Villages Take The Lead As Jharkhand Government Delays PESA Implementation

Binsai Munda has been the village head of Jiuri for the past 12 years. He had hoped that the Hemant Soren government in Jharkhand would implement the PESA Act. But after waiting for six long years, Jiuri village decided to implement the PESA law on its own.

Explaining the decision, Binsai Munda says, “What else could we do? We waited long enough for the government. For six years, they have only been drafting one version after another. Since the government failed to act, we were compelled to implement PESA ourselves. A Gram Sabha meeting was held in the village, where it was decided to enforce the law, and on June 16 this year, PESA was implemented in Jiuri.”

 Binsai Munda has formally informed the Deputy Commissioner of Khunti district, the Chief Minister of Jharkhand, and the Governor in writing about the decision.

Following the implementation of PESA, the territorial demarcation of Jiuri has come under stricter regulation. No government scheme can now be implemented in the village without the permission of the Gram Sabha. An executive committee constituted earlier by the Jiuri Gram Sabha will review all government schemes proposed for the village and assess whether they serve the interests of the tribal community.

Contractors seeking to extract sand, soil, or stones must now obtain permission from the Gram Sabha, and the entire royalty will go to the Gram Sabha. Similarly, the Gram Sabha will have ownership rights over forest produce, including timber, within Jiuri’s territorial limits.

 Jiuri village falls under the Murhu block of Khunti district, which is one of Jharkhand’s most tribal-dominated districts, where nearly 75 per cent of the population is tribal. 

According to Binsai Munda, the PESA law implemented in Jiuri will operate strictly in accordance with the state government’s legal framework. He argues that PESA is a central law of India, which clearly states that if a state government fails to frame and notify PESA rules within one year, the Act is deemed to be automatically applicable in Fifth Schedule areas. Binsai says that Part Five of the central PESA Act empowers Gram Sabhas in Fifth Schedule areas to enforce the law, and Jiuri exercised this authority.

Why PESA Was Enacted

 To understand this development, it is important to revisit the origins of the PESA Act. The 73rd Constitutional Amendment led to the enactment of the Panchayati Raj Act, 1992, which introduced a three-tier system of local self-governance in rural India.

 However, tribal organisations strongly opposed the Act, arguing that it would dismantle their traditional self-governance systems. The resistance grew into a widespread movement, compelling the central government to constitute a 22-member committee in 1994–95 under the chairmanship of tribal MP Dilip Singh Bhuria.

 After studying tribal-majority regions, the committee submitted its report within a few months. Based on its recommendations, the Panchayats (Extension to Scheduled Areas) Act, PESA, was enacted in 1996. The law is essentially an extension of the 73rd Amendment, tailored specifically for Fifth Schedule areas. 

PESA recognised that the Panchayati Raj Act, 1992, could not be applied “as is” in tribal-dominated Scheduled Areas. Instead, modified provisions were introduced under PESA. Accordingly, state governments were required to frame specific rules governing Panchayat elections and powers in Scheduled Areas. Jharkhand, however, has failed to frame such rules to this day.

Two Interpretations of PESA

 Experts on PESA present differing interpretations. One school of thought points to Section 4(a) of PESA, which states that governance in Scheduled Areas must be based on tribal customary law and traditional self-rule. Under this interpretation, the village head (Gram Pradhan) holds executive and legislative powers, and apart from Lok Sabha and Assembly elections, no other elections, including Panchayat elections, are envisaged in Fifth Schedule areas.

 Despite these differing views, several villages in Khunti district have invoked the central PESA Act to enforce the law independently.

 According to Binsai Munda, nearly 30–40 Gram Sabhas in Khunti have followed Jiuri’s example and implemented PESA on their own. 

One of the villages in the Arki block is Sinjuri, where the Gram Sabha has also enforced PESA itself. Village head Sanika Munda told Outlook, “If we waited for the government to act, we would have grown old. That is why we held a Gram Sabha and implemented PESA ourselves. Be it kendu leaves or timber, forest resources now belong to us. No one can do the mining of soil, sand, or gravel without the permission of the Gram Sabha, and the Gram Sabha must be paid.”

 Similarly, Kochang village in the same block has also enforced PESA. Village head Kali Das Munda also told Outlook that since the government made no effort to frame PESA rules, the Gram Sabha took matters into its own hands. He believes this has significantly increased the authority of the Gram Sabha. Earlier, the administration paid no heed to Gram Sabha decisions, but now, block and district officials cannot act without its consent.

Delay and Legal Complications in Jharkhand

 Jharkhand is one of the ten states governed by the Fifth Schedule of the Constitution. Out of these, eight states have framed and implemented PESA rules. Only Jharkhand and Odisha have not done it yet.

