The Public Life of a ‘Progressive’ Law: PESA and Gaon Ganarajya (Village Republic)

PESA as a Framework for Gaon Ganarajya and its Systematic Violations

The provision for the extension of the Panchayati Raj in the SAs was part of the 73rd Amendment of the Indian Constitution, which clearly mentioned that the Parliament could extend the provisions of Panchayati Raj in the SAs and tribal areas (TAs) by enacting a law for the purpose. This provision was based on the understanding that since Schedule V gave some special rights to the SAs, a new law for the Panchayati Raj must respect their traditional systems and distinct institutions (Article 243(M)(b), Constitution of India, 2008, p. 126).

Indeed, the provisions of Schedule V have never been seriously implemented and they have remained as showpieces in the Constitution. For example, Para 5(1) of Schedule V gives the governors of the states with SAs the right to prohibit the implementation of any law passed by the Parliament or state legislatures on the SAs, or direct that such laws can be implemented in these areas only after necessary amendments (see Para 5(1), Constitution of India, 2008, pp. 254–255). In the history of independent India, however, no governor has ever used this constitutional provision (Sharma, 2010). On the one hand, this has resulted in the imposition of all kinds of laws in the SAs too, and on the other, the Indian state has exploited the resources of these areas for ‘development’ purpose, which has created serious problems of displacement and dispossession of rights for the tribals of SAs. Since the 1970s, however, the discontent against the imposed centralized development by Indian state emerged in the form of many grassroots movements. Undeniably, in many parts of central India, the Maoist movement also played a critical role in making local communities aware about their rights. The Chipko Movement, Narmada Bachao Andolan (Save Narmada Movement) and many other comparatively small and local-level movements expressed demands regarding the ownership of resources by the local communities. Apparently, these demands were beyond the framework of Schedule V and underlined the need to give concrete power to the local communities to manage their land and resources in SAs. In this context, demand for a law surfaced, which could give more powers to the gram sabha and local communities.

Though the Constitution clearly mentioned the need for a separate law for the extension of the provisions of 73rd Constitutional Amendment, neither the central nor any state governments initiated the process to follow this constitutional provision. Many states with SAs, however, started the process of the election of panchayats without considering the actual constitutional mechanism. The Bharat Jan Andolan (BJA), an organization formed by B.D. Sharma on 2 November 1991, tirelessly worked for the cause of a separate panchayat extension law for the SAs. It played a central role in the formation of National Front for Adivasi Self-rule (NFASR) in 1994, constituted by many grassroots tribal organizations. Due to continuous pressures from the BJA and other local tribal organizations, the GoI formed a committee in June 1994 to consider the different aspects for a law to extend the Panchayati Raj to the SAs. Headed by Dilip Singh Bhuria, with the BJA leader B.D. Sharma as one of its members, the committee submitted its report in January 1995. ² Many states, however, were conducting elections in SAs on the basis of their respective Panchayati Raj Acts. The BJA and other organizations challenged it in the court and after the submission of Bhuria Committee Report, the Hyderabad High Court postponed the panchayat elections in the SAs of Andhra Pradesh. The Patna High Court too accepted that such a routine extension would violate the Constitution and underlined that the Parliament would need to enact a special law for the SAs (Sundar, 2009b, p. 201). The NFASR intensified its movement for the enactment of a separate law for the extension of Panchayati Raj in the SAs. It organized many rallies in different parts of Madhya Pradesh (present-day Chhattisgarh) and Bihar (present-day Jharkhand) and activists also sat on indefinite hunger strike in Delhi for the enactment of the PESA. Ultimately, due to immense pressure of people’s movement, the PESA was passed by the Parliament on 24 December 1996, which was primarily based on the recommendations of the Bhuria Committee. It incorporated the demands of many grassroots tribal organizations related to the rights of village communities over their land and resources. This law was termed ‘Hamara Kanoon’ (Our Law) by the tribals in many parts of the SAs (Choubey, 2013).

