the provisions of the panchayats (extension to the

The Provisions of the Panchayats (Extension

to the Schedules Areas) Act, 1996 A PRESENTATION FOR

JAMMU AND KASHMIR FOREST OFFICERS AS PART OF

Online Course on Forestry Related Central Legislations

A K Goyal

August 22, 2020

Structure of Presentation

• Role of Local Bodies in Biodiversity Conservation

• Constitution Provisions-73rd and 74th Amendments

• Local Bodies

• Salient Features of Part IX

• Constitution of Autonomous District Councils

• Autonomous Districts in Ladakh

• Panchayats in JK

• Scheduled Tribes in JK and Ladakh

• Central biodiversity related laws in JK

• Provisions of PESA Act, 1996

2

Role of Local Bodies in Biodiversity

Conservation

Indian Forest Act, 1927

• Section 28 (2) Village forests- duties for protection and improvement of such forests

• JFM- through National Forest Policy and executive orders

Forest (Conservation) Act, 1980

• NOC from local body required for diversion of forest land for any non-forestry

purpose (construction or roads, canals, hydroelectric dams, mining, establishment of

industry or rehabilitation of displaced persons)

Environment (Protection) Act, 1986

• Local bodies play major role in giving EC under EIA-has biodiversity conservation

as its main component

3


Conservation

Biological Diversity Act, 2002

❖ Biodiversity Management Committees

❖ Forest Rights Act,2006

✓ stop any activity that adversely affects forests, wild life, biodiversity among

other things

✓ approval on acquisition of land protect wild life, forests, biodiversity,

adjoining catchments areas, water sources, other ecological sensitive areas

✓ issuance of transit permit for transportation of MFP by a committee

constituted/person authorized by GS

✓ modify plans and impose restrictions to avoid over exploitation of MFP

4

(contd…)


Conservation

Compensatory Afforestation Fund Act, 2016

❑ Two representatives of District PRI in Executive Committee of SCAFMPA

✓ Preparation of plans, schemes, Supervision, monitoring and evaluation of

works, Maintenance of books of account, Annual report

✓ PESA Act, 1996

✓ Major role to Gram Sabha and Panchayats

5

(contd…)

Local Bodies-Constitutional Provisions

• Part IX inserted vide 73rd Constitution Amendment

Act, 1992 deals with Panchayats

• In force w. e. f. April 24, 1993

• Containing articles 243, 243 to 243-O

• Part IXA inserted vide 74th Constitution

Amendment Act, 1992 deals with Municipalities

• In force w. e. f. June 01, 1993

• Containing articles 243P to 243Z, 243Z to 243ZG

6

Local Bodies

• Article 243B(1) Panchayats at village, intermediate

and district levels

• Traditional bodies in Autonomous District Councils

• 243Q(1)(a) Nagar Panchayat for a transitional area

from rural to urban

• (b) a Municipal Council for a smaller urban area

• (c) a Municipal Corporation for larger urban area

➢Metropolitan area above ten lakh, one or more

districts, two or more municipalities or panchayats

➢ Industrial townships

➢Cantonment areas7

Salient Features of Part IX of Constitution

❑ Constitution defines Gram Sabha

❑Mandatory Constitutional Provisions

✓ three tiered structure for Panchayats

✓ elections every five years through State Election

Commissions

✓ direct elections to seats at all three tiers and indirect elections

to chairpersons of Block and District Panchayats

✓ reservation of seats and office positions for SCs/STs/women

• not less than 1/3rd seats reserved for women - 50% in 19

States8


❑ Mandatory Constitutional Provisions (contd.)

✓ State Finance Commission every five years

✓ constitution of DPCs, participatory plans preparation and

consolidation at District levels

❑ Discretionary Constitutional Provisions

✓ State legislatures to devolve powers, authority and responsibilities to

Panchayats

✓ vesting powers with Gram Sabha

✓ vesting powers with PRIs to impose taxes

✓ earmarking funds for Panchayats

9


✓ Discretionary Constitutional Provisions (contd.)

