Gujarat- Dalit woman sarpanch who ‘stands against’ predecessors sent to jail #Vaw


Parimal Dabhi : Lakhvad (Mehsana), Thu Apr 18 2013, IE
MehsanaThe main entrance of Lakhvad village, around 3-4 kilometres from Mehsana.

A dalit woman sarpanch from Lakhvad village of Mehsana district, Kamla Makwana, her husband, their son and two others were arrested late Tuesday on the basis of a recent complaint of breach of trust and criminal intimidation lodged by former deputy sarpanch Ratilal Patel. They were later sent to Mehsana district jail after a local magisterial court rejected their bail petitions.She had reportedly filed multiple complaints of harassment against her predecessor from locally dominant Patel community, Prahlad Patel, and his then deputy, Ratilal Patel. Both Ratilal and Prahlad allegedly didn’t want to let Kamla function as the village Sarpanch.

Following the arrest, the jailed woman sarpanch now wants to resign after getting fed up of the harassment she has been subjected to by her predecessors, sources said.

Kamla was elected as the sarpanch of Lakhvad Gram Panchayat in January last year under the Gujarat government’s Samras Yojna where instead of electing, villagers are selecting the sarpanch and other members of the gram panchayat. However, she allegedly started facing harassment at the behest of Prahald who was the Sarpanch of the village before her.

She made a number of complaints to different authorities like the district development officer, state Human Rights Commission and local police. The complaints include evidence to prove that Prahlad had been misusing the old letterheads of the gram panchayat and issuing various certificates to the villagers while forging Kamla’s signature. She also lodged two complaints against Prahald and Ratilal under the provisions of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.

However, on April 3, Ratilal Patel, who was deputy sarpanch in the village when Prahald was sarpanch, lodged a criminal complaint against Kamla, her husband Kachra Makwana, son Bharat, and two friends — Bharat Patel and Ramila Patel — with Mehsana taluka police station.

According to the complaint, the Makwanas wanted to get loan of Rs 1.80 lakh from the Scheduled Caste Development Corporation to buy a rickshaw in 2004. And Ratilal — under the recommendation of Bharat Patel and Ramila Patel — had become a guarantor for the same on the basis of one of his land pieces. He alleges that the Makwanas assured him of paying regular instalments for the loan.

However, the Makwanas alleges Ratilal did not pay the instalments for the loan and in 2013 when he asked them to pay it so that the government dues on his land could be cleared, they allegedly threatened him and did not pay the amount. Ratilal has accused the Makwanas and Patels of breach of trust, criminal intimidation and abetment.

On Tuesday, Sub-Inspector of Mehsana taluka police station, D K Rathod, reportedly asked the five to get their statements recorded in the case and when they went to police, the five were arrested and produced before a magisterial court. Immediately, their advocate, Jayanti Parmar, moved bail petitions. However, Parmar said the petitions were rejected, following which they were sent to Mehsana district jail.

Kamla’s younger son, Manoj (22), and his wife Sonal, are now the only members of the family out. “This entire case has been fabricated to harass my mother as she did not agree to be a puppet in the hands of Prahlad Patel after being elected Sarpanch. The entire state machinery of Mehsana is working against us at the behest of Prahlad who openly boasts closeness to some top politicians in the Gujarat government,” Manoj said.

However, Ratilal denied the allegations and said, “I had mortgaged my land to the Scheduled Caste Development Corporation for this family to buy a rickshaw. They did not pay the instalments of the loan for nine years. And if they do not pay the instalment, it is possible that my land is auctioned by the state government. I asked them repeatedly to pay the amount and when they did not do so, I had to file the complaint.”

The investigation officer in the case, S I Rathod, said the police have acted completely on the merits of the case. Manoj met his mother in jail Wednesday. “She is very disturbed and has decided to resign from the post. She told me that it is better to live a peaceful life than to indulge in public life,” he said.

 

In Narendra Modi’s Gujarat- Cries of caste discrimination reverberate


 Narandra Modi's Vibrant Gujarat Story: Propaganda vs Fact #mustread

TNN | Apr 14, 2013, 02.24 AM IST

AHMEDABAD: “We are not allowed to get our hair cut at the barber’s shop in our village even if we are ready to pay a few rupees more. If the barber agrees to cut our hair, he is beaten black and blue by the upper caste people of the village,” said BhupatZala, a resident of Badarkha village near Dholka.

The same problem is faced by dalits in Bhat, Kashindera, Ranoda and several other villages of Dholka district. “The dalits are not allowed to have tea in hotels in the vicinity of these villages and they are also not allowed to enter the temples built for the ‘upper classes’ of the society.”

Tales of discrimination tore through the tag of ‘developed’ state as hundreds of members of the dalit community poured on to the streets of the city to raise voice against injustice meted out to them on the eve of 123rd birth anniversary of Dr B R Ambedkar. Thousands of people from 16 states of India and 18 districts of Gujarat participated in the dalit rally organized by Navsarjan and Jan Vikas.

The rally started from Aanand Ashram in Sarkhej and ended at Sanskar Kendra, Paldi. Prakash Ambedkar, the grandson of Dr B R Ambedkar, Mallika Sarabhai, the former Chairman of UGC Sukhdeo Thorat, member of planning commission Dr Sayeeda Hameed, founder of Hamal Panchayat Baba Adhav remained present in the rally to support dalit rights. The cultural groups from Tamil Nadu and Andhra Pradesh performed special art of drum beating in the rally.

People from different states who arrived in the city to stand for dalit rights unanimously said that untouchability still prevails countrywide. Suresh Kumar, a member of Dalit Foundation, Himachal Pradesh, said, “The dalits of Santoshgarh village of Himachal Pradesh are till date not allowed passing from the streets where Brahmins and Rajputs reside. If a dalit touches the house of an upper class man, he is beaten cruelly. A small boy who mistakenly entered a temple built for upper class communities was beaten to death.” The dalits who came to participate in the rally from Himachal Pradesh also agreed that the police and legal system do not support or protect them.

In Rajasthan, Mamgilal Meghwal’s 30 bigha land was seized by the upper class people. His land was allotted to him on three different names Magga, Mangiya and Mamgilal which is a common tradition in dalits. Taking benefit from that, his land was seized. “Even after submitting identity proofs provided by Gram Panchayat and Jilla Panchayat, I was denied. I registered a complaint against them and also filed a court case, but no actions were taken by the authorities,” said Mamgilal.

Anju Saha, a student from Manjali village of Uttarakhand, said, “Dalit ladies are not allowed to cook food in our village school. If they touch it, the Brahmin and Rajput kids won’t eat it. These upper class students don’t sit with the dalit students. We are even asked to leave seats empty in the busses.”

Ray of hope

This proves that the problem of untouchability is ubiquitous in India. However, Satara district of Maharashtra and Karmabhoomi of Dr B R Ambedkar has a different story. According to Chandrakant More and Ujjavala Bhandare from Satara, even though the district is dominated by upper class people, no need has emerged to fight for dalit rights in recent years.

 

Press Release – PESA and bauxite mining in Andhra Pradesh- HRF


April 4, 2013

The Human Rights Forum (HRF) takes strong objection to the reported view of the AP Mineral Development Corporation (APMDC) that it does not have to hold gram sabhas in the area where it is leasing in land for bauxite mining because the Panchayats (Extension to Scheduled Areas Act) 1996 (PESA) is not applicable to major minerals.

If the APMDC thinks it is being very clever, we invite its officers to read PESA once again. Section 4 (k) and 4 (l) which refer to prior recommendation of the gram sabha or the panchayats for grant of prospecting or mining lease is confined to minor minerals, but those are not the only provisions of PESA. Under Section 4 (d), the power to safeguard and preserve the community resources, which is another name for common property resources, should be with the gram sabha.

Though the land being leased to APMDC for mining bauxite in the Visakhapatnam agency is forest land, undertaking mining in that land will affect the water resources of the neighbouring hamlets since the water retained in the bauxite hills is the source of the rivulets and subsoil water that the people depend upon. It is a well-established fact that the hills containing bauxite deposits have a good capacity for retention of water, which will be lost for ever if the hills are opened up for mining.

The land proposed to be mined is also a source of minor forest produce such as thatching and dry twigs. It is a source of grazing for animals. The ownership of such minor forest produce is conferred on the gram sabha by Section 4 (m) (ii) of PESA and tat right cannot be unilaterally taken away.

