PESA- A Reality Check By Vidhya Das An Overview Tribal communities have had a long history of struggle against the British during the colonial times. In the Annals of Hunter in the Annals of Rural Bengal wrote of the Santhal rebellions: " What we (British Army) fought was not a war. So long as their (Santals') drum went beating, they went on fighting to the last man." About 20,000 Santals died and Hunter concludes, " There was not a single sepoy (soldier) in the British army who did not feel ashamed." The war of the Kondhs against British domination has also been extensively documented by the administrators. The British sought to put an end to the ritual of human sacrifice of the Kondhs. Felix Padel points out that the British in fact exaggerated the ritual and its violence in order to put gloss on their efforts to suppress this almost indomitable tribal community. Needless to say, the British did not just sacrifice Kondh lives, they massacred them in thousands.

Beginning at the middle of the nineteenth century, which also corresponded with the end of the stage of direct plunder, British policy in India increasingly became one of support for landlords through whom the officialdom of empire sought to protect their dominions. Every now and then there was a deviation from this policy to accommodate the pressure generated by an unequal agrarian society which, under the impact of the market, produced peasant movements. …………Over the century, the peasants' ability to resist landlord control of rent and produce increased and the structure of landlordism stood considerably weakened by the end of British rule. (Source: Majid Siddiqi; JNU 23rd May, 1997). It was only towards the end of their period of rule, in the late 1890s, and early 1900s that the British realised the fallacies of their rule, and tried to bring in protective measures for the tribal regions.

The scheduled areas were thus identified and demarcated with a purpose to provide special safeguards for the areas in which scheduled tribes are in preponderance. Article 244 and 244A read with Fifth and Sixth Schedules of the Constitution outline in detail the powers, privileges, rights and responsibilities of the President, Union Government and the governors regarding the scheduled areas. In addition to Article 46 of Part IV Directive Principles of State Policy) of the Constitution which states that "The state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the scheduled castes and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation" there are about 20 other Articles which prescribe the whole framework for regulatory and development functions of the state relating to the scheduled tribe population of the country. In addition to the above, special provisions for scheduled tribes have also been made through certain Acts and orders which are protective, ameliorative and concessional in nature. Exempting the scheduled tribes from Hindu Succession Act 1956, Hindu Adoption Act 1956 and Hindu Marriage Act 1956, special provisions have been made for their family and land rights. Thus, the customary marriage and succession rules of the scheduled tribes have remained largely untouched. Laws protecting land rights of the tribal communities have recognised their traditional rights over it and restricting its alienation to non-tribals. Most of the State governments have taken legislative and executive measures in order to protect tribal lands. Moreover, the national policy on tribal development emphasizes on developing the tribals along the lines of their own genius and encouraging in every way their own traditional arts and culture, respecting tribals' rights to land and forests, and working through and not in rivalry to their own social and cultural institutions. Looking at the legislative history it would, thus, be clear that right from the inception of the colonial administration, the scheduled areas were treated distinctly from other areas. The tribals were protected from exploitation; their rights and title to enjoy the lands, their occupation and their autonomy, culture and ecology were preserved; infiltration of the non-tribals into tribal areas was prohibited. Even the migrant non-tribals were prohibited to purchase the lands in scheduled areas from the tribals except with the prior sanction of the officer appointed by the government in that behalf.

All this not withstanding, The Constitution of India, through its 73rd Amendment, paved the way for a separate and progressive legal and administrative regime for tribal areas to usher in genuine tribal self-rule. The final framework was laid down by the Bhuria Committee Report, which was legalised through the Provision of the Panchayats (Extension to the Scheduled Areas) Act 1996. All ten states with tribal areas were to adopt this law within one year.

The latest Panchayats Extension to Scheduled Areas (PESA) Act 1996 has made it mandatory for the States having scheduled areas to make specific provisions for giving wide-ranging powers to the tribals on matters relating to decision-making and development of their community. Technically, when the Act refers to extending the provisions of Part IX of the Constitution to the fifth schedule areas; politically, it gives radical governance powers to the tribal community and recognizes its traditional community rights over local natural resources. It not only accepts the validity of "customary law, social and religious practices, and traditional management practices of community resources", but also directs the state governments not to make any law which is inconsistent with these. Accepting a clear-cut role for the community, it gives wide-ranging powers to Gram Sabhas, which had hitherto been denied to them by the lawmakers of the country.