 Some legal experts often argue that while the central PESA Act states that it becomes applicable if states fail to act within a year, the law can only be meaningfully enforced once states notify detailed rules. 

 This is because numerous existing state and central laws, be it on land, irrigation, mining, excise, moneylending, and forest management, often contradict PESA. Therefore, to implement PESA, the state has to amend or repeal several of these laws. 

However, this legal complexity only partly explains the delay. Jharkhand was carved out of Bihar 25 years ago, but Panchayat elections were not held for nearly a decade. The Jharkhand Panchayati Raj Act was enacted in 2001, and the first Panchayat elections took place only in 2010. One major reason cited for this delay was the absence of PESA rules.

Former Chief Minister and BJP leader Arjun Munda explains to Outlook, “Even if we assume PESA came into force automatically, Gram Sabha heads are still being harassed with false cases. Royalties are collected in the name of Panchayats without their knowledge. The government still continue to interfere in the affairs of villages. That is why rules are quite essential. You can think of it like a light bulb, we use a switchboard to regulate it. Therefore, rules are the regulatory system and hence necessary.

Arjun Munda also claims that when Panchayat elections were first held in Jharkhand, they were conducted on the basis of PESA. However, the actual powers envisaged under PESA were never devolved due to the absence of rules.

He also notes that ownership of sand ghats by Gram Sabhas and Panchayats existed even before, based on the Samata judgment of 1997, which vested control over minor minerals with local bodies. According to him, during his tenure, there were no sand mafias or opaque tenders like those seen today.

Political Promises and Tribal Dissatisfaction

The empowerment of Gram Sabhas has long been a core demand of tribal organisations, which see PESA as the key instrument for protecting tribal rights. While in opposition, the Jharkhand Mukti Morcha (JMM) acknowledged this demand and promised to frame PESA rules in its 2019 election manifesto.

 However, during its first five years in power, the government made little progress, citing disruptions during the COVID-19 period. Tribal voters renewed their faith in Hemant Soren in the 2024 elections, granting an even stronger mandate. Yet, more than a year into the second term, PESA remains unimplemented.

 JMM central general secretary Supriyo Bhattacharya told Outlook that the government remains committed to implementing PESA.

“The rules are almost ready. After an all-party meeting, they will be sent to the Tribal Advisory Council, then to the Cabinet, the Assembly, and finally to the Governor.”

On the delay, he said technical issues and pending court cases had stalled the process.

Court Orders and Growing Frustration

 Tribal organisations, however, no longer trust such assurances. Over the past five years, multiple petitions have been filed in the Jharkhand High Court, with at least eight hearings on the issue.

Activist Walter Kandulna filed a PIL (No. 49/2021) in 2021. The High Court’s July 29, 2024, order was particularly significant, as it directed the government to notify PESA rules within two months. Nearly one and a half years later, not only have the rules not been notified, but they have not even been finalised.

Following this, a contempt petition was filed by the Adivasi Budhijeevi Manch. On December 4, the High Court sought a clear timeline from the government.

 Walter Kandulna says he has now lost hope in the government and has approached the Governor through another PIL (No. 3639/25), arguing that as custodian of Fifth Schedule areas, the Governor must intervene.

Fear of Losing Control Over Resources

Earlier this year, the government released a draft of the PESA rules, which drew strong opposition from tribal groups. Organisations such as the Adivasi Kshetra Suraksha Parishad alleged that the draft, which is modelled on Chhattisgarh’s version, diluted PESA’s core provisions.

 Parishad president Gladson Dungdung says, “The government is trapped. If it implements PESA in its true spirit, sand and mining mafias will be upset. If it dilutes the law, tribals will protest. So the government prefers to delay.”

Dungdung warns that continued delay will prompt more villages across Jharkhand to independently enforce PESA, following Jiuri’s example.

Traditional Tribal Governance

 Jharkhand’s tribal communities have followed indigenous governance systems for centuries. Institutions such as Munda, Manki, Tana Bhagat, Padha Raja, and Majhi Pargana are deeply rooted in cultural and religious traditions. These positions are hereditary and not elected.

 Each village has a Munda, and several villages come under a Manki. If a dispute cannot be resolved by the Munda, it is referred to the Manki.

According to the Manki–Munda Sangh of Kolhan (West Singhbhum), the Kolhan region has 75 Mankis and around 1,200 Mundas. Meanwhile, the ‘22 Padha Sabha’ states that districts like Gumla, Khunti, West Singhbhum, Ranchi, and Simdega together have 22 Padha Rajas, each overseeing multiple Gram Sabhas.