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PANCHAYAT (EXTENSION TO THE SCHEDULED AREAS) PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration

PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

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Page 1: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

PANCHAYAT (EXTENSION TO THE SCHEDULED AREAS)

PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA

PEA & LWE:

Dr. Nupur TiwariAssociate Professor

Indian Institute of Public Administration

Page 2: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Why Schedule V Area safeguards

• Schedule V areas marked by− Exploitation related to land, liquor, money lending, markets.− Deprivation: acute poverty, illiteracy, weak social/physical

infrastructure− Govt. machinery seen as unresponsive & oppressive.− Large scale vacancies & absenteeism : leading to poor governance &

services. − Loss of livelihood : Land alienation, MFP issues.− Dislocation of communities due to land acquisition - 8% ST

population account for 40% of all, displaced by projects.− Environmental degradation extensive illegal/unscientific forest felling

& mining.− Segmented planning & implementation : sub optimal outcome of

plethora of schemes.

• Exploitation & Deprivation→ Discontent→ Alienation→Extremism

Page 3: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Overlap of Extremist Affected and Sch. V Districts

EADSch. V

Area

Sch. V

Contiguous

Sch.V + Sch.V

ContiguousBRGF

MEADs 34 20 9 29 32

EADs 83 39 22 61 73

• If areas in vicinity included, Sch. V Areas & EAAs coincide well

• Generally Naxalites operate in/from forests & hilly terrains

• Some Sch. V Areas though not affected by extremism, are easy targets,

being contiguous and forested and having the same problems.

Page 4: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Why PESA inspite of Sch. V safeguardsInspite of Sch. V provisions: people’s problems remained. Hence PESA Enacted

Reviewing Committees .–Conceptualization of PESA

Page 5: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Planning Commission Report (2006)

• The Planning Commission set up an Expert Group on “Development Issues to deal with the causes of Discontent, Unrest and Extremism” in May 2006.

• Stressed…”Development which is insensitive to the needs of these communities has invariably caused displacement and reduced them to a sub-human existence. In the case of tribes, in particular, it has ended up in destroying their social organisation, cultural identity, and resource base and generated multiple conflicts, undermining their communal solidarity, which cumulatively

makes them increasingly vulnerable to exploitation.”• PESA for the first time brings the State Legislature in

the picture in matters concerning Panchayats located in SA.

• Space has been created in the frame of PESA for this purpose. Section 4(m) specifically mentions this It begins with a mandate, making the features listed therein as non-violable by the State Legislatures.

Page 6: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

various Expert Committees have recommended implementation of PESA in letter and spirit. Of particular importance are the

following reports:

Seventh Report of the second Administrative Reforms Commission: ‘CapacityBuilding for Conflict Resolution: Friction to Fusion’

‘Development Challenges in Extremist Affected Areas’: Report of an Expert Group ofthe Planning Commission.

The Report of the MoRD on Priority Development Schemes for LWE districts has identified that weak governance structures persist in these districts, as PRIs have not been adequately strengthened via delegation of sufficient administrative and financial powers (Chapter III, page 13). Similarly, chapter IV suggests the long and medium term interventions, which includes the strengthening of PanchayatiRaj Institutions by delegation of requisite administrative and financial powers.

Page 7: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

PESA was also the subject matter of the Governors Conference called by Her Excellency, President of India (16.09.2008). “The provision of the Panchayats (Extension to Scheduled Areas) Act 1996 (PESA) has extended Panchayati Raj to the nine States namely, Andhra Pradesh, Gujarat, Himachal Pradesh, Chattisgarh, Jharkhand, Madhya Pradesh, Orissa and Rajasthan under the Fifth Schedule. However, they are yet to frame requisite Local enactment to comply with PESA Act.”

Likewise, the second Administrative Reforms Commission too, had stressed the effective implementation of the PESA mentioning that “the Union and State legislations that impinge on provisions of PESA should be immediately modified so as to bring them in conformity with the Act.”

According to the approach paper to Twelfth Five Year Plan, “There is a case for creating a special arrangement whereby in the first two years of the Twelfth Plan, funds can be unconditionally released for all these districts to facilitate the speedy implementation of PESA.”

Page 8: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

People’s problems remained. Provisions of PESA

Enacted in 1996

- PESA extends provisions relating to PRIs to Scheduled Areas - with certain exceptions & modification (e.g. 29 functions of PRIs

are optional, whereas, functions of GS in PESA are mandatory).

• PESA is about self governance through traditional GS.- A separate GS for a/group of habitations, comprising a community,

and managing its affairs in accordance with traditions & customs.• PESA prohibits state legislature from making any law inconsistent

with PESA.

• Incidentally, FRA, 2006 & LARR, 2013 are complementary to

PESA.