Perhaps the most progressive law passed since Independence, the PESA, was to enable the gram sabha, ie, the collectivity of village adults, and gram panchayat to take control of their destinies. It empowered villages to protect community resources, control social sector functionaries, own minor forest produce, manage water bodies, give recommendations for mining leases, be consulted for land acquisition, enforce prohibition, identify beneficiaries for poverty alleviation and other government programmes and have a decisive say in all development projects in the villages.

Here's what Rajasthan did with the law. It adopted the law but took three years in doing so, after PESA came into being in 1996. It then affirmed all provisions of the law in principle, but made their applicability subject to framing of rules or "as may be prescribed". Those rules then refused to come and only last year some feeble perceptions began to surface, primarily through revocable official circulars. The operative provisions not being in place, a promising radical law has been redefined as a sterile paper law.

This degeneration of the law and its mandate is not confined to Rajasthan. In Madhya Pradesh also the provision in PESA that "ownership of minor forest produce" is to be vested with the gram sabha has been applicable for more than five years now. It is not surprising that in the recent 'Jangal mein mangal' show, there has been no talk of the fact that this initiative is not a bold new attempt but a small way of implementing one of the provisions of a lost law. It is precisely the failure to take PESA out from the books and on to the ground that has that has prompted over 200 villages in Rajasthan to declare themselves as 'gaon ganrajya' (village republic), doing for themselves what the state couldn't do. The ganrajya movement in Rajasthan is a reminder that time might be running out for formal law and policy framers to redeem themselves. It is time government delivers on the promises it makes-promises that would provide lasting solutions through an enforceable rights regime, not mere listless paper schemes.

The Orissa Situation

The Orissa Gvernment in its Orissa Gram Panchayats Act, 1997 seeks to dilute the powers and responsibilities given to the Gram Sabha. In the Central Act, the Gram Sabha is the centre of decision making and financial control for the Panchayat. The Orissa Act limits this provision by adding the qualifying clause [the Gram Sabha] shall exercise such power, and perform such function in such manner as maybe prescribed. This makes a complete mockery of the powers to the gram Sabha. Further, the Orissa Act has also empowered the District Collector, or any officer thus authorised by the Collector to inquire into the functions and role of any Panchayat representative, the records, and activities of the Panchyat, and can stay the proceedings of the Panchayat, or call to account as may be seen fit. Thus, the Gram Sabha is completely subservient to the whims of the District Collector. However, with developments for inviting FDI into the state on the anvil, the state is still uncomfortable about the powers sanctioned to the tribal community through the PESA Act, and several high level meetings and of the Committees of Secretaries have been organised to explore ways of circumventing the provisions of the PESA, and the restrictions imposed on the transfer of tribal land for industries and mines through the Supreme Court Judgement on the SAMATA Case, of 1997.

PROFILE OF PRIs IN ORISSA

Sl No	Level	Post	Number	SC	ST	OBC	Women	Others
1	Zilla Parishad	President Vice President Members	30 30 854	06 - 152	12 - 205	08 - NA	11 - 292	- - 393
2	Panchayat	Chairman Vice Chairman Members	314 314 6227	39 - 1009	147 - 1672	57 - NA	- - 2258	124 - 2857
3	Gram Panchayat	Sarpanch Naib-Sarpanch Ward Member	6234 6234 87547	792 - 14354	2388 - 21871	- - NA	2213 - 30068	2695 - 41906

(Source: EFC in Orissa, pg. 1)

In an effort to make the 73rd Amendment, and the PESA Act more effective, the Orissa Government has also sought to devolve powers to the local bodies. However, the devolution is insubstantial, and does little to enhance powers of the Gram Sabhas. The only power given to even the Zilla Parishad President, or the Chairperson Panchayat Samiti is sanction of casual leave. The only area where there is power beyond this is the case of transfer of school teachers, which is to be considered by a committee, comprising of BDO and DI of schools and Panchayat Samiti Chairman. It needs to be admitted that the Orissa Government is the first to change the Minor Forest Produce Policy of the State to make it in consonance with the PESA Act. So also have the Acts to prevent transfer of tribal land been strengthened, and the prevention of unlicensed money lending been introduced. However, there is little effect of these laws in the tribal regions, as the Orissa Government itself eager for investment and easy income is transferring huge areas of tribal land to corporations for mining and industrialisation.