We demand that the APMDC stop acting over-intelligent and follows scrupulously the provisions of Section 4 (d), 4 (m) (ii) and the general principle in section 4 (m) that the gram panchayat in the Scheduled Areas is endowed with the power of self-government. PESA is a progressive legislation that protects the adivasi communities’ rights to land and resources in tribal areas. These rights simply cannot be overridden unlawfully.

VS Krishna
(HRF State general secretary)

 

Gujarat- Illegal mining in Tapi district causing havoc to environment


 Adivasi Ekta Parishad

 http://www.counterview.net

Ashok Shrimali

By Our Representative

The Adivasi Ekta Parishad has strongly protested against the alleged large-scale illegal mining of soil, rampant in Valod taluka of tribal-dominated Tapi district in South Gujarat. In a representation to the Gujarat government, a copy of which was submitted to the local executive magistrate, Valod, the parishad, which is an all-India body functioning in several states, including Gujarat, Rajasthan, Madhya Pradesh, Maharashtra, Andhra Pradesh and Chhattisgarh, has said that truckloads of soil is being transported from Mordevi village to elsewhere “without any information being provided about the area for which the permission has been granted, and the amount for which mining has been allowed.” The statement wonders if there is any record with the state government about all this.

The statement, which has been signed by Lalsinh Gamit, president of the Kosambia gram samiti, on behalf of the parishad, wanted the Gujarat government to clarify whether the state geology department has permitted mining of the area, and whether the gram sabha has allowed for the same, and if yes then when was it done and in the presence of which government official. “Truckloads carrying soil from the rural area take the soil indiscriminately, passing through the single track road, despite the fact that the road cannot bear such heavy load. This has led to at least two accidents, out of which one proved to be fatal”, the statement reads, adding, “This apart, the illegal mining activity is leading to the destruction of the environment and the rich agricultural land in the area.”
The statement demands that the Gujarat government immediately take action under the Panchayat (Extension to Scheduled Areas) Act (PESA), 1996, on those who are doing illegal mining. PESA requires the scheduled tribal areas to be covered under tribal self-rule. It envisages giving liberty to tribals to follow their own customs and have control over their own resources through traditional rights. Gujarat is one of the many states where PESA has been put into force. Under it, criminal proceedings can be undertaken against those violating the tribals’ self-rule provisions.

Mining in progress

The statement says, “The government officials know pretty well that anyone who carries out mining in an area of two acres or more would require Gram Sabha approval, otherwise it would be violation of PESA. Permission was granted only to do mining for 2.8 lakh metric tonnes of soil, yet there is no record of how this permission was granted and the area for which it was given. It is the right of the villagers to know this.” It warns of protest against “illegal” mining in the area, adding, “Under the fifth and sixth schedule of the Indian Constitution, it is illegal to mine natural resources of a forest area without necessary permission of the villagers.”
Significantly, representatives from Valod went to the Mines, Mineral and People general assembly session, which was held at Vishakhapatnam in Andhra Pradesh recently, where they raised the issue during the convention. Speaking on their behalf, Ashok Shrimali, a state-based senior activist who is executive member of Mines, Minerals and People, and is associated with two other NGOs, Setu and Samata, said, “Recently one development going on in Valod block villages of Tapi district. Villagers are fighting against Soma construction, which is converting the national highway between Surat and Dhulia into four-lane. The construction company is mining soil from the nearby villages without the approval of the villagers. Due to this, there has been direct adverse impact on existing sugar cane crop. Everyday more than 50 truckloads are transporting four times in a day.”

He informed the assembly that there is continuous protest by villagers of the area. A few days back, about 20 trucks were stopped from taking soil from the area, as they believed this was being done in violation of the tribal people’s fundamental constitutional right over their resources. Local officials and cops had to intervene. “PESA should be immediately activated in the area and mining of the region should be stopped”, he said. The issue was seriously taken up by the assembly, which decided to take it up with the authorities concerned in Delhi.

Sand mining area

Mining in the region is common. Following rampant illegal mining in the bed of Tapi river, the state mining department this February decided to book repeated offenders of illegal sand mining activity under the Prevention of Anti-Social Activities Act. Till now, no such strict action was contemplated, as a result of which illegal sand mining became rampant. In February alone, the government’s geology department caught 23 trucks of illegally-mined sand and fined more than Rs 10 lakh to the sand lease mafia owners.
The biggest problem of the region is considered to be of sand lease contractors. They have a lease for mining specific quantity of sand from specified area of the river bed. But, they under the pretext of lease, mine much bigger area and much higher quantity of sand incurring huge loss to government coffers. The geology department has started registering police complaint in the sand theft cases. However it remains to be seen how much of a deterrent it will serve.

 

#India, #Chhattisgarh- Kanker and its sordid tale of rapes and abuse #Vaw


In Kanker primary school-going girls were repeatedly raped by a teacher and a watchman at a hostel under the administration’s nose

January 9, 2013

The hostel in Kanker, Chhattisgarh. Tehelka photo

While the country was erupting in widespread protests and condemnation over the Delhi gangrape, innocent tribal girls in a primary school of a village in Chhattisgarh were spending their nights in pain and terror. Nobody knew whose turn it was that night. The little girls complained about the oppression meted out to them by their teacher and watchman to the superintendent of the hostel, along with informing the Gram Panchayat and the Block Education Officer (BEO), but their pleas fell on deaf ears. An inquiry was made only when the complaint reached the collector. According to the medical reports, 12 girls have been found to be raped. There remain chances of the numbers of those exploited going up, as the crime has been happening for years.

Two hundred kilometers away from the capital, Raipur, Jhaliyamari is a small village in Narharpur block of Kanker district. Here, next to the school is a house that serves as a hostel for tribal girls studying in primary schools. There are 43 girls residing here aged between 6 and 13. Both the school and the hostel is run by the tribal department and all the girls are from the five adjoining villages of Jhaliyamari. An investigation by Tehelka found that gangrapes of innocent girls have been taking place in this hostel for years. Despite the administration’s knowledge of it, the crimes were kept under wraps, allowing the exploitation of girls to continue.

Alarmail Mangai D, collector of Kanker, acknowledges having received a phone call complaining about the abuse of young girls. Responding to the complaint, Alarmail constituted a team of woman officials to inquire into the reports. The girls confided in the officials when they visited. Following this, teacher Mannulal Goti and watchman Dinanath Nagesh were arrested on 5 January. The next day all 11 girls were taken to Kanker for their medical check up. D.I.G Ramnivas says that a special team has been constituted to inquire into the matter. Police officer Neelam Kujur, from the women’s cell of Narharpur police station, tells Tehelka that in their statement, the girls have said that they have been raped.

There are three rooms in the hostel but none have a door latch. Collector Mangai says that it was mandatory for the superintendent of the hostel to stay back at night, but Babita Markan, the hostel superintendent, used to go home. The watchman, Nagesh, was posted at the hostel and the teacher, Goti, used to come over to sleep. First they would drink heavily on the veranda and then enter any room. After turning off the lights, they would undress the girls, often indulging in gangrape. Some girls had to undergo this trauma repeatedly. The girls also said that when they had initially come to the hostel their seniors warned them about the accused. The police are trying to ascertain the duration for which this has been happening. Reports say that the other girls of the hostel will also be examined. P.R.K Singh, station in-charge, Narharpur Police Station, says that the girls are so young that they don’t even know the meaning of sex.

It is alleged that the Panchayat and BEO did not take any action despite the complaints. Upsarpanch of the village tells Tehelka that such complaints about the hostel have come in the past as well. The girls had initially complained to the wife of the watchman. Then the hostel superintendent was informed. Even after that no action was taken against the accused. Last year, the Panchayat was informed about the misdeeds of Goti and Nagesh. In August, the Gram Panchayat was called, both the accused were fined Rs 5000 and the whole matter was brushed under the carpet. While Nagesh paid the fine and continued to sleep in the hostel, Goti, who didn’t pay, stopped visiting the hostel. Eventually, the case reached the BEO, S S Navarji, who even after conducting a probe, and finding the allegations to be true, took no action against the perpetrators. Nirmal Kange, a local, informs that after the inquiry, the BEO gave the accused the panchnama, but did not take any action. Tortured and threatened by their teacher, the abused girls kept mum and didn’t tell their parents about it.

