Consolidation, Updation and Synchronization of Odisha’s 3 principal Panchayat laws in compliance to Part-IX of Constitution and PESA Act 1996 –
A CONSTITUTIONAL AND STATUTORY IMPERATIVE
The next, but more perplexing
problem that the Orissa’s Panchayat laws suffer from is their naked violation
of the focal mandate of the 73rd Constitution Amendment i.e. Article 243-G of
Constitution, which provides for endowing the Panchayats with such powers and
authority as may be necessary to enable them to function as institutions of
self-government along with devolution of powers and responsibilities upon
Panchayats in the matter of preparation of plans and implementation of schemes
for economic development and social justice centring round a host of subjects
that include but are not limited to the matters listed in the Eleventh Schedule
to the Constitution. Though the Orissa Legislative Assembly passed the
conformity amendments to its 3 principal Panchayat laws in 1994 and 1995 in
purported compliance to Article 243-N of Constitution, such amendments instead
of doing away with anachronistic provisions that stalked the pre-existing
Panchayat laws, were merely inserted there unto, here and there and also made
to co-exist with the latter, giving rise thereby to a chaotic jumble of the
retrogressive old and progressive new, which turned out to be a quintessential
negation of the letter and spirit of 73rd Amendment. For instance, every
principal Panchayat law of Orissa contains a Chapter titled ‘Control’, such as
Chapter-XI in OGP Act; Chapter-VI in OPS Act and Chapter-IV in OZP Act, which
categorically provided for exercise of overriding powers of control by the
whole gamut of executive authorities and officers who are external to the PRIs,
and as such in flagrant contravention to the imperative of empowering the PRIs
as institutions of self-government as mandated under Article 243-G of
Constitution. Thus unless and until all the anachronistic and retrogressive
provisions like Chapters on Control are removed once and for all, from the
Orissa’s statutes on Panchayat Raj, the people of Orissa can’t have a feel of
self-governing and autonomous PRIs as envisaged by the 73rd Amendment.
Under the circumstances, what is
needed is a revamping of Orissa’s 3 principal Panchayat laws so as to achieve
two fold objectives, namely (I) Consolidating the 3 laws into a single,
integrated, simple, user-friendly Panchayat Raj Act like the ones achieved by
other states. (II) Alongside of the said consolidation exercise, it is to be
ensured that the retrogressive and anachnostic provisions still crowding the
State Panchayat laws are done away with so as to enable the PRIs to function as
institutions of self-government as envisaged under Article 243-G.
PROBLEM-2: As is well known,
Article 243-M(1) of Constitution barred the forthwith extension of 73rd
Amendment to the Scheduled Areas, but Article 243-M(4)(b) allowed its
extension, provided the Parliament may enact a law providing for appropriate
exceptions and modifications while extending Part-IX to the Scheduled Areas. In
accordance with this constitutional mandate, the Provisions of the Panchayats
(Extension to the Scheduled Areas) Act 1996, briefly called PESA Act was
enacted by Parliament on 24 December 1996. As per Section 3 of the PESA Act,
the provisions of Part-IX are being extended to the Scheduled Areas subject to
such exceptions and modifications as are contained in Section 4 of the Act. The
PESA Act being thus a quasi-constitutional law prefaces Section 4 with a bold,
pre-emptive caveat along with a non-obstante clause that says, no State
legislature shall make any law in derogation of the provisions stipulated there
under. The sub-sections (a) to (o) of Section 4 contain a concise but inclusive
charter of exceptions and modifications which required to be complied with by
the Panchayat laws of a State having Scheduled Areas. Besides, Para-5 of PESA
Act (Continuance of existing laws on Panchayats) categorically stipulated that
all the competent legislatures (such as Parliament & State legislatures)
and other competent authorities (such as President & Governor under Fifth
Schedule) ought to repeal or amend all the provisions relating to Panchayats in
the Scheduled Areas, in consistence with the exceptions and modifications made
to Part-IX as stipulated in PESA Act, and that too, within a year of PESA
enactment, that is, by 23rd December 1997, failing which all the provisions of
Panchayat-related laws if found inconsistent with that of PESA Act shall
automatically lose force. As a matter of fact, like many other States having
Scheduled Areas, the State of Orissa amended its 3 principal Panchayat laws