Devolution of Powers to PRIs:

 

Sl No	Name Of Department Subjects Transferred	Designation of functionaries who will be accountable to PRIs	Sanction of casual leave	Transfer
1	Agriculture Department 1) kharif, rabi 2) Soil conservation, Horticulture 3) Watershed	i) District Agriculture Officer ii) District Soil Conservation Officer iii) District Horticulture Officer iv) Junior Agriculture Officer	President Zilla Parishad   Chairman, Panchayat Samiti	-
2	Co-operation Department Credit Plan	Dy. Registrar Asst. Registrar of Co-operative Society	President, Zilla Parishad	-
3	School & Mass Education Deptt. 1) Primary Edn. 2) Non-Formal Edn & Adult Edn.	C.I/D.I of School   Headmaster of Primary School	President, Zilla Parishad   Sarpanch	A committee comprising of Chairman, BDO and DI of School will make transfer of Primary teachers within the Panchayat Samiti and limits of educational district.Recommendation of the Sarpanch will be given due weightage for transfer within the Panchayat Samiti If it is considered to transfer a teacher from one Panchayat Samiti to another Panchayat Samiti, the above mentioned committee will recommend the same to the Zilla Parishad. A committee comprising of President, Zilla Parishad, Executive officer, Zilla Parishad and D.I. of Schools/C.I. of Schools will take decision regarding inter-block transfer of Primary School teachers within educational district.
4	Food Supplies & C.W. Deptt. 6) Public Distribution System	Civil Supplies Officer	President, Zilla Parishad	-
5	ST & SC Dev. Deptt 7) Primary Edn.	District Welfare OfficerHeadmaster of Sevashram	President Zilla Parishad Sarpanch	-
6	H & F.W. Deptt 8) Health 9)Family Welfare Schemes	Chief District Medical OfficerMedical Officer in Charge of PHC/hospitalVillage level Health Workers/ANM	President Zilla ParishadChairman Panchayat SamitiSarpanch or Naib Sarpanch whoever is a women	-
7	W & C.D Department 10) Social Security Schemes/Mid Day Meal Programme	District Social Welfare OfficerCPDO, ICDS/Anganwadi Workers	President Zilla ParishadChairman/Vice Chairman, whosoever is a womenSarpanch or naib Sarpanch whosoever is a women	-
8	F & A.R.D Deptt. 11) Dairy 12) Fishery	District Fisheries Officer Asst. Director, FisheriesChief District Veterinay OfficerVeterinary Asst.SurgeonLive Stockman	President Zilla ParishadPresident Zilla ParishadChairman Panchayat SamitiSarpanch will report attendance of Live Stock Inspector to Chairman and Veterinary Assistant Surgeon	-
9	R.D Deptt 13) Drinking water and Sanitation	Executive Engineer R.W.S.S.	President Zilla Parishad	-
10	P.D Deptt 14) Poverty Alleviation 15) Road, Culvert, Bridges and ferries, 16) Minor Forest Produces 17) Rural Housing 18) Markets 19) Non-conventional energy 20) Maintenance of community Assets	BDO	Chairman, Panchayat Samiti	-
11	Water resources 21) Minor irrigation upto 100 acres	Executive Engineer, MIAsst. Engineer	President, Zilla Parishad Chairman, Panchayat Samiti	-

 

Some of the Positive Outcomes:

Civil Society Groups saw much potential in all this, and took up training of representatives, as well village communities to help make the 73rd amendment and the PESA Act a reality in the rural and tribal areas. Rising up to the challenge of making women's participation a reality subsequent to the one third reservations in the PR institutions, across the country thousands of women Sarpanches and Ward members were made aware of the provisions under these Acts, and encouraged to assert themselves in Panchayat meetings, and in front of hegemonic bureaucrats, armed with this information and knowledge. Inspired Sarpanches took up the challenge of democratic and participatory development for their electorates, made sure that schemes reached the people, and siphoning of funds through the institutionalised unconstitutional of the PC was stopped. Dalit and women Sarpanches took some of the most courageous steps to usher in development and prosperity to their villages.