A room in the hostel, Kanker. Tehelka photo.

When Tehelka looked for the families of victims in nearby villages, one 7-year-old victim’s mother said that her daughter, who was studying in Class II, was too young to know anything about sex or abuse. Her helpless father said that he had sent his daughter to the hostel when guruji (teacher) came to get her admitted. He had no idea about what had happened to his daughter. He now says that even if they die of hunger, he would not send his daughter back to the hostel. In the same village, another victim’s mother told this reporter that on Saturday some people had come and taken her husband away. She had heard that something had happened to her daughter but had no idea what it was.

In a press conference held in Kanker district headquarters on Tuesday 8 January, former Chhattisgarh chief minister Ajit Jogi said that one of the inmates, who passed away in August 2012, was also a victim of sexual abuse. The parents of the 10-year-old girl, who were also present at the press conference, said that their daughter had refused to go back to the hostel after she visited her home in Devgaon. When she was admitted to a hospital following an illness, she was found to have been pregnant. The girl passed away on 8 August in the hospital. The claim, however, was refuted in a statement issued by the government on Wednesday. “During the investigation, it has been found that the 10-year-old girl was not sexually assaulted and died of cardio-respiratory arrest and multi-organ failure,” the statement said.

The incident has acquired a political tone now. Demonstrations are taking place in several places against this barbaric crime. On Wednesday 9 January, a one-day state-wide bandh called by the Congress to protest against the Kanker rapes was a complete success across Chhattisgarh. In Raipur, educational institutions, business establishments and commercial centres downed shutters and petrol pumps remained closed for the day, while government offices, medical shops and emergency services remained unaffected. Vehicular movement virtually came to a halt in many parts of the city as passenger buses and auto-rickshaws remained off the roads. In the meantime, state home minister Nanki Ran Kanwar has kicked up a controversy after he told a news channel that the stars of the women in this country are not favourable and therein lies the explanation to the widespread abuse faced by them.

Following reports, the accused have now been sent to jail. The employment of the hostel’s superintendent, watchman and the cook have all been terminated by the Collector. Assistant Commissioner Tribal Department S K Vahne and BEO Navarji have been suspended. The hostel in Jhliyamari has been closed down and the girls have been shifted to undisclosed hostels. Orders have been given to inquire into all the hostels of the district.

 

Recommendations on Panchayat (Extension to the Scheduled Areas) Act, 1996


The Recommendations of National Advisory Council on PESA and Scheduled Area passed on 21 December is provided below and also attached. Also accessible at http://nac.nic.in/pdf/pesa_31dec.pdf
National Advisory Council (NAC)
Recommendations on Panchayat (Extension to the Scheduled Areas) Act, 1996
Summary
The NAC recommendations consists of (1) Amendments to the Act (2) directions by the Union Government to the States and (3) suggestions to the Central Government. These are briefly as follows;
(1) Amendments to PESA 1996:
The proposal seeks to amend and elaborate on the law with a view to strengthen it and rectify some of the weaknesses in the existing law. The proposed amendments in brief, pertain to the following:
i. Providing list of definitions of key terms used in the Act for greater clarity;
ii. constitution of gramsabha at the hamlet level and power to constitute committees;
iii. mandating ‘prior informed consent’ as pre requisite for land acquisition and licensing for minor minerals;
iv. reinforcing the need to align Central and State laws in conformity with PESA;
v. enabling the State government to make rules;
vi. enabling the Centre to issue directions and
vii. provision for grievance redress under the Act.
(2) Directions:
Certain directions on major issues have been proposed to be issued by the Union Government under Proviso 3 of the Fifth Schedule as an interim measure. These need not await amendment to the Act and can be issued immediately for better implementation of the existing law. These pertain to the following areas:-
i. Aligning various laws in conformity with PESA to ensure autonomy of Gram Sabha and Panchayats in Scheduled Areas.
ii. Notification of list of hamlet/habitations to conduct gramsabha under the law
iii. Elaboration on powers of gramsabha to identify beneficiaries, approve plans, conduct social audit and increased accountability of government functionaries.
iv. Prevention of Land Alienation and Restoration of Illegally Alienated Lands.
v. Regulation of intoxicants for storage, manufacture and consumption.
vi. Control over Usurious Money Lending in the Scheduled Areas.
(3) Suggestions to GOI regarding:
i. Inclusion of tribal habitations hitherto not included under the Fifth Schedule.
ii. Central Govt. to expedite law on Provisions of the Municipalities (Extension to Scheduled Areas) Bill.
iii. Constitution of Special Task Force to review functioning of VI Schedule Areas and to suggest appropriate administrative arrangements for V schedule areas.

 1. Proposed amendments to PESA 1996 have been indicated in italics .

THE PROVISIONS OF THE PANCHAYATS (EXTENSION TO THE SCHEDULED AREAS) ACT, 1996 No.40 OF 1996

(24th December, 1996)

An Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas.

Be it enacted by Parliament in the Forty-seventh Year of the Republic of India as follows:-

Short title

1. This Act may be called the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996

Definition

2. In this Act, unless the context otherwise requires,

a) “Access Rights” means legal, traditional or admitted entitlements of an individual or community to sustainably use community resources and where relevant, enter into a territory defining or containing the resource.

b) “Alienation of land” means dispossession of land of an individual or community following transfer or change of ownership title or possession, or denial of access to land of any nature located within the jurisdiction of the Gram Sabha, whether to a scheduled tribe or to others.

c) “Community resources” include natural resources such as land, surface and ground water, forests, minerals, habitat and others, located within the territorial jurisdiction or the territorial domain of the community as determined by the Gram Sabha, including intellectual, socio-cultural and religious heritage of communities.

d) “Competent Authority” means a person or an institution as provided under the Rules for the purposes of this Act.

e) “Complaint” refers to any representation, whether oral or in writing, made to a competent authority regarding violation of provisions of the Act by a member/s of the Gram Sabha or the Gram Sabha itself.

f) “Cultural identity” is the recognition of an individual, group or community by virtue of belonging to or being part of a community based on a shared ancestry, history, culture, traditions, mores, beliefs, practices and institutions.

g) “Customary law” means traditional common law or rule or practice that sets an intrinsic standard of conduct of members of a community 

h) “Customary mode of dispute resolution” is the system of adjudication adopted by a community which is part of their culture, tradition and custom but not violating the principles of natural justice.

i) “Gram Sabha”, for the purpose of this Act, shall ordinarily comprise of the assembly of the residents of one or more hamlet/habitation, comprising a community and managing its affairs in accordance with traditions and customs within its respective territorial boundaries. This unit will ordinarily be below the revenue village and is not the same as Gram Sabha at the Panchayat level.

j) “Minor forest produce” is as defined under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006.

k) “Minor Minerals” is as defined under Mines and Minerals (Development and Regulation) Act 1957 where the term ‘building stones’ includes stones such as those used for construction of buildings, boundary walls, pavements, platforms, and wells.

l) “Minor water bodies” means any flowing, impounded or sub surface water and includes all water bodies as defined by the concerned State law.

m) “Money lending” means extending loans in any form for interest, with or without collateral, by individuals and institutions and includes informal advances.

n) “Panchayat at appropriate level” means the Gram Panchayat in whose area a particular resource is situated or the next higher tier namely the Intermediate Panchayat/Zilla Parishad if the resource in question is situated in more than one Panchayat or Intermediate Panchayat as the case may be.

o) “Prior Informed consent” means freely given written assent or agreement to permit an occurrence or to permit an act or to allow an occurrence only after a complete disclosure of facts needed to make the reasoned decision free from any coercion or inducement.

p) “Scheduled Area” means the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution.

q) “Social sector” means all development and welfare activities and includes inter alia, health, education, water supply, transport, agriculture and allied activities, infrastructure, irrigation, management of natural resources such as water, forest, land, energy, welfare schemes and services, etc. provided by government and non-government entities.

r) “Traditional management practices” means normative systems of resource care and use adopted by a community to ensure beneficial and sustainable use of a community resource by and for all its members. 

s) “Zone of influence” means the geographical area whose social, economic, and/or environmental conditions are significantly affected by changes induced by the proposed project.

3. The provision of Part IX of the Constitution relating to Panchayats are hereby extended to the Scheduled Areas subject to such exceptions and modifications as are provided in section 4.