✓ strengthening and capacity building of PRIs

✓ promoting accountability through adoption of

accounting and audit mechanisms

✓ reservation of seats for other backward class

✓ establishing intermediate tier of Panchayats in

States/UTs with population less than 20 lakh

❑Mandatory–cum-Discretionary Constitutional Provisions

✓ election to office of Chairperson of Village Panchayat,

but mode of election direct or indirect as per State law

10

(contd.)


❑Mandatory-cum-Discretionary Constitutional Provisions

✓ rotation of reserved seats and offices for SC/ST/Women,

after one or two terms as per State law

✓ there will be a State Election Commissioner, conditions

of service as per State law

✓ no election to any Panchayat shall be called in question

except by an election petition as per State law

✓ constitution of SFC, as per the State law

11

(contd…)

Institution of Gram Sabha

❑ Gram Sabha (GS) – body consisting of all persons registered in

electoral roles who live in area covered by Panchayat

❑ GS cornerstone of entire scheme of democratic decentralization in

India

Mahatma Gandhi recognized critical role of GS in village economy- true

democracy not

worked by persons at top but from below by people of every village

❑ GS may exercise powers and perform functions at village level as

provided by State law

❑ Success or failure of PR system depends on how powerful and

effective GS is to fulfill aspirations of people

❑ In Fifth Schedule Areas GS given major role under PESA Act

12

Applicability of Constitutional Provisions

• Part IX of Constitution does not apply to

– Whole of Nagaland, Meghalaya (including Sixth Schedule

Areas) and Mizoram (including Sixth Schedule Areas)

– Sixth Scheduled Areas of Assam and Tripura

– Hill Districts of Manipur and Gorkha Hill District of

Darjeeling, West Bengal

– Fifth Scheduled Areas (FSA) in ten States (HP, Gujarat,

Rajasthan, Chhattisgarh, Maharashtra, MP, AP, Telangana,

Odisha and Jharkhand)

13

Constitution of Autonomous District Councils

Can be created

• As per Constitutional provisions- Sixth

Schedule Areas

• By an Act of Parliament

• By State Legislature

14

Rural Local Bodies

Total RLBs : 2,63,030 (approx)

No. of Gram Panchayat : 2,55,547

No. of Block Panchayat : 6,829

No. of District Panchayat : 654

No. of Elected members of PRIs : 28.00 lakh (approx)

No. of Elected Women ERs : 13.42 lakh (approx)

Areas not covered by PRIs*

(Non Part IX)

: Meghalaya, Mizoram, Nagaland and

Hill areas of Manipur and district

Darjeeling of West Bengal and parts

of Assam and Tripura notified under

Sixth Schedule

20 States have enacted laws to reserve 50% seats for women in local governments

*Traditional local bodies in these areas

Avg. population per GP

> 10000 Avg. population per GP

5001-10000 Avg. population per GP

2001-5000 Avg. population per GPKerala

500-2000 Avg. population per GP

Madhya

Pradesh

Punjab

Uttarakhand

Himachal

Pradesh

Tamil

Nadu

West

Bengal

Assam

Andaman and Nicobar

Islands

Rajasthan

Orissa

Gujarat

Bihar

Telangana

Highest States

i) West Bengal (18,607)

ii) Kerala (18,567)

iii) Assam (12,185)

iv) Bihar (11,005)

Lowest States

i) Arunachal Pradesh (599)

ii) Uttarakhand (885)

iii) Punjab (1,331)

National Average population per GP:

3,440

Andhra

Pradesh

Maharashtra

Karnataka

Uttar

Pradesh

Jharkhand

Haryana

Arunachal

Pradesh

Manipur

Jammu &

Kashmir

Tripura

Sikkim

Goa

Subjects in 11th Schedule for consideration for devolution to PRIs

1. Agriculture, including agricultural extension.

2. Land improvement, implementation of land

reforms, land consolidation and soil

conservation.

3. Minor irrigation, water management and

watershed development.

4. Animal husbandry, dairying and poultry.

5. Fisheries.

6. Social forestry and farm forestry.

7. Minor forest produce.

8. Small scale industries, including food

processing industries.