The outcome is quite mind-boggling. In several cases, people have asserted themselves, and demanded accountability of the administration, in other instances, caste warfare has subverted the process completely, and in yet other cases, state governments have begun making efforts to change laws to suit their priorities, and ideas of democracy. To outline just a few examples, we would do well to begin with the participation of women in Panchayats. Several successful reports encourage us to believe that a quiet revolution by the gentler sex has indeed started taking place in the villages. For example in Malwadi, a village of 249 families of farmers and daily wage labourers, Dalit woman Sarpanch Chhaya Kamble took up the challenge of providing toilets for every household. After first passing a resolution in the Gram Sabha, Chhaya set to work on her own community. With minimum funds from the Zilla Parishad, and the Gram Panchayat, soon all Dalit families had their own toilets. This served as a standing example to the rest of the villagers, and specially the women folk who were suffering the most. Soon, the women took the initiative, within three years, every family had a toilet. Able support for all this was provided by the M.N. Roy Non-Formal Education Centre.
In Orissa, in Golanthara and Kumarpani Panchayats emerged as shining examples of success, as a total sanitation campaign was launched in the district in 2002, under the WATSON, a centrally sponsored scheme in 2002. now, all the 848 households of Golanthara Panchayat, and 760 households of Kumarpani Panchayat hve toilet facilities, and are both know as Nirmal Gram Panchayats. Thus, with the synergies of the Government officials, activists and panchayat members, and the willingness of the concerned villagers, the two Panchayats have achieved commendable sanitation standards within a period of two years.

The Underbelly

In the state of Orissa, several voluntary organisations have taken up training and awareness campaigns to sensitise local community members and Panchayat representatives on the provisions under the different Acts for decentralised Governance. It is surprising to learn in many instances, even BDOs, and Panchayat Samiti Chairpersons have professed complete ignorance of the Acts, specially the PESA Act of 1996. These sensitisation programmes have been instrumental in increasing participation of tribals, dalits, and women in the processes of decision making. The reservations for women, Scehduled Cate and Scheduled Tribe members have enabled the underprivileged to find a voice and raise crucial issues of equity, delivery and participation.
However, wherever local communities have been encouraged by the Legislations to participate actively in development decisions, there has been active discouragement from the local administration, and support to vested interests to subvert the process. Time and again Gram Sabha decisions and Pali Sabha decisions regarding the selection of beneficiaries under different Welfare schemes are subverted at the Panchayat Samiti level. Appeal to the BDO and the Collector even go completely unheard. Village members living several Kms from the Block and district head quarter make a few attempts for demanding justice, and then give up disgusted by logistics, and officialdom. In Pattamundai Block in Kendrapara district on Orissa, a raid of PanchayatBlock office by vigilance department uncovered irregularities in 30 Panchayats in allotment of Indira Awas houses, including fake seals and work orders. However, the chairperson of the Block claimed that these were false accusations made because of political motives. The question remains what was the Block Development Officer doing?
But, then, it is not only the elected representatives, and the authorities who play foul, political clout often makes rogues of even ordinary people, underlining the adage of power corrupting. How otherwise could one explain Banapriya Sethi being stripped naked and paraded by local youth just because she refused to be intimidated by their threats and divert Rs.10,000 of Panchayat funds for Dussehra Chanda? Banapriya was in her Panchayat office of clearing some of the dues, when the youth came and demanded money. Apprehending trouble, she closed the Panchayat office, and left, however, the youth waylaid her, and decamped with 37,000, after stripping and molesting her. An FIR has been lodged, but no arrests made.
Rampant corruption is seen in the implementation of development works as well. In Sagada and Jugasaipatna Gram Panchayats of Bahwanitpatna Block Kalahand District, diversion weirs were undertaken by contractors without technical or administrative approvals. Neither were necessary clearances obtained, even though both were constructed in forest areas. Although these jobs were shown as department work, private contractors wee engaged which is against the rules.
In the Banduli village of Gochapada Gram Panchayat of Kandhmal village, Orissa, people learnt of minimum wages from a workshop organised by Agragamee, in October, 2004. On being sanctioned a project for the laying of a road under the Prime Ministers Sadaka Yojana, for two lakhs, people expected to get some income from the employment generated. At the end of two weeks of work, people were paid at the rate of Rs.35.00 for women, and Rs.40.00 per day for men. People demanded the minimum wage, but were not listened to they complained to the Sarpanch and the Sub-collector. They have not got any redress as yet, even though, it is two months since they petitioned. The Lady Sarpanch Gochhapada says that people have not worked for 8 hours, so they are not being their due wages ! (Source: Agragamee Study, Nov. 2004).
Discussions with the villagers and Ward Member reveals the sorry state of affairs in the tribal regions. In Girliguma Panchayat in Koraput District of Orissa, the Pali Sabha has been organised just about fifteen times in the last 2 years. However, few people have been able to attend these occasions, and definitely not women. The people do not see any point in attending these forums, as they hardly get any benefit. Development works are not discussed in these forums, nor in the Gram Sabhas. The decisions on development works to be sanctioned by the Panchayat are made by the Secretary and the Sarpanch, with the villagers playing nary a part. The last Pali Sabha, organised was three months ago, where decisions were taken about sanction of a market complex, village drain, road repairing, food for work, and Indira Awas beneficiaries. However, the decisions were later changed. The Pali Sabha format was circulated for signature several days after the meeting was held, and the beneficiary list was changed as per the whims of the Secretary and the Sarpanch. According to the members, only those with money will be able to get IAY benefit, bellying the very targeting of the IAY for the BPL families! Boards providing information on the work sanctioned are put up at the work site only after the work is completed! The Pali Sabha members opine that it is better that the contractor was sanctioned the work, than the village committee, as the contractor can get the bill passed. The village committee always finds it difficult to get the bill passed, and the wage labourers are left unpaid.
Specially in the tribal regions, there is scarce any governance. People go through the several elections that are actually more of an imposition, but do not really expect that their representative will deliver much. It is accepted as a matter of natural justice that the representative is there for himself and will make all efforts to further his own interests. The government functionary is still the 'Mai Bap' who acts out a magnificent charade of charity hand outs to the hapless tribal beneficiary. There is little transparency or openness in the processes that go on in a Block or a Panchayat. People who try to get information on any aspect of the Panchayat, be it the works and sanctions of the Panchayat, the beneficiaries selected, or the expenditure, or the resolutions passed, are put down by the officials in no uncertain terms. There is almost a conscious effort to mystify processes of sanctions and funds, and the government officials are careful to preserve their aura of superiority by various means. The relationship of master and beggar-slave is reinforced in almost every interaction between the tribal people and the government official.

