1. Fifth Schedule, PESA and FRA: View from Governor’s office of Maharashtra

2. Fifth Schedule
Special responsibilities for Governors of Fifth Schedule states
Para 3 –Report by the Governor to the President regarding administration of Scheduled Areas; Attorney General has opined that this report is a discretionary power of the Governor
Para 4 – Tribes Advisory Council to advise the Governor on welfare and advancement of Scheduled Tribes

3. Fifth Schedule (contd.)
Para 5(1)
Very important function given to the Governor
Notwithstanding anything in this Constitution ,
Governor may by public notification direct that ,
any particular Act of Parliament or State shall not apply
Or apply with certain modifications that he may specify.
Such modifications can be also given retrospective effect
Advocate General and various Courts have opined that this power is the sole discretion of the Governor , not bound by TAC
Permission of Hon’ble President not needed

4. Fifth Schedule (contd.)
Para 5(2) – Governor may make regulations for peace and good government
Example: Act I of 1959 and 1970 in Andhra pertaining to keeping land in Scheduled Areas as non-alienable to non-STs
All Regulations to be submitted to the assent of the President
The powers of issuing notifications are a powerful tool to protect interests of Scheduled Areas
Scope for welfare is vast and virtually unlimited

5. Tribal Cell in Governor’s Office
Formed in Maharashtra in 2012
Aims:
Welfare of tribal areas/Scheduled Areas
Policy feedback to the government
Advocacy
Bringing changes in laws to ensure welfare of tribal communities
Special focus on ensuring implementation of FRA and PESA
Vision: To bring rights-based transformation in Scheduled Areas
To bring tribal issues on the centre stage

6. Tribal Cell interventions
Regular review of districts by Video Conferences, with special focus on FRA and PESA
Important agenda of review during Governor’s visits to various districts
Meetings with departments on various interventions in health, nutrition, land, service delivery, increasing financial resources
Getting feedback from civil society
Stress on training and awareness generation
Liaison with Government Departments to issue facilitating guidelines and Orders for Scheduled Area welfare

7. FRA in Maharashtra- as in 2011
IFRs- Over 1 lakh claims approved
But……
Large scale rejection ---Almost 70%
Low average acreage
No reliance on non-documentary evidences
Use of technology to disprove credible cases

8. FRA in Maharashtra as in 2011
CFRs: 922 approved , acres
But…..
Almost all CFRs in Gadchiroli
Despite Gadchiroli claiming substantive rights uphill struggle to access bamboo; a lot of bamboo was being auctioned to BILT
Gram Sabhas not coming forward for concerted action on MFP due to lack of awareness or lack of mobilisation
Well documented lease rights such as Dali and Eksali not granted
Habitat Rights not claimed

9. Initiatives by Governor Office for FRA
Intensive review; stress on giving all relevant CFRs to all villages; special stress on section 3 (1) (i)
Appointment of FRA district and Taluka managers using Tribal Cell innovative funds to expedite claims
Training to districts and workshops to help create awareness about importance of CFRs

10. Results … CFRs under section 3(1) increased to almost 19 lakh acres
Substantial CFRs now given in many districts
On request of Tribal Cell TDD directed districts to reopen cases where there was modification/rejection without intimation
But…..
Quality of CFRs barring a few districts still a concern
Tendency to avoid giving access to MFP OR restricted access
Still more than 8000 villages which need to be given CFRs
DLCs still rely only on documents to decide IFR cases

11. PESA Non-implementation of PESA even after 15 years of PESA
Absence of PESA Rules in most States till recently
Many state Acts were not in line with PESA
PESA was not even a point of discussion in Scheduled Area districts
Many administrators at the field and some at policy levels had sketchy knowledge of PESA
No field level mechanisms to carry forward mobilisation and awareness

12. Steps taken
Governor of Maharashtra insisted that PESA be implemented vigorously
First Stage
Bringing State Acts in line with PESA
Putting policy decisions about access to community resources in place
Issuing guidelines about various rights enshrined in PESA
Ensuring that PESA rules were published

13. Steps Taken (Contd.) Second Stage
Use of Fifth Schedule Powers by the Governor to bring legislative changes and ensure implementation of PESA
Special focus on ensuring access to MFP and minor water bodies
Third Stage
Consolidating on the gains made in First and Second stage
Massive mobilisation about PESA
Setting up a state PESA cell

14. Mobilisation Formation of a State PESA Cell in RDD
Appointment of PESA coordinators in all Blocks and Districts
Issue of GR for appointment of Gram Panchayat mobilisers
Use of the GPDP program of MoPR as a vehicle to spread knowledge about PESA in all villages

15. Notifications issued by Governor of Maharashtra
Para 5 (1) of Fifth Schedule of Constitution of India gives to the Governors of Scheduled Areas power to amend any Central or State laws
This power has been largely unused in independent India
Gives scope to modify laws which may not be in the best interests for Scheduled Areas
Power is “notwithstanding anything in the Constitution ”