9. Khadi, village and cottage industries.

10. Rural housing.

11. Drinking water.

12. Fuel and fodder.

13. Roads, culverts, bridges, ferries, waterways

and other means of communication.

14. Rural electrification, including distribution of

electricity.

15. Non-conventional energy sources.

16. Poverty alleviation programme.

17. Education, including primary and

secondary schools.

18. Technical training and vocational

education.

19. Adult and non-formal education.

20. Libraries.

21. Cultural activities.

22. Markets and fairs.

23. Health and sanitation, including

hospitals, primary health centers and

dispensaries.

24. Family welfare.

25. Women and child development.

26. Social welfare, including welfare of the

handicapped and mentally retarded.

27. Welfare of the weaker sections, and in

particular, of the Scheduled Castes and

the Scheduled Tribes.

28. Public distribution system.

29. Maintenance of community assets.

Ministry of Panchayati Raj

❑ Ministry of Panchayati Raj (MoPR)

✓ created on May 27, 2004

✓ Vision: To attain decentralized and participatory local self-government through PRIs

✓ Mission: Empowerment, enablement and accountability of PRIs to ensure inclusive

development with social justice and efficient delivery of services

✓ ‘Panchayat’ is a State Subject

✓ Mandate-to facilitate implementation of

• provisions of Part IX of Constitution

• provisions of PESA Act, 1996

• constitutional provisions to improve functioning of District Planning

Committees; and

• measures promoting decentralized and participatory local self-governance to

strengthen grassroots democracy

✓ Role of MoPR - Advocacy with States18

1. Lack of GP buildings (About 50,000 GPs (20%) don’t have buildings)

2. Lack of Manpower at GP level

• Inadequate manpower (excepting States like Kerala, Sikkim, Karnataka,

Goa, WB)

• Lack managers/development officers, accountants and engineers

(except Karnataka, Kerala & WB)

• Staff availability in GPs in States like UP, Bihar, MP, Jharkhand

extremely low [UP–58,500 GPs and one Secretary/6 GPs (approx.)]

3. Poor Maintenance of Basic Accounts in GPs

4. Uneconomical size of GPs in most States

19

Current Status

S.No. State Panchayati Raj Act

1 Uttar Pradesh The U.P. Panchayat Raj Act, 1947

2 Bihar Bihar Panchayat Raj Act, 1947

3 Assam 1. Assam Panchayat Raj Act, 1948

2. Assam Panchayat Raj Act, 1959



4 Punjab 1. The Punjab Gram Panchayat Act, 1952

2. The Punjab Panchayat Samitis and Zila Parishads

Act, 1961

5 Karnataka 1. The Mysore Village Panchayats and District

Boards Act, 1952

2. The Karnataka Zilla Parishads, Taluk Panchayat

Samitis, Mandal Panchayats and Nyaya

Panchayats Act 1983

6 Rajasthan The Rajasthan Panchayat Act, 1953

7 Maharashtra 1. The Bombay Village Panchayat Act,1958

2. The Maharashtra Zilla Parishads and Panchayat

Samitis Act, 1961

Panchayati Raj Legislations before 73rd Amendment

20


8 Tamil Nadu The Tamil Nadu Panchayats Act, 1958

9 Kerala The Kerala Panchayats Act, 1960

The Kerala District Administration Act, 1979

10 Goa The Goa, Daman & Diu Panchayats Regulation,

1962

11 Gujarat The Gujarat Panchayats Act, 1961

12 Madhya

Pradesh

1. The Madhya Pradesh Panchayat Act, 1962.

2. The Madhya Pradesh Panchayat Raj Act, 1981.

3. The Madhya Pradesh Panchayati Raj Act, 1990

13 Odisha The Orissa Grama Panchayat Act, 1964

14 Andhra

Pradesh

1. The Andhra Pradesh Gram Panchayats Act, 1964

2. Andhra Pradesh Mandal Praja Parishads, Zilla

Parishads and Zilla Pranalika and Abhivrudhi

Sameakha Mandal Act, 1986

Panchayati Raj Legislations before 73rd Amendment (contd…)

