Cabinet Approval Of PESA Rules In Jharkhand: A Political Milestone Shadowed By Constitutional Questions

The Jharkhand cabinet’s approval of the rules for implementing the PESA, the Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996, is being seen as a significant turning point in the state’s tribal politics and governance structure. The ruling establishment, particularly Chief Minister Hemant Soren, have described it as a historic step toward empowering Gram Sabhas, claiming that it will strengthen community control over Jal, Jungle, Zameen (Water, Forests, and Land).

This move is being projected as the first concrete step toward implementing the PESA Act nearly two and a half decades after the formation of Jharkhand. The government is presenting it as a long-overdue initiative in the direction of tribal self-governance after years of struggle. However, the opposition, especially the BJP, has accused the government of keeping the rules hidden and deviating from the spirit and intent of the original central PESA law.

The opposition argues that unless the rules are made fully public and opened for wider debate, tribal interests cannot be considered protected. Reactions from tribal organisations are also far from uniform. While some groups have welcomed the cabinet decision, several prominent tribal platforms believe that the current rules may restrict the constitutional powers of Gram Sabhas. They have warned that if required, they will challenge the rules in court.

Following the cabinet approval, Chief Minister Hemant Soren termed it a victory of his ancestors and said, “Our ancestors struggled immensely to protect Jharkhand’s water, forests, land, and civilisation culture. PESA is the soul of the tribal communities and cultures that have inhabited Jharkhand since time immemorial. The PESA law strengthens the rights, self-respect, and self-governance of Adivasis and original inhabitants.”

The Chief Minister also claimed that Jharkhand’s PESA framework would become a model for the entire country. However, former Jharkhand Mukti Morcha leader and ex-Chief Minister Champai Soren has accused the government of deliberately concealing the PESA rules. Addressing a press conference, Champai Soren questioned why the government was hiding the rules, stating that Jharkhand had become the first state where PESA rules were approved by the cabinet, but then mysteriously went missing. According to him, neither elected representatives nor the media have received copies of the rules.

The Leader of the Opposition in the Jharkhand Assembly and BJP state president Babulal Marandi has also accused the government of hiding crucial information. He demanded that the government immediately make the approved PESA rules public to prevent confusion and misinformation among the people.

Meanwhile, the ruling parties—Jharkhand Mukti Morcha and the Congress—are organising programmes and celebrations across the state to mark the cabinet approval of the PESA rules. Leaders of both parties claim that the government has fulfilled the promise it made to the people regarding PESA.

It is important to note that both JMM and Congress had promised the implementation of PESA in Jharkhand in their 2019 election manifestos. However, it took six years for the government to take what it calls the first concrete step toward fulfilling that promise.

This has also raised questions among tribal organisations that supported the government on the basis of this commitment, about the manner in which the promise is now being fulfilled.

Significantly, before the cabinet approved the rules on December 23, tribal organisations had opposed the draft PESA rules. One of them, the Adivasi Kshetra Suraksha Parishad, argued that the state government had not framed the rules in accordance with the central PESA Act. Instead, it alleged that the rules were drafted on the basis of the Jharkhand Panchayati Raj Act, 2001 (JPRA), which it considers unconstitutional for Fifth Schedule areas.

Walter Kandulna, associated with the organisation and a petitioner in a related case before the Jharkhand High Court, explains PESA as a special law. He says, “PESA is a special legislation. Article 244 of the Constitution provides special provisions for tribal areas. In Jharkhand, PESA should apply in Fifth Schedule areas, while JPRA 2001 should apply to non-scheduled areas. But the government has mixed the two. Section A of PESA clearly states that laws must be framed in accordance with tribal customary laws. There should be traditional systems of self-governance. Under PESA, the village head holds executive and legislative powers. In Fifth Schedule districts, apart from Lok Sabha and Assembly elections, there should be no other elections in rural or urban areas.”

