HISTORICAL BACKGROUND
For the first time in the history of Indian legal regime, the provisions of a constitutional amendment i.e. 73rd Amendment did not become operative to the whole of Indian territory. According to the 73rd amendment the scheduled areas are excluded from the purview of the Act. As per Article 243 (m)(4)(2), the Parliament may be law extend the provision of panchayats to the scheduled areas, subject to such exceptions and modifications as may be specified in such a law. It was done so to avoid the conflict between traditional institutions and statutory panchayats. Therefore, agitations were noticed in tribal areas. Considering the growing discontent among the tribals throughout India, the central government constituted a committee on 10th June 1994 headed by Shri Dillip Singh Bhuria, the them MP as its Chairman to suggest salient features of Panchayat law to be extended to the scheduled areas of the country. The committee submitted its report on 17th January 1995 which recommended the adoption of a three-tier system of governance in the 5th Schedule Areas. On the basis of the recommendation of the Bhuria Committee, a bill was passed in the Parliament on 24th December 1996. The Act is called Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA Act, 1996).
SALIENT FEATURES
The salient features of the Act are as follows:
- Every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level.
- Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.
- Every Gram Sabha shall approve the plans, programmes and projects for social and economic development before these are taken up for implementation by the Panchayat at the village level.
- Gram Sabha shall be responsible for identification or selection of beneficiaries under the poverty alleviation and other programmes
- Gram Panchayats shall be required to obtain from Gram Sabha certification of utilization of funds for the plans, programmes and projects.
- Planning and management of the water bodies shall be entrusted to Panchayats at the appropriate level.
- The recommendations of the Gram Panchayat or the Gram Sabha shall be mandatory prior to the grant of prospective license or mining lease for mining minerals in the scheduled areas.
- The State Legislature shall ensure that the Gram Sabha and Gram Panchayat are endowed specifically with:
- Power to enforce prohibition or to regulate or restore the sale and consumption of intoxicant,
- Ownership of MFPs,
- Power to prevent alienation of land in the scheduled areas and to take appropriate action to restore any unlawfully alienated land of a person belonging to scheduled tribes,
- Power to manage village markets,
- Power to exercise control over institutions and functionaries in all social sectors and
- Power to control over local plans and resources for such plans including TSPs.
- The State Legislature may endow Panchayats with power and authority as may be necessary to enable them to function as institutions of self-government and shall be entrusted with safeguards to ensure that Panchayat Samiti or Zilla Parishad do not assume the powers and authority of Gram Panchayat or Gram Sabha.
- State Legislature shall endeavor to follow the pattern of the 6th Schedule of the Constitution while designing administrative arrangements in Zilla Parishads of tribal areas.
STATUS OF PESA ACT, 1996 IN ODISHA
As per the guidance of the Central Government and in accordance with the PESA Act, 1996 necessary amendments were made on 22nd December 1997 in the Orissa Gram Panchayat Act, 1964, Panchayat Samiti Act, 1959 and Zilla Parishad Act 1961 which all were titled as Orissa Gram Panchayats Amendment Act, 1997, Orissa Panchayat Samiti Amendment Act, 1997 and Orissa Zilla Parishad Amendment Act, 1997 respectively. The provisions of the Act were followed in the PRI elections of the State since 2002.
COMPARISON OF THE CENTRAL PESA ACT AND ITS ORISSA COUNTERPART
The comparative statement mentioned below in the form of the table indicates disparities between the provisions of the Central PESA Act, 1996 and that of the counter-part modifications of Panchayat Acts of Orissa of 1997.
Table No. 1 – Disparity in compliance chart
| Sl. No. | Provisions of PESA Act | Central Act, 1996 | Orissa Act, 1997 |
| Acquisition of land for developmental projects | The Central PESA Act makes it mandatory for consultation with Gram Sabhas or Panchayat at appropriate level | Assigned this power to Zilla Parishads | |
| For planning and management of water bodies | Entrusted to Panchayats at appropriate levels | Assigned this power to Zilla Parishad instead of giving power to Gram Sabhas or Gram Panchayats | |
| Management of the village markets and regulation of money lending to scheduled tribes | Power endowed to Gram Sabha or Gram Panchayat | Power granted to Gram Sabha but subject to control and supervision of Gram Panchayat | |
| Control over local plans and resources including Tribal Sub-Plans | Endowed Gram Sabha or Gram Panchayat | Power granted to Panchayat Samiti. It is not mandatory requirement of Gram Sabha | |
| Exercise of control over institutions and functionaries in all social sectors | Endowed Gram Sabha or Gram Panchayat | Power granted to Panchayat Samiti but it is subject to consultation with the Gram Sabha |
It seems that the State of Odisha has complied though not fully with the provisions of the Central PESA Act, 1996 while modifying its PRI Acts. But, the mandatory provisions for ensuring the tribal communities’ control over natural resources, granting licenses for minor minerals and their exploitation and acquisition of land by government for developmental projects which proposed to be enforced through Gram Sabhas have not been complied with.
Currently, the Panchayat rules of Odisha state government confirms the reservation of seats for STs in scheduled areas on the proportion of their population. The minimum of seats reserved in PRI STs in 50 percent. All the past Chairpersons of the PRIs at all levels are reserved for STs. If the Chairperson is a male, the Vice-Chairperson should be a female. One-third seats are reserved for ST women.