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FIFTH SCHEDULE, PESA AND FRA

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1 FIFTH SCHEDULE, PESA AND FRA
PARIMAL SINGH DEPUTY SECRETARY DEVELOPMENT BOARD RAJ BHAVAN

2 Introduction STs in India More than 100 million population
More than 8% share of population Large population in States of MP, Maharashtra, Orissa, AP, Gujarat, Chhatisgarh, Rajasthan, Jharkhand Concentrated in Fifth Schedule and Sixth Schedule Areas

3 Introduction (contd) Diversity of languages and cultural characteristics Geographic dispersion, remoteness (Padas, Tolas/hamlets/habitations) Particularly vulnerable groups Lower than average performance in Social Indicators--- educational attainments, high mortality, morbidity, malnutrition. Remote areas , poor connectivity

4 Developmental issues Growth …………….for whom? Displacement
MoTA esimates – 85 lakh (population 8% but total 55% of the people displaced The question of environment vs growth Growth …………….for whom? Who pays the price? “ There has been a systemic failure in giving tribals a stake in the modern economic processes…. The systematic exploitation …of our tribal communities can no longer be tolerated” PM of India, 2009 quoted in IRMA study initiated by MoPR

5 Developmental Issues Jal, Jangal Aur Zamin Land alienation
Widespread despite stringent laws Rises out of the vulnerability of indebtedness Access to Forests Access to water resources

6 Developmental Issues Indebtedness High Migration Persistent poverty
Poor social indicators (Health, Education, etc.)

7 ST Statistics TribalProfile.pdf A ST child is more likely than the general population – To die within first day/Month/year of delivery To be severely underweight To be born and to live in a poor household To not have a pucca house To be born in a family with no or marginal land

8 ST statistics (contd.) A ST child is more likely than the general population – To drop out early from school To be illiterate To marry even before the chance of growing up To be not immunized, to be anaemic, to be not covered by health insurance To not have access to water supply or electricity

9 Constitutional provisions
Government of India Act, Backward tracts- Special responsibility for Governor-in-Council Government of India Act, Special powers to Governor General and Governor-in-council about application or non-application of Laws

10 Provisions Post-Independence (contd.)
Art. 14(4)- Reservation in services Art 29- Cultural and Educational Rights Art. 46-State shall promote Educational and Economic interests; Protect from social injustice and exploitation Art. 366 defines STs Art President, in consultation, with Governor, specify who shall be STs

11 Provisions Post-Independence (contd.)
335- Consideration of Claims of STs in the appointment to services 332-Reservation of seats for STs in legislative assemblies 334- Reservation in Parliament and Assembly to continue till 40 years from commencement of Constitution

12 (contd.) 243 D- Seats reserved in Panchayats for STs
243 T- Seats to be reserved for STs in Municipality 338A- 2003; 89th Amendment--- Independent National Commission for Scheduled Tribes

13 (contd.) Art. 339 – Control of the Union over administration of Scheduled Areas Art. 275(1) – Special grant-in-aid by the Centre to the States for development in SA and for STs

14 Fifth Schedule FIFTH SCHEDULE (Article 244(1))…..Nine States…
Governor has special responsibilities for Schedule Five areas (Maharashtra 12 districts , 59 Talukas) Paragraph 3 - Report to President ( Attorney General's opinion) Paragraph 4 - Tribes Advisory Council Paragraph 5 - Governor's powers of regulation and notification... Paragraph 6 - Scheduled Areas

15 Fifth Schedule (contd.)
Some important notifications issued Important Regulations made….. Act I of 1970 to prevent tribal to non-tribal land transfer in Agency (Scheduled tracts of Andhra / Telangana ) Need for more proactive use of Fifth Schedule Examination of laws on the touchstone of whether they aid or impact adversely Scheduled Areas

16 PESA, 1996 Article 243(M) of Constitution Dilip Singh Bhuria Committee Extended provisions of Part IX of the Constitution relating to Panchayats to Scheduled Areas With certain exceptions and modifications Onus on states to make PESA compliant laws Defined villages and Gram Sabhas (4b) Every habitation shall have a village Every village shall have a Gram Sabha In effect, every habitation can have a Gram Sabha