Exceptions and modifications to part IX of The Constitution

4. Notwithstanding anything contained under Part IX of the Constitution, the Legislature of the State shall enact enabling provisions and rules for effective exercise of the rights, duties and powers of the Gram Sabha as follows, and shall not make any law which is inconsistent with these rights, duties and powers:

(a) a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources;

(b) the Gram Sabha shall ordinarily comprise of the assembly of the residents of one or more hamlets/habitations, managing its affairs in accordance with traditions and customs; such hamlets/habitations for this purpose will be notified in the manner as may be prescribed. The members of the Gram Sabha at the hamlet/habitation level will consist of persons whose names are included in the electoral rolls for the Gram Panchayat.

(c) the geographical access or jurisdiction of a Gram Sabha of the hamlet/habitation shall be deemed to extend to the traditional community resources like forest lands, cultivable fallows, grazing land, waste lands and water bodies that may have been so accepted by communities concerned according to their tradition which shall be demarcated by the Gram Sabha. This shall be recorded as a territorial rights or access rights, as the case may be, by the district revenue authorities and notified by the District Collector as the geographical jurisdiction and/ or access rights of the concerned village.

Provided that disputes concerning boundaries or access rights between neighbouring hamlets/habitations shall be referred to the Panchayat at the appropriate level/ competent authority as may be prescribed under the Rules by the concerned State governments for early settlement, after which the concerned records shall be corrected accordingly.

(d) (i) Gram Sabha at hamlet/habitation level may constitute Standing/ ad-hoc Committees from amongst their members for assisting the Gram Sabha in discharging different responsibilities.

(ii) The members of the Committees shall be chosen from among members of the Gram Sabha preferably by consensus in an open meeting of the Gram Sabha following such procedure as may be prescribed. 

(iii) Any village committee constituted under any statute, executive instruction of government, department or authority shall function under the control and direction of the Gram Sabhas in regard to the functions and areas under their jurisdiction.

(e) every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution;

Provided that any person aggrieved by any decision of the Gram Sabha, or inaction on its part, or irregularity in the conduct of meetings or such like, can bring the matter before the Gram Sabha for review within such time limit as may be prescribed. An appeal shall lie with competent authority in such manner as may be prescribed under rules by the concerned State government. The decision of the appellate Authority shall then be final and binding on the parties and communicated in writing with reasons thereof.

(f) every Gram Sabha is empowered to:

(i) prepare a perspective plan of 5 years based on development needs and determine priorities of works/programmes to be undertaken. This will form the basis for annual plans under various government schemes and programs.

(ii) direct the Government agencies to submit the prioritized list of works/projects to be undertaken to the Gram Panchayat or Panchayats at appropriate level as well as list of beneficiaries as selected by Gram Sabha under various programmes and schemes within the hamlet/habitation to the Gram Sabha for prior approval of the Gram Sabha.

(iii) consider and approve plans, programs and projects for socio-economic development of all Government and Non-Government Agencies before they are taken up for implementation at the hamlet/ habitation level.

(iv) conduct regular social audit of works and programs taken up in the hamlet/habitation by any Panchayat, State or any other agency.

(g) every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds by that Panchayat for the plans, programmes and projects referred to in clause(e);

(h) the reservation of seats in the Scheduled Areas at every Panchayat shall be in proportion to the population of the communities in that Panchayat for whom reservation is sought to be given under Part IX of the Constitution;

Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats;

Provided further that all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes;

(i) the State Government may nominate persons belonging to such Scheduled Tribes as have no representation in the Panchayat at the intermediate level or the Panchayat at the district level:

Provided that such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat;

(j) (i) Prior informed consent of the Gram Sabhas and the concerned Panchayats at the appropriate level, affected by the proposed project or located in the zone of influence of any land acquisition project, shall be mandatory for the acquisition of any land in the Scheduled Areas for development projects falling within the jurisdiction of the concerned Gram Sabha, irrespective of the classification of land.

(ii) Prior informed consent of the Gram Sabhas and the concerned Panchayats at the appropriate level shall be mandatory regarding the rehabilitation and sustainable livelihood plan for persons affected by projects in the Scheduled Areas.

(iii) The procedure for prior informed consent in (i) and (ii) above and arriving at a decision shall be prescribed by the concerned State government under the Rules.

(iv) All decisions taken by the concerned Gram sabha/s and the concerned Panchayats at the appropriate level, and the decision taken by the Government or the concerned competent authority, with reasons thereof, shall be placed in the public domain by the concerned State Government ;

(v) Full facts about the project for which land is proposed to be acquired, its zone of influence, its economic, social and environmental impact and rehabilitation and sustainable livelihood plans shall be placed before the Gram Sabha while taking the consent of the Gram Sabha and Panchayats at the appropriate level, as the case may be, as provided in the rules.

Provided if at any point of time, it is found that the consent of the Gram Sabha was obtained through fraud, force, concealment, inducement or omission of information, then the Gram Sabhas and Panchayat at the appropriate level have the right to withdraw consent in whole or in parts as the case may be after due inquiry by competent authority in a time bound manner as prescribed under the rules.

(vi) (a) After the consent has been obtained, the acquiring agency shall mandatorily place before the Gram Sabha for its consideration, the progress of the rehabilitation and sustainable livelihood plan after every 3 months from the date of notification for land acquisition. 

(b) Upon the passage of a resolution from majority of the Gram Sabhas and Panchayats at the appropriate level stating that measures for rehabilitation and sustainable livelihood have not been observed as scheduled, the implementation of the project shall be halted, till the required rehabilitation and livelihood activities are completed. The Gram Sabhas shall be entitled to compensation for any damages incurred due to delays in rehabilitation.

(c) No displacement/relocation of the person/s from the project area which is proposed to be acquired shall be undertaken unless all facilities under the rehabilitation package are certified to be complete and functional at the site of resettlement by the Gram Sabha.

(vii) If the Gram Sabha concludes that the land has been used/transferred for purposes other than for which informed consent was sought/ acquired, and such a claim has been verified by a due process, then the Gram Sabha may inform the State Government its decision in writing to withdraw its consent. Where such withdrawal occurs, the residents of the Gram Sabha shall be entitled to civil damages for fraud and to institute criminal proceedings on the same basis.

(viii) The acquired land shall revert back to the Gram sabha in the event that the purpose for which land was acquired is changed or the project is not taken up within five years from the date on which consent is granted.

(k) The concerned Gram Sabha/s, or the appropriate Panchayats if the spread of the water body falls beyond more than one village, as the case may be, are empowered to plan and manage the minor water bodies in their areas.

(l) the prior informed consent of the Gram Sabha, and, if necessary, the Panchayats at the appropriate level depending on the area under consideration shall be made mandatory for any grant of prospecting license or concession for exploitation of minor minerals in any manner;

Provided if at any point of time, it is found that information provided is false or concealed, or is inaccurate, then the Gram Sabhas and Panchayat are at liberty to withdraw consent in whole or in part.

(m) while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with-

(i) the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant;

(ii) the ownership of minor forest produce;

(iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe;

(iv) the power to manage village markets by whatever name called;

(v) the power to exercise control over money lending and curbing usury to protect the interests of members of Gram Sabhas as provided in the rules;

(vi) the power to exercise control over institutions and functionaries in all social sectors;

(vii) the power to control over local plans and resources for such plans including tribal sub-plans;

(n) the State Legislations that may endow Panchayats with powers and authority as may be necessary to enable them to function as institutions of self-government shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha;

(o) the State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.

Continuance of existing laws on panchayats:

5. Notwithstanding anything in Part IX of the Constitution with exceptions and modifications made by this Act, any provision of any law relating to Panchayats in force in the Scheduled Areas, immediately before the date on which this amendment Act receives the assent of the President, along with extant rules and procedures which are inconsistent with this amended Act, shall be null and void unless brought in conformity before the expiration of one year from the date on which this amendment Act receives assent of the President;

Provided that other extant State subject Acts along with rules and procedures thereunder dealing with subjects covered under this amended Act, shall be null and void to the extent that they contravene this Act, unless brought in conformity within one year of this amendment taking effect.

Provided that Central Acts along with rules and procedures thereunder dealing with such subjects covered under this amended Act or parts thereof not in conformity with provisions of this amended Act, shall be brought in conformity within one year of this amendment taking effect.

