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According to the Report entitled: PESA, Left-Wing Extremism and Governance: Concerns and Challenges in India’s Tribal Districts by Ajay Dandekar & Chitrangada Choudhury, Institute of Rural Management, Anand, Commissioned by Ministry of Panchayati Raj, Government of India, http://www.downtoearth.org.in/dte/userfiles/images/PESAchapter.pdf: 

•    Tribal communities make up 8.2% or approximately 8 in 100 Indians-an economically and culturally vulnerable and distinctive group.

•    It is universally acknowledged that the PESA law which governs areas in nine states of India, covered by the Fifth Schedule of the Indian Constitution, has much to achieve on its promise of securing people’s participation, as the keystone of a meaningful democracy.

•    In 1996, the Parliament passed the Panchayats (Extension to Scheduled Areas) Act or PESA, with the political class acknowledging the dire need to protect the rights and resources of the communities in Schedule V areas, by recognizing and upholding their right to self-governance. The law, according to Dileep Singh Bhuria, the Chairman of the committee that worked on it, could ‘mark the beginning of a new era in the history of tribal people...’

•    PESA recognized the gram sabha (a habitation was the natural unit of the community, and its adult members constitute the gram sabha, as against the elected gram panchayat) to be pre-eminent.

•    PESA constructs tribal self-governance around certain key features. PESA recognizes a habitation to be a natural unit of the community, whose adult members constitute the gram sabha.

•    When passed in 1996, the central PESA envisaged that the nine states with Schedule Five areas would enact their own legislations devolving power to their respective tribal communities, as well as amend pre-existing laws to bring them in harmony with PESA within a year.

•    States have varyingly adopted PESA provisions in their state panchayat acts with Madhya Pradesh and Chhattisgarh having undertaken the most work on this.

•    There is a lack of appreciation about the place of the Fifth Schedule read with PESA in various organs of the state.

•    The formal responsibility of (a) implementation of PESA that stands for total transformation of the paradigm of governance in the Scheduled Areas and (b) dealing with tribal affairs in general is vested with two different ministries in the Union Government, namely, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs respectively. The two are virtually functioning in isolation.

•    There is lack of information and understanding about PESA in general and its radical character in particular amongst the political executive and even concerned administrators.

•    There is virtually no effort to convey and disseminate the message of PESA.

•    In many instances, the states have diluted PESA’s power in the wording of their legislations, and the rules governing their implementation. Barring Madhya Pradesh and Chhattisgarh, most state legislations have given the bulk of the powers to the gram panchayat, and not the gram sabha. This runs contrary to Section 4 (n) of PESA.

•    Neither the state legislations nor the rules adequately address how communities might exercise their powers with regard to the issues of land, displacement, liquor and so on. They have also failed to put in place redressal mechanisms that communities can access, when these powers are violated. Only the Madhya Pradesh Act’s provisions address this to some extent on the issue of land alienation, by allowing a community to seek official redressal after three months if it is unable to reclaim alienated land by itself.

•    In most states, the enabling rules for the gram sabha’s control over prospecting of minor minerals, planning and management of water bodies, control and management of minor forest produce, dissent to land acquisition are not yet in place, suggesting reluctance by the state governments to honour the mandate of PESA. In states like Andhra Pradesh and Gujarat the rules are yet to be framed for PESA.

•    The process of consultation before acquisition of land, as envisaged under section 4(i) of PESA, has not been formalized in most of the states. The state of Madhya Pradesh (including Chattisgarh), however, has made elaborate rules in the year 2000 about consultation with concerned gram sabhas before acquisition of land. These rules envisage ‘consultation with gram sabha before issuing notification under Section 4 of the Land Acquisition Act.’

•    Sub-sections 4(k) and 4(l) of PESA envisage prior consultation with gram sabhas before grant of leases etc, of minor minerals. Despite the directions issued by the ministry of Mines and Minerals the action in respect of consultation before lease of minor minerals is granted has been rather poor. The rules made by the government of Madhya Pradesh (including Chhattisgarh) concerning minor minerals, however, can be said to be most progressive.

•    In December 2009, the Ministry of Panchayati Raj sent the nine state governments a set of draft PESA rules as a potential template, but this was not accompanied by a timeframe for action. Even here, in some aspects, such as land acquisition, these rules do not adequately address the challenges as they exist on the ground today, and need to be strengthened. Further, while these draft rules are laid out mandating the devolution of power to the community, the draft document does not list any punitive measures for violation of rules.