17 PESA, 1996 (contd.) State legislation should be in consonance with customary law, social/religious practices, and traditional management practices of community resources Reservation of seats in proportion of population but not less than one half (4g) Consultation before land acquisition (4i), power to prevent land alienation ( Samatha judgement of Supreme Court) Planning and Management of minor water bodies (4j)

18 PESA, 1996 (contd.) Mandatory recommendation of Gram Sabha for Minor minerals (4l) GS has powers to enforce prohibition (4m(i)) Ownership of minor forest produce (4m(ii)) Power to control over money lending (4m(v)) Control over local plans , resources, tribal sub-plan (4m(vii))

19 PESA, 1996 (contd.) Ensure that Panchayats at higher level do not assume power of the lower levels (4n) State Legislature shall endeavour to follow the pattern of Sixth Schedule while designing the administrative arrangements in the Panchayats in Scheduled Areas (4o)

20 Why PESA could not succeed
Awareness Initial enthusiasm, later neglect PESA rules , Other Acts not in line with PESA. Convenient interpretation of central Act to make state laws in most states The conflict about land and resources, between statement and intent Lack of belief in the abilities of Panchayati institutions to carry out their responsibilities. .

21 Preferring giving powers to Gram Panchayats instead to Gram Sabha through convenient interpretation
Lack of strengthening Gram Panchayats through funds , functions, functionaries The logic of devolution and decentralisation not carried forward Building up grass root leadership which can fight for their rights The spurious debate of “decentralization promoting corruption”

22 Why PESA can succeed …………………..
PESA Rules passed by State Government Realisation that devolution of rights and resources is necessary for development Steps towards ownership of schemes by the community (NRHM, SSA, water supply) Yet…….. Much more needs to be done ……… To create awareness, devolve funds, give rights

23 PESA Rules PESA Rules Definition of village and Gram Sabha compliant with small hamlets (Rule ) Process of village formation (Rule 4 ) Composition of Gram Sabha Kosh (Rule 14 ) Standing committees of Gram Sabhas (Rule 10 ) Rules for access to natural resources and sustenance (Chapter V ) Rules for prevention of land alienation (Rule 24 ) Rules for restoration of alienated land (Rule 25 )

24 PESA Rules… Consultation before land acquisition (Rule 26 )
Planning and management of water resources (Rule 28 ) Permission of Gram Sabha mandatory for minor minerals (Rule 32 ) Provisions against exploitation of labour (Rule 35) Regulation of intoxicants (Rule 36 ) Licence and continuance of liquor shops only through Gram Sabhas , majotity opinion of women to be considered opinion of Gram sabhas (Rule 36 to 39 )

25 PESA Rules… Management of minor forest produce by committee of Gram Sabha (Rule 41 ) Control over local markets (Rule 43 ) Control over money lending (Rule 44 ) Gram Sabha to identify beneficiaries (Rule 45 ) Certification of expenses (Rule 48 ) Social audit and monitoring of development activities (Rule 51 ) State law to be in keeping with customs, and traditional management practices in Scheduled Area (Rule 52 )

26 Things to Do 1. Administrative restructuring
Mobilise Vastis/ hamlets/habitations to form new villages Ensure that committees such as RPMC, Gram Kosh, peace and justice committee , social audit committee are formed Try to form smaller Gram Panchayats, e.g., Nandurbar

27 Things to Do … 2. Training Train extensively about the PESA Rules: Both staff and Gram sabhas ( Remember: the base for training is GS not GP) RGPSA; But since PESA is multi-faceted converge training with all other schemes. Build training convergence with State Livelihood Mission and schemes like MGNREGS Build PESA into ICDS, Health, Education training

28 Things to Do… 3. Fisheries Transfer water bodies to Gram Panchayats
Ask actively for funds from TSP for fishery , GR has been changed accordingly Fishery department is understaffed, need to involve Gram Sevaks

