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Why PESA, a Birsa Munda Legacy, Remains India’s Unfulfilled Commitment to Its Tribal Peoples

Raj Kumar Sinha

Nearly three decades ago, the Indian Parliament enacted a landmark law for tribal regions — the Panchayat (Extension to Scheduled Areas) Act, 1996, better known as PESA. This legislation sought to restore the traditional autonomy of tribal societies and empower them to use local resources according to their customs and needs. However, such decentralization never sat well with today’s developmental politicians, capitalists, and bureaucrats. The question therefore arises — what makes PESA so important?

In 2021, the Government of India declared November 15 as Tribal Pride Day, in memory of the birth anniversary of Bhagwan Birsa Munda (born November 15, 1875). This year, the celebration has been extended into a Tribal Pride Fortnight from November 1 to 15. The occasion is not merely commemorative — it is a moment to bring the tribal worldview and priorities to the centre of policymaking. It is time that the constitutional provisions designed for tribal self-governance are implemented with sincerity and integrity.

The central government enacted PESA under Part IX of the Constitution, related to Article 243. It came into effect on December 24, 1996, specifically for the Scheduled Areas, where the normal Panchayati Raj system could not be directly applied. The 73rd Amendment of 1992 provided a general framework for Panchayats, but explicitly excluded its application to Scheduled and Tribal Areas. Hence, there was a need for a separate law.

The Fifth Schedule of the Constitution governs the administration of Scheduled Areas and tribal communities. It empowers the President to make special provisions for these areas. Based on these constitutional principles, PESA was enacted to establish a strong foundation of local self-government in tribal regions — a historic step toward realizing the constitutional vision of self-rule and self-determination. State governments were thus mandated to empower Gram Sabhas (village assemblies) as the supreme decision-making bodies in such areas.

In Scheduled Areas, institutions such as Gram Sabhas and District Autonomous Councils are not merely administrative structures; they are instruments for protecting cultural identity, promoting self-determination, and ensuring sustainable development. The Gram Sabha has the right to decide on the use, management, and protection of land, water, and forest resources, to approve and monitor local development plans, and to exercise community control over minor forest produce, water sources, minerals, grazing lands, fuel, and fisheries. No land acquisition or transfer can occur without its consent, and no development project can begin without its mandatory consultation.

As Vijay Bhai of the Bharat Jan Andolan notes, the Fifth Schedule makes the Centre, the states, and governors the “benevolent custodians” of tribal areas — free to act at their discretion. In contrast, PESA replaces this discretionary model with one of self-rule and dignity. Yet, nearly 29 years after PESA came into force, several states have still not framed rules to implement it.

The essence of PESA is local self-governance. Under the Seventh Schedule of the Constitution, state legislatures are responsible for enacting necessary laws. But why did Parliament not make the detailed rules itself? Because under Paragraph 3 of the Fifth Schedule, PESA only directs the states to do so — it cannot go beyond this constitutional limit. In effect, Parliament extended Part IX of the Constitution to Scheduled Areas and instructed states to legislate accordingly. The question remains — why have states failed to act?

Some states made partial amendments linking their Panchayati Raj laws with PESA, and by 1997, ten states had created limited rules. However, the jurisdiction of the Gram Sabha remained narrow. While governments now appear willing to assign Gram Sabhas minor responsibilities, true PESA-based self-rule remains elusive because the Panchayati Raj Acts, not PESA, still form the legal foundation. Under the Panchayati Raj system, every provision uses the word “may” — meaning implementation depends on the state’s discretion.

In contrast, PESA uses the binding term “shall”, making its provisions mandatory. Therefore, while uniform Panchayati Raj institutions can function in general areas, Scheduled Areas require a separate framework tailored to their socio-cultural and traditional governance systems. However, bureaucratic manipulation diluted PESA’s binding force, turning it once again into a discretionary framework.

Under PESA, Gram Sabhas have decisive authority over land use, mining, liquor trade, market management, and minor forest produce. This naturally limits bureaucratic and political control, which explains the reluctance to implement it fully. India’s governance system works from top to bottom, while PESA inverts this model by empowering decision-making from the bottom up. Such empowerment threatens bureaucratic convenience and disrupts the economic interests tied to mining, forest produce, and land acquisition — areas dominated by state and private corporations.

Most states have either delayed or diluted PESA’s implementation. Even where rules exist, Gram Sabhas have been reduced to advisory bodies, not decision-making ones. To rescue PESA from the bureaucratic and political maze, a strong political will is needed to move from centralized to decentralized governance. State legislatures must discard the Panchayati Raj framework in Scheduled Areas and enact PESA-compliant laws that grant Gram Sabhas and District Councils true self-governing powers. Today’s Panchayati Raj laws merely create top-driven development agencies — not institutions of genuine self-rule.

[The author is with the Bargi Dam Displaced and Affected People’s Association. Courtesy: Counterview, a newsblog that publishes news and views based on information obtained from alternative sources, which may or may not be available in public domain, allowing readers to make independent conclusions.]

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Why Self-Governance for Tribal Communities Remains an Unfinished Agenda

Palla Trinadha Rao

The constitutional promise of justice, dignity, and self-governance for tribal communities in India remains only partially realised. While the framers of the Constitution sought to address the historical marginalisation of tribal societies through special provisions, the framework reflected compromise—prioritising administrative control over genuine empowerment. This article revisits that unfinished vision by situating the Fifth Schedule within its historical, legal, and institutional context, and argues for a shift towards a rights-based, community-centred model of governance.

The Constituent Assembly debates on tribal governance, particularly those concerning the Fifth Schedule, occupy a significant place in India’s constitutional history. They reveal awareness of the distinct socio-cultural identity of tribal communities and the need for safeguards, while also exposing tensions between protection, integration, and control. Read alongside subsequent judicial interpretation and the broader trajectory of tribal development, they present a layered understanding marked by contradiction and contestation.