•    Since the enactment of PESA, Governors have slowly but surely been neglecting their duties towards the law, and towards tribal communities, even as the prospects of ‘peace’ and governance based on participatory empowered peoples involvement have deteriorated in many PESA villages.

•    An analysis of annual reports submitted by the Governor to the Centre in the past years shows that these are hardly objective assessments as required by law, but largely a laundry list statement of physical targets and financial allocations under various schemes as reported by the state government’s departments. None of the reports had analysed or even touched upon the themes of displacement, alienation, poor governance and insurgency, which are the dominant facts of life in many PESA areas.

•    The central Land Acquisition Act of 1894 has till date not been amended to bring it in line with the provisions of PESA and to recognize the gram sabha, while a newer bill meant to replace it is yet to be tabled in parliament.

•    PESA empowers the gram sabha to prevent the alienation of tribal land by non-tribals. The Orissa Scheduled Areas Transfer of Immovable Property Act reinforces this principle. But these laws are non-functional on the ground, as acknowledged in a 2002 amendment.

•    The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) was a result of the polity responding to protracted struggles by tribal communities and movements to assert rights over the forestlands they were traditionally dependent on. The Act turned colonial forest policy on its head, which had established the rights of the state over the forests over the traditional rights of the community. Further, by recognizing the validity of the gram sabha to give effect to these rights, this Act has great synergy with PESA’s provisions. However continuing bureaucratic control, resistant attitudes of the forest department officials to give ownership to communities, and inadequate efforts at awareness have led to the slow implementation of the Act.

•    The Forest Rights Act was meant to empower a community to stake claims to land titles. But securing these rights is a process of continuous struggle, and government and panchayat functionaries are unaware of the law.

•    Of the 76 left-wing extremist-affected districts in the country today, 32 are PESA districts, according to official estimates. Drawing on a four-decade-old movement of militant left politics, the CPI (Maoist) was formed in September 2004, by merging the Communist Party of India (Marxist Leninist) and the Maoist Communist Centre. Its spread currently extends across significant parts of Bihar, Jharkhand, Orissa, Chhattisgarh and Andhra Pradesh, leading to the term, ‘The Red Corridor’.

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 The Lok Sabha on 13 December, 2006 passed by voice vote the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, 2005, seeking to recognise and vest the forest rights and occupation in forest land of forest-dwelling Scheduled Tribes and other traditional forest-dwellers.

 The redrafted Bill was adopted with several important amendments to the one tabled in 2005 and includes other traditional forest-dwellers also instead of only the Scheduled Tribes.

 The cut-off date, too, has been fixed as December 13, 2005 as against October 31, 1980 in the original Bill.

 The dwellers would have to be residing in forest land for three generations or 75 years for entitlement to land rights and the rights to collect and market the forest products to the dwellers. Now, each family would be entitled to four hectares of forest land as against 2.5 hectares envisaged in the previous Bill.
 

• When the government of India passed the Forest Conservation Act on the mid-night of 25 October 1980, hundreds of thousands of indigenous/ tribal peoples became illegal residents on land over which they have been living for generals. Yet, thousands of others also had legal rights under the Forest Conservation Act. For two and half decades, the state governments failed to record and recognize and even limited those ancestral rights of tribal communities permitted by the Forest Conservation Act and the subsequent 1990 Guidelines issued by the Ministry of Environment and Forest.

• The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 re-christened as “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” was brought essentially to circumvent the Supreme Court's order in the case of Godavarman Thirumalpad vs Union of India, which banned regularization of tribal revenue villages.

• After the Supreme Court stayed the regularisation of revenue villages on 23 November, 2001 in the aftermath of Godavarman Thirumalpad vs Union of India, all the tribals living in the forest irrespective of whether their rights were recognize under the 1980 Forest Conservation Act or nor were effectively extinguished.

• After acrimonious public debate for more than a year since tabling in the Parliament on 13 December 2005, the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 which was re-christened as “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” was passed in the parliament, lower house of Indian parliament, on 13 December 2006. President of India assented to the Bill on 29 December 2006 and the Act came into force.