within the time-limit so specified in compliance to Para-5 of PESA Act, but
woefully enough, such amendment made mere cosmetic changes to the pre-existing
Panchayat laws of Orissa by inserting here and there, this or that provision
culled from the PESA Act into the body of said Panchayat laws, without
repealing or amending those very pre-existing provisions of Orissa’s Panchayat
laws, which stood in naked conflict with the provisions of PESA Act. As a
result, today’s Panchayat laws of Orissa which superficially contain the
provisions of PESA Act, are in fact a chaotic hotch-potch of both PESA and
anti-PESA provisions and are in no way compliant to the quintessential mandate
of the said Act i.e. Gram Sabha as a self-governing and autonomous body of
villagers to act as a superior authority in relation to any Panchayat or
Administrative body. For instance, Chapters on Control still stalking the
Panchayat laws of Orissa which bestow powers to external administrative bodies,
do nullify the overriding powers and authority entrusted under PESA Act to Gram
Sabha in respect of very many matters to effectuate self-governance of a
village community in Scheduled Areas. In sum, the existing 3 Panchayat laws of
Orissa, though formally amended in purported compliance to Section 243-N of
Constitution and Para-5 of PESA Act in 1994 and 1997 respectively, do, in fact,
not only conflict with the letter and spirit of Part –IX of Constitution, but
also with the mandate underlying Para-5 of PESA Act.
Under the circumstances, what is
utmost desirable at the moment is to ensure that while the much needed
consolidation of Orissa’s 3 separate Panchayat laws into a single, integrated
law on Panchayat Raj in synchrony with the provisions of Part-IX of the Constitution
is undertaken, meticulous efforts are to be made at the same time to
incorporate the provisions of PESA Act into the revamped body of that law at
appropriate places in respect of Scheduled Areas, in order to comply, belatedly
though, with the mandate underlying the Para-5 of PESA Act.
PROBLEM- 3: The Panchayat laws
of Orissa, even after their amendment in purported compliance to Section 5 of
PESA Act, do continue to suffer from a paradoxical incongruity in respect of
definition and constitution of Gram Sabha, the very foundational fulcrum of
both Panchayat Raj and Scheduled Area governance. It is a matter of great irony
that OGP Act contains two different, confusing definitions of village vide
‘Grama’ under Section 2(g) and ‘Village’ under Section 2(u) of the said Act.
Peculiarly enough, ‘Grama’ as further defined under Section 3 is constituted of
‘any village or group of contiguous villages’ which implies that a Grama is not
necessarily a Village and can be a group of Villages too. As to the question
what is a village, it is as defined in Section 2(u) of the Act ‘any area
recorded as a village in the revenue records of the district’ and in absence of
any such records, ‘any area as the Collector of the district may from time to
time declare to be a village for the purpose of this Act’. Thus, plainly
speaking, a Grama is not a Village and conversely, a Village is not a Grama.
One therefore can’t translate ‘Village’ as Grama and vice versa. Besides, the
population of a Grama can range from two thousand at minimum to ten thousand at
maximum vide Section 3(3), while the minimum or maximum population of a Village
has not been stipulated anywhere. Perhaps, to skirt around this conundrum
centring round Grama and Village, the OGP Act has devised another concept
called ‘Palli Sabha’ vide its Section 6. It is said, a Palli Sabha is normally
coterminous with a Village except where a Ward of the Grama as constituted
under Section 8, if consisting of more than one village, there shall be only a
single Palli Sabha in that case. Thus, Palli Sabha, both theoretically and
practically speaking, is coterminous neither with a Village nor with a Ward.
Besides, it is the Palli Sabha, not Gram Sabha as such, which acts as the
decisive body in respect of formulation of plans and programmes and selection
of beneficiaries thereof vide Section 6(7) of the OGP Act. Such a problematic
and confusing jugglery around basic terminology of Panchayat Raj is however not
noticeable in the Panchayat laws of any other State. Besides, this complicated
scenario around Orissa Panchahayt laws has been further confounded after
enforcement of PESA Act, in which Village and Grama are coterminous entities
and it may consist of a single or multiple habitations but used by a single
community vide Section 4(b) of the PESA Act and all the members of the Village
or Grama who are entered into the electoral rolls of the Panchayat of that
Village/Grama shall constitute the Gram Sabha vide Section 4(c) of PESA Act.