The PESA presents a framework of Gaon Ganarajaya (village republic/self-rule) for the SAs and it has often been described as a ‘Constitution within Constitution’. The uniqueness of this law is that it attempts to bring together in a single frame two entirely different worlds: one is a simple system of tribal communities governed by their respective customs and traditions; and another is the formal system of the state governed exclusively by law (Bijoy, 2012, p. 15; Dandekar & Choudhury, 2010, p. 5). In this sense, it establishes different sources of authority and systems of legitimating for the customary laws of the tribal communities (the constitution and a statute, respectively), putting in place rules of recognition which supersede any other prior authority that the tribal people may claim as the source of their customary laws and rights. The PESA is more crucial than the provisions of Schedule V because it accepts gram sabha as the core unit for all kinds of deliberations and implementation of the law.

The PESA envisages the gram sabha as the basic unit of the community life of adivasis, which is defined as a habitation, or a group of habitations, or a hamlet comprising a community, managing its affairs in accordance with traditions and customs and all adult people are members of a gram sabha (Section 4(b)(c), GoI, 1996). It directs the state government that the Panchayat Act for SAs shall be in consonance with customary laws, social and religious practices and traditional management practices of resources (Section 4(a), ibid.). The PESA makes the role of gram sabhas very extensive: it is competent to preserve the traditions, customs, cultural identity and community resources and the traditional mode of dispute resolution (Section 4(d), ibid.); its approval is necessary to implement various social and economic development plans taken up by the panchayat for implementation at the village level and it has the right to identify or select the persons for the poverty alleviation programmes (Section 4(e)(i)(ii), ibid.); the gram sabha or panchayat at the appropriate level would be consulted before land acquisition; its prior recommendation would be necessary for any grant of mining of minor minerals and it has power to prevent the alienation of the land in SAs and take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe (ST); and the gram sabha or panchayat at the appropriate level has ownership over minor forest produce (MFP), power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant, and control over moneylending and institutions and functionaries in all social sectors (Section 4(i)(j)(k)(l)(m), ibid.). It gives reservation to all groups mentioned in the Constitution, according to their proportion in the panchayat, but also underlines that the reservation for the STs would not be less than one-half of the total seats and all seats of chairpersons at all level would be reserved for the STs (Section 4(g), ibid.). According to the PESA, all laws which are inconsistent with its provisions would be void within one year of its assent by the President (Section 5, ibid.). Several grassroots tribal organizations, which mobilized people and struggled for the enactment of PESA, termed it a historic legislation and claimed that it was the ‘most radical law of the twentieth century’ and the ‘Magna Carta of Village India’ (Sharma, 2010, pp. 68–69). Many scholars, however, criticized the PESA for romanticizing the role of gram sabhas. For instance, according to Nandini Sundar (2009b, p. 201), the concept of adivasi society which PESA embodies is essentially a static one, of a society that has somehow survived colonialism and capitalism and retains strong community ties at hamlet level.

Since Panchayati Raj is a subject in the state List of the Constitution, the different states with SAs had to enact their own PESA Acts on the basis of the larger framework prepared by the central PESA Act. A period of one year was fixed by the PESA itself for the enactment and amendment of different laws to bring them in consonance with the provisions of the PESA. While most of the states with SAs did not take the one year period seriously, many states adopted the provisions of the central PESA Act in a slack and capricious manner. Due to this, many rights of the gram sabhas have been made less influential by the existing state PESA Acts.

If one compares and contrasts some of the state PESA Acts of different states and the central PESA Act, it would be clear that different states adopted the same provision in different ways. For example, according to Section 4(i) of the central PESA Act, the gram sabha or panchayat at the appropriate level shall be consulted before acquiring land for development projects and before resettlement or rehabilitation of affected persons in SAs. The Andhra Pradesh Act, however, has made the provisions to consult the mandal (block) parishad; the Jharkhand Act has no provision in this regard; the Gujarat Act provides that taluka panchayats be consulted; and the Odhisa Act said that the district panchayat shall be consulted before acquiring land. Only Chhattisgarh and Madhya Pradesh have made provisions that before acquiring land for development projects, the gram sabha will be consulted. ³ Apart from these variations, many states have delayed the process of rule making related to PESA; another equally important point is that most states are yet to amend the subject laws and rules, such as those relating to moneylending, forest, mining and excise, to bring them in harmony with PESA (Bijoy, 2012, p. 30).