• However, the debate since the tabling of the initial bill in December 2005 to the passage of the Act in the Lok Sabha have brought the age-old prejudices against the tribal peoples to the fore and further eroded their rights.

• The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 faced stiff opposition from two quarters. First, a few environmentalists advocated management of forest, wildlife and other bio-diversity with complete exclusion of tribal people, local communities or forest dwellers contrary to the Rio Declaration, decisions of the Conference of Parties of the Convention on Biological Diversity and recommendations of the United Nations Forum on Forest. Second, the Ministry of Environment and Forest had opposed the Bill on the ground that implementation of the bill will result in the depletion of the country's forest cover by 16 per cent. This is despite the fact that over 60% of the country's forest cover is found in 187 tribal districts, where less than 8% of national population lives. This reflects the culture of the tribal peoples to conserve forest.

• On the other hand, the Ministry of Environment and Forest has diverted 73% (9.81 lakh hectares of forestland) ofthe total encroached areas for non-forest activities such as industrial and development projects.

• Following objections to the 2005 Draft Bill, it was referred to the Joint Parliamentary Committee (JPC) headed by V Kishore Chandra S Deo of the Congress party

• On 23 May 2006, the JPC submitted its recommendations on the issue of cut-off date, inclusion of all forest dwellers under its purview, increase in the ceiling on land occupation and the empowering of Gram Sabhas. Many of the recommendations were against the intended beneficiaries i.e. tribals.

What is missing?

• The nomenclature of the original bill “Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 as tabled in the parliament on 13 December 2005 recognised the symbiotic relationships of the tribals with forest. The same was stressed in the National Forest Policy of 1988.  The present law has only diluted the interests of the forest dwelling Scheduled Tribes with that of the “Other Traditional Forest Dwellers”. The forest dwelling Scheduled Tribes no longer remain the focus of the law contrary to what it originally envisaged.

• While tribals and forest are synonymous and one cannot be separated from the other, same is not the case with the “other traditional forest dwellers” i.e. non tribals.

• Tribals have emotional, psychological and cultural attachments with the forest and they always lived in the forest. On the other hand, for non-tribal forest dwellers, forest and forest related livelihood activities are the last resort when no other options of livelihood were left

• Another conspicuous feature of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is the extension of the cut-off date to qualify for holding of rights from 25 October 1980 to 13 December 2005.

• This extension of the cut off date is basically to benefit the other traditional forest dwellers that are required to prove that they have been occupying the forestland for three generations under clause (o) of Section 2 of the Act. By extending the date from 25October 1980 to 13 December 2005, one generation has already been covered!

• Sub-section (6) of Section 4 states, “Where the forest rights recognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of subsection (1) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.”

• This provision hardly benefits the Scheduled Tribes. Rather than empowering, this law seeks to dispossess the forest dwelling Scheduled Tribes of their ancestral lands that they have in possession in excess of 4 hectares as provided in Sub-section (6) of Section 4. Nor the Bill provides for compensation to those who will be forced to share their lands in excess of 4 hectares.

• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has not taken into account the fact that hundreds of forest dwelling scheduled tribes face charges under different provisions of the draconian Forest Conservation Act of 1980 for accessing minor produce. Although the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ensures tenurial security and legitimizes the scheduled tribes' ownership over the minor forest produce and their role in the conservation of forest, it failed to address charges/ prosecution pending against the tribals under the Forest Conservation Act of 1980 and Indian Forest Act of 1927 with retrospective effect.

• There is no provision in the Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act, 2006 providing that cases under the Forest Conservation Act of 1980 against the forest dwelling Scheduled Tribes for accessing minor forest produce would be dropped or closed.

• There were 2,57,226 forest cases pending against 1,62,692 tribals between 1953 to 30 June 2004 under Sections 26, 33 and 41 of the Indian Forest Act 1927 pertaining primarily to illegal felling of trees for domestic use and ferrying of wood by bullock carts in Chhattisgarh as on 8 November 2005, and 2,531 such cases in Orissa as on 10 March 2005.

