New Delhi: In a first instance of its kind, a group of tribals has sought legal recourse against the Rajasthan government for failing to deliver on the promise made eight years ago to extend self-governance to their regions.
Tribals, who are settled over 15 districts, account for a little more than one-twelfth of the state’s population estimated in the last census at 56.47 million.
They have filed a writ petition in the Rajasthan high court complaining the state has not implemented the Panchayats (Extension to Scheduled Areas) Act, 1996 (Pesa), even though the government had notified it in 1999. Accordingly, the high court issued show-cause notices to seven departments in the state on 1 November.
“This is the first time a state Pesa has been challenged in the country and it could be a precedence case for other states as well, which have been facing similar constraints,” said Sanjay Upadhyay, counsel for the petitioners and managing partner, Enviro-Legal Defence Firm, a New Delhi-based law firm.
The state government has denied the charges levelled in the writ petition.
“I don’t think this is an issue at all. The state has notified all specific rules and agencies, which will manage the resources,” said Khemraj, secretary and commissioner, panchayati raj department, Rajasthan. “On the specific issues in the petition, I will not be able to comment until I see it.”
The provisions of the Act are critical to scheduled areas, where the local population is predominantly tribal, as it is the only law in the country that empowers village inhabitants to control and protect their own community resources, manage local water bodies, be a part of mining lease approvals, approve government schemes, programmes and identify the beneficiaries, and be a part of land acquisition consultations.
After the enactment of Pesa in 1996, the nine states— Maharashtra, Gujarat, Madhya Pradesh, Rajasthan, Jhar-khand, Andhra Pradesh, Chhattisgarh, Himachal Pradesh and Orissa—covered under the Act were given one year to amend their respective state legislations. Rajasthan amended its state laws only in 1999.
“The way the state government has formulated the provisions, it does not translate into the tribal villagers getting their rights; the rights over minor forest produce (MFP) for instance. Though the tribals are supposed to own MFP, they are sometimes forbidden from collecting it and the rights are auctioned off to others,” said Ginny Shrivastava, coordinating director, Aastha Sansthan, a not-for-profit organization assisting tribals in Rajasthan since 1986.
According to the Act, the gram sabha or village council can also enforce prohibition and control over liquor shops. Shrivastava adds that though tribal women don’t want liquor shops in the villages as it increases expenditure on liquor, the failure to implement the Act has meant that the gram sabhas cannot prevent new vendors from setting up shop.
“Most of these problems arise because though the state laws affirm some of these laws in principle, they have been made applicable to framing of rules and orders, which have not been formulated yet,” added Upadhyay.
The petition argues that while in principle the state government has accepted the Act, it has not done so in practice. For instance, in the case of management of water bodies in scheduled areas, while the state government has adopted the provision to delegate powers to the panchayat, it has not decided who in the elected body will wield the power.
“As a result, at the ground level, the panchayats cannot exercise any right over minor water bodies,” the petition said.
“Such problems have been cropping up in every state with Pesa and is faced not only by Pesa areas but by panchayat areas as well. Among all, Maharashtra is the only one which fares better than the others,” said Manoj Rai, national coordinator, Pria, an International organization that promotes participatory and democratic governance.