6. The Central Government may, from time to time, issue general or special directions to the State Governments in writing for the effective implementation of the various provisions of this Act and the same shall be binding on the State Governments. 

7. The State shall have powers to notify rules for implementation of this Act. These shall be in conformity with Central directions issued, if any, under this Act.

8. Any member of Gram Sabha can complain on a decision or procedure adopted or action taken in violation of the provisions of this Act by the Gram Sabha, a Panchayat, or a government functionary or agency, or non governmental entities or an individual. The manner of inquiry into the complaint and grievance redressal procedure shall be provided under the rules prescribed by the concerned State. 

 

2. Directions to be Issued under Proviso 3 of the Fifth Schedule

I. Aligning State laws with PESA to ensuring autonomy of Gram Sabha in Scheduled Areas

Sec.4 (n) of PESA Act of 1996 requires that the Panchayats function as institutions of self-governance, for which it is necessary to ensure that the Panchayats at the higher level do not assume the powers and authority of any Panchayats at the lower level or the Gram Sabha. The intent of Section 4(n) is to ensure that the Gram Sabha and the Panchayats at the lower level are rendered functional by enabling provisions, appropriate rules, directions and guidelines that will facilitate efficacious exercise of the multiple powers conferred by PESA on the Gram Sabha.

The following are directions to be issued under Proviso 3 of the Fifth Schedule

1. All provisions in the State legislations, especially those related to Panchayats, that are inconsistent with the provisions of Sec.4 (n) are null and void as the provisions of the Central legislation shall prevail. Therefore, inconsistent provisions in the State laws are to be amended suitably.

2. All subject related laws covered under PESA, and their rules and procedures, of the State should be brought in conformity with the PESA Act, 1996, within a period of one year from the date of issue of directions.

II. Identification and declaration of ‘Village’ and its Geographical Jurisdiction

Section 4 (b) of PESA defines a ‘village’ as a habitation or a group of habitations, or a hamlet or a group of hamlets, comprising a community and managing its affairs in accordance with its traditions and customs and empowers the gram sabha as the assembly of the adults of the village. However, in a clear violation of PESA, the general Panchayat Raj structure has been adopted even in Schedule V areas, whereby the Gram Sabha of Gram Panchayat, usually spread over a number of habitations is being misconstrued to be Gramsabha under PESA. As the successful operationalisation of PESA hinges on adopting the operational definition of Gram Sabha and village, it is necessary that the identification of the ‘village’ and delineation of its geographical limits in conformity with PESA is done to enable it to function as envisaged under law.

Therefore, the following directions be issued under Proviso 3 of the Fifth Schedule

1) State Governments shall prepare and notify the list of hamlets (settlements) in every Panchayat for notification as “gram sabhas” for the purposes of the Panchayats (Extension to the Scheduled Areas) Act 1996 within one year from the date of issue of this direction. Such Gram Sabha shall ordinarily comprise of the assembly of the residents of one or more hamlets, comprising a community and managing its affairs in accordance with traditions and customs within its territorial boundaries. This unit will ordinarily be below the revenue village and is not the same as gram sabhas at the panchayat level.

2) State governments shall devolve necessary powers and resources (both human and financial) to gram sabhas to enable them to undertake their roles and responsibilities in an effective manner through amendments in law, rules and

procedures in areas covered under PESA in addition to undertaking capacity building and training .

 

III. Powers to identify beneficiaries, approve plans, programmes and projects, control over institutions and functionaries and issue of utilization certificate

Sections 4(e) (i) and (ii), 4(f), and 4(m) (vi) and (vii) of the Panchayats (Extension to the Scheduled Areas) Act 1996 confers the power to approve the plans, programmes and projects for social and economic development to the Gram Sabha, before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level. The Gram Sabha is additionally empowered to identify and select beneficiaries under the poverty alleviation and other programmes. Gram Sabha is also empowered to control local plans and resources for such plans including tribal sub-plans, and exercise control over institutions and functionaries in all social sectors; and issue certification of utilisation of funds to the Panchayat for the plans, programmes and projects. However, notwithstanding the clear provisions of the Act, most of the said powers are not conferred de jure and de facto on the Gram Sabha

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) The Gram Sabha is the Competent Authority for identification of beneficiaries for development programmes and select them accordingly;

(2) The list of works/projects to be undertaken by the government agencies and non-government agencies in the village along with complete details, such as their relevance, full financial details, details of the work/projects including technology to be used, participation of local work force, role of contractors, etc. shall be submitted to the Gram Sabha by the Gram Panchayat or Panchayats at appropriate level; and their approval shall be obtained from the Gram Sabha prior to granting sanction to the plan or project.

(3) The Gram Sabha shall conduct regular social audit of works/projects and programs taken up by any Panchayat, State or any other agency in their area and its findings shall be sent to the Gram Panchayat and to the concerned Government agency for necessary action;

(4) All agencies undertaking any work within the village shall apply for certification to the Gram Sabha together with documentary proof of expenditureand mandatorily obtain certification of utilization of all funds and works undertaken from the Gram SabhaThe Gram Sabha will issue such certificate after inspection and verification of the work ;

(5) Any objection pertaining to the quality of the work or expenditure, etc. may be placed before the Gram Sabha. The Gram Sabha may examine the issue and give proper instruction for improvement and its decision will be final;

(6) The Gram Panchayat and its committees will work under the general direction of the Gram Sabha and be accountable to the Gram Sabha in respect of services and programmes for that area. Any enquiry into the functioning of the Gram Panchayat or any functionary will be conducted after consulting the concerned Gram Sabha(s). The findings and results of the enquiry shall be presented before the Gram Sabha before being finalized and forwarded for proper action;

(7) The Gram Sabha shall review all social sector schemes, institutions and functionaries functioning in the village whether governmental or non-governmental;

(8) On completion of any programme, the complete details thereof will be produced before the next meeting of Gram Sabha. The Gram Sabha may constitute special Committees, call for their training to fulfill their responsibilities and seek assistance of experts to assist in its reviews;

(9) Instructions of the Gram Sabha, including imposition of penalties, steps to improve the implementation of social sector schemes, performance of functionaries and delivery of services shall be complied with by the concerned functionaries.

IV. Land Alienation and Restoration of Illegally Alienated Lands

Ownership and secure access to land is very important for the wellbeing of the tribal people and land alienation is arguably the most important reason for their disaffection. Studies show that the administration has been ineffective in protecting the corpus of tribal lands and hence section 4(m) (iii) of PESA empowers the community to protect the land resources and habitations of Scheduled Tribes in Scheduled Areas, while Sec.4 (d) additionally recognizes the competence of the Gram Sabha to safeguard community resources and both individual and collective rights to land. The Gram Sabha is empowered to take prompt and appropriate action to protect the corpus of tribal lands, prevent alienation of tribal land and take efficacious steps to restore alienated land of a member of the Scheduled Tribe, acting singly or with the support of the Revenue Authorities.

All land transfers to non tribals have been banned in the Scheduled areas of Andhra Pradesh by Regulation No 1 of 1970 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, which has effectively reduced tribal land alienation. Further, the principle underlying the Samata Judgement affirms that land in the PESA areas serves the interests of the tribals. Protection of the corpus of tribal land, restraint on unlawful alienation or acquisition and efforts to ensure that gains from the land accrue to the tribal people is the clear intention of the Constitution, Laws and Regulations of the States and judicial pronouncements.

It is proposed that following directions be issued under Proviso 3 of the Fifth Schedule for incorporation in the Land Revenue Code of the State and other related land laws to enable gram sabhas to carry out these powers and responsibilities pertaining to prevention of land alienation and powers of restoration of alienated tribal land.

