The PESA Act 1996 is five sections long, and only one of them does any real work. Yet that one section quietly relocates the seat of government for a large part of rural India. In the Scheduled Areas to which the Act applies, the law does not merely permit the village assembly to meet and discuss. It makes the Gram Sabha the body that approves development plans before they are implemented, the body that selects the beneficiaries of welfare programmes, the body that must be consulted before land is taken, and the body whose recommendation must be obtained before a minor mineral concession is granted. No other local institution in the country holds a comparable bundle of authority, and the bundle was created not by a constitutional amendment but by an ordinary statute passed under a power the Constitution had left dormant.

The puzzle the Act sets every reader is why a statute this short and this strong has had so uneven a life. The answer is written into the statute itself, in two places. The first is its verbs. Parliament did not use one word for the Gram Sabha’s role across all subjects. For development plans it chose approval, for minor minerals it chose a mandatory recommendation, and for land acquisition, the most consequential subject of all, it chose consultation, the weakest of the three. The second place is the machinery. PESA is a central Act that operates by commanding state legislatures what their panchayat laws must contain, and then leaves those legislatures, and the state rule books beneath them, to do the rest. Most states complied on paper within the period the Act allowed and then took decades to frame the rules that would let a Gram Sabha exercise the powers in practice. A reader who holds those two facts, the graded verbs and the missing rules, holds the whole architecture of the Act. This article works through both, clause by clause, and then through the record of what states, courts and the two neighbouring statutes, the Forest Rights Act and the land acquisition Act of 2013, have done with them.

Why Part IX stopped at the boundary of the Scheduled Areas

The Constitution (Seventy-third Amendment) Act, 1992 built the modern panchayat system. It inserted Part IX into the Constitution, gave the village, intermediate and district panchayats a constitutional footing, provided for regular elections, reservation of seats, state election commissions and state finance commissions, and listed in the Eleventh Schedule the subjects that state legislatures might devolve. The amendment came into force on 24 April 1993. It transformed local government in most of India. It did not, by its own terms, enter the Scheduled Areas at all.

Article 243M, which governs the application of Part IX, provided that nothing in that Part would apply to the Scheduled Areas referred to in Article 244(1) or to the tribal areas referred to in Article 244(2). The exclusion was deliberate. The Scheduled Areas were already governed by a distinct constitutional scheme, the Fifth Schedule, under which the Governor carries special responsibilities and may direct that laws apply with modifications or not at all, and in which land, the resource on which tribal life rests, is protected by regulation against transfer to outsiders. A standardised panchayat template, designed for the revenue village of the plains and for administration through a three-tier elected structure, sat uneasily on communities whose own institutions, the village council, the clan gathering, the customary headman and the assembly of the habitation, were older than the state and still functioning. Simply switching Part IX on in these areas would have overwritten those institutions in the name of democratising them.

The same Article, however, kept the door open. Article 243M(4)(b) empowered Parliament, by law, to extend the provisions of Part IX to the Scheduled Areas and the tribal areas subject to such exceptions and modifications as might be specified in that law, and it provided that such a law would not be treated as a constitutional amendment for the purposes of Article 368. The design choice embedded in that clause is the seed of everything that followed. The extension, when it came, would be a statute, not an amendment. It could therefore be tailored, feature by feature, to the conditions of the Scheduled Areas. The general framework of the panchayati raj system built by the Seventy-third Amendment is the subject of its own article in this series; PESA is the instrument that carried a modified version of that framework across the boundary that the Amendment itself had drawn.

What Parliament eventually specified, in the exceptions and modifications, was not a diluted panchayat system. It was a different distribution of power inside the panchayat system, one in which the elected panchayat, the body that Part IX everywhere else treats as the institution of self-government, is subordinated at the decisive points to the Gram Sabha, the assembly of all the voters of the village. Understanding PESA means understanding that inversion. In the rest of India, the Gram Sabha is a deliberative body whose functions are whatever the state legislature assigns to it under Article 243A, and in most states that assignment is thin. In the Scheduled Areas after PESA, the Gram Sabha is the source of authority. The panchayat implements. The assembly decides, approves, identifies, certifies, is consulted, and recommends. Which of those verbs attaches to which subject is the fine structure of the Act, and it is to the conditions that produced the statute, and then to the statute itself, that the analysis turns.

The Fifth Schedule beneath the Act

PESA cannot be read on its own because its operative concept, the Scheduled Areas, is a creation of the Fifth Schedule to the Constitution, and the powers it gives the Gram Sabha sit on top of a protective structure that the Schedule had maintained for decades before 1996.

The Fifth Schedule, read with Article 244(1), contains provisions for the administration and control of the Scheduled Areas and the Scheduled Tribes in any state other than Assam, Meghalaya, Tripura and Mizoram, the four states whose tribal areas are governed by the Sixth Schedule instead. The areas themselves are those the President declares to be Scheduled Areas by order, and the declaration has historically followed the pattern of the excluded and partially excluded areas of the colonial period, tracts of predominantly tribal habitation in the hills and forests of central and western India and along parts of the eastern seaboard. The states in which Fifth Schedule areas exist are Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan, ten in number, a list the reader will find tested in the questions at the end of this article.

Three features of the Schedule matter for reading PESA. The first is the Governor’s legislative power. Paragraph 5 of the Fifth Schedule authorises the Governor to direct, by public notification, that any particular Act of Parliament or of the state legislature shall not apply to a Scheduled Area, or shall apply with specified exceptions and modifications. It further authorises the Governor to make regulations for the peace and good government of a Scheduled Area, and names, among the subjects such regulations may cover, prohibiting or restricting the transfer of land by or among members of the Scheduled Tribes, regulating the allotment of land to members of the Scheduled Tribes, and regulating the carrying on of business as a money-lender by persons who lend money to members of the Scheduled Tribes. Regulations of that kind, made after consulting the Tribes Advisory Council and effective only with the President’s assent, are the constitutional source of the land transfer regulations that several states maintain, instruments such as the Andhra Pradesh Scheduled Areas Land Transfer Regulation, which became the foundation of the most important judgment in this field, discussed later in this article.