Page 9: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

PESA for Self Governance through

GS• Gram Sabhas are central to PESA and have specific functions :

(A)Regulatory :

- Resolve dispute through customary mode;

- Prevent land alienation and restore alienated land;

- Regulate sale/consumption of intoxicants;

- Manage village markets;

- Control money lending to STs.

(B) Control over natural resources :

- Right to consultation in LA, R&R, etc.

- Recommend prospecting licenses and mining leases for MMs;

- Own & manage MFP (issues of bamboo & tendu apart).

- Minor water bodies

(C) Developmental :

- Control local institutions and functionaries.

- Control local plans and resources for such plans in TSP.

- Approve GP plans, identify beneficiaries, issue UCs.

Page 10: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Why is PESA not effective

• While no systematic study of implementation/impact of PESA

done, a visit to such areas would suggest that largely

- Pre-PESA Status quo remains

- with some sporadic & episodic efforts

• Reasons are

- (i) Administrative,

- (ii) Legal, and

- (iii) Political

[email protected]

LS1

Page 11: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

The Study :Methodology

Page 12: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Rationale of the Study

• The states viz Chhattisgarh, Jharkhand, and Odisha areselected based on two correlated criteria- (i) thesubstantial presence of Adivasi population and (ii) thehigh occurrence of Naxal violence.

• The 2011 census, the percentage of the tribalpopulation in Chhattisgarh, Jharkhand, and Odishaconstitute 30.6%, 26.2%, and 22.8% respectively out ofthe total tribal population in India.

• Regarding Naxal violence, these three states haverecorded high level consistently over the last 5-6 years.

Page 13: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

• The first set of districts was selected on the basis of the

relatively successful implementation of PESA Act and the decreasing trend of Naxal violence.

• While the second set of districts exhibited a near absence of PESA implementation and the occurrence of a high level of Naxal violence.

• i) Highest number of civilian deaths

• ii) Highest number of terrorist deaths

• iii) Highest number of security forces deaths

• iv) Highest number of total deaths

Districts Selected

Page 14: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

• Two districts Bastar and Balrampur (Chhattisgarh)Gumla and Khunti (Jharkhand) Malkhangiri and Koraput(Odisha)

• From these districts, two Janpad Panchayats wererandomly selected, and from each of these two JanpadPanchayats, six Gram Panchayats was randomlyselected for data collection.

• Purposive sampling was adopted to identify JanpadPanchayats and Gram Panchayats. The proposedmethodology was applied to a sample size of 500households in each District.

• The six Gram Panchayats selected from the two JanpadPanchayats, were in turn selected from each of the twodistricts which fell under the EAA (Extremely AffectedAreas).

Page 15: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Research Survey and Data Collection Method

• The methodology adopted for this study was a combination ofQuantitative and Qualitative approaches.

• Qualitative tools were used for collecting and interpreting thedata. For example, tools like Focus Group Discussion (FGD)and series of individual interviews were undertaken primarilyto identify the civil society’s view on tribal discontent andPESA implementation in the selected states.

• Also, for collecting fieldwork data in the states, ethnographictools were adopted. The empirical tools helped in datainterpretation as major part of the research composed of anextensive fieldwork.

Page 16: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Quantitative Data Analysis

•On the basis of the data collected, structured questionnaires were analyzed by taking recourse to MS Excel and SPSS 16.0.

• The data was interpreted through pie-charts and bar graphs to show inter-state as well as inter-district variations.

• The extensive household survey provided a core quantitative database to understand the socio-economic profile and the ground realities faced by the tribal communities today.

Page 17: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Jharkhand

Page 18: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Chhattisgarh

Page 19: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Odisha

Page 20: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

The Study Findings:

Highlights Based on Empirical data

Page 21: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Hypothesis -1

PESA is a promising legal mechanism, but the success of itsimplementation process rests squarely on the StateGovernments who, in turn, have not shown the desiredlevel of commitment in performing the same.

Page 22: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Implementing PESA :Problems and Gaps.• The PESA Act does not specify rule making powers or provide a time

period by which the States have to frame rules.

• States have generally not framed appropriate rules under PESA, and therefore the official system has not operationalized PESA

• State and Central subject laws relating to mines and minerals, forests, land acquisition etc. are not PESA compliant.).

• The wordings of some sections of the PESA Act have been interpreted against the spirit of the Act. Particularly, as the Mungekar Committee has observed (Para 4.22), the States in many cases have taken advantage of the flexible provision of ‘Gram Sabha or Panchayats at the appropriate level’ in PESA and used the discretion in favour of Panchayats, which goes against the basic tenets of PESA.

• There is no provision for appeal against the decision of the Gram Sabha, which is not in conformity with the democratic process and introduces an element of absolute power, rather than checks and balances on power of institutions.

Page 23: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Some important observations of the study on the status of implementation of PESA

• PESA has not been as successful as envisioned because the actual implementation has come to be significantly weaker and highly varying since specific legislation had to be passed by each of the concerned States.

