Chattisgarh and Andhra Pradesh proposing to extend urban authority laws to the Scheduled Areas to bypass the PESA legislation
To
Shri Ram Nath Kovind
President of India
Respected Rashtrapati Ji,
Under Article 244(1), read with the provisions of the Fifth Schedule to the Constitution, areas predominantly inhabited by the adivasis have been notified by the President as “Scheduled Areas” where there are special rights conferred on the Adivasis. Para 5 of the Fifth Schedule empowers the government to adapt any law applicable in the rest of the country to suit the interests of the Adivasis in the Scheduled Areas.
Parts IX & IXA of the Constitution introduced through 73rd and 74th Amendments relate to the creation of the Panchayats, the Nagar Panchayats and the Municipalities as Constitutional bodies, their powers and responsibilities and administration. Articles 243M & 243ZC specifically exclude the applicability of these two Parts to the Scheduled Areas, unless extended by a law enacted by the Parliament.
There is so far only one law that has been enacted in this respect in so far as the Scheduled Areas are concerned. That is the Panchayats (Extension to the Scheduled Areas) Act of 1986 (PESA) which has specifically empowered the adivasi gram Sabhas in the Scheduled Areas to have a say in decision making on all projects and activities in those areas. No corresponding law has been enacted till date for the municipal areas.
In some States such as Andhra Pradesh and Chattisgarh, there have been attempts on the part of the respective State governments to bring parts of the Scheduled Areas within the purview of the local municipal and urban development authorities through rules and notifications, though such rules and notifications would clearly violate the letter and the spirit of Articles 243M & 243ZC.
In the case of an attempt by the AP Govt to extend the ambit of the Visakhapatnam Metropolitan Development Authority (VMRDA) to some portions of the notified Scheduled Areas through an executive order, I have pointed out to the State government the prohibition imposed by Article 243ZC on such an order, requesting the State govt to revoke the order forthwith.
I understand that Chattisgarh too has proposed similar action to “upgrade” some villages in the Scheduled Areas of the State to the status of Nagar Panchayats and municipalities (e.g.redesignate Marwahi in the new district of Gaurela-Pendra-Marwahi from a gram panchayat to a nagar panchayat, including the three gram panchayats of Marwahi, Kumhari, and Lohari.) which in effect would preclude those villages from the purview of PESA. However, the Governor of the State has rightly questioned the proposal, keeping in view its Constitutional implications(https://www-patrika-com.translate.goog/raipur-news/chhattisgarh-cm-announced-municipality-status-to-gaurela-and-pendra-6421266/?_x_tr_sl=hi&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=sc)
Under Para 3 of the Fifth Schedule, the President and the Governor of the State have the authority to ensure governance of the Scheduled Areas in accordance with the provisions of that Schedule and the laws applicable there. The States are required to submit annual reports on the administration of the Scheduled Areas to the President of India through the Governor of the State. In view of this, the office of the President may call for a report if necessary and intervene whenever the State’s executive tries to do something that adversely affects the interests of the adivasis.
If any part of the Scheduled Areas were to be excluded from the applicability of a legislation like the PESA, it would amount to disempowering the local Gram Sabha to the detriment of the interests of the adivasis, which is never the intention of the legislature. Apparently, in both the States, there are extraneous pressures from mining companies, real estate developers and others to bypass the PESA and along with it, the authority of the adivasi Gram Sabhas to promote their own interests. Such extraneous factors, if they exist, should not be permitted to affect the interests of the adivasis in any manner. From that point of view, I earnestly feel that the office of the President should intervene and make sure that the executive’s actions to dilute the provisions of the PESA are nipped in the bud before any damage is done.
Against this background, I appeal to you to obtain reports on the circumstances under which the concerned State governments are trying to dilute the provisions of the PESA indirectly by resorting to means that violate the relevant provisions of the Constitution.
Respectfully,
E A S Sarma
Former Secretary to Govt of India &
Former Commissioner (Tribal Development), erstwhile undivided AP)
Visakhapatnam
