Tribal Policy: Pulling Back from the Brink?

In the winter of 1996, without fanfare and in fact largely unnoticed the Indian Parliament passed what is without doubt the most significant legal measure for tribal people since Independence. Earlier, the 73rd and 74th constitutional amendments had inserted Part IX in the Constitution relating to panchayati raj, but parliament consciously excluded Scheduled Areas from the operation of these laws, providing that it may separately extend these laws to Scheduled Areas with suitable modifications. A committee constituted for this purpose chaired by Dileep Singh Bhuria, MP, recommended in 1995 wide powers to the gram sabha or assembly of all village residents in Scheduled Areas. The 1996 Act is based substantially on these recommendations.

The underlying premise of the Panchayats (Extension to Scheduled Areas) Act, 1996 (hereafter referred to as PESA) is that tribal communities can be brought back from the brink of economic, social and cultural disaster only if they are restored effective and comprehensive control over their own destinies. Accordingly, this law seeks to create legal spaces and institutions that carry the potential to arrest, and even reverse the sombre recent history of tribal communities.

PESA is unprecedented in that it gives radical self-governance powers to the tribal community and recognises its traditional community rights over natural resources. Prior to the passage of this Act, laws passed by central and state governments were applied mechanically to tribal areas, even when these contravened traditional tribal practices and institutions. To take an example that we have seen, with the introduction of legal regimes based on private property and State ownership of forests and common property resources, the traditional control of the tribal communities over natural resources broke down, destroying their sustainable livelihood base. Chronic indebtedness to the moneylender, savage land alienation and large-scale migration were the results. Further, alien State institutions like the police and judiciary came to supercede traditional modes of conflict resolution, often with less than successful outcomes.

^{PESA opened a new chapter in the governance of
tribal regions, helping to resolve these enormous crippling distortions, and
ending two centuries of resistance of the tribal people to the imposition of
formal State institutions.
^{^{The gram sabha, which is locus of political
power under the PESA, may be no more than a convenient administrative label
for the relevant assembly; instead, the law focuses on settlements which the
tribal people themselves perceive to be traditional and organic entities. In
fact this is the first law that empowers people to redefine their own
administrative boundaries. PESA provides that the tribal gram sabha so
defined would be empowered to approve all development plans, control all
functionaries and institutions of all social sectors, as well as control all
minor water bodies, minor minerals and non-timber forest resources. It would
also have the authority to control land alienation, impose prohibition,
manage village markets and resolve internal conflicts by traditional modes.}}}

In one stroke, the Act creates space for people’s empowerment, genuine popular political participation, convergent community action, sustainable people oriented development and auto-generated emancipation.²¹ In reality, however, since its passage it has mostly remained forgotten in the corridors of power and has not become part of mainstream political discourse. Many state governments have passed laws not fully in conformity with the central law. Academics, administrators, policy makers and even parliamentarians remain unaware of it. The tribal communities informed about the provisions of the law greeted it with enthusiasm but found themselves progressively handicapped by the lack of actual preparedness to negotiate development and democratisation in the manner envisaged by the law.

The real danger thus is that the far-reaching changes introduced in the law will remain a dead letter unless they are translated into action and sustained by a process of awareness and capacity building among the tribal communities. There are a number of grave problems that must be overcome if the law is genuinely to transform tribal reality, but it is important to stress that none of these barriers to tribal self-government are insurmountable. We devote the following sections to studying these issues and exploring possible solutions.

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