• In states like Jharkhand, Odisha, and Chhattisgarh, this was done via carrying out amendments to their respective Panchayati Raj Acts.

• Similarly to other States with Scheduled Areas, the Panchayati Raj Act locates consultation and planning related to land acquisition at higher levels than the Gram Sabha (as envisaged by PESA).

Page 24: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Implementation of PESA in Jharkhand

• It is important that the Panchayat laws be in harmony with these traditional modes of living.

• At present, however, despite this provision in PESA, at the ground level, there is little clarity on how consonance is ensured. These are matters that require clarification at the operational level.

• JPRA has added a provision stating that there can be more than one Gram Sabha for a village if members of a Gram Sabha so desire.

• The problem with the provision is that while it accepts the constituting of a Gram Sabha, it does not include the criteria that members should be those whose names are included in the electoral at the village Panchayat level.

• Also, while the provision of more than one Gram Sabha could be useful, in the event of differences among two Gram Sabha s could have an adverse impact on the execution of functions.

Page 25: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Land Acquisition

• One of the issues with the JPRA is that it directs the Panchayat at the district level to organise people for voluntary land acquisition for the construction of public roads, highways, etc.

• This could be a major problem as what stand s for ‘voluntary acquisition’ is

not clear.

• Money Lending

• With regard to money lending, there are no provisions as such in the CPRA. However, amendments have been duly made in the Chhattisgarh Money Lending (Amendment) Act, 2010.

Page 26: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Minor Minerals:

• The Jharkhand Minor Minerals Rules, 2004 states that quarrying permit has to be taken, by sending an application to the Collector before any mining operation.

• The Act also states that in scheduled areas the prior recommendation of the Gram Sabha or the Gram Panchayat must be taken before granting mining lease or quarrying permits.

• Also, the Gram Sabha is given the authority to oversee sand mining areas, and any mining operations carried out in such areas.

Page 27: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Minor Forest Produce

• Odisha Gram Panchayat Minor Forest Produce Administration Rules, 2002, provides for the regulation of trade and collection of MFP by the Panchayat.

• The aim of this was to ensure fair prices and payment to the primary collectors and minimize exploitation by traders and middlemen.

• However, it is seen that often the collectors are not aware of these rules. Traders often do business without registering with the Gram Panchayat.

• Moreover, the power of fixing the registration fees of trading lies with the government and not with the Panchayat. Even if they register, the Gram Panchayat is unable to regulate and monitor their activities effectively.

Page 28: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Similaraties

• In Jharkhand, there is no provision giving the power of consultation to the Gram Sabha s or the Panchayats in matters of land acquisition or resettlement of persons affected by such acquisitions.

• In Odisha, this power has been given to the Zila Parishad, while Chhattisgarh has also incorporated by empowering the Panchayat. However, there is no mention of consultation with the Gram Sabha.

• In Jharkhand, there is also no adequate provision on giving the Gram Sabha the power to prevent land alienation of persons of Scheduled Tribes or to restore the land to affected persons.

Page 29: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

• Thus status of implementation is inconsistent and is lacking uniformityacross the states. In some states, most of the PESA provisions have notbeen incorporated into state laws.

• In Jharkhand, a number of important provisions related to landacquisition, granting of prospecting license for mining, etc. have not beenincorporated even on paper.

• Chhattisgarh has incorporated most of the provisions either into itsPanchayat laws or subject laws, but it is yet to frame laws according toPESA on ownership of minor forest produce.

• Concerning the dispute resolution, it is observed that in Jharkhand andOdisha, the provision has been added, but it has been made subject to anylaws made by the state legislature.

• Panchayats are elected, but the decisions of the Panchayat and the GramSabha get overlooked.

• The contradiction with subject to laws in matters MFP, landacquisition, regulation of intoxication, also makes PESA achallenge.

• ( The detailed analysis is given at Annexure-I )

Page 30: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Table 1: Consonance of State laws and rules with provisions of PESA

PESA Provision Jharkhand Odisha Chhattisgarh

Section 4 (a) consonance between Panchayat laws and traditions Not known Not known Consonant

Section 4 (b) definition of Village Consonant Partially consonant Consonant

Section 4 (c) definition of Gram Sabha Consonant Consonant Consonant

Section 4 (d) competency of GS in customary dispute resolution Consonant Consonant Consonant

Section 4 (e) selection of

beneficiaries by GS

Partially

consona nt

Consonant Partially consonant

Section 4 (f) issue of

utilization certificate by GS to

GP

Consona

nt

Consonant Partially consonant

Section 4 (g) reservation of

STs in Panchayat

Sub-

judice

Consonant Consonant

Section 4 (h) nomination of

STs by govt.