21


15 Haryana The Punjab Gram Panchayat Act, 1952

The Punjab Samitis Act, 1961

16 Arunachal

Pradesh

North East Frontier Agency Panchayat Raj

Regulation, 1967

17 Himachal

Pradesh

Himachal Pradesh Panchayat Raj Act, 1968

✓adopted the Punjab Village Panchayat Act, 1939

✓passed Punjab Panchayat Act, 1952, repealed in 1968

18 West Bengal West Bengal Panchayat Act, 1973

19 Manipur The Manipur Panchayat Raj Act, 1975

20 Nagaland The Nagaland Village and Area Council Act,1978

21 Tripura 1. The Tripura Block Panchayat Samitis Act, 1978

2. The Tripura Panchayat Act, 1983

22 Sikkim The Sikkim Panchayat Act, 1982


(contd…)

22

S.N

o.

UT Panchayati Raj Act

1 Chandigarh The Gram Panchayat Act, 1952

Punjab Panchayat Samitis and Zilla Parishad Act, 1961

(extended to Chandigarh UT)

2 Dadra and Nagar

Haveli and

Daman & Diu

Dadra and Nagar Haveli Panchayat Regulation 1965

Daman & Diu Village Panchayat Regulations, 1962

3 Delhi Delhi Panchayat Raj Act, 1954

4 Andaman &

Nicobar

The Andaman & Nicobar Island (Gram Panchayats)

Regulation, 1961

5 Puducherry Pondicherry Village and Commune Panchayats Act, 1973

6 Lakshadweep The Lakshadweep (Administration) Regulation, 1988

The Lakshadweep Island Council Regulation, 1988

7 Jammu and

Kashmir

Jammu and Kashmir Panchayati Raj Act, 1989

8 Ladhakh Jammu and Kashmir Panchayati Raj Act, 1989


(contd…)

23

JK Panchayati Raj Act, 1989 before 73rd Constitution

amendment

JK

• Has provisions for constitution of Halqa Panchayat and

Halqa Majlis. 4290

• Block Development Council at intermediate level. 275

All sarpanches and chairperson of marketing society of area

• District Planning and Development Board at District level

20

Ladakh

• Halqa 192 Block 31 and District 02

➢ Elections held in Nov-Dec 2018

blocks 316 Halqa 4483 total panches: 35029 24

Panchayats in JK and Ladakh

JK Municipal Act, 2000

1. Elections held in October 2018 for 1145 wards

Before that elections held in 2005

25

Municipalities in JK and Ladakh

Autonomous Districts in Ladakh

• Ladakh Autonomous Hill Development Council

Act, 1995 (repealed by Act of 1997)

Leh AHDC created following demands of Ladakhi

people to make Leh District a new Union Territory

because of its religious and cultural differences with

rest of JK

• Council came into being after elections on August

28, 1995

• An AHDC also been established in Kargil District in

July 2003 26

Scheduled Tribes in JK including Ladakh

Twelve major tribes

1) Balti 2) Beda 3) Bot, Bot

4) Brokpa, Drokpa, Dard, Shin 5) Changpa

6) Garra 7) Mon 8) Purigpa

9) Gujjar 10) Bakarwal 11) Gaddi 12) Sippi.

• STs in JK (including Ladakh) 14,93,299 11.9%

• Jammu 8,10,800 15.07%

• Kashmir 4,64,306 6.74%

• Ladakh 2,18,193 79.54 %

• JK UT population 1,22,67,013

• STs 12,75,106 10.39%

27

Autonomous Districts in Ladakh

AHDC Act provides for constitution of

• Executive Council of five members

• Creation of a Council Fund

• Executive powers on about 28 subjects

• Power to levy taxes

• Constitution of an Inter-district Advisory Council for

deliberating on mattes of common interest/disputes

28

Proposals for Autonomous Districts in Ladakh

➢119th meeting of NCST held in 2019 to deliberate on issue of inclusion of UT of Ladakh under Fifth/Sixth Schedule