The second feature is the Tribes Advisory Council, provided for in Paragraph 4 of the Schedule, a body constituted in each state having Scheduled Areas, charged with advising on matters pertaining to the welfare and advancement of the Scheduled Tribes that are referred to it by the Governor. The third feature is the reporting line. Paragraph 3 requires the Governor of a state having Scheduled Areas to report annually, or whenever required by the President, to the President regarding the administration of those areas, and the executive power of the Union extends to giving directions to the state as to that administration. The Fifth Schedule, in other words, builds a supervisory channel that runs from the Governor to the President, bypassing the ordinary federal distribution of business, because the framers treated the protection of tribal communities as a charge on the Union itself.

One further feature of the Schedule determines the Act’s living geography. Under Paragraph 6, the President may by order declare an area to be a Scheduled Area, and may, after consulting the Governor of the state concerned, alter its boundaries by rescinding or enlarging an earlier order, or declare an area to cease to be a Scheduled Area. The map of PESA is therefore not fixed by the Act or by the Constitution’s text; it is a presidential map, revised by orders over the decades, most substantially when states were reorganised and the Scheduled Areas of the predecessor state had to be re-specified for its successors, as happened when Chhattisgarh was carved out of Madhya Pradesh in 2000, Jharkhand out of Bihar in the same year, and Telangana out of Andhra Pradesh in 2014. Each reorganisation is a moment at which the coverage of the protective scheme, and with it of PESA, is technically in issue, and the re-specification orders that followed each state division are the instruments that carry the Act’s territory into the successor states. A practitioner asking whether a particular village is within the Act must therefore answer the question from the declaration orders applicable to that state, and not from any list in the Act itself, which, by the borrowing device of Section 2, contains none.

Against that background, the gap PESA filled becomes precise. The Fifth Schedule protected tribal land and tribal custom from above, through the Governor’s exceptional powers and through regulation. It created no institution of self-government from below. A Scheduled Area village before 1996 was administered by the district bureaucracy and, where the state panchayat law ran, by panchayats imposed under statutes that had been applied to the area by executive choice rather than by constitutional design. The community’s own institutions had no statutory personality. The Bhuria Committee, and then PESA, addressed exactly that absence, and they addressed it not by enlarging the Governor’s powers but by building the missing floor of the structure, an assembly of the village itself with authority defined by Parliament.

The longer pre-history: excluded areas, a commission and a forty-year interval

The Fifth Schedule did not begin the story; it codified an older administrative idea whose origins explain both its strengths and its silences. Under the Government of India Act, 1935, the tribal tracts of the provinces were classified as excluded areas and partially excluded areas, territories from which the ordinary legislature’s laws did not automatically run and which were administered by the Governor acting outside ministerial advice, on the theory that the general law of the province, its tenancy codes, its credit market and its courts, would injure the communities it touched if applied without mediation. The Constituent Assembly took the arrangement up through the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, and its sub-committee on the excluded and partially excluded areas other than Assam, chaired by A. V. Thakkar, the veteran social worker known as Thakkar Bapa. The settlement that emerged, the Fifth Schedule for the mainland tribal areas and the Sixth for the hills of the north-east, kept the protective core of the colonial scheme, the Governor’s special responsibility and the power to hold back or modify laws, while discarding its paternal form, substituting constitutional status, a Tribes Advisory Council and the supervisory channel to the President.

The early republic revisited the scheme once, formally. Article 339 of the Constitution contemplated a commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes, and the commission appointed under it, chaired by U. N. Dhebar and reporting in 1961, examined the working of the Schedule across the states. The Dhebar Commission recorded the continuing failure of the protective design at its central point: tribal land continued to pass to non-tribals notwithstanding the regulations, indebtedness remained the mechanism of the transfer, and the administration of the areas remained an extension of the ordinary district system with the Schedule’s exceptional powers largely unexercised. Its recommendations ran toward development administration adapted to tribal conditions and stronger protection of land and forest rights. The interval that followed, from the 1960s to the 1990s, is the period in which the states built their own arrangements for the Scheduled Areas without any constitutional local government framework: panchayat statutes were extended to many Scheduled Areas by state choice and notification, land transfer regulations were enacted or strengthened in several states, the Tribal Sub-Plan strategy from the Fifth Five Year Plan onward earmarked development funds by population proportion, and the protective jurisprudence described earlier in this article accumulated in the courts. What none of it produced was a statutory village institution. The panchayat that existed in a Scheduled Area village before 1996 existed because the state Act ran there, with the powers the state Act gave, designed for the state’s general countryside; the assembly of the community, where state law recognised one at all, stood in the shadow of the elected body.

The Seventy-third Amendment forced the question the Dhebar Commission had left open. Once Part IX gave panchayats constitutional status everywhere else, the exclusion of the Scheduled Areas in Article 243M became a visible anomaly requiring a decision: either the constitutional system would be extended as it stood, assimilating the tribal village to the general template, or the enabling power in Article 243M(4)(b) would be used to design the extension around the community. The Bhuria Committee was the mechanism of that decision, and its report is the moment the second course was chosen, on the express ground that the tribal communities possessed institutions of their own which the law should recognise rather than replace. PESA’s forty-year pre-history matters to its interpretation because it explains the Act’s most distinctive feature, its distrust of the general template. The drafters of 1996 were not decentralising in the abstract. They were correcting a documented, two-generation failure of government from above in a defined territory, and they wrote the correction in the most imperative form an ordinary statute can take.

The Bhuria Committee and the making of the statute

The route to PESA ran through a committee. In June 1994 the Government of India constituted a committee of Members of Parliament and experts to examine how the provisions of Part IX might be extended to the Scheduled Areas and on what terms. Its chairman was Dileep Singh Bhuria, a tribal Member of Parliament from Madhya Pradesh, and the body is known by his name. The Bhuria Committee submitted its report in January 1995, and the statute that Parliament enacted the following year follows the report’s central recommendations closely enough that the report remains the best guide to what the Act was designed to do.