Consona

nt

Consonant Consonant

Section 4 (i) consultation with

GS before land acquisition

Not

consona nt

Consonant Consonant

Page 31: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Table 1: Consonance of State laws and rules with provisions of PESA (Contd...)Section 4 (j) management of

minor water bodies

Partially

consona nt

Partially

consonant

Consonant

Section 4 (k) GS

recommendation before grant

of prospecting license or mining

lease

Not

consona nt

Consonant Not consonant

Section 4 (l) GS

recommendation or PRI before

exploitation of minor minerals

Not

consona nt

Consonant Not consonant

Section 4 (m) regulation of

intoxicants, ownership of MFP,

preventing land alienation,

management of village market,

control money-lending, control

social sector functionaries,

control tribal sub plans

Except

iv, vii not consonant

Consonant Consonant except (ii), (v)

Page 32: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Hypothesis-2

• The Gram Sabhas have shown number of initiativestowards participatory development and there is localsupport with the activities of Gram Panchayat,

• but the Failure of PESA implementation process hasadversely undermined the local decision-making

powers of the Gram Sabha.

Page 33: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Awareness of PESA

• In Gumla and Khunti, around 57% of respondents in each district have heard of PESA

• while 59.5% in Bastar and 66.2% in Balrampurhave heard of PESA.

• In Malkhangiri and Koraput, around 70% of respondents in each district have heard of PESA.

• Thus around 30 to 40% of respondents in the districts do not know about PESA.

Page 34: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards
Page 35: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

• Our quantitative data indicates that a fair percentage of people seem tobe aware of PESA, although the responses are uneven across the districtsin the three states.

• However, it can be identified that the tribes, including tribal leaders arenot well versed with PESA provisions yet.

Page 36: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Gram Sabhas

• As per our field data ,the Gram Sabha is a functioning body,as far as the organisation of meetings is concerned.

• According to the majority of the respondents, Gram Sabhameetings in all districts take place regularly, and fewsessions are held once or twice a year.

• Minutes of the meetings are usually prepared, and asignificant number of respondents have agreed that theyare open to all Gram Sabha members.

• Gram sabha has taken lots of initiatives like Village Marketdevelopment, Road Initiative, School construction Initiative,Initiative against Intoxication to serve the people of theirrespective gram sabha

Page 37: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards
Page 38: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Gram Sabha and Its Initiatives

In Chhattisgarh and Odisha, 99% of the respondents in each district has stated that the person responsible for drafting the Gram Sabha meetings is the Panchayat secretary

Page 39: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards
Page 40: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards
Page 41: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

People know of road initiative more than the village market initiative. More than 70% people in

all the 3 states in our sample has awareness about Gram Sabha’s Road initiatives.

Page 42: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Chhattisgarh which has least awareness among the 3 states about village market initiative and road initiative ,has the highest awareness of dam construction initiative as about 74.87% of the respondents confirmed it while other two states has near

60%awareness about the Gram Sabha’s Dam construction initiative.

Page 43: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Awareness about School Construction initiative by Gram Sabha is also highest in

chattisgarh among the 3 states . Almost 68% of respondents in Chhattisgarh

confirmed this while in Jharkhand 51.9% people know about it and In Orissa, 54%

people have awareness about it.

Page 44: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

According to our field data, in Jharkhand more than 60% respondents in Gumla and more than40% respondents in Khunti are unaware of any initiatives taken by Gram Sabha on the regulation of intoxicants.In Chhattisgarh, around 47% respondents in Bastar stated that they were not aware of

any initiatives taken by Gram Sabha on intoxicants while in Balrampur almost 87% respondents said they did not know. In Odisha, the situation is slightly more positive as around 55% respondents in Malkhangiri, and around 63% respondents in Koraput stated that they were aware of such initiatives by the Gram Sabha.

Page 45: PESA & LWE · PESA AND LWE :CHHATTISGARH, JHARKHAND, AND ODISHA PEA & LWE: Dr. Nupur Tiwari Associate Professor Indian Institute of Public Administration. Why Schedule V Area safeguards

Respondents satisfaction with the activities of Gram Panchayat

• A large percentage of respondents have stated that they are happy with the activities of the Gram Panchayat.

• In Jharkhand, 53% respondents have reported satisfaction and 16% respondents reported to be very satisfied.

• 93.2% respondents in Chhattisgarh and 97.1% respondents in Odisha also reported satisfaction with the activities of the Panchayat.

• Although it also means that the communities have to face a number of day to day issues.

• The level of satisfaction may come from the initiatives undertaken by the Gram Sabha and the Panchayat on the construction of roads and schools. Most respondents are aware of these initiatives.

• However, one must also note that in these districts, PESA has not been fully implemented.

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Are you satisfied with the activities taken by Gram Pancahyat?

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Safeguarding of traditions and customs of community:

• However, from the survey data, it is visible that the Gram Sabha has retained the traditions and customs of the community.