Salient features of Land Acquisition (Amendment) Act, 2007

• The Land Acquisition (Amendment) Bill, 2007 amends The Land Acquisition Act, 1894. The Act redefines ‘public purpose’ as land acquired for defence purposes, infrastructure projects, or for any project useful to the general public where 70% of the land has already been purchased. The Bill bars acquisition for companies except under the 70% condition@

• The Bill establishes the Land Acquisition Compensation Disputes Settlement Authority at the state and central levels to adjudicate disputes resulting from land acquisition proceedings@

• The Land Acquisition Act, 1894 addresses the process of land acquisition in India and was last amended by the Land Acquisition Amendment Act, 1984. The Act takes a broad definition of ‘public purpose’ permitting a diverse range of projects. A number of Supreme Court cases have highlighted concerns related to fair compensation, valuation of land, definition of ‘public purpose’ and other issues related to land acquisition. Citing problems with the principal Act, the government recently introduced the Land Acquisition (Amendment) Bill, 2007@

• Central Government has retained the 70:30 formula for land acquisition for industrial projects, which will allow states to acquire 30 per cent of land for private developers provided they have acquired the remaining 70 per cent for setting up industrial and SEZ projects. Thus, the state will come into picture only after the private company concerned has acquired the 70 per cent of the land. Earlier, the Left parties, some state governments and the Parliamentary Standing Committee on Rural Development had objected to the 70:30 formula and sought full authority for the state to acquire land$

• The R&R Bill, which is designed to give a statutory status to the National R&R Policy, 2007, makes it mandatory for parties concerned to get a social impact assessment prepared by independent multi-disciplinary expert group in cases where 400 or more families are displaced in plain areas and 200 or more families in tribal and hilly areas. The bill has also revised the quantum of compensation to be given to persons whose land is to be acquired by the state. It will be 60 per cent of the land's market value in the case of normal acquisition, and as much as 75 per cent in the case of urgent acquisition. Land will be acquired at existing market prices or area floor rate, whichever is higher. In case of a dispute, land owners will be able to approach the Land Acquisition Disputes Settlement Authority, which will be set up in every state$

• Under the prospective legislation, a company must first buy directly from landowners 70 per cent of the land required. The state steps in to buy the rest in case some recalcitrant landowners are holding out; even here, the sellers are guaranteed a 60 per cent premium on the average land price over the previous three years*

• The proposed legislation will emphasize more on market forces rather than state intervention in land acqiuisitions and transactions*

• While leaving the major part of the transaction to the market may stop the matter from becoming a political game of football in populist competitive politics (as has happened in West Bengal in the case of Singur and Nandigram), it is an inadequate solution to a complicated problem. Even assuming that the purpose for which the land is to be transferred is a legitimate one from an economic and environmental point of view, Indian history is replete with instances of uninformed, cash-strapped peasants being induced to sell their land at nominal prices by the lure of ready cash from developers, speculators, and touts of large corporate interests. This is how many Adivasis have lost their land even in recent years. Even in the case of informed, market-savvy sellers, thousands of small, uncoordinated farmers are no match for a large corporate buyer in the bargaining process*

• In many cases the State government did very little to get the landowners a good price; but there is potential here for community organisers (and panchayats) to get involved in ensuring a fair price. In particular, the provision of a 60 per cent premium on the past average price is not good enough. The average past price is for the land as agricultural land, whereas use for industrial or infrastructure purpose will probably multiply the value many times, the gain from which the farmer is deprived. So, over and above the value of the agricultural land being considered as a minimum floor of basic compensation, the farmers should be compensated with a share in the enterprise or company, so that they can benefit from future profits*

• A land sale displaces not just landowners, but other stakeholders as well (sharecroppers and agricultural labourers working on the land, for example). In West Bengal, the government had announced compensation to be paid to registered sharecroppers. But the state also needs to be involved in some form of welfare payments (and job training and so on) to unregistered sharecroppers and landless workers*

• The state often needs to get involved in building roads, providing electricity, water supply and so on for the new company, and this may require coordination in the land transaction itself between the transactors and the state right from the beginning*

@ Legislative Brief, The Land Acquisition (Amendment) Bill, 2007,
http://www.prsindia.org/uploads/media/Land%20Acquisition/bill167_20080311167_Legislative_Brief__Land_Acquisition_Bill.pdf

$ Central Government ammends Land Acquisition Act,
http://www.projectstoday.com/News/NewsDetails.aspx?nid=25435 

* Pranab Bardhan, The real issues behind land acquisition,
http://www.hindu.com/2009/08/01/stories/2009080155420900.htm