Field studies taken up in different tribal districts of Orissa indicate there is little understanding of the process of Governance, with scarce participation of the people in institutions such as the Gram Sabhas. Provisions within the 73rd amendment also provide substantial room for manipulation of the meetings. The major loop hole being the provisions for proxy decisions if a Gram Sabha does not take place the first time due to lack of quorum. This option, provided for in the exceptional event of people not being present becomes the norm, and almost every Gram Sabha meeting is passed through proxy in the tribal regions. On the other hand, even where a Gram Sabha does take place with due attendance of the members, few are aware or the responsibilities and powers of the members of the Gram Sabha, and there is little questioning in these forums. There is also a large scale subversion of the entire process as private contractors team with the concerned functionaries and representatives, and siphon out major portions of the funds. Signatures of village members are forged to provide the proof that there is sanction at the village level, and nobody questions, as the people in the villages find it too difficult to pursue the violations which means making several trips and appeals to officials, and spending several days on such effort, when they would be better of doing wage labour, and earning something for themselves and their families. Government functionaries at the Block level, ever so eager to show the tribal beneficiary that he has not followed proper procedure almost never bother to verify whether an authentic application has been presented to them. One wonders why in this country it is so easy to do things the wrong way, and so very very difficult to get the right things done.

If village meetings are conducted with due procedure, and beneficiaries identified appropriately, then, there is all effort at higher (Panchayat Samiti, Panchayat) levels to manipulate these selections, and divert sanctions to those who are more entitled because of their ability to provide the necessary kickbacks. The result being that the poorest are very often reluctant to avail of benefits like the Indira Awas as they apprehend that they will not be able to complete the work under the circumstances. As much as 12% is the down payment in most Indira Awas sanctions. Most of this is done in connivance with local government functionaries, and the Elected representatives. So all pervasive is the process that even the more sincere representatives who set out with a zeal to do something for the process are either coopted or rendered ineffective. (Source Agragamee Study: 2001)

State Becomes the Violator

There is an undercurrent of violence, which ensures that all members of a Panchayat keep quiet, and follow the dictates of the Sarpanch, and other thugs in the locality, rather than asserting for their constitutional rights. There is often a sense of 'disbelief' as pointed out by Professor Ramdayal Munda when the constitutional provisions are talked about. Nobody expects that transparency boards will be put up on the worksite. Reporting lacunae in payment, in delivery leaves BDOs, and even district level authorities quite indifferent. If on the other hand, village communities insist on their rights, then, the state with all its might steps in to disabuse such misinformed communities very quickly. The following are only some of the more recent examples of such Government directed violence, and violation of constitutional rights. These are not the first however. Many incidents in the past, lead people to only apprehend that these are just the events in a continuum, which is likely to go on, if people try to make the law as laid down in the books work for them.