The experience of the implementation of the PESA has been very gloomy. In some states, elections were conducted on the basis of the provisions of the PESA and STs got representation at the panchayat level. However, its more crucial provisions have been avoided or rampantly violated. In this context, three significant points can be underlined: first, the provision of the PESA regarding consultation with gram sabha on the issue of land acquisition and rehabilitation has proved to be a great obstacle for the corporate houses because most of the time, tribals, through the gram sabhas, refused to give their lands for ‘development’ work. At those places where the gram sabhas were opposing land acquisition, the corporate houses, with the active help of the administration, tried to create a façade regarding the whole process of consultation (Dandekar & Choudhury, 2010, pp. 6–8; Sundar, 2011, pp. 429–432).

Second, the PESA has been indiscriminately violated in the name of the military campaign against left-wing extremism (LWE). One crucial example of this is the Salwa Judum campaign in Chhattisgarh, where, in the name of controlling the Maoists, the Chhattisgarh government armed one section of the tribal people and compelled the tribals of more than 640 villages to shift in camps. Due to the terror of Salwa Judum, thousands of people ran away into the forests of Andhra Pradesh (Sundar, 2006). In this process, no state authorities ever tried to know the wishes of the gram sabha, which was a clear violation of the PESA. In those LWE-affected areas where villages were lucky enough not to have faced forced displacement, the police and the Central Reserve Police Force (CRPF) regularly visited the villages and the tribals were compelled to live in an environment of suspicion and fear. This situation is a far cry from the conception of Gaon Ganarajya envisaged by the PESA. In Bastar and other tirbal areas, militarization affected the lives of tribals and led to the criminalization of tribal communities (Dandekar & Choudhury, 2010; Sundar & Singh, 2010). In many Schedule V areas, the para-military forces used the land to establish their camps and in most of the cases, these camps became permanent (Navlakha, 2012, pp. 3–4).

Third, the PESA has not just been violated on the issues related to land acquisition or to control the Maoist movement, its many other aspects have also been regularly violated, which impinge upon the powers of local administration. During my field study in many villages of Surguja district of Chhattisgarh, I found that panchayats elections were held according to the provisions of the PESA and in SAs, all seats of sarpanchs were reserved for STs. The elected tribal representatives, however, were not able to use their powers effectively. While they were facing opposition from the dominant non-tribal castes in the region, government officials too were not giving any importance to the gram sabha or elected representatives. Though PESA gives rights to local communities to collect the MFPs, tribals were totally dependent on the whims of the forest department (FD) even for the MFPs of daily use, like fuel wood. Similarly, the PESA gives power to every gram sabha to approve the plans of social and economic development before their implementation, but in the villages where I did my fieldwork, I found that no government official ever bothered to consult the elected representatives or the gram sabha. ⁴

Struggle for Livelihood and the Experience of PESA in Rajasthan

In the backdrop of the overall provisions of PESA and the absence of the spirit of the Act in its implementation of most of the states, this section of the article focuses on the study of PESA Act in Rajasthan and deals with the struggle and conundrums related to the enactment of a state-level PESA Act and its public life in the tribal areas of this state. Public life of the PESA primarily denotes the understanding and use of this law by the tribal people of the state, which goes beyond the actual aim, provisions, legal realities and bona fide implementation of a particular law. In the context of the public life of a particular law, it is crucial to understand difference between real aim of a law and people’s understanding about it and whether they are accepting the definition/aims proposed by the state or extending it according to their desired endeavour. Apart from giving a background of SAs of Rajasthan and current situation of the PESA’s implementation, this section also investigates its experiences in these areas. ⁵

According to the Census of 2011, the total population of STs in Rajasthan is 9,238,534 and they constitute 13.5 per cent of the total population of Rajasthan (‘Tribal Profile at a Glance’, n.d.). Two districts of Rajasthan, Banswada and Dungarpur, and Pratabgarh block of Chittorgarh, Abu Road block of Sirohi district and many panchayats of the Udaipur district are part of SAs. ⁶ The areas coming under SAs are placed under ‘Tribal Areas Development Authorities’ (TADA), and the government allocates separate finances for them. There are, however, many other areas where large numbers of tribal population exist but they are not part of SAs. During Sixth Five Year Plan, these areas were placed under ‘Marginalized Areas Development Authorities’ (MADA). There are many scattered areas where tribal communities are living and these are classified as ‘tribal pockets’. ⁷ One tribe of Rajasthan, Sahariya, is included in the list of ‘Primitive Tribal Groups’ (PTGs) and there are special provisions and programmes for the development and livelihood protection of this tribe. ⁸