• The use of the customary mode for resolving disputes shows that the Gram Sabha has successfully integrated traditional methods into the Panchayatsystem.

• A high number of respondents in each state have indicated that community resources are managed by the Gram Sabha through traditional methods.

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Heritage and customs

• More than 80% respondents in each district in Jharkhand and more than 90% respondents in each of the districts in Chhattisgarh and Odisha believe that the Gram Sabha protects and preserves the heritage and customs of the people and the village.

• This belief is qualified by the fact that according to the majority of the respondents, the Gram Sabhauses traditional methods and customary modes to manage resources and to resolve disputes.

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Community Resources

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How Gram Sabha manages community resources district wise

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Status of land ownership,Landacquisition ,MFP

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• In Jharkhand, our data suggests that a significant number of respondentsown land-67.7% in Gumla and 96.7% in Khunti. Also, 22% in Gumla and37.3% in Khunti said that their land was acquired. 65.6% of therespondents in Khunti stated that their permission was not taken.

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Ownership of Minor Forest Produce (MFP)

• It is only in Odisha that the ownership of minor forest produce has been vested in the Gram Sabha. In Jharkhand and Chhattisgarh, there are no pro visions on ownership of MFP

• Almost all the respondents in the districts are collectors of minor forest produce, but most(Torpha-83%, Bastar-84.9%, Balrampur-92.2%, Malkhangiri -93.6%, Koraput-90.3%) haveclaimed that they do not get fair value for it in the market..

• This is consistent with secondary data findings, which show that in Chhattisgarh andJharkhand, MFP rules have not been framed in accordance with PESA. In Gumla, almost 50%respondents have stated that they get fair value

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Village Markets in Their State Panchayat Acts

• Except for Jharkhand, the other two states have incorporated the provision of management of village markets in their state Panchayat acts.

• Resolution of DisputesOne must also note that while the Gram Sabha

works to resolve disputes, the powers of the Panchayat are severely limited

in matters of addressing grievances.

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Priority assigned to Gram SabhaDecisions

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Priority assigned to Gram Sabha decisions on land

• In most of the districts, there is a high awareness of initiatives taken byGram Sabha on roads, dams, and schools. Awareness of initiatives on avillage market and anti-intoxication drives is low.

• However, most respondents have stated that the priority assigned to GramSabha decisions in most matters such as land, forest, water, is not high.

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Priority assigned to Gram Sabha decisions on water

• In Malkhangiri, 14.2% people rated it poor and 18.4% people rated it very poor. In Koraput, 17% people rated it poor and very poor both. however near 60% people in the districts of Odisha rated it average.

• While in the districts of Jharkhand and Odisha, near 70% people either rated the water priority as poor or very poor. Very few people here rated it average, good or very good each.

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Priority assigned to Gram Sabha decisions on forests

• The most dissatisfied district in terms of Priority assigned to gram sabhadecisions on forest is Bastar where 23.9% people rated it poor and 30.6%people rated it very poor.

• In malkhangiri, 31.3% people and In Koraput 47.5% people rated it poor.In gumla, 24.1% people rated it poor and 15.2% people rated it very poorwhile in Khunti 18.7% people rated it poor and 15.7% people rated it verypoor.

• Only in the districts of Jharkhand, people rated priority assigned to gramsabha‟s decision in forest as good or very good ,in significant proportion.For example, Gumla,26.8% people rated it good and 14% people rated itvery good and in Khunti, 15.1% people rated it good and 20.4% peoplerated it very good.

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Except in Gumla (where around 26% respondents have stated thatgovernment officials resolve disputes). In all other districts, more than 80%respondents have said that the Gram Sabha resolves disputes through thecustomary mode.

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Dominant role in gram sabhaGovernment officials play minimal role, but it appears to be satisfactory in Odisha. The dominance of elders in Gram Sabha meetings is reflected in our quantitative data as well evidence from field observations and interviews.

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Promotion of participation in village development programmesAccording to near 100% people in Chattisgarh and Odisha and near 90% people inJharkhand, gram sabha promotes participation in village development programmes.More than 90% people in Chattisgarh and Odisha responded that Peace can comethrough gram sabha while 64% people in Jharkhand feels the same

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Empowering of Gram Panchayat for brining development and peace in the villageWhen asked about the process to bring peace and development in villages, near 50%

people in Jharkhand and Odisha and near 80% people in Chattisgarh responded thatby giving more power to gram sabha in land, water and forests matters ,and rest of thepeople also asked for more executive and legislative powers from gram sabha.

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Hypothesis-5

Successful implementation of PESA in a phasedmanner has the potential to bringparticipatory development and countermandthe influence of the Naxalites in the NaxalAffected regions

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• In Gumla district of Jharkhand, 48.7 percent felt that the properimplementation of Panchayat governance can lead to self-governance..According to 60.0 percent of people from Khunti, proper implementationof Panchayat governance can certainly lead to the empowerment of tribalself-governance.