29 Things to Do… 4. Minor Forest Produce
Ensure that RPMC and the Forest Rights Committees under Rule 4(1) e in FRA are formed Ensure that all decision making is by Gram Sabhas Provide value addition structures and market linkages through funds and schemes- MVM, TSP, cess funds Training in making micro plans and in access to forests Remember : Bamboo and Tendu is property of Gram Sabhas, read relevant GRs

30 Things to Do… 5. Land Alienation
Organise Gram Sabhas to identify illegal land transfers from STs to non-STs Review land records and ensure farmer’s names are correctly recorded Put before Gram Sabha all matters of mortgage 6. Prohibition 7. Control of Usurious money lending 8. Identification of Beneficiaries of Government Schemes

31 Things to Do… 9. Approval of programs and schemes
10. Certification of expenses/ Utilisation Certificates 11. Social Audit of all Social Sector Schemes ( Periodic and Recurrent) 12. Rule 52- Laws to be in keeping with customs and practices of the community Remember: All the above are de facto transferred subjects

32 Forest Rights Act

33 Published in 2007 Addresses historical injustice
Scheduled Tribes and Other Traditional Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) Published in 2007 Addresses historical injustice

34 Historical Injustice Series of laws in colonial times
Dispossession: breaking of links with water, forest and land Large dams, Big projects Land Acquisition , concept of private property

35 BASIC PRINCIPLES Rights include responsibilities
STs & OTFDs have been traditionally conserving forest ecosystems FORESTS & PEOPLE CAN EXIST TOGETHER

36 THE ACT Section 3 defines “Forest Rights”
Forest Rights both individual and Community For both STs and OTFDs Cut off date 2005

37 Rights Individual Forest Right (IFR) upto 10 acres (4 hectares)
IFR for self-cultivation

38 Community Forest Rights (CFRs)
Two types CFRs (under section 3(1); True Community Rights CFRs (under section 3(2) Infrastructural rights

39 CFRs under Section 3(1) Nistar Right to MFP
Fishing and other products of water bodies Conversion of Pattas into legal rights Right to protect, regenerate or conserve or manage any community forest resource Rights of access to Bio-diversity Right of community to intellectual property and traditional knowledge

40 CFRs under section 3(2) 13 community facilities
Schools, dispensary or hospitals, anganwadis, fair price shops, drinking water supply etc.

41 Section 5 Right to protect wild life, forest , and biodiversity
Right for Gram Sabhas to regulate access to community forest resources Stop any activity which adversely affetcts the wild animals, forest and biodiversity

42 All rights available also in National Parks, Protected sanctuaries unless……….

43 ……. they are declared inviolate by following due process

44 Duties of forest right holders
Protect wild life, forest and bio-diversity Prevent destructive practices Comply with the decisions of Gram Sabha

45 PROCESS Convene Gram Sabha/Sabhas Forest Rights Committee
Chairperson and Secretary

46 Filing, determination & verification of claims (Rule 11)
MARK CUSTOMARY BOUNDARIES with the help of Gram Sabha including elders FRC shall record findings; present before Gram Sabha If more than one Gram Sabha and conflict, joint Gram Sabha

47 Evidences (Rule 13) More than one evidences
Public documents, Gazetteers census, survey and settlement reports, maps, micro-plans Government authorised documents Quasi judicial and judicial records Research studies, documentation of Statements of Elders other than claimants

48 What more needs to be done
Communities require funds for value addition, marketing, etc. Communities require hand holding and non- adversarial positions to be taken by government departments Communities require training in silvicultural practices (At the same time , they have a lot to share and teach us ) Akola Collector residence

49 Challenges Change in mindset of officials from “Only we can protect forests” to ……… Spreading the language of rights deep inside the forest dwelling communities Talking about shared responsibilities Avoiding any attempts to sabotage

50 Policy for tribal communities- Dos and Dont’s
Avoid One size fits all approach Provide community ownership -----of schemes, manpower, resources Decentralise functions, funds, functionaries. Invest heavily in health, education, social services. Consult Respect and recognise ownership of land, water, and forests. “Small is beautiful”---- To the extent possible avoid disruption, displacement, and disenchantment.

51 Thank You


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