For the last two years the District Collector [Kalahandi, a district on the western border of Orissa], the highest government official at the district level, has been "working" for the sterlite Company of the Vedanta Groups, hard-selling the joys of rehabilitation to a skeptical project-affected population-a concrete house, electricity, running water, TV, among other things. No matter that for all these years the state totally ignored its constitutional duties and has not provided even basic amenities…………

When sweet-talk and sophistry didn't work, the company and local administration resorted to false propaganda, coercion and repression. "The police has been routinely harassing those resisting the project," says Bidulata Huika of Rayagada-based NGO Ankuran. Last year in April, a local Dalit leader Lingaraj Azad was arrested for instigating the adivasis against the project. When people rushed to Lanjigada to enquire about his arrest, company goons attacked them with batons and cricket bats. Many sustained serious injuries, which were confirmed later by a fact-finding team of the People's Union for Civil Liberties (PUCL).

In March last year, at a public hearing held by the Orissa Pollution Control Board at the nearby town of Muniguda, over 700 Dongria adivasis gathered to express their disapproval of the project, but, says Bidulata, "company goons and the police didn't allow them to place their objections before the panel. It was a complete farce as only pro-company people were allowed inside the room." However, as the additional divisional magistrate (ADM) came out of the room, he was forced to accept 11 affidavits and hundreds of petitions objecting to the project.

The company's report on the hearing, however, ignores the anti-project petitions, giving the impression that all were in favour of the project. In yet another instance of wilful disinformation, the company document reports that the two Gram Sabha (Village Council) meetings of Lanjigada and Batelima called by the Collector on June 26, 2002 approved the project. However reliable sources report that the Gram Sabha was manufactured by hiring people in truck loads from nearby townships, and keeping the actual Gram Sabha members out with the help of an ever loyal police force! Besides beating the adivasis into submission, the corporate-state nexus has resorted to legal skullduggery to push ahead with the project. The Sterlite project, which falls in a Schedule V area, runs counter to the spirit of the Supreme Court judgment in Samatha vs State of Andhra Pradesh which not only prohibits sale of land, government or private, in ScheduleV areas to non-adivasis but also bars mining leases or prospecting licenses to mining companies. However, the Orissa government performed a legal sleight of hand by deciding not to emulate the Andhra example, as, it argued, the existing laws in the state are adequate to protect the rights and interests of the adivasis! It backed up its decision with the thesis that "transfer of land for development activities, establishment of industries, and operation of mining leases etc in scheduled areas should bring about encouraging socio-economic development of the tribal population."

Second, the law doesn't permit the state to acquire any scheduled land without the prior informed consent of the Gram Sabha. So the state has seen to it that this consent has been cleverly manufactured. (Source Rakesh Kalshian, India Resource Center, June 16, 2004)

In the neighbouring district of Rayagada things are being enacted much on the same lines as the District Collector tries to emulate the outstanding example provided by his colleague across the border. Here six hundred policemen, eight Block Development Officers and several Tahsildars were invited to participate in three Gram Sabhas to pass a resolution welcoming the Utkal Alumina Industries Limited to Kashipur Block. Following this "Successful and unanimous declaration" a massive police force has been posted in the area, and innocent tribal people are being intimidated into fleeing their villages during the day for fear of arrest. Thirteen people have already been arrested, two of them women. 6 of these people were the injured fallen on the roadside after the police lathicharged them for a peaceful protest against the laying of a foundation stone to mark the construction of a new police outpost in the region.

The local tribal communities had been protesting displacement and forcible land acquisition by the UAIL for the last 12 years. In five Panchayats, they have passed Gram Sabha resolutions that they do not want to have mining and industries in their Block, and will not give up their land for the UAIL. To force a submission, the state has been persisting in using a massive police force. In 2000 Dec this resulted in the death of three tribal people because of police firing. The report of the Judicial Committee of inquiry on this incident has been out, though the report squarely blames the police for excess, the state has taken the concluding comments (which says that environmental issues should not be an excuse for withholding the development of a backward tribal area through mining and industries) of the report as providing the go ahead for further repression. Perhaps four years after the Maikanch firing, the incident will be re-enacted in another village in a neighbouring place, where the show of solidarity will take place to mark the Shaheed Divas for the tribal community of Kasipur. (Source: Independent Media updates).