• The overall analysis shows that the status of tribal self-governance can beimproved by implementing the Panchayat governance properly in all thescheduled states, but only if this PESA is implemented in Letter and spirit.

• Though all the selected scheduled states have already implementedPESA, the usefulness of such implementation has been questionedseverely, as our field data has shown the failure of the Implementationof PESA.

• This is because the state governments in the Fifth Schedule diluted thecrux of PESA with that of the state or subject laws either throughimproper implementation or through the omission of its principalprovisions

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• Public opinion from the selected states shows that better implementationof PESA provisions can reduce the frequency as well as the influence ofNaxalite activity in the scheduled states

• Often people do not support Naxalism directly in all the selected scheduledstates. In some areas, people do support the Naxal cause because of thecontinuous alienation and dissatisfaction with the successive governmentpolicies related to the key issues such as tribal land, forest, andindustrialisation.

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• It is important to note that the percentage of respondents choosing‘use of police force’ is also mixed in all the districts.

• While people do want extremism and violence to be tackled, opinionis divided among the respondents on increased police presence as along-term solution.

• People are convinced that security alone cannot ensure long termpeace in the region. Strengthening of local governance is required inthese areas to resolve the challenge of extremism.

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Recommendations

Part-I

Alterations of the present laws and its effective implementation

1. Incorporate PESA provisions and reduce contradictions:• The compliance of state laws with the provisions of PESA is still

incomplete especially related to the most crucial provisionssections such as land acquisition, mining of minor minerals,prevention of land alienation of Scheduled Tribes are yet to beincorporated.

• Compliance and harmonization of state laws with PESAprovisions need to be completed at the earliest. There is a needto harmonise the various legislations and government policiesbeing implemented in tribal areas with the provisions of PESA.

• The relevant Central (e.g. Land Acquisition, Mines, Forest) & State(e.g. Panchayati Raj, Money Lending, Forest, Mining, Excise) lawsstill need to be amended in conformity with PESA.

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Governor’s Annual Report

• The Governor’s Annual Report submitted to the President must contain an exhaustive and detailed section on the status of implementation of PESA in the Scheduled Areas.

• Such a section should also cover contradictions with any state laws or regulations as well as gaps in the central act that may be hindering its implementation.

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• As per Section 4(b) of PESA Act, the definitionof a village implies a community which managesits affairs according to its own traditions andcustoms. This definition relate to ‘village’ not inan administrative sense but in a socio-culturalsense of the community. It must be ensuredthat this specific definition of a village is usedfor Scheduled Areas and not that of a revenuevillage.

• -Powers should be clearly defined so that theautonomy of the Gram Sabha does not getaffected by the powers of the Gram Panchayat

2

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Procedure for land acquisition

.• Only the Gram Sabha may have the power of

consultation in matters of land acquisition, which maynot be binding on the parties seeking the acquisition.The term consultation needs to be further clarified orreplaced by the term ‘prior mandatory approval.‘

• Recommendations of the Gram Sabha on the types ofrehabilitation and compensation to affected partiesmust be made binding.

• The state government may establish a grievanceredress cell to address cases of violation of Gram Sabharecommendations of rehabilitation and compensation

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• PESA provisions should incorporate a mandatory interaction between theTrans-National Corporations/Companies and the Gram Sabha/Panchayat in thepresence of the District Collector, regarding tribal land acquisition. In thismeeting, Trans-National Corporations/Companies have to submit the detailedblue print of the proposed project before the Gram Sabha/Panchayat fordiscussion.

• Trans-National Corporations/Companies working under Fifth ScheduledDistricts have to undertake the CSR activities before the initiation of theproject- such as constructing schools, hospitals, anganwadis, health centers inthe respective tribal village/block where the mining or industrial projects aretaking place

• Land acquired for developmental purposes should be acquired on lease and not by purchase. Persons affected would include all persons whose livelihoods and/or habitats are affected by the project.

• Compensation should not only be monetary since the loss of land implies the loss of livelihood, but should cover by allotting cultivable land or by ensuring meaningful employment.

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• Members of the tribal family whose land has been acquired has to bemade shareholders in the company with these benefits also passing totheir future generations.

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Minor Forest Produce• The Gram Sabha may chalk out an action plan about the use or

exploitation of MFP in consultation with the Forest Officers concerned. • The role of the Gram Sabha in fixing minimum prices should be made

central. One or more Gram Sabhas together, in consultation with the Forest Department, should decide the minimum price for thepurchaseor exchange rates of MFP.

• The Gram Sabha should also determine the royalty payable by the trader on MFP.

• It should be made mandatory for all departments and institutions to give details to Gram Sabha before taking any MFP collected on the basis of any Act, rule or administrative instructions and to obtain a clearance certificate from the Gram Sabha.