Three years after the enactment of central PESA Act by the Parliament in 1996, a state PESA Act was passed in Rajasthan, as result of the pressure created by some Rajasthan-based organizations which were working in tribal areas. Of course, apart from some mobilization, there was no intense movement at the grassroots level for this purpose, but since the issue was related to an Act passed by the Parliament and there was excellent coordination between Rajasthan-based organizations and the leadership of the BJA, they successfully created pressure on the Rajasthan government to enact a state-level PESA Act.

It is important to note that Astha, a non-government organization (NGO) formed in 1986, played a key role in increasing the consciousness regarding the idea of village self-rule in the tribal areas of Rajasthan. It played key role in the development of many tribal grassroots organizations. One such organization, ‘Jungle Zameen Jan Anodolan’ (JZJA), was formed in 1995. The basic idea behind it was to raise awareness and mobilization on the issues related to land and livelihood. Interestingly, activists like B.D. Sharma of BJA and Pradip Prabhu of Shetkari Sanghthna had contacts with the activists of Ashta and they started to visit these areas from the beginning of the 1990s. Through extensive discussions and debate, they educated and inspired local activists (many of whom were tribals) to mobilize themselves on the issues related to forests and swaraj (self-rule) in the villages. Many activists from Rajasthan also participated in the dharna and demonstration in Delhi, organized for the enactment of a separate law for the extension of the 73rd and 74th Constitutional Amendments in the SAs. There was, however, no strong movement at the local level in Rajasthan—the JZJA was in the process of formation and tribal groups were not sufficiently mobilized and were primarily engaged with their day-to-day struggle with the FD officials. The tribal people and even local activists started to relate themselves with the PESA after its enactment in December 1996. The JZJA, with the cooperation of the BJA at national level, played a crucial role in making people aware about this law. ⁹ The reports and booklets prepared by B.D. Sharma played a pivotal role in educating the activists at local level regarding different issues related to the forests and tribals of the other parts of the country. With the help of BJA, Astha, JZJA and some other local organizations pushed the demand for the implementation of the PESA. Though there was no intense movement for this purpose, JZJA organized dharna in Jaipur in favour of this demand and B.D. Sharma and other activists from outside Rajasthan also participated in it. ¹⁰ Finally, a Rajasthan PESA Act was passed in 1999. The full title of the Act is ‘Rajasthan Panchayati (Modifications of Provisions in their Applications to the Scheduled Areas) Act, 1999’ (Government of Rajasthan, 1999).

Though most of the provisions of central PESA Act have been retained in the Rajasthan PESA Act, there are certain limitations in it, which pose a serious question mark on its transformative possibilities. First, this Act does not accept the definition of the village given in the central PESA Act. On the contrary, it provides that ‘a village for the purpose of this Act shall mean a village specified as such by the Governor, by notification in the Official Gazette’ (Section 2(a), Government of Rajasthan, 1999]. Second, it leaves many aspects uncertain and makes a provision that the state government may make rules, by notification in the Official Gazette, to carry out generally the purposes of this Act (Section 4(1), ibid.). The state government, however, put this Act in cold storage and did not prepare any rules for a long time (till 2011). Interestingly, in Rajasthan, during this period, there was government of both the key players in the state politics, that is, the Bharatiya Janata Party (BJP) and the Congress. Incidentally, after 2004, the tribal organizations of Rajasthan and other places focused on the movement for Forest Rights Act (FRA), so there was almost no pressure on the state government to make rules for PESA and start its actual implementation. ¹¹

