Tribal Self-Rule Law and Common Property Resources in Scheduled Areas of India: A New Paradigm Shift or Another Ineffective Sop?

Abstract

"Village-level democracy became a real prospect for India in 1992 with the 73rd amendment to the Constitution, which mandated that resources, responsibility and decision-making be devolved from central government to the lowest unit of the governance, the Gram Sabha or the Village Assembly. A three-tier structure of local self-government was envisaged under this amendment. The nationwide euphoria that greeted this about-turn in bureaucracy was seen again with the extension of the 73rd amendment to the Scheduled Areas, [through Provisions of Panchayats (Extension to Scheduled Areas) Act, 1996] [hereinafter PESA or Central PESA or the Tribal Self Rule Law as it is variously called). Scheduled Areas are those, which are under the Fifth Schedule of the Constitution of India where the tribal populations are predominant. It is also imperative to understand here that the founding fathers of the Constitution of India had envisaged a special scheme of administration in the scheduled areas where general laws would not be applicable unless the Governor deemed it fit to enforce such laws. It was thought that these areas are inhabited with people who have resided on the basis of their own customary practices and traditional beliefs and culture and thus general laws of the land would be inappropriate with their customary laws and ethos. However, a decade later, there is a growing feeling that while the burden of 'management' of natural resources, has been devolved, 'control' over resources and land is still in the hands of the state. This paper delves in some detail into the manner in which the States have subverted the mandate of the Central Legislation through carefully using the wordings in law to make the implementation vague and ineffective especially in the context of 'community resources' in scheduled areas. The scheduled areas, which are notified by the President of India as the Tribal dominated areas, exists in nine states of India."