Though OGP Act in its Amendment of 1997 has formally incorporated the above
provisions of PESA Act relating to reconstitution of Village/Grama in the
Scheduled Areas vide Proviso to Section 3 of OGP Act 1964, it has however
diluted the PESA’s thrust on a single community constituting a Village/Grama,
by way of perfunctorily mentioning ‘a community or communities’. Above all,
Government of Odisha has not made any endeavour to reconstitute the
Village/Grama in the Scheduled Areas as required under PESA Act. Under the
circumstances, the formation of a Villages Reorganisation Commission at State
level is barely necessary to reconstitute the Villages/Gramas in non-Scheduled
Areas in accordance with Part IX of Constitution and in the Scheduled Areas in
accordance with PESA Act in the interest of much needed revamping of Odisha’s
Panchayat Raj.
PROBLEM-4: As already stated,
Article 243G mandates the devolution of such powers and authority by the State
legislatures on the Panchayats as to enable them to function as institutions of
self-government in respect of matters listed in the Eleventh Schedule. As is
well known, the Eleventh Schedule which was added to the Constitution as a part
of 73rd Constitution Amendment, contains a list of 29 subjects which directly
bear on the life and livelihood of the villagers, e.g. Agriculture, Land
Reforms, Irrigation, Animal husbandry, Minor Forest Produce, Drinking Water,
Rural Electrification, Roads and Bridges, Non-conventional energy, Education,
Health and Sanitation, SC/ST Welfares, Public Distribution System, Markets and
Fairs, Family Welfare, Women and Child Development, Maintenance of Community
Assets etc. As a matter of fact, the Odisha’s 3 principal Panchayat laws and
their conformity amendments of 1994 enacted in the wake of 73rd Constitution
Amendment do provide for formal powers and authority of Panchayats exercisable
over a plethora of subjects including the ones listed in the Eleventh Schedule
[vide Section 5 (Grama Sabha and its functions) and Chapter VI (Powers, Duties
and Functions of Grama Panchayat) of OGP Act], but the ground reality is that the
real exercise of powers and authority still rests with the various line
Departments of State Government at the level of Secretariat or Directorate in
absence of any commensurate amendment in respect of the pre-existing state laws
governing the above said subjects. For instance, going by Article 243-G
read with Item No. 14 of Eleventh Schedule, Rural Electrification including
Distribution of Electricity ought to come under the Panchayat domain, but it is
now administered by Odisha Power Transmission Corporation Limited working under
the State Department of Energy.
A worse scenario in respect of
devolution of powers and authority to Grama Sabha and Panchayats is noticeable
vis-a-vis PESA Act 1996 and its implementation in Odisha. As such, PESA Act
mandates state legislatures and competent authorities to devolve powers and
authority on Gram Sabha and Panchayats in respect to a whole universe of
matters relating to the life and livelihood of the people living in Scheduled
Areas, be it their religion, culture, natural resources, land use, minor forest
produce, minor minerals, development of any sort and even Tribal Sub-plan. But
the ground reality speaks a different tale owing to continuance of control
exercised by the State Departments and their functionaries as per the
pre-existing subject laws. For instance, it is not a Gram Sabha or a Panchayat
that licenses and collects royalty for the extraction of minor minerals in the
Scheduled Areas of Odishha as required under Section 4(k and l) of PESA Act,
but the whole business is carried on under the control of Tahsildar of Revenue
Dept under Orissa Minor Mineral Concession Rules 2004.
Thus, there exists a strong
imperative for identifying the anachronistic laws and bye-laws and incongruous
administrative regimes that hinder the devolution of powers and authority on
Gram Sabha and Panchayats in Odisha as required under Part-IX of Constitution
and PESA Act 1996 and consequently for building up a doable roadmap for
effecting a comprehensive amendment thereto.