The committee’s starting point was that the tribal communities of the Scheduled Areas possessed functioning systems of self-governance long before the modern state, organised around the village community and its customary institutions, and that a panchayat law for these areas which ignored those systems would fail in fact however elegant it looked on paper. It recommended that the extension of Part IX be built around the Gram Sabha of a village defined as the community itself understands its village, that the Gram Sabha be recognised as competent to preserve the community’s traditions, customs, cultural identity and community resources and to resolve disputes by the customary mode, and that the assembly be given real authority over the matters that decide a tribal village’s material life, its land, its minor forest produce, its water bodies, its markets, its liquor, its money-lenders and its development plans. It recommended, in substance, that self-governance be recognised where it already existed rather than manufactured where it did not.

Two features of the committee’s approach survived into the Act and explain the Act’s character. The first is the direction of the design. The committee proposed that authority flow upward from the Gram Sabha, with the panchayats at the village, intermediate and district levels exercising only the powers the structure assigns them and expressly prevented from absorbing the assembly’s functions. Section 4(n) of the Act, which requires state legislation to contain safeguards ensuring that panchayats at the higher level do not assume the powers of a panchayat at the lower level or of the Gram Sabha, is that proposal in statutory form. The second feature is the subject list. The committee treated control over natural resources and over the village economy, not the delivery of government schemes, as the core of self-rule, and the catalogue in Section 4(m), running from intoxicants and minor forest produce through land alienation, markets and money lending to control over local plans and the tribal sub-plan, reproduces that priority.

The Bill that followed was taken up by Parliament in 1996 and enacted before the year closed. The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996, Act 40 of 1996, received the assent of the President on 24 December 1996 and was published in the Gazette of India on the same day. The Act contains no separate commencement clause, and it is treated as having come into force on the date of assent. Its brevity is itself a fact about its method. Parliament did not write a panchayat code for the Scheduled Areas. It wrote five sections, of which the first three and the fifth are machinery, and concentrated the whole of its design in Section 4, to which this article turns after a section on the machinery that surrounds it.

The machinery: five sections and a deadline

Section 1 gives the short title. Section 2 contains the Act’s only definition, and it is a borrowing rather than a description: “Scheduled Areas” means the Scheduled Areas as referred to in clause (1) of Article 244 of the Constitution. Parliament chose not to list the areas or to create any power to notify new ones. The Act’s territorial reach expands or contracts exactly as the President’s declarations under the Fifth Schedule expand or contract, and a village is inside PESA for one reason only, that its land lies within an area declared under the Fifth Schedule. Section 3 performs the extension itself, in a single sentence: the provisions of Part IX of the Constitution relating to the Panchayats are extended to the Scheduled Areas subject to such exceptions and modifications as are provided in Section 4. The whole of Part IX, the three tiers, the elections, the reservations, the commissions, arrives in the Scheduled Areas through that sentence, and everything distinctive about the Scheduled Area version of the system is a subtraction from, or an addition to, what that sentence imports.

Section 5 is the provision that was supposed to make the transition happen on a schedule, and its failure to do so in practice is the first half of the implementation story. It provides that any provision of any law relating to Panchayats in force in the Scheduled Areas immediately before the date on which the Act received the President’s assent, which is inconsistent with Part IX as modified by PESA, shall continue in force only until it is amended or repealed by a competent legislature or other competent authority, or until the expiration of one year from the date of assent, whichever is earlier. Existing panchayats were protected by a proviso and allowed to continue till the expiration of their duration unless dissolved by a resolution of the state legislature. The one-year rule is a familiar legislative device, and a strong one. It does not ask the state to act; it tells the state that its inconsistent law will die on a date certain whether it acts or not. What Section 5 could not do, and did not attempt, is the thing the system actually needed. It could kill an inconsistent statute. It could not write the rules of procedure, the quorum provisions, the meeting calendars, the forms of resolution, the devolution orders and the departmental instructions through which a Gram Sabha’s statutory competence becomes an event that happens in a village on a known day with legal effect. Those instruments are made under the state panchayat Acts, by the state executive, and nothing in PESA sets a date for them or a consequence for their absence. The distinction between amending a statute and framing rules under it is the hinge of the Act’s subsequent history, and it recurs throughout this article.

One further piece of machinery deserves attention because it shapes the argument about the Act’s strength. Section 4 opens with a non obstante formula of an unusual kind. It does not say that PESA overrides other laws. It says that, notwithstanding anything contained in Part IX, the legislature of a state shall not make any law under that Part which is inconsistent with any of the features that follow. PESA is drafted as a prohibition addressed to state legislatures, a set of features with which every future state panchayat law for the Scheduled Areas must comply. Its legal character matters when a state’s conformity amendment contradicts it. The state law is not merely bad policy; it is a law the legislature was forbidden to make, and the features in Section 4 are the measure against which its validity is to be judged.

The devolution contrast: what the general law leaves optional, PESA commands

To see what is unusual about Section 4, set it beside the provision it modifies. Under Article 243G of the Constitution, the legislature of a state may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government, and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats with respect to the preparation of plans for economic development and social justice and the implementation of schemes, including those in relation to the matters listed in the Eleventh Schedule. The operative word is may. The Constitution creates the panchayats, guarantees their elections and their tenure, and then leaves the substance of their power to the generosity of the state legislature, a generosity that has varied enormously across states and across subjects in the decades since 1993. The Gram Sabha’s position under the general law is weaker still: Article 243A provides that a Gram Sabha may exercise such powers and perform such functions at the village level as the legislature of a state may, by law, provide. The assembly of the whole village, the only directly democratic body in the structure, holds under the general text exactly what the state chooses to give it, which in most states is a consultative and recommendatory role over matters the panchayat decides.

