Tribal Policy: Pulling Back from the Brink?

Section 4(m) (v) of the PESA lays down that the ‘… State Legislature shall ensure that the panchayats at the appropriate level and the gram sabha are endowed specifically with…the power to exercise control over money lending to the Scheduled Tribes.’

This is a provision of enormous potential for the protection of tribals from grave and continued pauperisation. Tribal people in all regions in India remain extremely vulnerable to rampant exploitation by moneylenders, and laws aimed at preventing usury have had an extremely limited impact in extending genuine protection to them. PESA seeks to correct this by placing powers directly with tribal gram sabhas to regulate moneylending.

^{However, a survey of State laws reveals that
most state governments have not so far adequately amended existing laws, nor
have they passed fresh laws or administrative instructions in order to bring
these in conformity with PESA, 1995. The amended Panchayats Acts of Andhra
Pradesh, Himachal Pradesh and Orissa make provisions for control of
moneylending by gram panchayats or gram sabhas `as may be prescribed’.
However, the state governments have not issued detailed guidelines or
amended the relevant laws accordingly. The Madhya Pradesh government is said
to be considering an amendment to its laws related to moneylending but this
has not yet been passed by the state legislature. The governments of Gujarat
and Maharashtra have amended the Bombay Moneylenders Act, 1946 to make
consultations with the gram sabha before the issue of a license to a
moneylender mandatory (Srivastava 1999). However this cannot be considered
an adequate compliance with either the letter or spirit of the law, because
it does not empower gram sabhas to intervene in any way to provide relief in
the event of a breach of the conditions of license. A minimal procedure, as
a first step, could be to lay down that all money-lenders should have a
licence from the gram sabha, that they should keep written accounts
(ratified by the borrowers), and that debts not supported by written
evidence will be considered null and void. But over time, more effective
procedure need to be developed, which may be as follows:
^{In any Schedule V area, any person or
institution who proposes to engage in moneylending with any resident of a
village, must apply first for permission to the senior revenue court of the
Sub-Division Officer (Civil) (the SDO) in whose jurisdiction the village is
located. The application must indicate full details of the terms under which
the credit is proposed to be offered (including rate of interest, mortgage
if any, enforcement mechanisms and outcomes of default, the purposes for
which credit will be offered and full details of the proposed moneylender).
^{The SDO will confirm firstly that the proposed
terms of credit are in conformity with the relevant laws at that time. Those
applications that are in conformity will be forwarded for consideration to
the next meeting of the relevant gram sabha. The gram sabha will consider
the application, especially with regard to the following:

Do the village residents require credit of
the kind being offered?

Are the terms of credit being offered
considered reasonable by the gram sabha?

Does the track record of the moneylender
suggest that he or she is fit to be entrusted with the responsibility for
moneylending?

Only if the gram sabha, after these
deliberations, recommends the grant of license, the moneylender may be
granted license by the village panchayat.
^{In case there is the allegation of any breach
of any condition of license by the moneylender, the person affected or any
other resident of the village may file a complaint to this effect to the
village panchayat. It would be mandatory for the secretary of the village
panchayat to ensure that the complaint is included for consideration in the
next gram sabha meeting. It would be mandatory also for the moneylender to
be given notice to appear with all concerned records in the next meeting of
the gram sabha. In case the moneylender refuses to appear or fails to
produce the relevant documents, the gram sabha may inform the SDO who after
confirming these facts, would be authorized by law to issue a non-bailable
warrant against the moneylender, to ensure appearance.}
^{The gram sabha would elect a four-member
committee, including one elected representative who is a Scheduled Tribe,
one village-level government official and two other village residents of
whom at least one must be a woman. This committee would then proceed to
examine the moneylender, the recipient of credit, the complainant, and any
witnesses who may be produced. They would also examine the records. All
these examinations and investigations will be completed in the presence of
the gram sabha. The committee will then pass a summary verdict. The verdict
will include decisions whether there was indeed a breach of license by the
moneylender, the relief including recovery of cash or mortgaged property,
and suspension or cancellation of license. The gram sabha must also lay down
a time limit in which its decision must be complied with. The gram sabha
will also conclude whether the moneylender has also been guilty prima facie
of any offence under the IPC or Atrocities Act.
^{In the event of any failure to comply with the
decision of the gram sabha in the prescribed period, the village panchayat
would be bound to inform the SDO of this breach in writing. The SDO would be
bound by law to ensure compliance within three months including recovery and
restoration of property wherever applicable. Apart from this, if the gram
sabha had concluded that prima facie there was an offence under the IPC, the
village panchayat would be bound to file an FIR with the police station of
appropriate jurisdiction.}
^{A similar procedure would apply in the event
of any allegation of moneylending being transacted with any member of the
gram sabha by a person or institution without any valid license.
^{However, as in the case of moneylending,
nowhere have state governments made any such move towards achieving a
powerful interpretation of PESA in accordance with the spirit of the law,
and with a genuine will to create legal spaces to enable tribal communities
to combat long years of exploitation by the moneylender.
^{In conclusion, darkness continues to prevail
in the arena of tribal policy in India. Protective laws are rarely
implemented, budgetary measures like the TSP strategy have failed to achieve
genuine financial devolution, and educational strategies have been
assimilative and destructive of the moorings of tribal culture. Light at the
end of the tunnel can be seen only in a powerful and radical recent law that
provides for self-governance by tribal communities. However, so far, the
State has forgotten or subverted the interpretation of its own laws. The
perils of the tribal identity and survival remain as real as ever.}}}}}}}

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