PROBLEM-5: As is well known,
Section 4(d) of PESA Act proclaims Gram Sabha as the competent authority inter
alia for safeguard and preservation of customary mode of dispute resolution in
the Scheduled Areas. In fact, OGP (Amendment) Act 1997, which was enacted in
purported compliance to Para-5 of PESA Act, inserted inter alia this very
provision, which stands now as Sub-section (6) of Section 5 of the amended OGP
Act. However, this very provision till date remains a dead letter on the
statute book for a number of reasons. Firstly, to operationalise the provision
of customary dispute resolution, the OGP Rules 1968 has not yet been
correspondingly amended to that effect. Secondly, the mainstream juridical
codes that govern the administration of justice in both civil and criminal
spheres such as IPC 1860, CrPC 1973, Police Act 1961, CPC 1908 and Evidence Act
1872 etc., are yet to recognize and accommodate the tradition and practice of
customary dispute resolution as prevalent among the tribal communities in general
and in the Scheduled Areas in particular. Thirdly, as per Para-5 of Fifth
Schedule to the Constitution, the Governor of a State having Scheduled Areas,
who has exclusive and overriding power to make any Regulation for the peace and
good governance of the said areas, can, if he so deems necessary, make a
Regulation to provide for the procedural manual for operationalising the
customary dispute resolution in the Scheduled Areas, as envisaged under Section
4(d) of PESA Act or as stipulated, perfunctorily though, in Section 5(6) of
Amended OGP Act. However, the Governor of Orissa, though credited with
promulgation of special laws for Scheduled Areas such as Orissa Scheduled Areas
Transfer of Immovable Property (By Scheduled Tribes) Regulation 1956) and Orissa
(Scheduled Areas) Money-lenders’ Regulation 1967, is yet to make any such
Regulation for effectuating the customary mode of dispute resolution in the
Scheduled Areas. Fourthly, long before the PESA Act 1996 provided for the
customary mode of resolution in the Scheduled Areas, the OGP Act 1948 (repealed
by the OGP Act 1964), provided for a workable mechanism of customary dispute
resolution in the shape of Panchayat Police and Adalati Pnchayat in Chapters VI
and VII and Schedules II and III of the said Act. Interestingly enough, these
provisions of 1948 Act were saved from repeal by the OGP Act 1964 which
repealed and replaced the OGP Act 1948. As of now, Section 153(e) and Section
154 of the existing OGP Act 1964, do provide for continuance of the provisions
of Panchayat Police and Adalati Panchayat. However, in absence of any necessary
provisions made in the existing OGP Rules 1968 in correspondence to the said
statutory provisions, the wholesome dispensation of Panchayat Police and
Adalati Panchayat, which is nothing but a system of customary dispute
resolution in the language of PESA, are conspicuously missing out from the
entire countryside of Orissa, let alone the Scheduled Areas. Such Rules can be
framed either by the Orissa Department of Panchayat Raj subject to approval by
the Orissa Legislative Assembly to give effect to Section 154 (Saving in
respect of Panchayat Police and Adalati Panchayat) of OGP Act 1964 or by the
Governor Orissa in the shape of a Regulation under Para-5 of Fifth Schedule to
Constitution to give effect to Section 4(d) of PESA Act that provides for Gram
Sabha’s competency to preserve and safeguard the customary mode of dispute
resolution in Scheduled Areas. However, neither of the above authorities has
shown any inclination, let alone initiative, to restore the customary mode of
dispute resolution to its rightful place, notwithstanding the unequivocal
mandate to that effect enshrined in the OGP Act 1964 and PESA Act 1996.