Protection of the Corpus of Tribal Land and Prevention of its Alienation

(1) Any transfer of immovable property situated in the Scheduled Area by a person, whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Co-operative Societies Act of the State which is composed solely of members of the Scheduled Tribe (1);

1 Adopted from Sec.2(1)(a) inserted by Regulation No 1 of 1970 to the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959

(2) The following shall be included in the provisions in the Land Revenue Code of the States and laws related to alienation and restoration of tribal land requiring

(a) the Revenue Department to make an inventory of all lands in the possession of the tribals and ensure expeditious securing of appropriate titles under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 or Land Revenue Codes or relevant land laws, as the case may be;

(b) the Revenue Department to ban all sale, transfer or lease, in the Fifth Schedule areas without the express prior informed consent of the Gram Sabha;

(c) mandatory intimation from the Revenue Authorities and individual or non governmental entities to the Gram Sabha in writing through the Gram Panchayat of any proposed sale or transfer including lease, mortgage of any land/transaction in the village;

(d) mandatory provision of providing all relevant revenue records sought by the Gram Sabha concerning the proposed sale, transferor lease of the land within 30 days of such request in writing;

(3) Every State having Scheduled Area shall constitute a ‘Land Consolidation Fund’ (LCF). Part of this fund shall be allocated at the district level to a designated authority to be notified by the State Government. The designated authority shall release necessary fund to the Gram Sabha for purchase of any land within its jurisdiction in the manner prescribed below. The LCF shall exclusively be used for enabling the Gram Sabhas in the Scheduled Area for the following purpose:

(a) purchase at market price of any land falling within the jurisdiction of the concerned Gram Sabha owned by any resident whether a Scheduled Tribe or not, and who is desirous of selling his/her land and has made a request in writing to the Gram Sabha;

(b) the land thus purchased shall be in the name of the Gram Sabha of the concerned habitation;

(c) the said land shall be put to use for common purpose by the concerned Gram Sabha;

(d) the Gram Sabha may allocate such land, partly or wholly as the case may be, to any landless Scheduled Tribe of the habitation with enjoyment rights;

(e) the Gram Sabha shall cancel such enjoyment rights if need be and reallocate the same to another landless Scheduled Tribe of the habitation or utilise the same for the common community needs;

(f) The Record of Rights with respect to such land shall be in the name of the Gram Sabha. 

Restoration of Alienated Tribal Land

(1) A clear and explicit provision be made in the Revenue Law and other relevant laws to include such provisions in the Land Revenue Code of the State and laws related to alienation of tribal land that

(a) confer power on the Gram Sabha to act suo motu or on a complaint from a member of the gram sabha to restore the alienated tribal land;

(b) authorize the Gram Sabha to call for all relevant revenue records concerning the alienation of such land to be provided within 30 days of such request;

(c) empower the Gram Sabha to conduct a hearing and order restoration of the land back to the concerned member of the Scheduled Tribe;

(d) The Gram Sabha may direct or seek the assistance of the Police in restoration of the land, if it so desires.

(2) Gram Sabha shall inform the orders of restoration to the Sub-Divisional Officer who shall ensure restoration within a period of three months, intimate the same to the Gram Sabha and direct appropriate entries in the Record of Rights.

(3) The Gram Sabha may constitute a Standing Committee from among its members and call upon the Revenue Authorities to train such members in all matters related to the maintenance of records and the exercise of the powers mentioned above.

 

V. Regulation of intoxicants

Sec.4 (m) (i) confers the Gram Sabha with ‘the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant’. Intoxicants, particularly liquor, have been an instrument for usurpation of resources, particularly land, in the tribal habitations with devastating effect on the lives of the Adivasis, particularly women and children. Hence empowering the Gram Sabha with the power to regulate intoxicants is critical to ensuring that the community has direct control and responsibility over this matter.

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) The Gram Sabha shall have the powers to grant or deny permission for brewing indigenous/ traditional inebriants for sale, and establishment of a factory to manufacture intoxicants, and will have powers to regulate collection, storage, sale and use of intoxicants within its territory; 

(2) The Gram Sabha shall have powers to regulate existing shops or outlets vending intoxicants in the village and direct the competent authority to close any shop or outlet operating in violation of any law ;

(3) No permit to start a factory may be issued by Government without the consent of all Gram Sabhas in the area; and

(4) Agreement of fifty percent of women present in the Gram Sabha meeting is necessary in all decisions concerning manufacture, sale and consumption of intoxicants.

VI. Control over Money Lending in the Scheduled Areas

Usurious money lending has been the single most important cause of impoverishment and exploitation of the tribal people after these areas were opened up by the British.Usurious money lending has been major cause of dispossession of land and resources of the tribal people, leading to widespread distress and disaffection. It is in this light that PESA seeks to empower the Gram Sabha, to regulate money lending and usury.

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) To include such provisions in concerned State laws, rules or procedures to

(a) Confer power on the Gram Sabha to act suo motu or on a complaint from a member of the gram sabha concerning usurious money lending by any individual or institutions and to direct the competent authorities to cancel the licence of the offending money lender/ institutions and take necessary civil and criminal action as the case may be ; and

(b) Conduct a hearing and order restoration of the monies or interest or mortgaged/ unlawful alienation /conditional sale of property back to the concerned member of the aggrieved member of the Gram Sabha;

(2) Regulate Money Lending by declaring that:

(a) levying of ‘compound’ interest by any money lender, whether individual or institutions on loans given to members of Scheduled Tribes is illegal;

(b) no moveable or immovable property of a Scheduled Tribe shall be alienated in lieu of recovery of loan or interest.

(c) All licences for money lending by individuals to be subject to issue of no objection certificate by the concerned Gram Sabhas in its jurisdiction.

3. OTHER RECOMMENDATIONS TO CENTRAL GOVERNMENT

I. Inclusion of tribal habitations hitherto not included under the Fifth Schedule

Fifty to seventy percent of the STs live outside the Scheduled Areas and hence are denied rights provided in Article 244. The Bhuria Committee rightly observed that the present-day administrative boundaries of the Scheduled Areas were determined during colonial times based on colonial compulsions. The earlier boundaries were modified without paying attention to the fragmentation of contiguous communities living in contiguous areas with the result that tribal communities are continuously being reduced to a minority population, be it the State, district or block and thereby making them marginal in every way.

Various committees had recommended that habitations that have been left out be included and the anomaly rectified. Further, recommendations to make the Tribal Sub-Plan areas coterminous with Vth Schedule Areas has not been implemented, entirely due to political and administrative apathy and neglect, thereby excluding large numbers of tribal habitations. This situation prevails even after the Fifth Schedule to the Constitution (Amendment) Act, 1976 (101 of 1976), which required states to include hitherto tribal habitations. But no tribal habitations in the States of Kerala, Tamilnadu, Karnataka, West Bengal, Jammu & Kashmir and Uttar Pradesh have been included under the Vth Schedule as Scheduled Area.

The provisions of the Fifth Schedule under Article 244(1)2 are applicable not only to the administration and control of Scheduled Areas,but also to the Scheduled Tribes. PESA, as the extension of the 73rd Amendment to the Constitution to the Scheduled Areas cannot be applied to close to 70% of the tribal regions in the absence of their inclusion. Hence it is appropriate to call upon the State governments to make fresh proposals to bring tribal areas under the Vth Schedule.

2 Article 244. Administration of Scheduled Areas and Tribal Areas

(1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram

In order to effectively carry out the inclusion of tribal areas under the Vth Schedule to the Constitution, it is recommended that:

States to list out all villages whose Scheduled Tribe population is over 50 percent as per 2011 census and prepare proposal for their inclusion in Scheduled areas to the President. A Special Task Force may be constituted by the Government of India to facilitate and to expedite process of notification by the President of all proposals received from states for inclusion in Scheduled Areas.

II. Upgradation of Panchayats to Municipalities in Scheduled Areas

Numerous Panchayat areas are being upgraded/ converted as municipal/urban areas in the Scheduled Area and it is being argued that PESA is no longer applicable in these areas. This has happened in Chhattisgarh, Madhya Pradesh and Maharashtra, and has resulted in cases being filed in courts. The Chhattisgarh High Court declined to stay the elections to the newly formed urban Panchayat. The Jabalpur High Court stayed elections to 52 District Panchayats and municipalities in 26 districts having Scheduled Areas. In September 2009, the court held the Panchayati Raj Act did not apply to Scheduled Areas and said that the Parliament should enact a suitable law extending 74th Amendment to urban areas in Scheduled Areas. There is also a case pending in Maharashtra. More PESA areas can be expected to be upgraded, taking those out of the purview of PESA and these will exist in a constitutional vacuum and unlawfully brought under the purview of the general municipal law.