Though formal implementation of the PESA did not start even after the enactment of Rajasthan PESA Act, it affected the lives of many tribal villages at another level. Indeed, after its enactment, organizations like JZJA started a process to educate people about the various implications of this legislation and develop a consciousness about the significance of the idea of Gaon Ganarajya. This process started with the visits of B.D. Sharma in the tribal areas of Rajasthan, where he gave example of the ‘Nate Na Raj’ movement of Bastar area of Chhattisgarh (then Madhya Pradesh), and argued that villagers should focus on their understanding of the term ‘village’, and emphasized the relevance of the slogan of Mavalibhata movement, ‘Mava Nate Mava Raj’ (our rule in our village). He also underlined that activists should not wait for the initiatives of the state government and should strive to make people aware about the meaning of Gaon Ganarajya and establish Shilalekh in the villages and declare the rights given by the PESA on it. ¹² On his suggestion, the activists of JZJA started the process of making people conscious about the idea of Gaon Ganarajya embedded in the provisions of the PESA. This motivated many tribals to establish Shilalekh in their village and declare it a Gaon Ganarajya. This was a dialogical process, where activists, most of whom were local tribals, tried to educate villagers about the positive aspects of PESA and village self-rule. The villagers, however, had to take a final call regarding declaring their village a Gaon Ganarajya and whether they want to set up a Shilalekh or not.

In March 1997, Taliya village of the Dungarpur district was declared the first Gaon Ganarajya and a public meeting was organized and a Shilalekh established in the village. The date of the enactment of the PESA and the 11 important points related to the powers of the gram sabha were inscribed on the Shilalekh. The 11 points mentioned are a simple version of the rights of the gram sabha mentioned in the central PESA Act. Each Shilalekh inscribed the following points: (a) liquor prohibition and ban or regulation on the marketing of intoxicant; (b) control of encroachment and right of ownership over those lands which were taken through illegal method; (c) right to be consulted before land acquisition; (d) full ownership of MFPs; (e) planning and management of small water resources; (f) control over mining activities in the village area; (g) right to manage village market; (h) control over moneylending; (i) control over all plans related to development, right to identify and select beneficiaries; consultation before rehabilitation of displaced people; (j) total control over the finances related to local planning; and (k) control over institution and functionaries in all social sectors (Gaon Ganarajya Diary, 2005). The basic purpose behind this process has been to develop a consciousness in the mind of tribal people about the significance of this legislation. ¹³ Indeed, during my fieldwork in some of the villages of Udaipur district, which had declared themselves as Gaon Ganarajya, I found that tribals have a very sound understanding of the provisions of the PESA and the rights of the gram sabha.

After Taliya village of Dungarpur district, the Shilalekh was established in many other villages and the same process was followed. The villagers were also told to ascertain the traditional boundaries of their villages, and discuss the 11 points regarding the powers of the gram sabha and decide on how many points they could follow. In the beginning, Astha and JZJA decided that villagers should try to follow at least four points. It was up to them to decide which four points they wanted to follow; for instance, they could decide that they would regulate intoxicants in the village, try to resolve their problems at the gram sabha level, establish ownership of gram sabha over MFPs and look after the implementation of different projects in the village, etc. A village could follow more than four points, but at least they had to follow four points in the beginning. ¹⁴

Many villages, when they established Shilalekh, invited the Member of Parliament (MP) and the Member of Legislative Assembly (MLA) of their area, and also sent letters to all crucial government offices like the district magistrate, police and FD. In their letters, they made it clear that they were going to declare their village a Gaon Ganarajya and after that, they would follow the provisions of the PESA to manage the diverse affairs of their community lives. Many villages sent such letters to the governor and, in some cases, he/she replied congratulating villagers for declaring their village a Gaon Ganarajya. The purpose behind sending such letters to the government offices was to convey the decision of adopting the provisions of the central PESA Act. It was also expected that the officials of many government departments should take the permission before doing any activity within the boundaries of the village. Indeed, it was the substantial form of village ‘autonomy’, which the villagers tried to claim on the basis of the PESA. For example, during my study in one such village, Biliyan-Dang, which is part of Dang panchayat of Udaipur district, the villagers informed me that they established Shilalekh in 2001. Though Biliyan and Dang are two different hamlets, the villagers decided to declare the Biliyan-Dang village Gaon Ganarajya on the basis of the boundaries of the revenue village, because in both the hamlets, people of same the tribe, that is, Gerasiya, were residing and wanted to decide together about the community life of their village. ¹⁵ On that occasion, the senior activists of the Astha organization were also present. Like other villages, the tribals of the Biliyan-Dang too informed several government offices, including the police and the FD, about their decisions. However, they objected to the decision of declaring the village as Gaon Ganarajya and termed it illegal, but the tribals of the Biliyan-Dang showed them the PESA Act and emphatically asserted that the Parliament of the country had given them right to manage their community life through the gram sabha. ¹⁶