Section 4 inverts every term of that arrangement within the Scheduled Areas. Where Article 243G says the state may endow, Section 4 says the state legislature shall not make any law inconsistent with features that include specified endowments. Where Article 243A leaves the Gram Sabha’s functions to state law, Section 4 fixes the Gram Sabha’s central functions in a central statute the state cannot dilute: competence over traditions, culture, community resources and customary dispute resolution; approval of plans; selection of beneficiaries; certification of fund utilisation. Where the general law distributes power downward from the state to the panchayat, Section 4 distributes it downward past the panchayat to the assembly, and clause (n) then forbids the higher tiers to take it back. The Eleventh Schedule subjects that dominate the general devolution debate, agriculture, minor irrigation, animal husbandry, fisheries, minor forest produce, rural housing, drinking water, roads, poverty alleviation, education, health and the public distribution system among them, appear in PESA not as items a state may devolve but as the raw material of the clause (m) endowments, control over institutions and functionaries in all social sectors and over local plans and resources being the general form of which the Schedule’s list is the particular. The contrast explains a feature of the Act that puzzles first-time readers: why a statute extending a constitutional scheme reads so much more imperiously than the scheme it extends. The answer is that Part IX was a framework of permission because it had to be carried through twenty-five state legislatures by consensus; PESA was a statute enacted under a specific enabling power for a defined territory against a documented history of dispossession, and it was drafted as a floor of rights rather than an invitation. The states that resented it were resenting exactly that difference.

Section 4, the first group of features: custom, the village and the assembly

The fifteen clauses of Section 4, lettered (a) to (o), fall into four groups by function. The first group, clauses (a) to (f), fixes the foundations: the place of customary law, the definition of the village, the composition of the Gram Sabha, its general competence, its two great decisional powers, and the financial discipline that connects the assembly to the elected panchayat. The second group, clauses (g) and (h), governs representation. The third group, clauses (i) to (l), contains the three procedural verbs on which the article’s central argument rests. The fourth group, clauses (m) to (o), contains the endowment catalogue and the structural safeguards.

Clause (a) provides that a state legislation on the panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources. The clause is addressed to the legislature, and its obligation is one of design. A state Act for the Scheduled Areas must be built so that it fits the customary order of the communities it governs, in the management of their resources above all. The requirement is without parallel elsewhere in Part IX, which assumes throughout that the state is creating institutions on a blank field. In the Scheduled Areas the field is not blank, and clause (a) says so in the language of obligation.

What does it mean that state panchayat law must be in consonance with customary law?

It means the state legislature, when it writes the panchayat Act that will run in the Scheduled Areas, must shape that Act around the customary law, social and religious practices and traditional management of community resources of the tribal communities concerned, instead of imposing the uniform template used elsewhere in the state.

Clause (b) then defines the unit to which everything else attaches, and it is the most quietly radical sentence in the Act. A village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs. The ordinary panchayat system works with the revenue village, a unit drawn by settlement officers for the collection of land revenue, and attaches one Gram Sabha to it. Clause (b) displaces that unit with a social one. The village for PESA purposes is the habitation whose people form a community and run their affairs by their own traditions, which in much of the Scheduled Areas means the hamlet, a settlement smaller than the revenue village and often separated from it by forest, hill or stream. The consequence is a multiplication of assemblies. A single revenue village, and a single elected Gram Panchayat, may contain several PESA villages, each with its own Gram Sabha competent to exercise the Act’s powers for its own community. Where states have ignored clause (b) and constituted one Gram Sabha for the whole panchayat area, they have not made a procedural choice; they have changed the identity of the body Parliament empowered, generally in the direction of a larger, more distant and more easily managed assembly.

Clauses (c) and (d) constitute the assembly and state its general competence. Every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level. The Gram Sabha is therefore not a gathering of elders, a council of clan heads or a meeting of residents at large, though custom supplies those bodies too. It is the whole body of registered voters of the village, sitting as an institution. Clause (d) provides that every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution. The word is competent, and it does work in the courts, as the Niyamgiri judgment later showed: the clause does not exhort the assembly to value its traditions, it recognises the assembly’s legal competence over them, including over community resources and over the settlement of disputes by custom.

Clause (e) confers the first of the decisional powers, and confers it in the strongest form the Act uses anywhere. Every Gram Sabha shall approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level, and shall be responsible for the identification or selection of persons as beneficiaries under the poverty alleviation and other programmes. Approval before implementation is a power to decide: a plan the Gram Sabha has not approved is not to be taken up by the village panchayat at all. Beneficiary identification is likewise not advisory. The assembly selects, and the administrative lists that drive the distribution of houses, pensions, subsidies and works in a tribal village are, in law, the assembly’s act. Clause (f) completes the fiscal circuit by requiring every Panchayat at the village level to obtain from the Gram Sabha a certification of utilisation of funds for the plans, programmes and projects referred to in clause (e). The panchayat spends; the assembly certifies that the spending happened as approved. Read together, clauses (e) and (f) install the Gram Sabha as both the authorising and the auditing authority over village development expenditure, a combination that no other tier of Indian government enjoys in quite this form, since the bodies that authorise expenditure and the bodies that audit it are everywhere else kept apart.

The second group: who sits in the panchayat

Clauses (g) and (h) rewrite the reservation arithmetic of Part IX for the Scheduled Areas. Clause (g) provides that the reservation of seats at every Panchayat in the Scheduled Areas shall be in proportion to the population of the communities for whom reservation is sought under Part IX, subject to two provisos: the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats, and all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes. The first proviso converts demography into a floor. In a panchayat where the tribal population is large, proportionality would in any event produce a tribal majority of seats; the proviso guarantees at least half even where the proportion would produce less, and it applies at every level, village, intermediate and district. The second proviso is categorical. Every chairperson of every panchayat at every level in a Scheduled Area is to be a member of a Scheduled Tribe, a rule with no equivalent in the general panchayat system, where chairperson reservation rotates by proportion.

