Challenges and Solutions for Effective Implementation of PESA

When India’s tribal communities were granted the promise of self-governance through the Panchayats Extension to Scheduled Areas Act in 1996, it was hailed as a landmark moment. The law aimed to restore dignity, autonomy, and control over resources to communities that had been marginalized for generations. Yet, nearly three decades later, many tribal regions continue to struggle with the implementation of this transformative legislation. Understanding why this gap between promise and practice exists is crucial for anyone invested in grassroots democracy and social justice.

The geographic puzzle: who’s in and who’s out?
When institutions collide: advisory councils versus panchayats
The bureaucratic maze
Building capacity for genuine self-rule
Codifying what has always been known
Aligning state laws with PESA principles

The geographic puzzle: who’s in and who’s out?

One of the fundamental challenges with PESA lies in its limited geographic scope. The Act applies exclusively to areas designated under the Fifth Schedule of the Constitution, which covers tribal-majority regions in ten states: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan.

However, this leaves out significant tribal populations living elsewhere. Tribal communities in states like Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar Pradesh, and Jammu & Kashmir fall outside the Fifth Schedule framework entirely. More significantly, the northeastern states of Assam, Meghalaya, Tripura, and Mizoram are governed under the separate Sixth Schedule, which has its own system of autonomous district councils. While the Sixth Schedule provides certain protections, it operates on fundamentally different principles than PESA.

Even within states that have Fifth Schedule areas, many tribal habitations remain unnotified as Scheduled Areas. This patchy coverage creates a situation where tribal communities living just a few kilometers apart may have vastly different rights and governance structures. Some enjoy the protections of Gram Sabha authority over land and resources, while others have no such legal backing. This geographical exclusion undermines the goal of providing uniform self-governance to all tribal communities across India.

When institutions collide: advisory councils versus panchayats

Another layer of complexity emerges from the relationship between Tribal Advisory Councils and the newly empowered Panchayati Raj institutions under PESA. The Fifth Schedule mandates that each state with Scheduled Areas must establish a Tribal Advisory Council to advise the Governor on matters concerning tribal welfare and advancement.

In theory, these councils should work in harmony with Gram Sabhas and Panchayats. In practice, tensions often arise. The Tribal Advisory Council has been reduced to an advisory body whose recommendations are not binding, and it can only intervene when asked. Making matters worse, most council members are legislators, with the Chief Minister serving as chairperson, which compromises its independence.

This creates a peculiar situation where tribal governance operates through multiple, sometimes competing channels. Should a critical decision about land acquisition or mining rights be made by the democratically constituted Gram Sabha or referred to the state-appointed Tribal Advisory Council? When the Governor issues notifications about administrative matters in Scheduled Areas, how do these intersect with powers granted to local Panchayats? These overlapping jurisdictions can lead to confusion, delays, and opportunities for exploitation by those seeking to bypass community consent.

The bureaucratic maze

The confusion extends to the administrative level as well. Two central ministries have roles in PESA implementation: the Ministry of Panchayati Raj and the Ministry of Tribal Affairs. Without clearly defined responsibilities, this dual oversight often results in buck-passing rather than coordinated action. When problems arise, communities find themselves shuttled between departments, with neither taking full ownership of solutions.

Building capacity for genuine self-rule

Even where PESA technically applies, its effectiveness depends heavily on awareness and capacity. Many experts have found that PESA did not deliver due to lack of clarity, legal infirmity, bureaucratic apathy, absence of political will, and resistance to change in the hierarchy of power. Social audits have revealed that developmental schemes are often approved on paper by Gram Sabhas without actual meetings or discussions taking place.

This points to a fundamental gap in implementation: communities cannot exercise rights they don’t know they possess. Tribal communities need comprehensive training about their powers under PESA, from controlling minor forest produce to preventing land alienation. Government functionaries who implement the law need deeper understanding of both PESA provisions and tribal culture. Without this foundation, the Act remains a legal framework without practical teeth.

Codifying what has always been known

One promising avenue for strengthening PESA involves codifying customary laws. Tribal communities have managed their affairs through unwritten norms and traditional practices for generations. PESA recognizes and strives to protect these unique social and cultural practices, but most state legislations have omitted or ignored customary laws when framing their rules.

Creating written documentation of these customary practices serves multiple purposes. It provides legal standing to traditional dispute resolution mechanisms, validates community resource management systems that have proven sustainable over centuries, and prevents external entities from claiming ignorance of local customs. States like Jharkhand have shown that when customary laws are integrated into formal governance structures, it preserves cultural practices while ensuring community-driven justice systems remain effective.

Aligning state laws with PESA principles

Perhaps the most critical reform needed is bringing state legislation in line with PESA’s spirit. The Act requires state governments to enact conforming legislation within their Scheduled Areas, but implementation has been suboptimal, hindered by the absence of state-specific guidelines and weak governance mechanisms. Some major tribal states have yet to frame PESA rules decades after the Act’s passage.

Where state laws do exist, they often dilute PESA’s provisions by placing power with Gram Panchayats rather than Gram Sabhas, or by failing to establish clear mechanisms for community consent in land acquisition and resource extraction. State policies on mining, forest management, and industrial development frequently clash with rights granted to tribal communities under PESA. Reconciling these conflicts requires political will to genuinely decentralize power rather than merely paying lip service to self-governance.

Strengthening grievance redressal mechanisms is equally important. When communities face violations of their PESA rights, they need effective legal support and accessible forums to seek justice. Currently, many areas lack such systems, leaving tribal populations without recourse when state or private actors override their authority.

What do you think? Can true self-governance be achieved when legal frameworks remain incomplete and poorly enforced? How can we ensure that the voices of Gram Sabhas are heard and respected when powerful economic interests push for development projects in tribal areas?

References

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Table of Contents

The geographic puzzle: who’s in and who’s out? 🔗

When institutions collide: advisory councils versus panchayats 🔗

The bureaucratic maze 🔗

Building capacity for genuine self-rule 🔗

Codifying what has always been known 🔗

Aligning state laws with PESA principles 🔗