➢NCST recommended to bring it under Sixth Schedule

➢This will help in

– Democratic devolution of powers

– Preserve and promote distinct culture of the region

– Protect agrarian rights including rights on land

– Enhance transfer of funds for speedy development of Ladakh region

29

Laws Applicable in JK and Ladakh

Jammu Kashmir (Reorganisation) Act, 2019

• Fifth Schedule (section 95 and 96)

• Table 1

• Central legislations made applicable to UTs of JK

and Ladakh 106, out of which four related to

Forests and WL

• {FCA, 1980; IFA, 1927; FRA, 2006 and WLPA, 1972}

• Table 2

• State laws applicable to two new UTs with some

amendments seven

30

Laws Applicable in JK and Ladakh

Table 3

• State laws repealed 153 of which four –forests and wild life

{JK Forest Act, 1997; JK Forest (Conservation) Act, 1997; JK Forests (Sale of Timber) Act, 1987; and JK Wild Life (Protection) Act, 1997}

• and eleven Governor’s Acts repealed

Table 4

• State legislations and Governors’ Acts which remain applicable

• 166, out of which three-forests and wild life

{JK Forest Corporation Act, 1978; JK Forest (Protection Force) Act, 2001; JK Preservation of Specified Tree Species Act, 1969}

• JK Panchayati Raj Act, 1997

31

▪ Article 243M empowers Parliament to extend provisions of

Part IX to Scheduled and Tribal Areas with such exceptions

and modifications as specified by law, and no such law shall

be deemed to be an amendment of Constitution

▪ A Committee set up by Government under chairmanship of

Shri Dileep Singh Bhuria, MP to suggest modifications

▪ Committee submitted Report in January, 1995

• PESA Act enacted on basis of recommendations of this

Report extending provisions of Part IX of Constitution to

FSA

32

Constitutional Provisions-Fifth Schedule Areas

PESA Act,1996

❑ The Provisions of the Panchayats (Extension to the Scheduled Areas)

Act, 1996 extends provisions of Part IX of Constitution to Fifth Schedule

Areas (FSA) with certain exceptions and modifications

❑ Mandate of MoPR to monitor implementation of its provisions in FSA

of ten States marked by poverty, illiteracy, inaccessibility and weak

infrastructure

❑ As per provisions of Act, tribal areas to have stronger Gram Sabhas to

decide on issues critical to their lives and livelihood- development

programmes, land acquisition, minor minerals, intoxicants, MFP, money

lending, village markets and water bodies

33

Salient Features of PESA

➢ A village may consist of one or more habitations or hamlets

comprising a community and managing its affairs in

accordance with traditions and customs.

➢ Every village shall have its own Gram Sabha [Sec 4 (b)]

• Reservation of seats for STs shall not be less than half of

total seats [Sec 4 (g)]

• Seats of Chairpersons of Panchayats at all levels reserved

for STs [Sec 4 (g)]

• Government may nominate persons belong to ST which

have no representation in Panchayat at IP or DP not to

exceed one –tenth [Sec 4 (h)]

34


➢ State may endow Panchayat with power and authority to

function institution of self-government and contain

safeguards to ensure Panchayats at higher levels do not

assume power and authority of Panchayat at lower level or

GS [Sec 4(n)]

➢ Shall endow to follow pattern of Sixth Schedule for district

levels [Sec 4(o)]

35

➢ Powers exclusive to Gram Sabha

Gram Sabha is “competent” to safeguard and preserve the

(a) traditions and customs of people and their cultural identity

(b) community resources, and

(c) customary mode of dispute resolution [Sec 4(d)]

Gram Sabha has mandatory executive functions to

❖ approve plans, programmes and projects for social and economic

development [Sec 4(e)(i)]

❖ identify persons as beneficiaries under poverty alleviation and other

programmes [Sec 4(e) (ii)]

❖ Issue certificate of utilization of funds by Panchayat for plans;

programmes and projects [Sec 4(f)]

36


Powers exclusive to Gram Sabha/Panchayat at appropriate

level

• Right to mandatory consultation in land acquisition,

resettlement and rehabilitation of displaced persons [Sec 4 (i)]

• Planning and management of minor water bodies [Sec 4 (j)]

• Recommendation mandatory for granting licence for

prospecting minor minerals [Sec 4 (k)]

• Mandatory recommendations for prospective licenses/lease,

concessions for mines and minerals [Sec 4(l)]

37

Salient Features of PESA (contd..)