16. Notifications (contd.)
Notification dated 9th June, 2014
Identifies 10 service delivery posts to be reserved for STs in Scheduled Areas
By subsequent notifications numbers raised to 16
Posts identified are Patwari, Surveyor, Gram Sewak, Anganwadi Supervisor, Teacher, Agriculture Assistant, Forest Guards, Livestock assistant, ANM, MPW, etc.
Idea is to prevent rampant absenteeism
Addresses lack of knowledge of local languages and customs

17. Notifications (contd.)
Notification dated 19th August, 2014 for ensuring access to MFP to Gram Sabhas
State MFP law passed in 1997 ensured access to only 33 MFPs; Bamboo and Tendu excluded; power to Gram Panchayat , not Gram Sabhas
Notification amended Transfer of Ownership of MFP Act to redefine MFP on the lines of definition in FRA
Inserted the provision for Gram Sabha access
Amended Section 2 (7) of Indian Forest Act, 1927 to explicitly that bamboo is not a tree

18. Notifications (contd.)
Notification dated 30th October to bring Acts in line with PESA
Amended five State / Central Acts in order to bring them in line with PESA
Redefines social sector in the Village Panchayat act to ensure that departments outside the PRIs are also answerable to Gram sabhas
Ensures that 5% of the TSP shall be annually and unconditionally devolved to GPs in Scheduled Areas for their developmental works
As per this, Rs 250 crore have been directly devolved to Scheduled Area Gram Panchayats in the past two years; very popular scheme

19. Notifications (contd.)
Governor, by notification dated 30th October 2014, amended Indian Forest Act , 1927
Despite earlier notification need felt to further protect MFP rights
Introduced new Chapter III A regarding MFP Rights to Gram Sabhas in the IFA, 1927
(1) Notwithstanding anything contained in this Act, the transit permits, in relation to transportation of minor forest produce in the Scheduled Areas referred to in Clause (1) of article 244 of the Constitution of India shall be modified and given by the Panchayats at the appropriate level and the Gram Sabha or a committee thereof.

20. PESA and FRA (contd.)
(2) All decisions for the collection and sale of minor forest produce in the Scheduled Areas, and the sharing of all sale proceeds shall be taken by the Panchayats at the appropriate level and the concerned Gram Sabha.”
GR was accordingly issued by RDD to ensure that Gram Sabhas could auction Tendu , Bamboo and other MFPs on their own.

21. Impact
Many Gram Sabhas came forward to auction Tendu and Bamboo, especially in Gadchiroli
Last year almost 25 villages in Gadchiroli auctioned Bamboo
In 2016 March to June almost 100 villages have auctioned Bamboo and almost 600 villages have auctioned Tendu on their own
Occasional issues still persist about permit passes, working plans, etc.
Resistance from certain departments in some parts
Knowledge about rights under PESA and FRA with reference to MFP still sketchy

22. Notification (contd.)
Notification dated 14 June, 2016 to protect tribal land
Earlier land alienation from tribal person to non-tribal person allowed by Maharashtra Land Revenue Code,1966 subject to Government permission
No role for Gram Sabha, thus, contrary to section 4 (m) (iii) of PESA
Notification of Governor amended MLRC,1966
No tribal to non-tribal land transfer without permission of Gram Sabha

23. Non-Notification Interventions

24. Interventions in nutrition in Scheduled Areas
Governor expressed desire that eggs may be introduced as an additional nutrition intervention for pregnant and lactating women and for children in Anganwadis
Pointed out that scope for additional financial allocation within existing TSP budget
APJ Abdul Kalam Yojana introduced accordingly
Stream I For pregnant and lactating women last year
Since August 2016 second stream has started working in Anganwadis for children in Scheduled Areas

25. Dali land issue for Katkaris
Katkaris are a PVTG, in Raigad and some other districts
Dali land leases in forest lands were given pre-independence
Regularisation was done by Government but could not be realised due to FCA, 1980
Matter taken up by Governor under FRA
Nearly ten thousand hectares have now been recognised under CFRs
However, certain demands for IFR rights which are being examined

26. Homestead land for Katkaris
Most Katkaris have their homestead on the lands of landlords
Not transferred in the name of Katkaris despite provision existing in Tenancy laws
Governor has directed that this process should begin at the earliest
Move has potential to impact almost persons of Katkari communities

27. Potential issues for interventions through notifications- in brief
Addressing the question of unsecured/unrecorded tribal tenants
Ensuring rights over income of minor minerals, partially or wholly
Ensuring income to GPs over timber harvested by forest department, partially or wholly
Ensuring changes in Transfer Act to prevent vacancies in high burden tribal areas
Ensuring communitisation of institutions as per the mandate of PESA

28. Other non-notification interventions
Identification of Beneficiaries, Approval of Plans, social audit by Gram sabhas
Powers to identify illegal land alienation and restore land
GR for transfer of all minor water bodies to Panchayats
GR for Seed capital for access to MFP and fisheries in Scheduled Areas
Appointing District and Taluka managers for FRA in 6 important districts
Number of studies initiated regarding tribal welfare
Taking up issue of transfer of subjects to PRIs with state government

29. In conclusion…
Scope for using Fifth Schedule provisions intensively in all the ten states
Possibility to use it creatively and by consulting
Need for questioning legality of laws that contradict the letter and spirit of PESA
Helping create knowledge about laws

30. Thanks