• The state government must be made responsible for providing the full value of minor forest produce to the primary collector.

• The cost of marketing, storage and transportation should also be borne by the government

• There is a need of legal procedure for standardizing the price of tenduleaves in the respective state in consultation with selected members of Gram Sabha/Panchayat, Block and District level Panchayats.

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• The Gram Sabha should be empowered to ensure that noland belonging to STs is transferred to non ST persons. Thismay be done by first authorizing the Gram Sabha to lookinto any complaints related to land transactions

• If the Gram Sabha is of the opinion that attempts are beingmade to alienate lands belonging to STs, it should beempowered to issue instructions to prohibit the transaction.Such instructions must be made binding on the partiesconcerned.

• The Gram Sabha should be empowered to ensure therestoration of alienated land to the affected persons. It maybe made mandatory to carry out any Gram Sabha orders torestore such land within a specific time limit.

• Further, there should be a provision to provide free legal aidto tribes who put judicial complaints in mattersrelated to the tribal land acquisition.

Prevention of land alienation and restoration of alienated land

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• The Gram Sabha and the PALI have been given the power to exercisecontrol over money-lending under PESA, but this has not been clearlyoutlined.

• Therefore, the Gram Sabha should be empowered to inspect the licensesof money-lenders operating in the area.

• The Gram Sabha should also be given the power to regulate the numberof money lenders operating in a village.

• The Gram Sabha should also be empowered with monitoring theaccounts and records maintained by the money lenders.

• If required, Tribal Co-operative Societies can be created forproviding loans and financial assistance to the tribes under theauthority of both State and Central Government ministries and linkthe same with the Gram Panchayat by adding new clauses in PESAprovision dealing with money lending.

• One may take the example of the Kerala model with regard to anestablishment of Co-operative Societies Act.

Money Lending

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• Gram Sabha and the Panchayat should be givenmore control over land, water, and forestresources.

• Any overlaps or conflicts in term of jurisdictionwith other authorities (for instance forestcommittees) should be immediately examined,and except in exceptional cases it should be ruledin favour of the Gram Sabha and the Panchayat.

• Consultation with Gram Sabha should be madeobligatory for all concerning management offorests.

• This should include the forest protectioncommittees as well as the forest officers.

Management of Community Resources

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Legal Recognition of Traditional Methods of Managing Resources and Dispute Resolution

• it must be noted that within PESA, there is no clarity overtraditional methods and traditions and customs.

• The traditional system of dispute resolution throughthe Gram Sabha must be encouraged and supported bythe state government in the Scheduled Areas.

• It is necessary to initiate systematic documentation oftribal systems of resource management and disputeresolution.

• Such documentation could be the first step in giving legalrecognition to customs and traditions of the community.

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PART- IIPanchayats and Gram Sabhas should have mandatory

monitoring power for providing basic services

• Health Services

• Health Services in the tribal areas has to be given top priority and it isto be monitored monthly at Panchayat level, at District level, at Statelevel, and at Central level.

• Para medical staff from the local youth i.e. male and female both,should be imparted training under skill development programme atTehsil and District headquarter

• The youth of Naxal affected districts and tribal districts should beimparted training in healthcare, food preservation, environmentpreservation, and local cottage industries.

• The Value addition of natural products should be done locally atpanchayat and district level.

• As these Naxal affected areas are rich in mineral resources and naturalfood resources so cottage industries and food preservation willenhance economic status of tribal people.

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Education Services

• Teachers recruited for primary and higher education preferably should belocal and this should be compulsorily for primary education.

• These teachers should be trained in tribal values and ethos.

• Education should be imparted in tribal language at primary level.

• Generally, there are no science teachers in the tribal areas so the dropoutproblem is more in these areas. This should be tackled with morerecruitment of science teachers

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General Administration

• There should be monthly district level meeting amongthe Panchayat, Education department, Healthdepartment, Industry department, Forest department,Police department and District administration.

• There is a circular of MHA regarding the meeting of DM,SP, Forest officer but it is not implemented on the field sowe should have less number of Schemes and rathershould have sensitive machinery to implement so that to

achieve good results on the field.

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1. Tribals have a special status, special history, culture and social values andhistorically they are inhabiting in these areas which are rich in mineral andforest wealth. By different sets of rules and regulations, they are exploitedeconomically, socially and culturally. Thus their trust deficit on theadministration is present.

2. So now we have to develop trust and should have vertically andhorizontally clear laws for the definite period and sensitive machinery toimplement them clearly.-

3. Bureaucrats and administrators had made tribal areas as theirexperimental labs and in this process, created more problems

General trust building through Gram Sabhas-

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1. Concrete steps need to be taken to enhance communicationbetween the people and the state.