Powers endowed to Gram Sabha and Panchayat at appropriate level

to

• regulate sale/consumption of intoxicants [Sec 4 (m) (i)]

• ownership of minor forest produce [Sec 4 (m)(v)]

• prevent land alienation and restore alienated land [Sec 4(m)(iii)]

• manage village markets [Sec 4 (m)(iv)]

• control over money lending to STs [Sec 4 (m)(v)]

• control over institutions and functionaries in social sector, local

plans including Tribal sub-plans and resources

[Sec 4(m)(vi)(vii)]

38

Salient Features of PESA (contd..)

PESA Act,1996

❑ Details of Notified Fifth Schedule Areas

S.No. State Villages Panchayats Blocks Districts

Fully covered Partially

Covered

1 Andhra Pradesh 1586 588 36 0 5

2 Chhattisgarh 9977 5050 85 13 6

3 Gujarat 4503 2388 40 4 7

4 Himachal Pradesh 806 151 7 2 1

5 Jharkhand 16022 2074 131 13 3

6 Madhya Pradesh 11784 5211 89 5 15

7 Maharashtra 5905 2835 59 0 12

8 Odisha 19411 1922 119 7 6

9 Rajasthan 5054 1194 26 2 3

10 Telangana Not Available 631 72 0 4

Total 75048* 22044 664 46 62

39

(contd…)

*excluding Telangana

Issues in implementation of PESA Act,1996

❑ Degree of implementation of PESA Act differs from State to State, its

provisions not having independent existence - embedded within subject laws

under Union List, Concurrent List, State Panchayat Raj laws and subject laws

under State List

❑ Non-formulation of Rules by five States

❑ Incomplete compliance of concerned State laws with provisions of PESA Act

❑ Inadequate coordination among departments of the States

❑ Non-availability of adequate resources

❑ Lack of awareness among GPs/GSs for discharging their functions

❑ Defining village under provisions of PESA

40

Initiatives of MoPR to Strengthen Local

Governance ❑ Implementation of PESA

✓ detailed guidelines for implementation of PESA issued by MoPR in 2010

✓ with MoPR’s regular review, most of the States have made their PR Acts (88%) and Subject

laws (43%) compliant to provisions of PESA Act

✓ MoPR prepared Model PESA Rules and circulated to all PESA States for framing of State

specific Rules

✓ Five States-AP, Telangana, HP, Maharashtra and Rajasthan have notified their PESA Rules

✓ National Workshop on “Implementation of PESA Act: Issues and Way forward in Feb-4-5,

2016 organized at New Delhi

✓ Handbook on Gram Sabha Mobilizers and Block/ District Coordinators prepared

✓ Committee on Harmonization of Central Laws with PESA

• set up by PMO to examine relevance of Central laws to FSA and harmonize them

with objectives of PESA

• Committee’s recommendations circulated to Ministries for action41

(contd…)

Actions Required for PESA Implementation

▪ Panchayats being “State” subject powers regulatingfunctioning of PRIs including framing of local laws restswith respective State Governments

▪ MoPR strives to ensure PESA implementation throughadvocacy and technical and financial support

▪ In spite of critical importance of PESA implementation inFSA, there have been many operational issues affectingspeedy implementation. These are

➢ Amendments to State Panchayati Raj Acts incompliance with Section 4 of PESA Act

➢ Amendments to concerned Subject Laws to make themcompliant to provisions of PESA

➢ Frame State PESA Rules for implementation ofprovisions of PESA

42

Thank You

If you want to know more on PESA, please

Visit website: https://pesadarpan.gov.in

the provisions of the panchayats (extension to the

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