Why does PESA reserve every chairperson post in a Scheduled Area panchayat for the Scheduled Tribes?

Because Section 4(g) departs from the proportional pattern of the general law in two steps: seats for the Scheduled Tribes may never fall below one half of the total, and the chairperson’s seat at every level, village, intermediate and district, is reserved for the Scheduled Tribes without rotation or exception.

Clause (h) handles the residual case of the community that the electoral map misses. The State Government may nominate persons belonging to such Scheduled Tribes as have no representation in the Panchayat at the intermediate level or the Panchayat at the district level, provided that the nomination does not exceed one-tenth of the total members to be elected in that panchayat. The clause recognises a structural feature of tribal demography: the Scheduled Tribes are not one population but many communities, some of them small and geographically concentrated, and a proportional system keyed to the category as a whole can return panchayats in which particular communities, including the most vulnerable, have no member at all. Nomination, capped at a tenth, is the Act’s corrective. It is confined to the two higher tiers, where the constituencies are large enough for the problem to arise.

The representation design is completed by the provisions of Part IX that PESA leaves untouched. Article 243D’s reservation of not less than one-third of seats for women, including within the seats reserved for the Scheduled Castes and the Scheduled Tribes, and of one-third of the chairperson offices for women, extends into the Scheduled Areas with Part IX itself, operating inside the floors clause (g) imposes. A Scheduled Area panchayat therefore sits at the intersection of two reservation logics, the community logic of PESA, which guarantees the tribal majority and the tribal chairperson, and the gender logic of the general Part, which guarantees women’s presence within every category; and the Gram Sabha itself, being the whole body of voters, is the one institution in the structure whose composition no reservation shapes, which is why the procedural provisions in the later state rules, directed at securing women’s presence and voice in the assembly’s meetings, carry a weight out of proportion to their modest drafting.

The third group: consulted, recommended, and the space between

Clause (i) provides that the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects in the Scheduled Areas, and it adds that the actual planning and implementation of the projects shall be coordinated at the State level. Clause (j) provides that planning and management of minor water bodies in the Scheduled Areas shall be entrusted to Panchayats at the appropriate level, a devolution stated without qualification. Clauses (k) and (l) then change the verb. The recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to the grant of a prospecting licence or mining lease for minor minerals in the Scheduled Areas, and the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for the grant of a concession for the exploitation of minor minerals by auction.

The table below is the article’s argument in one view. It sets out, for each of the eleven subjects the brief of this statute touches, the exact form of words Section 4 uses, and classifies what that form of words amounts to in law: a power to decide, a power to block, or a right to be heard.

Subject	The statutory form of words	What it amounts to
Development plans, programmes and projects	The Gram Sabha shall approve them before implementation	A power to decide: nothing is implemented without approval
Identification of beneficiaries	The Gram Sabha shall be responsible for identification or selection	A power to decide: the assembly selects the names
Land acquisition for development projects	The Gram Sabha or the Panchayat shall be consulted before acquisition	A right to be heard: consultation is mandatory, agreement is not
Resettlement and rehabilitation of affected persons	The Gram Sabha or the Panchayat shall be consulted beforehand	A right to be heard: the view must be sought, not accepted
Minor minerals: prospecting licence or mining lease	The recommendation of the Gram Sabha or the Panchayat shall be made mandatory beforehand	A power to block: no recommendation, no lawful grant
Minor minerals: concession by auction	The prior recommendation shall be made mandatory	A power to block: the auction route does not escape the requirement
Minor forest produce	The Gram Sabha and Panchayats shall be endowed with ownership	A power to decide: ownership, not a share of proceeds
Intoxicants	The power to enforce prohibition or to regulate or restrict sale and consumption shall be endowed	A power to decide, exercisable through the endowing law
Land alienation	The power to prevent alienation and to restore unlawfully alienated tribal land shall be endowed	A power to block and to reverse, exercisable through the endowing law
Money lending to Scheduled Tribes	The power to exercise control shall be endowed	A regulatory power over lenders within the village
Village markets	The power to manage village markets by whatever name called shall be endowed	A power to decide how the market is run
Institutions and functionaries in all social sectors	The power to exercise control shall be endowed	A supervisory power over the local school, health centre and their staff
Local plans and resources, including tribal sub-plans	The power to control local plans and resources shall be endowed	A power to decide over the planning envelope of the village

What counts as a minor mineral, and why does the category matter under PESA?

A minor mineral is a mineral the central Act on mines and minerals declares to be one, a class that takes in building stones, gravel, ordinary clay, ordinary sand and similar materials, as distinct from major minerals such as coal and iron ore. The category matters because the mandatory recommendation in clauses (k) and (l) is confined to minor minerals.

The confinement deserves emphasis, because it is the most common point on which the Act is misdescribed. The strongest procedural protection in PESA, the recommendation without which a grant may not lawfully be made, protects the village against the quarry, the sand reach and the stone crusher, the extractions that scar a village’s own land and water. It does not attach to the major minerals, the coal block and the iron ore and bauxite deposits, whose prospecting and mining are governed by the central mining statute and the forest and environment clearance regimes, and for which the Gram Sabha’s statutory entitlement under PESA is the consultation of clause (i) where land is acquired, together with whatever the Forest Rights Act adds where forest land is diverted. A Gram Sabha that demands a PESA veto over a coal block is claiming a power Parliament did not give it. A district administration that grants a sand or stone concession without the recommendation is breaking a command Parliament did give. The line between the two is drawn by a definition in another statute, and it runs through a large share of the disputes in which PESA is invoked.

The fourth group: the endowment catalogue and the safeguards

Clause (m) is the heart of the self-government design, and its grammar is different from everything that precedes it. Clauses (d) to (l) state features directly: the Gram Sabha shall be competent, shall approve, shall be consulted, and recommendations shall be made mandatory. Clause (m) speaks one level removed. While endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with seven things: the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant; the ownership of minor forest produce; the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe; the power to manage village markets by whatever name called; the power to exercise control over money lending to the Scheduled Tribes; the power to exercise control over institutions and functionaries in all social sectors; and the power to control over local plans and resources for such plans including tribal sub-plans.

