yes Yes Yes No No Gujarat Yes Yes Yes Yes No Himachal Pradesh Yes Yes Yes Yes Yes Jharkhand Yes Yes Yes No No Odisha Yes Yes Yes Yes Yes Maharashtra Yes Yes Yes Yes Yes Madhay Pradesh Yes Yes Yes No No Rajasthan Yes Yes Yes Yes Yes Source : Annual Report( ) of the Ministry of Panchayati Raj 13 13

5 State Table 2: Compliance of State Panchayati Raj Act with Section 4 (Para M) of Extension Act (i) Enforce prohibition by Gram Sabah (ii) Ownership of minor forests produce by Gram Sabha (iii) Prevent alienation of land by Gram Sabha (iv) Manage Village Markets by Gram Sabha (v) Control money lending by Gram Sabha (vi) Control over institutions and functionaries by Gram Sabha Andhara Pradesh Yes Yes Yes Yes Yes Yes Chhattisgarh No No No Yes No Yes Gujarat No Yes No Yes Yes No Himachal Pradesh Yes Yes No Yes Yes Yes Jharkhand No Yes No Yes No Yes Odisha Yes Yes Yes Yes Yes Yes Maharashtra Yes Yes Yes No Yes Yes Madhay Pradesh No No No Yes No Yes Rajasthan Yes Yes Yes Yes Yes Yes Source : Annual Report( ) of the Ministry of Panchayati Raj Making provisions is important for enabling the GSs to control over resources in their respective jurisdiction. But more important is as whether the respective state legislations have been conformed with the State Panchayat Acts. For example, consultation with the GS is mandatory for any land acquisition in the area as per the State Panchayat Act. But to make this provision effective and operational, the respective State Acquisition Act should be conformed with the State Panchayat Acts. In other words, the power relating to land acquisition mentioned in the State Acquisition Act must be deleted otherwise it may create an environment of confusion which lead to no empowerment of GS and their members about taking decisions regarding land issues. In view of above, let us examine as to what extent the important subject laws having bearing with Extension Act have been compliance with by the States. Table 3 depicts such status across States in the country. It may be seen from this table that in case of land acquisition, State Acts of Andhara Pradesh, Gujarat, Jharkhnad Odisha, Mahrathara and Rajasthan have not been compliance with. In case of excise, State Acts of Andhara Pradesh, Himachal Pradesh, Jharkand, Maharasthara, and Rajasthan have not been compliance with. In case of forest produce, the situation is very bleak as except Odisha, none of the state made any progress this regard. In case of mines and minerals situation is not encouraging as table indicts. Interestingly, in case of agricultural produce and market, except Madhay Pradesh none of the States has made any progress in this regard. Almost, similar is the position in case of moneylenders across the States Above analysis of the Acts shows that not much interest has been shown by the States in putting in practice of the Extension Act in letter and spirit for improving self-governance. On behalf of the Ministry of Panchayati Raj, IRMA had carried out an independent assessment of the functioning of the panchayats across the States. Some of the states which come under 5 th Scheduled Areas have also been covered. Based on the findings of this assessment, an evaluation has been done about the grassroots realities. In case of Andhra Pradesh, although several mandatory provisions of the Extension Act 14 14

6 Table 3: Compliance of Conformity Legislations of the States with State Panchayati Raj Acts in reference with the Section 4 (Para M) of Extension Act (i) In force prohibition (ii) Ownership of minor forests produce (iii) Prevent elimination of land (iv) Manage village markers (v) Control money landing (vi) Control over institutions and fund No No No No No No Yes Yes No Yes No No No N.A. No No No No Yes No No Yes No No No No No No No No No Yes Yes Yes No Yes No No No No No No Yes Yes No Yes Yes Yes No No N.A. Yes No Yes Source : Annual Report( ) of the Ministry of Panchayati Raj have been incorporated in the state Act, actual implementation lacking. In case of Himachal Pradesh, in practice, most of the functions are handled by the States. In some States as Chhattisgarh some of the provisions such as enforcement prohibition, control over money lending are not clearly stated. In case of Rajasthan, conditions have not been created in the tribal areas to give effect of provisions of the Extension Act at the ground level. This might be on account of deficiencies in the legal framework and due to inability of tribal to seize the opportunities of the Act for their empowerment and self-governance. Conclusion It was expected that the Extension Act would lead to bring about participatory democracy which would be instrumental in ushering in the era of self-governance and empowerment. The Extension Act in real term is such piece of legislation which provide framework to establish Gram Swaraj as envisaged by Father of Nation. But it could not be happened due to lack of political will and administrative support at different levels. Another important factor is that the tribal could not seize this opportunity due to lack of awareness on their part about the implication of this Act. Broadly, areas where Extension Act is applicable, are suffers from LWE. Ineffective implementation of the Extension Act might be one of the reasons of discontent leading to extremism in the tribal areas. There is an urgent need to implement the Extension Act in letter and spirit. Among others, plan of action to establish the rule of Gram Sabha includes removing of deficiencies from the State Panchayat Acts, amendment of conformity legislations making Panchayat Acts more effective and build the capacity of functionaries implementing the Extension Act. [The author belongs to Indian Economic Service. Views expressed are personal. mpal1661@gmail.com] As elections to the panchayats were not held regularly, the legal provisions made by some states regarding the Gram Sabha have remained on paper