The Second Bhuria Committee Report concerning the Extension of the Provisions of the 74th Amendment to Urban Local Bodies in the Scheduled Areas was tabled in Parliament on 19 July, 1995 making a number of observations and recommendations. The Provisions of the Municipalities (Extension to Scheduled Areas) Bill 2001 based on the aforesaid Report as well as the comments from the central ministries and the concerned State governments having Scheduled Areas, was introduced in the Rajya Sabha on 30th July 2001 and was referred to the Standing Committee on Urban and Rural Development on 6 August 2001. The Standing Committee submitted its report and recommendations in November 2003 as its Fifteenth Report. However the Union Government is yet to introduce a suitable law for the administration of Municipal Areas in Scheduled Areas. The result is that the Panchayat areas within the Scheduled Areas are being upgraded into Municipal Areas and taken out of the purview of PESA provisions without the mandatory alternative protective provision extending the 74th Amendment to the Municipal Areas in place and thus creating a legal infirmity. This needs to be rectified.

It is recommended that:

The Union Government takes steps to introduce the revised Provisions of the Municipalities (Extension to Scheduled Areas) Bill in the Parliament at the earliest in such a manner that the interests of the Scheduled Tribes are not adversely affected.

III. Structures above the Gram Sabha at district level in Scheduled Area

Sec.4 (o) of PESA requires that the State Legislature provide the pattern of the Sixth Schedule to the Constitution while designing administrative arrangements in District Panchayats in the Fifth Schedule Areas. At present this has not been adhered to and on the contrary the efforts are to assimilate, integrate or subsume tribal habitations/villages and their Gram Sabhas in the Scheduled Areas into the prevailing Panchayat Raj system operating in the area outside the Scheduled Area where the Panchayat structure dominates rather than the Gram Sabha as envisaged in PESA.

It is recommended that:

The Ministry of Tribal Affairs along with the Ministry of Panchayat Raj jointly constitute a Special Task Force of persons with the expertise on tribal matters to study the functioning of the Fifth and Sixth Schedules and laws related to the tribal people and recommend appropriate administrative arrangement for Vth Schedule Areas within one year.

 

#India- BSF devastated livelihood of a petty trader – #impunity


11th December 2012

 

To

The Chairman

National Human Rights Commission

Faridkot House

Copernicus Marg

New Delhi-110001

 

Respected Sir,

 

We lodge this present complaint in the matter of the victim Mr. Abed Ali Gazi from district-North 24 Parganas, West Bengal, who is a businessman of selling eggs in different markets under Bithari-Hakimpur Gram Panchayat, a area near Indo-Bangladesh border. But recently all his business papers were forcibly taken from him by the perpetrator BSF man when he was returning home on the date of the incident. He made several attempt to get back his papers but failed. He lodged complaint before the local police station with an affirmation from the Head of the Gram Panchayat regarding the truth of the incident, but police did not take any step till date. He also sent written complaint to the IG, BSF, Kolkata but again there is no action as well as no response till date. Till date the victim did not get his documents relating to his business and at present he is jobless. He has to look after his family members but he is under insecurity considering the fact that he is deprived of his livelihood forcibly by the torturous and whimsical acts of the perpetrators. Our attached fact finding report gives details of the incident.

 

Hence we seek your urgent intervention in this matter in the following manner:-

  • ·         All the concerned authorities including Border Security Force must be directed to take immediate steps so that the victim can get back his papers relating to his busniess and restore his livelihood.
  • ·         The whole matter must be enquired into by one neutral enquiring authority.
  • ·         The perpetrator must be booked under law and punished accordingly for committing attrocity and torturous acts upon the victim.
  • ·         The victim must be provided with adequate compensation computing the days and sufferings on and from 22.9.2012 when his papers relating to his business were forcibly taken by the perpetrator.  

Thanking you

Yours truly

 

 

 

 

Kirity Roy

Secretary, MASUM

&

National Convener, PACTI  

  

 

 

 

 

Particulars of the victim:- Mr. Abed Ali Gazi, son of Safed Ali Gazi, aged about-23 years, by faith-Muslim, by occupation-at present unemployed, residing at village-Swarupdaha, Police Station-Swarupnagar, District-North 24 Parganas, West Bengal, India.

 

Particulars of the perpetrators:- The involved BSF personnel of Hakimpur BSF(Border Security Force) Check Post and Mr. Akbar Khan(BSF man) of the said BSF Check Post under Police Station-Swarupnagar, District-North 24 Parganas.

 

Date & place of incident:- On 22.9.2012 at noon at Hakimpur BSF(Border Security Force) Check Post under Police Station-Swarupnagar, District-North 24 Parganas

 

Case Details:-

 

It is revealed during the fact finding that the victim is a businessman. He sells poultry-eggs in the local markets such as Bithari, Duttapara, Gunrajpur, Balti, Amudia, Nityanandakati, Tarali, Hakimpur and Swarupda markets under Bithari-Hakimpur Gram Panchayat. The victim runs his livelihood for himself and his family members by the income of the said business for last seven years and the said business is the only source of income of the victim.

 

On 22.9.2012 at noon the victim was returning after selling eggs in the local market but when he reached near to Hakimpur BSF Check Post on the way he was restrained by one BSF man namely Mr. Akbar Khan and he forcibly snatched all the papers of business from the victim without saying any reason. The said BSF man did not issue any paper regarding the seizure of the papers from the victim. The victim out of fear could not say anything at that time but two co-villagers of the victim namely Mr. Majibar Sardar and Mr. Kauchar Sardar were the eye-witnesses of the incident. Then after few days the victim went to Hakimpur BSF Check Post with Mr. Majibar Sardar and requested the said BSF man Mr. Akbar Khan to return the documents as the victim could not run his business without the said documents. But he refused to deliver the papers and on the contrary he blamed in threatening voice that those papers are fake and he would put the victim behind the bar for carrying business with fake papers. As a result the victim is yet to get back his papers relating to his business and in the absence of the papers he is not able to continue his business till date.

 

The victim finding no other way to get back his papers lodged written complaint in this matter before the Officer-in-Charge of Swarupnagar Police Station, North 24 Parganas and in the said written complaint the Prodhan (Head) of Bithari-Hakimpur Gram Panchayat and also one member of the said Gram Panchayat in writing affirmed that the complaint of the victim mentioning the incident above stated was true. But the police did not take any action till date though issued one GDE no. 1502 against the complaint of the victim. The victim also sent written complaint in this matter to the IG, BSF, Kolkata through registered post with A/D on 7.11.2012 but till date there is no response against his complaint.  

 

It is revealed during the fact finding that the victim has valid (till 31.3.2013) trade license from Bithari-Hakimpur Gram Panchayat, but due the arbitrary and torturous acts of the perpetrator BSF man, the victim is languishing in mental pain and trauma due to loss of his livelihood. The family of the victim is under complete insecurity and economic crisis.     

 

 

 

#India-Widow starving and living in a for10 yrs #Vaw


30th November 2012

 

To 

The Chairman
National Human Rights Commission
Faridkot House
Copernicus Marg
New Delhi-110001                                                                                                                                                               

Respected Sir,

 

We conducted a fact finding upon information received that the victim Ms. Sabita Pal, wife of- Late Bimal Pal, aged about- 50 years, Hindu by faith, by occupation-begging, residing at Burujmore under village-Buruj, Police Station- Baduriya, District- North 24 Parganas, West Bengal is a victim of starvation. She is a widow, homeless and lives in a ‘Hume Pipe’. Her two sons work and stay in a shop on a meager amount per month. The victim has been knocking the door of the authorities for getting help of various schemes of the government as her husband’s name was enlisted in the B.P.L. (Below Poverty Line) List, but till date she did not get any help due to slipshod attitude of the authorities. Our attached fact finding report gives details of this tragic situation of the victim.   

 

In that situation we seek your urgent intervention in this matter in the following manner:-

 

  • The victim and her family members should immediately be provided with adequate facilities under the present government schemes.
  • The victim must also be proved with proper shelter immediately. 
  • The role played by the respective departments and the administration of the local gram panchayat in this matter should immediately be probed into and the personnel accountable must be booked under the law.
  • The whole matter must be investigated by one neutral investigating agency appointed by the Commission and the victim must be provided with adequate compensation for denial of her right to food and the right to life.

 

Thanking You

Yours faithfully,

 

 

Kirity Roy
Secretary, MASUM
&
National Convener, (PACTI)

Name of the victim: – Ms. Sabita Pal, wife of- Late Bimal Pal, aged about- 50 years, Hindu by faith, by occupation-begging, residing at Burujmore under village-Buruj, Police Station- Baduria, District- North 24 Parganas, West Bengal, India.