Since 1997, the Shilalekh has been established in almost 350 villages of the Udaipur and Dungarpur districts. The process still continues and before the Rajasthan assembly election of 2013, Phulwari village of Kotra block declared itself a Gaon Ganarajya. ¹⁷ The process of setting up a Shilalekh is not just a ritual to connect the idea of village self-rule with the traditions of villagers, but it also educates them about their rights and mobilizes them to resist the arbitrary behaviour of the government officials. In these villages, a committee of 11 people has been formed to decide about some urgent issues or the date and time of the meeting of the gram sabha. Many such villages have done tremendous work in water management and the implementation of the many government schemes, like Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA). They have also claimed ownership over MFPs, which has created a situation of tussle between villagers and the FD. For example, in Biliyan-Dang, tribals asserted that they had ownership over the MFPs and when the FD officials tried to get the MFPs to sell, they blocked the road. Finally, after five days of struggle, the local FD officials agreed to give a share of the profit to the gram sabha of Biliyan-Dang. Also, earlier, tribals were facing many troubles in getting MFPs of their daily use from the forest. However, after the declaration of Gaon Ganarajya, they collectively and strongly stressed their rights over the MFPs and the FD officials stopped demanding money for the MFPs of daily use, like firewood. In many places, they collectively started to manage village schools and ensured prohibition on the selling of liquor and other intoxicants.

It should be noted that the implementation of the FRA was started in 2008 and in many villages, tribals have tried to assert their rights over forest land and its resources through the gram sabha, which works as a site of legal education for them. Many tribals, though not able to express all provisions of the FRA, accepted that through their discussion in the gram sabha. They knew that this law would give them ownership rights over forest land and the right to manage the forests. In some villages, the tribals even inscribed the community rights given by the FRA on the opposite side of the Shilalekh. Indeed, many villages have successfully established the framework of autonomous Gaon Ganarajya, though they are not using all the powers given by the PESA to the gram sabha because of less mobilization and the insistence of other state offices (like police) to assert their dominance in matters related to their jurisdiction.

As mentioned earlier, the successive Rajasthan governments did not show any interest in the rule making of Rajasthan PESA Act. In 2007, Astha filed a case in the Rajasthan High Court against this attitude of the government and urged the High Court to direct the government to prepare the rules and start the process of implementation of the PESA in Rajasthan. The Rajasthan government filed an affidavit in the High Court in 2010 that it would soon make the rules. Astha prepared model rules and sent it to the government, but it was not accepted. Finally, the state government prepared and notified the rules in 2011, but there are many drawbacks in them. As mentioned earlier, they do not accept the definition of a village given in central PESA Act (Sections 2(1)(ii), 3, Government of Rajasthan, 2011). Obviously, it does not define the gram sabha at hamlet/para level and recognizes revenue village. It gives very limited rights to gram sabhas over MFPs (Section 25, ibid.) and gives upper hand to the government departments in the process of consultation with gram sabha for land acquisition (Section 18, ibid.). Numerous tribal organizations objected and criticized these limitations on the powers of the gram sabha and Astha filed a case against these rules in the Rajasthan High Court. At the time of writing this article, no final decision regarding this petition has been made. It should also be noted that local organizations have compiled the data of MADA and ‘tribal pockets’ which should be included in the SAs. There is, however, no strong movement for this demand. ¹⁸