The list is the Bhuria Committee’s map of a tribal village’s material life, itemised. Intoxicants, because the liquor trade was historically an instrument of debt and dispossession in tribal areas and because prohibition by community decision has deep roots in these societies. Minor forest produce, because tendu leaf, mahua, lac, honey, bamboo and the rest of the produce the forest yields without felling is the cash economy of the forest village, and its ownership decides whether that economy belongs to the gatherers or to a state corporation and its contractors. Land alienation, because the haemorrhage of tribal land to non-tribals, by sale under distress, by fraud and by benami arrangement, is the central pathology the Fifth Schedule regulations exist to arrest, and clause (m)(iii) hands the village itself a power both to prevent alienation and to restore land already unlawfully alienated. Village markets, the haats where produce is sold and where the terms of trade are set. Money lending, the other historic instrument of dispossession, controlled here not by licensing the lender at the district office but by the community to whom the loans are made. Institutions and functionaries in all social sectors, which is the power to answer the oldest complaint of the tribal village, that the teacher, the health worker and the anganwadi staff are posted to it, paid from its funds and accountable to everyone except it. And control over local plans and their resources, including the tribal sub-plan, the earmarked stream of development funds proportionate to the tribal population, whose spending the clause places under the same authority that approves the plans under clause (e).

The drafting distance in clause (m), however, is the clause’s weakness, and the honest reader should register it. Clauses (d) to (l) bind the state legislature negatively: it shall not legislate inconsistently with the features. Clause (m) binds it to an act of endowment which only it can perform, through its own law, on its own timetable. Until a state legislature has actually endowed the Gram Sabha with the ownership of minor forest produce or the power over money lending, the clause is a direction without a present instrument. Much of the litigation and agitation around PESA is an argument about this distance: whether clause (m) confers rights that a court can enforce against a state that has not endowed them, or whether it confers a constitutional-grade instruction whose only remedy is political. The stronger reading, and the one the structure supports, is that the state has no discretion about whether to endow, only about the machinery of endowment, since Section 4 forbids it to legislate inconsistently with the features and clause (m) is one of the features. The weaker reading notes that the verbs of clause (m) run to the legislature, not to the Gram Sabha, and that a court cannot draft the endowing law itself. Both readings agree on the point that matters most in practice: the seven endowments live or die in the state statute book and the rules beneath it, which is the second time the Act’s fate is handed to the states.

Clause (n) requires the state legislation to contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha. Clause (o) directs that the State Legislature shall endeavour to follow the pattern of the Sixth Schedule while designing the administrative arrangements in the Panchayats at district level in the Scheduled Areas. The first is the Act’s defence against its own tiers, an acknowledgment that the natural tendency of a three-tier structure is for authority to pool at the top, beside the district administration, and that the design intends the opposite. The second is an instruction of aspiration rather than command, the verb is endeavour, and it points the district tier of the Fifth Schedule areas toward the autonomous council model of the Sixth, a comparison to which this article returns.

Can a Gram Sabha settle a dispute by custom under PESA?

Yes, within the sphere clause (d) recognises. The clause declares every Gram Sabha competent to safeguard and preserve the customary mode of dispute resolution, so a dispute settled by the assembly according to the community’s traditions is an exercise of a competence the statute itself acknowledges, alongside its cultural and community-resource functions.

Reading Section 4 as a whole: addressees, gradients and the appropriate level

A statute pillar owes its reader one further exercise, which is to read the operative section as a single instrument and notice the engineering that a clause-by-clause walk can miss. Section 4 repays that reading in three ways.

The first is its system of addressees. The fifteen clauses speak to four different actors, and the distribution is the design. Clause (a) speaks to the state legislature about the character of its law. Clauses (d), (e) and (f) speak about the Gram Sabha and the village panchayat directly, in the present tense of legal competence: the assembly is competent, shall approve, shall be responsible, the panchayat shall obtain the certificate. Clauses (i) to (l) speak about the subjects on which the assembly or the panchayat must be brought into a proceeding conducted by others, acquisition by the state, concessions by the licensing authority. Clause (m) speaks to the legislature again, but in the future tense of endowment, about powers the assembly and the panchayats are to receive. The clauses that speak in the present tense are the clauses that bite first, because they do not wait for anything: a state law that made plan approval unnecessary, or beneficiary selection a function of the panchayat office, would be inconsistent with features stated as existing competences, and the Gram Sabha’s authority under them is as complete the day the Act commences as it will ever be. The clauses that speak of endowment bite last, because their content passes through a legislative act still to come. A reader mapping the Act’s real strength at any moment in any state should therefore score it in that order: the present-tense competences first, which no state could lawfully remove; the procedural entitlements next, which bind every proceeding in the area; and the endowment catalogue last, whose content in a given state is a question about that state’s statute book, not about Parliament’s.

The second is the gradient of obligation inside the section, which a careful reader will notice Parliament constructed deliberately. At the strongest end stands the prohibition that opens the section: the legislature shall not make any law inconsistent with the features. Then come the direct conferrals and requirements: shall be competent, shall approve, shall be consulted, shall be made mandatory. Then the duty of endowment in clause (m): the legislature shall ensure that the bodies are endowed specifically with the listed powers, a duty about an outcome rather than about a text. Then the safeguard duty of clause (n), a requirement about the content of the endowing laws. And at the weakest end, clause (o): the legislature shall endeavour to follow the pattern of the Sixth Schedule in designing the district tier. Endeavour is the language of aspiration, and the single occurrence of the Sixth Schedule in the Act is wrapped in it. The gradient tells the reader which parts of the design Parliament was prepared to entrench against the states and which it was content to commend to them, and it confirms from within the section the conclusion the verb analysis reached from the subjects: the village level is entrenched, the district level is not, and the Act’s centre of gravity was always intended to sit at the bottom.