Enough, if we go into stories of struggle and repression, things will never end. On the other hand, stories of success help us realise that if there is a proactive state presence, many positive things can happen, even in the tribal regions, which have been able to draw state attention for their resource base rather than for any other reason. Even the stupid protesting tribals are ready to let bygones be bygones, and begin a new chapter of constructive development if the powers that have so cleverly managed to get their votes would only take the trouble to listen to them. Their road map for development: help us to improve our food production by giving us better seeds, and providing irrigation for our lands, make sure that the schools in our Panchayats run so that we can educate our children, provide us constructive employment, and we will improve our villages to become self-sufficient in three years time! Let us participate in the Gram Sabhas without police force, and make the workings of the Panchayat and Panchayat Samities, and Zilla Parishads transparent, let us take our own decisions, and give us the power that you promise in the constitution. Simple, but easier said than done. The state throws the examples of the Orissa Tribal development project taken up nearly a decade ago with support from the International Fund for Agricultural Development, which ended in almost complete failure, despite the expenditure of more than fifty crores, and other development interventions over the several years since independence, while the people point questioning fingers at the sorry state of the rehabilitation colonies of the displaced from the NALCO project in Damanjodi, the Upper Kolab in Koraput, the Indravati in Kalahandi, and ask them what future does such development hold for them? Tribal communities have clearly demanded their constitutional right to a participatory democracy. It is time the state gave them a just hearing.

The Diagnosis

Self-governance and consequently a vibrant people's democracy has become a dream lost in the mists of corruption and mismanagement. Most if not all development decisions for a village are top down, including the schemes to be implemented, the quantum of funds to be spent, the number of beneficiaries and the total target for the various programmes. Even the kind of payment, whether cash or money and the mode of payment; whether on a contractual or daily wage basis is decided by bodies and institutions outside the ambit of the Gram Sabhas. There is also a divisions of roles and functions between the Panchayat Samiti and the Panchayat, and thus the major portion of development resources and welfare finances and schemes are completely controlled by the Panchayat Samiti, and the Panchayat Samiti is controlled by the local MLA which means that the party in power controls the Block. The Gram Sabhas, or the Pali Sabhas which are the functional decision making unit in Orissa have the small space of deciding who shall be the beneficiaries in the various welfare schemes, that increasingly becoming legion now, and to whom a work may be contracted in certain cases.

A recent survey of Panchayats working in 19 states conducted by the NIRD lists the following principal reasons why these constititional mandated institutions of local governance are still almost completely dysfunctional in the villages:
¨ There has been an absence of national consensus across the parties on what should be the status of the PRIs. A political will to empower the Gam Sabha, or the village council consisting of all the voters in the Panchayat has been quite absent at all levels;
¨ Higher level political authorities are most reluctant to vest controls over finances, and even development decision making with local bodies;
¨ The bureaucracy supports the higher order of politicians in this, and is loathe to give controls to the PRIs and the Gram Sabha;
¨ There has been no transfer of general or technical staff by the state governments to the PRIs;
¨ A clear mandate in terms of clearly defined role and function and authority has been withheld from the Gram Sabha in most states.

V. Venkatesan in his book "Institutionalising Panchayati Raj in India", emphasises that any institution of self-governance must have at the minimum, the following:
a. The delineation of functional areas, like the 29 subjects,
b. The wherewithal to carry out its functions, and not beg to the state and the centre for funds;
c. And powers to decide about the bureaucracy they want to retain, and the bureaucracy they feel is surplus and want to dispose with.

Perhaps all this seems but an impossible wish, but within our own country, all this has been made possible by strong will and a concerted and united effort in the state of Kerala, where a corps of 10,000 technical people was created to vet and re-work projects prepared by the Panchayats. The discussions in the grama sabhas were organised in groups of 25-50, one for each development sector in addition to one group for SC/ST development and one for women's development. Given the large size of grama sabhas in the State, the organisation of sector-wise group discussion made it possible for maximum number of people to participate in the deliberations in a meaningful manner. Around one lakh resource persons at the local level were mobilised and given training to act as facilitators in the discussion groups. The entire process was organised in six phases, consisting of a. identifying needs and priorities of the Panchayats through the Gram Sabhas, b. Development Seminars, and surveys to objectively identify the needs and available resources, and assess the feasibilities; c. Formulation of task forces to projectise the plans using simple transparent formats; d. Annual Plan formulation, e. Integration of the plan in the higher tiers with every Block and District making it integrated plan; and f. plan appraisal through the voluntary technical corps of retired professionals and technical experts. (Source Commissionerate of Rural Development Kerala and Planning Commission report on Review of 7 years of Panchayati Raj)

To support all this there is devolution of 35 to 40% of the States Plan outlay for the projects and programmes drawn up and implemented by the local bodies. People's empowerment has thus become a reality for one small state within our own country! How long will it take for such a constructive effort to spread to other states?