It is evident from the given portrayal that, in Rajasthan, the proper process of implementation of the PESA has not started. In many villages, however, tribal people, with the inspiration and help of organizations like Astha and JZJA, have tried to implement the provisions of the PESA in their villages: they have declared their villages as Gaon Ganrajaya, established Shilalekh and also tried to resist the arbitrary and whimsical behaviour of many government departments, particularly the FD. Undoubtedly, the Shilalekh has created a sense of autonomy within tribals and they have tried to assert their rights over those natural resources which come within the traditional boundary of their villages. This process, however, has some inherent limitations: first, since the implementation of the PESA has not started in Rajasthan, these activities have no legal sanctions and, at many places, the FD officials have refused to accept the claims of the tribals on this basis. Second, the declaration of Gaon Ganarajaya and establishing Shilalekh is a very attractive and educative idea, but it has been limited to few hundred villages. Third, those villages which declared themselves Gaon Ganarajya and adopted the PESA have not exercised all the powers given by the Act. Most of them are trying to follow four or five points mentioned in the Act. Fourth, it is also important that after 2002, the struggle for the FRA became the central concern of most of the grassroots tribal organizations. ¹⁹ Due to this, PESA and its implementation did not get much attention. Indeed, no strong mobilization in favour of the PESA has been one of the reasons of the neglect of this law by the state government. Though the FRA also gives power to local communities over forest land and its resources, and in this sense both the laws are complementary to each other, the PESA presents a more extensive framework for an autonomous village republic (Government of India 1996, 2007).

The non-implementation of the PESA has created many problems for the tribal people. Undoubtedly, there problems are related to low representation in Pachayati Raj system, but more than that, the state is not giving them their constitutional right to village self-rule. Nevertheless, apart from Rajasthan, in scores of villages of Jharkhand, Maharashtra, Andhra Pradesh, etc., tribal activists have followed this process to create awareness about the idea of village self-rule. For example, in Jharkhand, the BJA did Pathargadi (inscription of the rights of the gram sabha on a stone) in many areas. This happened only in villages where the organization had some presence. But it did not happen in those places where this organization was not present. However, an NGO, JOHAR, tried to motivate people in 800 villages to organize the gram sabha (Sundar, 2009b, pp. 207–208). ²⁰

Transformation through Law and its Limitations: Politics of ‘Marginal Society’

The most serious crisis with the PESA is complete lack of implementation or partial implementation. Indeed, from the beginning, the state machinery has been trying to undermine this law. Though it gives several powers to the gram sabha, it has not been able to emerge as an influential or autonomous body. One can underline three reasons for overlooking/violating the PESA: first, in post-liberalization India, the state has been working as a facilitator for the corporate houses in the extraction of natural resources and land acquisition, which has made the violation of laws like PESA inevitable. For example, there has been great boom in mining sector—in the past five to six years, companies have paid a royalty to the states of ₹ 26 per tonne of iron ore, selling it for over 100 times that amount at an average of ₹ 3,000, which clearly means their profits run into crores of rupees. So, there is great financial incentive to ignore the PESA or the Samtha judgment, or ensure that they do not get in the way (Dandekar & Choudhury, 2010, p. 17). Second, the dominance of the many colonial and post-colonial laws has also created obstacles in the proper implementation of the PESA. For example, there is conflict between PESA and Indian Forest Act, 1927, or Wildlife (Protection) Act, 1972, or Forest (Conservation) Act, 1980 or many other central or state laws. In many cases, the officials of different government departments have denied the supremacy of the PESA and invoked other laws for their guidance. Nandini Sundar (2009a, pp. 14–15) has used the word ‘legal pluralism’ to describe this situation. Third, organizations that had fought for the enactment of the PESA became less enthusiastic about its implementation. Obviously, many organizations like the BJA and Astha have been trying to create awareness about the PESA. Nevertheless, it is also true that the priorities of several other organizations changed in many areas, for example, after 2002, the movement for the enactment and implementation of the FRA became the primary concern for various organizations. ²¹

I, however, wish to argue that in the study of different facets of the implementation of PESA, one can underline the emergence of ‘marginal society’ in the tribal areas. The basic argument regarding the concept of the marginal society is that it is related to the those marginalized tribal groups who are using law to ensure an autonomous space and ownership over their land and natural resources (Choubey, 2014, 2015a). In this context, I accept the differentiation presented by Partha Chatterjee between civil society and political society. Chatterjee argues that though the Indian Constitution gives constitutional rights to all of its citizens, there is only a small group which uses these rights in the actual sense, and there is a larger group for whom search for livelihood generally becomes part of ‘illegal’ activities. The latter constitute political society groups, which put their claims on governmentality and the state gives them some ‘concessions’ on the basis of their mobilization (Chatterjee, 2004, 2011).