The third is the recurring phrase at the appropriate level, which appears in clauses (i), (k), (l) and (m) and does quiet but decisive work. The Gram Sabha exists only at the village. Above it stand panchayats at the village, intermediate and district levels, and many of the subjects the clauses touch, a mining lease over land spanning several villages, a water body feeding a cluster of habitations, a market serving a whole valley, cannot sensibly be assigned to a single village assembly. The phrase at the appropriate level is the Act’s allocation device: it directs the state law to match each function to the tier whose territory fits the subject, the Gram Sabha where the subject is the village’s own, the panchayat of the wider tier where it is not, and it phrases clauses (i), (k) and (l) disjunctively, the Gram Sabha or the Panchayats at the appropriate level, for the same reason. The device has a cost, which the implementation record exposes: every allocation is an opportunity for the state law to allocate upward, assigning to the intermediate or district panchayat, bodies closer to the administration and further from the community, functions that a village reading would assign to the assembly. Clause (n) is the Act’s own check on that tendency, and the tension between the flexibility of the phrase and the safeguard of the clause is the tension in which most state conformity laws were drafted.

The endowment list at work: produce, liquor, land and the lender

The seven endowments of clause (m) repay individual attention, because each of them answers a documented mechanism by which tribal villages lost control of their material life, and each meets a different obstacle in the existing law of the states.

Minor forest produce is the item on which the clause’s promise and the states’ resistance are both at their maximum. The produce in question, the leaves, flowers, fruits, gums, resins, honey, lac, medicinal plants and bamboo that a forest yields without being felled, is the principal source of cash income for a large part of the forest population, and its trade was, in the decades before PESA, progressively absorbed by the state. The best documented instance is the tendu leaf, used as the wrapper of the beedi, whose trade Madhya Pradesh nationalised in 1964, converting the gatherer from an owner selling a crop into a wage labourer collecting leaf for a state monopoly at rates the state fixed. Other states built similar structures for other items, through forest corporations and cooperative federations, defended as protection against the private trader’s exploitation and experienced, in many districts, as a transfer of the exploitation to a public intermediary. Clause (m)(ii) does not say the Gram Sabha shall receive a share of the proceeds, or be consulted on the price, or be preferred as a contractor. It says the ownership of minor forest produce shall be endowed on the Panchayats at the appropriate level and the Gram Sabha. Ownership, if enacted honestly, dissolves the monopoly structure for produce gathered in the village’s forests, because the corporation can no longer take title to what it does not own. The collision between that clause and the standing state monopoly statutes is therefore total, and the record of the states, in which monopoly arrangements for the major produce items survived conformity amendments for decades and were dislodged, where they were dislodged, item by item and state by state, is the clearest single demonstration of the difference between amending a panchayat Act and obeying PESA.

The intoxicant power, clause (m)(i), works in the opposite direction through the same logic of local knowledge. The manufacture and sale of liquor in tribal areas was bound up, historically, with the excise system of the colonial and successor states, which licensed vends in tribal villages as a source of revenue and placed the liquor contractor, often also the money-lender and the produce trader, at the centre of the village economy. The power the clause endows is the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant, and it is deliberately double-edged: the community that wishes to keep the vend out may enforce prohibition, and the community that does not may regulate instead, but in either case the decision migrates from the excise department’s revenue calculation to the assembly of the people who live with the consequences. The clause extends to consumption as well as sale, and so reaches the home-brewed and distilled liquor of customary use, a reach that communities have used to draw their own lines between the ritual and social drink and the commercial trade, lines an external prohibition regime draws badly.

Land and the lender, clauses (m)(iii) and (m)(v), are a pair, because in the political economy of the Scheduled Areas they have always been one mechanism: credit extended against land, default engineered or awaited, and the land passing to the lender in satisfaction, by registered deed where the law allowed it and by possession and benami arrangement where it did not. The Fifth Schedule answered this mechanism from above, through the Governor’s power to make regulations prohibiting or restricting the transfer of land by or among members of the Scheduled Tribes and regulating the business of money lending to them, and the states answered it through land transfer regulations and restoration Acts of their own. PESA answers it from below, by endowing the village institutions with the power to prevent alienation and to restore unlawfully alienated land, and the power to exercise control over money lending to the Scheduled Tribes. The village-level power has one advantage the district-level regulation cannot replicate: the assembly knows. It knows whose field passed to the trader, on what understanding, against what debt, in a way no land record records, and a restoration power in the hands of that knowledge is a different instrument from the same power in the hands of a revenue officer visiting the tehsil. It has the corresponding disadvantage that the assembly acts within the village’s own distribution of power, and the endowment therefore depends, for its fairness, on the procedural rules and the reservation design that surround it.

The remaining items complete the circuit of village government. The village market, clause (m)(iv), the periodic haat at which produce is sold and consumption goods bought, is where the terms of trade between the tribal producer and the outside merchant are actually set, in the weights used, the prices posted, the fees levied and the credit advanced against the next week’s produce; managing it is an economic power in the strict sense. Control over institutions and functionaries in all social sectors, clause (m)(vi), addresses the accountability of the school, the health sub-centre, the anganwadi and the fair price shop, institutions physically present in the village and administratively answerable to distant line departments, whose staff absence and indifference are the daily texture of the state’s failure in these areas; the clause makes the assembly their supervisor in law. Control over local plans and resources including the tribal sub-plan, clause (m)(vii), closes the loop with clause (e): the assembly that must approve the plans is given control of the resources for those plans, including the sub-plan funds that are earmarked by population proportion for tribal development and that were, before PESA, planned at district and state level with no necessary reference to the village at all.

The verb decides: consultation, recommendation and consent

The namable claim of this article is that the extent of tribal self-governance in the Scheduled Areas turns on which verb Parliament used for which subject, and that the most consequential subject received the weaker verb. The claim is worth slowing down for, because the three verbs are not synonyms of varying politeness. Each has a settled legal meaning in Indian public law, and the distance between them is the distance between a hearing and a veto.

