PESA: The Law That Gives Tribal Villages the Power to Govern Themselves

1. What is PESA and Where Does It Apply?

PESA was enacted in 1996 under Article 243M of the Constitution to extend the Panchayati Raj system to the 'Scheduled Areas' — areas notified under the Fifth Schedule of the Constitution, which include large parts of Jharkhand, Odisha, Chhattisgarh, Madhya Pradesh, Andhra Pradesh, and other states with significant tribal populations.

In Jharkhand, the Scheduled Areas include districts such as Ranchi, Gumla, Simdega, Lohardaga, West Singhbhum, East Singhbhum, Khunti, and others. If your village falls in a Scheduled Area, PESA applies to you — and gives your Gram Sabha extraordinary powers that ordinary panchayats in non-tribal areas do not have.

2. The Gram Sabha: The Heart of PESA

Under ordinary panchayat law, the Gram Sabha is largely a passive body — it meets occasionally, hears reports, and rubber-stamps decisions. Under PESA, the Gram Sabha is the primary decision-making institution. It is composed of all adult residents of a village, and its consent is mandatory — not optional — for a wide range of matters.

The PESA Gram Sabha has the following powers and responsibilities:

• Manage village natural resources: The Gram Sabha controls minor forest produce, minor water bodies, minor minerals, and other natural resources within the village territory.
• Approve development plans: All plans and programmes for social and economic development in the village must be approved by the Gram Sabha before they are implemented.
• Control over village markets: The Gram Sabha regulates or manages village markets and fairs.
• Control over money-lending: In Scheduled Areas, the Gram Sabha oversees money-lending to tribal communities, helping prevent predatory lending and bonded labour.
• Manage village institutions: Institutions and functionaries operating in social sectors such as health and education must be overseen by the Gram Sabha.
• Control over land acquisition: Any acquisition of land in a Scheduled Area requires prior consultation with the Gram Sabha — and in the widely accepted interpretation, its consent.

3. Consent for Land Acquisition and Mining — A Critical Power

Perhaps the most significant and most violated right under PESA relates to land acquisition and the grant of mining leases. The law requires that before any land is acquired in a Scheduled Area, the Gram Sabha must be consulted. Before any mining lease is granted for minor minerals in a Scheduled Area, the recommendation of the Gram Sabha is mandatory.

In practice, this means:

• A government order acquiring tribal land for a factory, road, dam, or mine without prior Gram Sabha consultation is legally defective and can be challenged in the High Court.
• A mining lease granted for quarrying in a Scheduled Area without the Gram Sabha's recommendation can be challenged before the High Court or National Green Tribunal.
• The Gram Sabha can pass a resolution opposing any acquisition, mine, or project it considers harmful to the community — and this resolution has legal weight.

Several High Courts and the Supreme Court have reinforced the mandatory nature of Gram Sabha consultation. The landmark Samatha judgment and subsequent cases have firmly held that tribal self-governance under PESA and the Fifth Schedule cannot be bypassed.

4. Rights Over Minor Forest Produce

PESA gives tribal communities ownership rights over Minor Forest Produce (MFP) — which includes bamboo, tendu leaves, sal seeds, mahua, lac, herbs, and other non-timber forest products that tribal families have collected from forests for generations.

This means:

• The Gram Sabha has the right to manage and regulate the collection and sale of MFP from its village forest area.
• Forest Department officials or contractors cannot prevent villagers from collecting MFP or impose arbitrary levies.
• State governments must recognise Gram Sabhas as the primary authority over MFP and ensure that the economic benefit flows directly to tribal families.

In Jharkhand, despite legal provisions, many forest contractors and officials continue to monopolise MFP collection. Gram Sabhas that assert their rights over MFP are within their legal powers to do so.

5. Control Over Liquor and Substance Regulation

PESA gives Gram Sabhas the power to prohibit or regulate the manufacture and sale of intoxicants within the village. This is a significant social power: tribal communities have repeatedly used it to shut down liquor shops that were destroying family life and fuelling debt.

If the Gram Sabha passes a resolution to prohibit liquor sales in the village, the state government and district administration are legally obligated to give it effect. Liquor shop owners who continue to operate despite such a resolution are operating illegally.

6. Protection Against Alienation of Tribal Land

PESA reinforces the protections of the CNT Act and SPT Act by requiring that state laws for Scheduled Areas prevent the alienation of tribal land. In the event of alienation, states must provide for the restoration of land to tribal persons.

This means that the Gram Sabha has a role in identifying cases of illegal land alienation in its area and petitioning the district administration for restoration. The Gram Sabha is not just a passive witness to land loss — it is a legal institution empowered to fight it.

7. How PESA Is Being Violated — And What You Can Do

Despite its legal force, PESA is routinely bypassed in practice. Common violations include:

• Land acquisition notifications issued without any Gram Sabha consultation.
• Mining leases granted by state governments for Scheduled Area minerals without mandatory Gram Sabha recommendations.
• Forest Department contractors monopolising MFP without recognising Gram Sabha rights.
• Development projects implemented in villages without Gram Sabha approval.

Your remedies include:

• Convene a Gram Sabha meeting: Pass resolutions asserting your rights, opposing illegal projects, or demanding consultation.
• Send formal objections: Written objections from the Gram Sabha to the District Collector, Divisional Commissioner, and concerned government departments carry significant legal weight.
• File a writ petition: If your Gram Sabha's rights are being ignored, the Jharkhand High Court can be approached. Courts have repeatedly stayed projects that bypassed PESA.
• Approach the National Commission for Scheduled Tribes: This constitutional body is specifically empowered to investigate violations of tribal rights.
• Use the RTI: File RTI applications to find out whether Gram Sabha consultation was conducted before any project in your area was approved.

8. The Relationship Between PESA and Other Laws

PESA does not stand alone. It works in conjunction with:

• Forest Rights Act, 2006: Which recognises individual and community forest rights of tribal people and makes the Gram Sabha the authority for recognising and vesting those rights.
• CNT Act and SPT Act: Which protect tribal land from illegal transfer and must be read together with PESA's anti-alienation requirements.
• LARR Act, 2013: Which requires Gram Sabha consultation before land acquisition in Scheduled Areas.
• Fifth Schedule of the Constitution: Which gives the Governor of Jharkhand the power to repeal or modify any central or state law for the protection of tribal people in Scheduled Areas.