 

 

Case details: –

 

It is revealed during the fact finding that the victim is a homeless widowed person and her husband died in the year 2006. Previously she had own residence at village Gokulpur under Swarupnagar Police Station. But her house was forcibly occupied and sold by her elder brother-in-law Mr. Nirmal Pal and younger brother-in-law Mr. Gour Pal. The victim and her family were then ousted by them from the house in the year of 2000 when a massive flood hit the area. The victim became completely homeless at that time with her family members.  

 

After that she took shelter in a ‘Hume Pipe’ near Brojumore under Ramchandrapur Gram Panchayet with her family. Her eldest son Tarak Pal, aged about twenty six years has been missing for last six years. Her other two sons namely Shyamal Pal, at present aged about eighteen years and Kamal Pal, at present aged about fifteen years work in a sweet shop at Ramchandrapur Market. The said sons of the victim live in the said shop and they get meager amount of Rs. 500/- each per month. They have been working in the said sweet shop for last five years. The victim due to her poverty could not provide them food and education for which they had to take job at the sweet shop for mere survival.

 

The victim time and again knocked local gram panchayat (Ramchandrapur Gram Panchayat) authority to get helps from the various schemes of the government. But her pleas were not heard till date. She also found that her name was excluded from the voter list. The victim’s husband name was in the B.P.L. (Below Poverty Line) list being no. 160WB15-010-012-006180142), so she requested the authorities of Ramchandrapur Gram Panchayat to enlist her name in the BPL list as well as requested to issue Ration Cards for herself and her sons, but till date there is no outcome. The authorities of local gram panchayat reportedly refused to render any help to the victim in spite of being aware of the helpless situation of the victim.  The victim somehow survives by begging.

Inline images 1

 

#India- Status of doctors at Primary Health Centres


Nov 12, 2012

According to PRS legislative Research , Public health care in rural areas is provided through a multi-tier network. Public Health Centres (PHCs) are provided for every population of 30,000 in the plains and 20,000 in the hills. Generally, each PHC caters to a cluster of Gram Panchayats. PHCs are required to have 1 medical officer and 14 other staff. As on March 2011, there are 23,887 PHCs in the country.

Among the states, Chhattisgarh has the highest vacancy of doctors at 71%, followed by West Bengal (44%),

Maharashtra (37%), and Uttar Pradesh (36%). On the other hand, Rajasthan (0.4%), Andhra Pradesh (3%)
and Kerala (7%) have the lowest vacancies in PHCs.

• Nine states do not have any doctor vacancies at all at the PHC level. These states include Bihar, Jharkhand
and Punjab.

Read more below

Downlaod here

 

 

Dhinkia Gram Sabha Unanimously Resolves NOT to Divert Forest Land for #POSCO


Dear Friends,

On 18th of October 2012 , more than 2000 people participated in the Dhinkia Gram Sabha ( Panchayat level assembly of adult members) meeting and passed unanimous resolution stating their refusal to grant consent to the proposed diversion of land for POSCO for its 12million steel plant covering 4004 acres of land under the rights provided to the Gam Sabha under the Forest Rights Act, 2006. It may be recalled here that Gram Sabha happens to be most fundamental unit of decision making in India’s grass root democracy guaranteed by the constitution.

The resolution that was read and resolved contained the following:

“The Gram Sabha of Dhinkia panchayat in its meeting on dated 18th October 2012hereby decides and resolves on the following matters relating to the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and its implementation the village. This has reference to the letter (No. TD 11 (FRA)-06/2011) issued by the ST & SC Development Department. on 7th September 2012 had instructing Collectors to ensure discussion and planning on the pending claims under the Forest Rights Act and to ensure consolidation of list of claims for further monitoring and disposal.

• The villages under this Panchayat have rights over forest lands and have initiated process of claims on rights under Forest Rights Act. Claims on the forest lands approved and recommended by the Palli Sabhas of villages (Dhinkia, Govindpur…) are still pending for recognition and no step has been taken to recognize and vest the rights. No information and training on Forest Rights Act have been provided to the villages, forms and necessary records have been supplied by the government to support claim making process, all contrary to its obligations under the Rules. In this regard the Gram Sabha directs the District Level Committee to ensure completion the process for recognition of individual and community rights as per claims submitted by the Forest Rights Committee/Palli Sabha of the concerned villages which are still pending. In this regard Gram Sabha asks the SDLC and DLC to provide the status of claims to the Palli Sabhas and FRCs of the villages.

• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Amendment Rules, 2012 have been notified on 6th September 2012. As required under the amendment rules the Palli Sabha shall initiate the process for claiming community forest resources rights under Section 3 (1)(i) of the Forest Rights Act. In accordance with the amendment rules of the FRA, the Gram Sabha calls upon the District Level Committee to ensure recognition of the community forest resource rights in the villages coming under this Panchayat as required in the amendment Rule 12 (B)(3).

• The Gram Sabha calls upon the government and district administration to comply to decisions of the Palli Sabhas with regard to use and management of the community forest resources in accordance with Section 5 of the Forest Rights Act. The gram sabha reiterates the decision of the palli sabhas of Dhinkia and Govindpur to protect forests, biodiversity and all livelihood resources in the boundary of this panchayat.

• The Gram Sabha in particular endorses the resolution passed by Palli Sabha of village Dhinkia on 3rd October, 2012 and asks the SDLC and DLC to complete the process of recognition of rights under FRA and to desist from any proposed diversion of forest land as the recognition of rights is not complete and Palli Sabha of the village has not given consent. Any such diversion will be a criminal offence under section 7 of the FRA.

• The Gram Sabha takes note of the disruption of the Palli Sabha meeting of village Govidnpur on 4th October, 2012 which was not allowed to pass resolution on the decisions taken on claims under FRA and on the diversion of forest land. Obstruction of the proceeding of the Palli Sabha amounts to obstruction of the process of recognition of rights and violation of the authority of Palli Sabha under Section 6 of FRA. This Gram Sabha considers this as violation of FRA and an offence under Section 7 of FRA and issues notice to the State Level Monitoring Committee to proceed against the DLC and officials involved. Gram Sabha also takes the decision to hold Palli Sabha again in village Govindpur and directs the authorities to provide necessary support.

• The Gram Sabha endorse decision taken by the Palli Sabhas to not give consent to the diversion of forest lands under its customary use and boundary for the purpose of the POSCO steel plant project, or for any other purpose, and directs the District Level Committee and the State government to ensure strict compliance with the provisions of the Forest Rights Act, the guideline issued by Ministry of Environment & Forests on 30.07.2009 and the guidelines issued by the Ministry of Tribal Affairs on 12th July 2012 in this regard. Diversion of forest land without compliance to the Forest Rights Act and the above mentioned guidelines is a violation of the Forest Rights Act and a criminal offence.”

It may be recalled here that, on 3rd October 2012, the villagers of Dhinkia Gram Panchayat organized Palli sabha (Village level Assembly of adult persons) and Passed resolution not to divert the forest land to POSCO. Under the Forest Right Act 2006 , no forest land can be diverted until all the rights of the people in the area are recognised and their consent of the concerned gram sabha is obtained for the diversion. This is a statutory requirement under FRA, mandated further by a Ministry of Environment Ministry’s order of August 3, 2009.

The inhabitants of Govindpur village had organized Palli Sabha on 4th of October and passed a similar resolution stating their refusal to grant consent to the proposed diversion of land for POSCO. However, sponsored goons of the company and the state agencies, created disruption and forcibly took away the resolution paper in a pre-planned startegy. Against this, the PPSS members held a one day protest at Erasama block office. In the end, villagers of Govindpur received their resolution copies.

People’s resolution sent a strong message to the Government that people are against illegal diversion of forest land for the project and gave a befitting reply to the recent declaration of Mr. Yong Won Yoon CMD of POSCO to start the project soon. This resolution has also exposed the government and POSCO’s earlier claim that people are in support of the POSCO project.

The POSCO and the state government are repeatedly announcing that there will be no forcible land acquisition. This Gram sabha resolution has given a strong message that majority of people are against the project. Hence they should respect the decision of people and cancel the POSCO project outright.

Kindly circulate this mail widely.

In Solidarity,
Prashant Paikary
Spokesperson, POSCO Pratirodh Sangram Samiti
Mobile no-09437571547
E-Mail – prashantpaikary@gmail.com

 

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