2. A viable initiative could be taken to organize special ‘Sabhas’ betweenmembers of the Gram Sabha, the Gram Panchayat and central andstate officials.

3. These could be in the form of annual special meetings to discussdevelopment agendas, projects and schemes and their impact on thelocal population.

4. Further Efforts should be initiated to bring transparency related tothe use of funds often handled by the elected members and otheradministrative committees functioning at the Panchayat level.

Communication between the people and the state.-

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1. The fieldwork has identified that in some districts , like Khunti, the Left WingExtremists control the local self-government institutions while in some otherplaces like Rania village , they put up their own candidates.

2. This kind of situation creates a crucial threat to PESA and empowerment of GramSabha/Panchayats.

3. The study recommends that- The personal profile of all candidates contesting inthe local body elections should be checked thoroughly.

4. Arrangements should be made to conduct free and fair elections in all local self-government institutions/bodies and thereby promote Panchayat Governance,wherein 50 % of reservation for tribesshould be implemented in all bodies of Panchayat Governance System

5. Efforts should be initiated to bring transparency related to the use of funds oftenhandled by the elected members and other administrative committees functioningat the Panchayat level

Naxal controlled Panchayat institutions-

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1. Retrieved areas in the ‘guise’ of developmental process should not be handed overto any MNC for so called rapid industrialization or to provide jobs for displacedpersons.

2. Displaced persons must be encouraged to return to their accepted form oflivelihood be it agriculture and any other local activity. These people should begradually brought to understand the gains of development and not on anovernight shock manner

3. Among the issue to be addressed on a priority basis in such areas would includeimplementation of PDS scheme to ensure food security, provision of clean drinkingwater, health facilities, education, and employment in that order.

4. These services couldbe best provided through Gram Panchayats

5.

Development related Issues through Gram Panchayats

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• The level of desperation on part of CPI (Maoist) in askingfor levy is on the rise and is showing up in MNREGA andWatershed Management and other people orienteddevelopmental projects. However, Gram Panchayats andempowered Gram Sabhas has the potential to watch itclosely, as it can be a serious trend

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• Other Recommendations-

• The functioning of Gram Sabha and peace-keeping activities of the state policedepartment should be linked in such a way that the Gram Sabha can approachpolice whenever required.

• In so doing, the Gram Sabha can monitor and assess the activities of communitypolice in tribal areas and in case the Gram Sabha finds something counterproductiveregarding the community policing system, it can call for an immediate meeting withthe DC and report the same.

• The existing political vacuum in tribal societies is the result of inactive civil societysphere.

• Thus, active involvements of civil society can gradually usher non-violent politicalculture through the process of political socialization and political communication.One way is to promote Self Help Groups (SHG) and use it as a community platformto sell tribal products , properly linked with Gram sabha .

• Efforts should be made for skill development of tribes, such as training to artisantribes, and all required arrangements to establish tribal self-sufficiency throughGram Sabha

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PART IV

• Concept of self-governance (Gram Samba) should form a significant part of the integrated approach, apart from issues of security and development –

• At present, the central government is already working with a four prongedapproach to peace and development in the Naxal affected districts in thethree states under study. This includes security, development, theentitlement of tribal rights and perception management anddissemination of information.

• However, despite theexistence of such an approach, lack of development and presence ofviolence continue to exist. The issue at hand is about creating a balancebetween the four aspects. The situation is complex and is almost like avicious cycle.

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• One must note that while the approach of the state is integrated, theemphasis is strong on the construction of roads and setting up of mobiletowers to improve connectivity (which would also enable security forcesto function more efficiently).

• There is little concrete steps taken to enforce the implementation ofPESA and FRA, which are two of the most important legislations for theentitlement of rights and for development at the grassroots.

• The IAP as a scheme was introduced with the intention to focus on theimplementation of important legislations such as PESA and FRA and toensure that states adhere to providing minimum support price for minorforest produce.

• However, the district component of the scheme was managed by theMinistry of Panchayati Raj and the state component by the Planning

Commission.

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• Thus there appears to be no role for the local bodies here. Another importantpoint to note about the IAP is that when it was established, the focus seemed tobe the empowerment of tribal communities. However, the composition of the

committeein charge of the implementation of IAP indicates otherwise. The three membercommittee is headed by the District Collector or the District Magistrate with theSuperintendent of Police and the District Forest Officer as the two othermembers

• Development in the tribal areas should not be solely in the hands of the state andthe district administration. As our field study indicates, areas which have afunctional and efficient Gram Sabha also see comparatively lower Naxal impactand influence.

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• One also has to note that as a long term solution, the effective functioning of theGram Sabha is crucial to tackling Naxalism but the Gram Sabha can function onlywhen there is a minimal level of peace. Therefore, the requirement of statesecurity cannot be done away with completely.

• It is important to make the concept of self- governance an equally significant partof the integrated approach apart from security and development.