I want to underline that like political society, the activities of the marginal society for livelihood have also been generally termed as ‘illegal’. However, it is distinct from the political society for the following reasons: first, activists who can be easily placed in the category of ‘civil society’ play an important role in the mobilization of a marginal society. This is true about the leaders of organizations like the BJA, Astha and many others. Indeed, a lot of tribal and non-tribal educated activists, with comparatively better economic status, have played a vital role in mobilizing people and creating awareness about their rights. It has created a kind of ‘insurgent citizenship’ ²² in these areas, where tribals have been asserting their rights over livelihood sources and attempting to create an autonomous space for themselves. Second, the marginal society is inseparable from the emergence of ‘legalism from below’: tribal people have started to demand for better laws and they use these laws to assert their rights over natural resources and to create an autonomous space for themselves, which is crystal clear from the study of the experiences of the PESA in Rajasthan. Moreover, it is true that most of the tribal people do not understand each and every provision of laws like PESA, however they do know some of its significant provisions and particularly about PESA, they claim that it is ‘hamara kanoon’ (our law). Obviously, it leads to the deepening of democracy in these areas because instead of accepting centralized administrative measures, local communities have started to assert their autonomy in the matters related to villages and their rights over forest produces. Elsewhere, I have argued that the ‘legalism from below’ has increased in tribal areas, which resulted in the enactment of the FRA (Choubey, 2014, 2015a).

Third, like political society, in the case of marginal society too, the state responds to its demands on the basis of their mobilizations. In the case of the marginal society, however, the focus is not always on getting some concessions for day-to-day life, rather it is related to the tribals’ notion of ‘good life’, in which they want to create an autonomous space for themselves. In this sense, marginal society is a particular space used by forest dwelling communities, who are largely dependent on forests for their livelihood and cultural identity; these communities coexists with institutionalized domain of politics, use it to fulfil their certain demands, but are not entirely dependent on it. Interestingly, Veena Das, in her study of the urban poor in India, also questioned the binary presented by Partha Chatterjee of those of govern and the governed, legal and illegal, governmentality-produced population and moral community, civil society and political society. According to her, these ‘concepts bleed into each other and produce the capacity to make claims on the State as a way of claiming citizenship’, which inform poor about the notion of rights in the sense of ‘Haq’ (Das, 2011, p. 320).

I want to emphasize that though PESA has not been implemented in most of the SAs, it has created a consciousness within tribal population of these areas. Though Maoist and any other violent movement has not existed in the SAs of Rajasthan, one cannot deny that in post-liberalization era, the conflict between tribals and the Indian state and the influence of the Maoists has increased in many parts of the SAs. It should be remembered that where tribals could not save their land and common resources due to clear violation of the PESA, they took the help of armed struggle or Maoists. There is, however, no doubt that in the different parts of SAs, PESA has created an understanding about the importance of ‘better’ or ‘progressive’ laws and local communities are using this to demand better laws (like FRA) or to ascertain their rights over forest resources.

Conclusion

It is evident from the given discussion that though the implementation of the PESA has been dismal, the process of its enactment, and more than that, the struggle for its implementation, has disseminated the message that self-rule is the natural and constitutional right of the village communities. In many places, tribals have realized the significance of the gram sabha and started to assert their rights given in the PESA. Moreover, a sense of denial has been engendered in the minds of tribals due to clear violation of this legislation, which forced people to make alliance and seek redress with what the state dubs as extremists (GoI, 2008; Sharma, 2010). There is no doubt that it has got a ‘public life’ and became part of the tribals’ psyche in the SAs. By establishing Shilalekh and putting into practice some of the powers given by it to the gram sabha, they have tried to ensure an autonomous space for themselves and assert their rights over village and other natural resources. In this sense, the public life of PESA has questioned the centralized administration of SAs and enhanced the process of democratization of administration in these areas. Indeed, the struggle for the enactment and implementation of this legislation played a crucial role in the political awareness and ‘legalism from below’ in these societies, which led to the movement for the enactment of the FRA too. Apart from many struggles for the proper implementation of the PESA, there have been demands in many areas for the extension of Schedule V and the amendment in the PESA. A bill to this effect was also prepared and circulated by the United Progressive Alliance (UPA) government in December 2013, but it could not be introduced in the Parliament (Choubey, 2015b, pp. 21–23). At many places, however, tribals have been using both the PESA and FRA to fight against the imposed ‘development’ projects (Choubey, 2015a).