Fifthly, the Union Government in the Ministry of Panchayat Raj or the Ministry
of Tribal Affairs has a crucial role to play in giving effect to the provision
for customary mode of dispute resolution in Scheduled Areas as mandated inter
alia under Section 4(d) of PESA Act, by way of exercising their power under Para-3
of Fifth Schedule to the Constitution, which inter alia reads, “….. the
executive power of the Union shall extend to the giving of directions to the
State as to the administration of the said areas.” As a matter of fact, in
exercise of this power the Ministry of Panchayat Raj, GoI had constituted a
Sub-committee headed by Dr. B.D. Sharma, which submitted ‘Model Guidelines to
vest Gram Sabhas with powers as envisaged under PESA Act’ for adoption by all
states having Scheduled Areas. The said Model Guidelines had stipulated inter
alia as to how a Gram Sabha in the Scheduled Areas can functionalize the
customary mode of dispute resolution as envisaged under the PESA Act. But,
after a brisk flurry of letters and circulars issued by MoPR to PESA states,
there has been virtually no follow-up either by the Central Government or by
the said States till date as to the operationalisation of Model
Guidelines.
Under the circumstances, a
multipronged endeavour by all competent legislatures (Parliament and State
Legislative Assembly) and other competent authorities (Governor of s State and
President of India as per Fifth Schedule to Constitution) is the need of the
hour to effectuate the customary mode of dispute resolution as envisaged under
Section 4(d) of PESA Act. While the Parliament can make a law to incorporate
this provision in the principal legal codes such as IPC, CrPC and CPC etc.as a follow-up to the PESA Act the Govt of
Orissa subject to approval by Orissa Legislative Assembly can frame appropriate
Rules to give effect to saving clause of Section 154 of existing OGP Act 1964
even pending the consolidation of Panchayat laws in synchrony with Part-IX of
Constitution and PESA Act. As an alternative to the above two options, the
Governor of Orissa in exercise of his power vested under Para-5 of Fifth
Schedule to Constitution can promulgate a comprehensive Regulation for giving effect
to the provision of customary mode of dispute resolution for Scheduled Areas of
the State in compliance to Section 4(d) of PESA Act.
Outcomes envisaged:
1)
A rigorous, comprehensive
analysis of the commissions and omissions afflicting Orissa’s 3 principal
Panchayat laws and related sub-ordinate legislations vis-à-vis the mandates of
Part-IX of Constitution and PESA Act;
2)
A draft consolidated and
integrated Panchayat law for Orissa in place of existing 3 Acts and numerous
Rules, in compliance to the mandates of Part-IX and PESA Act;
3)
A compilation of Recommendations
made by different Committees and Commissions set up at Central level and at
Orissa level for amendment to existing laws for effecting their synchronization
with Part-IX of Constitution and PESA Act;
4)
A Draft framework for
operationalising the Customary Mode of Dispute Resolution in respect of the
Scheduled Areas of Orissa, taking the cue from the ‘Model Guidelines to vest
Gram Sabhas with powers as envisaged under PESA’ submitted by the Sub-committee
headed by Dr. B.D. Sharma to Ministry of Panchayat Raj, Govt of India;
5)
A draft list of proposed
amendments along with the notes in justification of the same, in respect of a
number of related Orissa Acts and Rules other than the 3 principal Panchayat
laws of Orissa and Rules made there under, such as the existing state laws
relating to excise, forest, revenue, police, market, cooperative, public works
and mining etc, with a view to bringing each of them in sync with Part-IX read
with Eleventh Schedule of Constitution and also PESA Act;
6)
A draft list of proposed
amendments along with notes in justification of the same, for incorporation
into Central laws like IPC, CrPC, CPC, Indian Registration Act 1908, Indian
Forest Act 1927, MMDR Act 1957 etc and Rules made there under, in keeping with
letter and spirit of Part-IX read with Eleventh Schedule of Constitution and
also PESA Act;
7)
A list of Govt and non-Govt
organizations within and outside Orissa which have been engaged with kindred
issues over the years;
8)
A compilation of judicial
pronouncements by Supreme Court and High Courts of Orissa bearing on the issues
of synchronization of existing laws with Part-IX of Constitution and PESA
Act;
10)
Existing scenario at the ground
level in Orissa vis-à-vis the mandates of Part-IX of Constitution and PESA Act,
to be captured on the basis of secondary sources as well as visits by the
review team to the selected Panchayats in both Scheduled and non-Scheduled
Areas.
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Prepared jointly by Sri Sandip
Kumar Patnaik (Mob- 99380 632275) and Sri Chitta Ranjan Behera (Mob-
9437577546), dt 14.12.2023
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