Some Pointers to Take the Dialogue Forward:

The issues in making a law like the PESA effective for the tribal communities in this country are several. We raise some of the questions below, so as to be able initiate a discussion. The rest of the human scale of questions, we hope we shall be able to raise and atleast explore during the course of the workshop, so that we can chalk out a common road map for ensuring dignity and human rights to the tribes, and other marginlised sections of society in this country:

a. Ratification of the PESA.
As mentioned above, the state Government has ratified the PESA, in a very diluted form. In such an event, it is difficult to know which is the ruling which actually stands. It also indicates the disinterest of state governments to transfer effective power in any area to the Panchayats, or to the people;

b. Devolution:
There has been no clear cut devolution of powers or finances to the Panchayat. The maximum a Gram Sabha can decide is about the Casual leave of employees. In the area of programmes, and beneficiaries, the Gram Sabha has no option other than being able to select the beneficiaries;
c. Redressal:
There are no proper procedures of redressal for the Gram Sabha if their decisions are changed by the Sarpanch or the Secretary. Indifferent Government Officers, frustrate the village committees, and take active part in corrupting the leadership;

d. Violation of Constitutional Provisions:
Constitutional provisions for participatory democracy are consciously violated so that the voice of the poor and women can be silenced. Participatory democracy thus becomes a farce, wherby, people are forced to accept that the constitutional provisions are but make belief. The state and its different mechanisms actively break laws to subdue people. The police are used to suppress the voices of innocent people in the tribal areas, so that state and market forces can usurp their rights and resources;

e. Efforts to circumvent provisions and change laws:
A sustained effort is being taken up by state authorities, secretaries, and ministers to change laws that empower the people. The PESA with its many limitations, is still a law that is much feared by the Government, because of the possibilities for people's action. The Government of Orissa has had several meetings, in which they have sought to change the laws under PESA. Another target of Government efforts is the SAMATA judgement, which prevents transfer of tribal land to industries and mines. The far reaching provisions of the SAMATA judgement ensure that no land in the tribal areas is transferred. A committee of secretaries has been set up to review the implications of this ruling, and find ways and means of circumventing the decision;

f. Supreme Court Ruling on Forests:
The Supreme Court ruling on forest land, and the subsequent note of the MOEF seeks to evict all communities residing within forest lands. This is like the Sword of Damocles that can drop at any time on a forest village, and threaten their livelihood.

g. Some Afirmative Actions:
Despite the persistent tensions, the Governmet of Orissa has also taken very pro-active steps to ensure the rights of the tribal people. This includes reservation of seats for schedule caste, schedule tribes, and women in the three tier system of Panchayati Raj, strengthening of revenue laws preventing alienation of tribal land, and the reformulation of the MFP policy in consonance with the PESA Act, etc. However much more needs to be done. The Land Acquisition Act is a draconian provision which has been used to deprive the tribal people of much of their land and livelihood for the sake of large-scale development projects, which have hardly benefited the affected people. The Central Government is considering the Employment Guarantee Act. However, it is in a completely ineffective form, which provides little assurance to the rural and tribal wage earners. This Act needs to be strengthene

h. Tasks for Civil Society:
In discussing PESA, we need to keep in mind, that the central point of concern here is the well being of the tribal community. At this point of time, despite, PESA as also several other protective measures, there is extensive violation of the very fundamental rights of the tribal people in this country. The state till now, does not even accord them a human status, and persists in being the major violator of all laws and constitutional provisions in the tribal regions. If civil society is concerned about these, then, it should begin an informed and massive questioning, challenging the state to be lawful and deliver what it undertakes to. There are many means of doing this, and if all get together, then, surely, these means can be found and applied.

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National Conference on PESA:
"8 Years of PESA, Understanding decentralisation in the Tribal regions."