The roots of tribal governance predate the Constitution and lie in colonial administrative practices. British policies treated tribal areas as exceptional spaces through classifications such as Scheduled Districts, Backward Tracts, and Excluded Areas. While ostensibly protective, these categories institutionalised isolation and enabled exploitation. Administrative power was concentrated in officials with minimal accountability, creating systems that facilitated land alienation, indebtedness, and exclusion from development.

Against this backdrop, the Constituent Assembly attempted to design a new framework. Although the framers sought to depart from colonial policies, they retained assumptions that tribal communities required external supervision. Special sub-committees contributed to the design of the Fifth and Sixth Schedules, yet tribal participation in core decision-making remained limited. The framework emphasised representation rather than direct participation.

This limitation was forcefully articulated by Jaipal Singh Munda, who asserted that tribal communities were not merely “backward” groups but peoples with a distinct identity shaped by historical injustice. He warned against paternalistic governance and called for recognition grounded in dignity and equality. Despite such interventions, the constitutional design reflected compromise, acknowledging but not fully institutionalising these perspectives.

The language of the debates reveals persistence of colonial categories. Tribal communities were frequently described in terms reinforcing notions of backwardness, placing them within a welfare framework rather than a rights-based one. The adoption of the term “Scheduled Tribes” under Article 342 reflects this administrative orientation, prioritising classification over recognition of indigenous identity and autonomy.

Structurally, the Constitution attempted to balance autonomy with integration. The Fifth Schedule, read with Article 244(1), provides special governance mechanisms but vests significant powers in the executive, particularly the Governor. This has resulted in a system where protection is mediated through control rather than empowerment. The Tribal Advisory Council, though intended as a consultative body, lacks binding authority, illustrating the limited scope of tribal participation.

A central tension is that between centralised authority and local autonomy. While the Constitution vested discretionary powers in the President and Governors to safeguard tribal interests, it did not adequately provide for democratic decentralisation. This stands in contrast to later developments such as the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), which recognised the Gram Sabha as the foundation of self-governance. The debates thus reflect an early vision privileging administrative oversight over participatory democracy.

The issue of political representation was also addressed. Reservations in legislative bodies were introduced to ensure inclusion, but conceived as temporary safeguards rather than instruments of structural transformation. Tribal leaders emphasised the need for meaningful participation, yet the constitutional response remained limited to ensuring presence rather than power. Consequently, representation has not translated into substantive control over land, forests, and natural resources.

Another significant feature is the dual model of governance. The Sixth Schedule provides for autonomous district councils with legislative and judicial powers in certain north eastern regions, whereas the Fifth Schedule adopts a more centralised approach elsewhere. This asymmetry has resulted in uneven trajectories of autonomy and empowerment, reflecting the absence of a coherent constitutional vision for tribal self-governance.

Judicial interpretation has sought to address these limitations. In Samatha v. State of Andhra Pradesh (1997), the Supreme Court affirmed that the Fifth Schedule is intended to prevent exploitation and safeguard tribal land, prohibiting its transfer to non-tribals. In Orissa Mining Corporation v. Ministry of Environment & Forest (2013), the Court recognised the authority of Gram Sabhas in determining community rights, foregrounding principles of self-governance and consent. These judgments mark a shift towards a rights-based understanding not fully realised in the original design.

Another enduring limitation lies in incomplete identification of Scheduled Areas. Despite recognition by the framers that this process would evolve, it remains unfinished. Proposals to include hundreds of villages in Scheduled Areas in the erstwhile united Andhra Pradesh have not been fully implemented even after bifurcation. Similarly, proposals in states like Kerala have remained pending for years. These gaps reflect continuing failure to extend constitutional protections systematically.

The debates also did not sufficiently engage with the centrality of land, forests, and natural resources to tribal life. This omission has become more pronounced in the context of post-independence development. Large-scale projects such as dams, mining, and industrial expansion have transformed tribal regions into sites of resource extraction, often resulting in displacement and cultural disruption. Judicial interventions, such as in Banwasi Seva Ashram v. State of Uttar Pradesh, have emphasised the need to reconcile development with tribal rights and livelihoods.

Subsequent legislation, particularly the Forest Rights Act, 2006, has attempted to address historical injustices by recognising forest rights. However, the gap between legal recognition and actual implementation remains significant. Issues such as deprivation of forest rights, weak institutional mechanisms, and continued centralisation of authority persist.

A meaningful reorientation of tribal governance requires moving beyond the original constitutional paradigm. It demands recognition of tribal communities as active agents rather than passive beneficiaries, strengthening Gram Sabha–centred governance, and ensuring community control over land and natural resources. Development must be aligned with constitutional values, respecting dignity, cultural identity, and ecological sustainability.

In conclusion, the Constituent Assembly debates laid an important but incomplete foundation for tribal governance in India. Situated within historical experience and enriched by judicial interpretation, it becomes clear that the path forward lies in deepening this framework. A transition towards a rights-based, community-centred, and genuinely democratic model of governance is essential to realise the constitutional promise for tribal communities—an agenda that remains unfinished but urgently necessary.

[Palla Trinadha Rao is a lawyer and tribal-rights activist who works on issues of Adivasi land alienation, forest rights, livelihoods and self-governance, especially in Andhra Pradesh and Telangana. He is also the author of Tribal Land Question: Case of Andhra Pradesh. Courtesy: Counterview, a Gujarat-based independent news blog associated with veteran journalist Rajiv Shah. It publishes news and views based on information obtained from alternative sources, which may or may not be available in public domain, allowing readers to make independent conclusions.]