Kandulna demands that JPRA 2001 should either be repealed or suitably amended. Regarding the newly approved rules, he says there is serious apprehension that the government has not framed them in accordance with PESA. He adds that they are waiting for the notification to examine the contents, and if the rules do not align with the central PESA Act, their opposition will continue.

Similarly, Victor Malto, National Convenor of the Adivasi Buddhijivi Manch, claims he has been demanding the implementation of PESA even before the creation of Jharkhand. He has recently filed a PIL on the issue, with the next hearing scheduled for January 13. Malto also argues that Panchayat elections should not be held in Fifth Schedule districts under PESA.

He says that after studying the errors in the approved rules, they will present their objections before the court. According to him, not only Panchayat elections but also municipal elections should not be conducted in Fifth Schedule districts. “Panchayat elections and PESA cannot coexist. This is unconstitutional. Those who demand otherwise are completely wrong,” he argues.

Jharkhand has 14 Fifth Schedule districts out of its 24 districts. Of the state’s 8.645 million tribal population, around 6.866 million live in Fifth Schedule areas. Khunti district has the highest proportion of tribal population at 73.25 per cent. Opposition to three-tier Panchayat elections has historically been strongest in these Scheduled Areas.

On the other hand, Ajay Tirkey, president of the Central Sarna Committee, has congratulated the state government, saying that at least it has framed the rules and got them approved by the cabinet. Tirkey believes that the approved rules contain the core provisions of PESA and that if any shortcomings are found, they can be corrected later. He argues that blanket opposition is unjustified.

“First, the government deserves congratulations. For 25 years, many governments came and went, but none framed PESA rules. Hemant Soren made it part of his agenda and delivered. Those who have no issues left will now try to create obstacles by opposing it,” Tirkey says.

Siraj Dutta of the Jharkhand Janadhikar Mahasabha offers a legal perspective, stating that PESA introduces Panchayati Raj into Scheduled Areas and extends Panchayat elections through PESA itself. According to him, Panchayat elections occur because of PESA, and this is its legal aspect.

He adds, “The argument that elections should not take place in PESA areas is incorrect. Elections will happen, but the Panchayat law must be PESA-compliant. Gram Sabhas and traditional systems will prevail. Every state already had a Panchayat law, but it did not apply to Fifth Schedule areas. When PESA came into force, Panchayat laws were extended to Scheduled Areas with exemptions and modifications. Elections were then conducted accordingly. Panchayat laws must align with PESA’s exemptions and modifications.”

According to Dutta, the real question is whether Jharkhand’s Panchayat law incorporates all PESA provisions and whether appropriate amendments have been made. The Janadhikar Mahasabha, therefore, demands that all PESA provisions be incorporated into the core Panchayat law.

Tribal activist Bineet Mundu raises fundamental concerns about Jharkhand’s Panchayat framework. He points out that the Jharkhand Panchayati Raj Act, 2001, merged administrative arrangements for Scheduled and non-Scheduled areas, making it inconsistent with PESA on several counts.

Explaining it with an example, Mundu says, “On the issue of Gram Sabha’s powers to restore alienated land, the Act does not provide clear and complete authority in line with PESA. There are several other provisions where it does not match PESA. While JPRA 2001 does serve as an enabling Act for framing PESA rules, it is mandatory to amend it appropriately.”

PESA is widely seen as an extension of the 73rd Constitutional Amendment. One school of thought among PESA experts holds that the Panchayati Raj Act, 1992, could not be applied in its original form to Fifth Schedule tribal areas. Hence, modified provisions were introduced through PESA. Accordingly, state governments were required to frame specific rules for Panchayat elections in Scheduled Areas under PESA. Jharkhand’s cabinet approval on December 23 marks that step.

Out of the ten Fifth Schedule states in India, eight have already framed and implemented PESA rules.

Overall, while the cabinet approval of the PESA rules is being projected as a political achievement for the Jharkhand government, serious questions and disputes remain regarding its actual implementation, constitutional validity, and the extent of powers that Gram Sabhas will truly exercise.