PESA Act — The Constitutional Promise of Tribal Self-Governance That Odisha Has Yet to Fulfil

The Panchayats (Extension to the Scheduled Areas) Act, 1996 is the legislation that extends democratic self-governance — specifically, the powers of Gram Sabhas and Panchayats — to India's tribal Scheduled Areas. It is described as the "Constitution within the Constitution" because it operates within the Fifth Schedule framework that was excluded from the 73rd Constitutional Amendment (Panchayati Raj Act) of 1992.

The exclusion was deliberate: the framers of the Constitution recognised that applying the standard Panchayati Raj model to tribal areas — where community governance systems, land tenure, and natural resource management follow customary rather than statutory patterns — would displace rather than empower tribal communities. PESA was the legislative correction: it extends democratic governance to tribal areas while explicitly requiring that state Panchayat laws be consonant with tribal customary law, social and religious practices, and traditional resource management.

PESA's central institution is not the Gram Panchayat but the Gram Sabha — the assembly of all adult voters in a village. Under PESA, the Gram Sabha — not the Gram Panchayat, not the state government — is the primary authority over a defined range of matters in Scheduled Areas.

PESA Section 4 grants Gram Sabhas in Scheduled Areas specific powers that override standard state panchayat legislation:

1. Safeguard and preserve traditions, customs, cultural identity, community resources, and customary modes of dispute resolution — the Gram Sabha's authority on these matters is supreme
2. Approve plans, programmes, and projects for social and economic development before implementation — no development project can bypass Gram Sabha approval
3. Identify beneficiaries under poverty alleviation and other programmes — the Gram Sabha, not a government officer, identifies who benefits
4. Issue certificates of utilisation for funds disbursed through Gram Panchayats — financial accountability rests with the Gram Sabha
5. Manage minor water bodies within its jurisdiction — irrigation tanks, seasonal streams, community ponds
6. Regulate and restrict alienation of land — tribal land cannot be alienated without Gram Sabha consent
7. Manage minor forest produce — the gram sabha has the right to own, collect, use, and dispose of all minor forest produce in its jurisdiction
8. Control money-lending to tribal communities
9. Regulate local markets — the Gram Sabha controls which markets operate in its area
10. Manage village markets independently
11. Exercise control over intoxicants — the Gram Sabha decides on liquor production and sale in its area
12. Be consulted before land acquisition and before any rehabilitation of persons displaced by projects in Scheduled Areas

For NGOs working in tribal areas: these 12 powers mean that a legitimately constituted and functioning Gram Sabha in a PESA-notified village has legal authority to refuse a mining lease, control an NTFP market, decide on PDS beneficiaries, and manage its own forest. The gap between this legal authority and ground reality is the defining challenge of PESA implementation.

Odisha is one of the two states (with Jharkhand) that has not yet finalised and notified PESA Rules. This creates the following specific situation:

What applies: The PESA Act itself applies fully to all Fifth Schedule Areas in Odisha. The Gram Sabha powers described above are legally in force.

What is missing: Without notified PESA Rules, the specific operational details — how Gram Sabhas are constituted, how their decisions are recorded, how they enforce their authority over minor forest produce and money lending, how state laws are amended to conform with PESA — remain ambiguous. This ambiguity is routinely exploited by district administrations, forest departments, and mining companies to bypass Gram Sabha consent.

The 2024-25 momentum: The Ministry of Panchayati Raj conducted a Second Regional Conference in Ranchi (March 2024) specifically covering Andhra Pradesh, Chhattisgarh, Jharkhand, Odisha, and Telangana — with Odisha participating in discussions about PESA rule-making. The National Conference on PESA (September 2024, New Delhi) launched the PESA-Gram Panchayat Development Plan (GPDP) Portal — a new digital planning tool for PESA Gram Panchayats. Master trainer training in 2024-25 covered Odisha. The current BJP government has signalled intent to finalise PESA Rules — NGOs should track this as a 2025-26 priority.

The Niyamgiri precedent: Odisha's most documented PESA case — the Niyamgiri bauxite mining controversy — established the Supreme Court's position that Gram Sabha consent in Scheduled Areas is substantive, not merely formal. The 12 Gram Sabhas in the Niyamgiri area unanimously rejected the mining proposal in 2013. This precedent establishes that PESA Gram Sabha authority has judicial backing at the highest level, even without formal PESA Rules.

PESA's relationship to other schemes is one of governance primacy — not programme delivery. PESA gives tribal Gram Sabhas the authority to govern how other schemes operate in their villages:

FRA/CFR + PESA: Community Forest Rights under the FRA vest in the gram sabha. The gram sabha's PESA authority over minor forest produce means that a gram sabha with both a CFR title and a PESA-enabled gram sabha is the legal owner and manager of its forest and all its produce. The convergence of FRA and PESA creates the strongest possible tribal natural resource governance foundation.

PMJUGA + PESA: PMJUGA mandates community participation in development planning. The PESA-constituted Gram Sabha is the formal body for that participation in Scheduled Areas — making PESA the governance architecture for PMJUGA's community engagement component.

VB-G RAM G + PESA: The Viksit Gram Panchayat Plans required under VB-G RAM G originate in Gram Sabha deliberations. In PESA areas, the Gram Sabha must approve the plan before the Gram Panchayat can forward it — giving communities genuine authority over what employment-guarantee works are prioritised.

MADA, ITDA, TSP convergence: All Tribal Sub-Plan funding flowing through ITDAs in Odisha's scheduled districts is formally required to be approved by Gram Sabhas under PESA. In practice this approval is often obtained through poorly-attended or manipulated gram sabha meetings. NGOs can help communities claim the substantive approval authority PESA grants them.