Consultation, in clause (i), obliges the acquiring authority to seek the view of the Gram Sabha or the panchayat at the appropriate level before acquiring land for a development project and before resettling or rehabilitating the persons the project displaces. The obligation is mandatory in form. An acquisition made in a Scheduled Area without the consultation the clause requires is an acquisition made in breach of a statutory condition, and the courts have treated consultation provisions of this character as requirements to be complied with, not courtesies to be observed, with the consequence that the proceeding is vulnerable when the record shows no consultation at all. But consultation is not concurrence. The authority must ask, must place the proposal before the assembly, and must do so before the acquisition, in time for the answer to matter. It need not obtain the answer it would prefer, and if the Gram Sabha objects, the statute does not in terms stop the acquisition. The honest description of clause (i) is that it converts the Gram Sabha into a necessary party to the process while leaving the decision with the state.

The recommendation, in clauses (k) and (l), is stronger, and stronger in a specific way. Parliament did not merely say that the Gram Sabha shall be asked to recommend. It said the recommendation shall be made mandatory prior to the grant, which is the legislature instructing every future state law to build the recommendation into the grant procedure as a precondition. A precondition is a blocking device. Until the recommendation exists, the licensing authority’s power to grant is incomplete, and a grant made without it is exposed to being set aside for failure of a mandatory condition. The recommendation need not be favourable in theory, and the clause does not say the grant must follow the recommendation’s content; what it guarantees is that no minor mineral concession in a Scheduled Area can be lawfully completed behind the Gram Sabha’s back. In practice, since a licensing authority that proceeds against an express refusal invites the courts, the mandatory recommendation operates close to a veto over minor minerals, which is why the mineral industries of the Scheduled Areas meet PESA most sharply at exactly this point, in the sand reaches, stone quarries and minor mineral belts rather than in the great coal and iron ore leases to which the clause does not extend.

Consent, the third verb, is the one PESA does not use, and its absence is the centre of the modern argument about the Act. Consent means the thing may not be done without agreement. When Parliament later legislated for land acquisition generally, in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, it wrote the stronger word into Section 41 of that Act for the Scheduled Areas: as far as possible no acquisition of land shall be made in the Scheduled Areas, acquisition there is to be a demonstrable last resort, and in case of acquisition or alienation of any land in the Scheduled Areas the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils shall be obtained in all cases of land acquisition in such areas, including acquisition in cases of urgency, before the notification issues. The relationship between the two instruments is examined in the series’ treatment of the land acquisition law of India as a whole and in its pillar on the land acquisition Act of 2013 itself, and the overlap is genuinely confusing on the ground, because the same acquisition in the same village attracts consultation under one Act and consent under the other. The correct resolution is that the two requirements are cumulative and come from different sources: PESA states the standing condition of governance in the Scheduled Areas, the 2013 Act states a condition of the acquisition proceeding, and a proponent who has consulted under PESA but has not obtained the consent Section 41 requires has not finished. Readers who repeat the common claim that PESA requires the Gram Sabha’s consent before acquisition are therefore wrong about PESA and right about the law as a whole, because the consent requirement exists, one statute over.

Why did Parliament choose consultation for acquisition in 1996? The text itself suggests the answer, and it is the answer the Bhuria settlement required. Land acquisition for development projects is the act of the sovereign in its most direct form, and a general village veto over it would have converted every linear project, every irrigation work and every public institution in the Scheduled Areas into a negotiation with each affected habitation, with no mechanism for resolving a refusal. The committee and the Parliament that followed it were building self-government, not a confederation of sovereign villages, and the balance they struck gave the assembly mastery over the village’s internal life, its plans, its beneficiaries, its produce, its markets, its liquor and its lenders, together with a blocking right over the small-scale extraction that most directly consumes village land, while reserving the great question of acquisition to a process in which the assembly must be heard but does not decide. One may think the balance was struck in the wrong place, and the concluding sections of this article give that argument its full force. What cannot be maintained is that the balance was struck carelessly. The grading of the verbs is too systematic across eleven subjects to be an accident of drafting.

The machinery in motion: a concession and an acquisition traced through the Act

Abstract powers become intelligible when traced through the two proceedings in which PESA most often decides outcomes. Consider first a proposal to open a stone quarry, a minor mineral concession, on land at the edge of a Scheduled Area village. The mining statute divides the mineral world in two. The Mines and Minerals (Development and Regulation) Act, 1957 defines minor minerals in Section 3(e) and, by Section 15, leaves the making of rules for minor mineral concessions to the state governments, so the quarry will be granted under state minor mineral rules by the district mining authority. Into that ordinary procedure PESA inserts clause (k) or clause (l). Before the grant, the recommendation of the Gram Sabha or of the Panchayat at the appropriate level must be obtained, because the state law is required to make it mandatory. The application therefore travels, in a compliant system, from the mining office to the village, where the Gram Sabha is convened under the state’s PESA rules, the proposal is placed before the assembly, the assembly deliberates on the land, the water and the blasting it entails, and its recommendation, favourable or adverse, is recorded and returned. Only then does the grant procedure resume. The practical points at which this sequence has failed, in the districts where it is contested, are instructive: the recommendation is sought from the sarpanch or the panchayat secretary instead of the assembly; the meeting is convened without the notice or at the quorum the rules prescribe; the resolution is recorded as favourable where the minutes of the discussion were adverse; or the grant issues first and the recommendation is collected afterwards, converting a prior condition into a subsequent ratification, which the word mandatory in the clause exists to forbid. Each failure is a failure of record, which is why the insistence of Gram Sabhas and of the organisations assisting them on written notice, written minutes and certified copies is not formalism but the substance of the right.

Consider next an acquisition, a road widening or a minor irrigation work taking village land in a Scheduled Area. Two statutes govern the village’s part in it. Under PESA clause (i), the Gram Sabha or the Panchayat at the appropriate level is to be consulted before the acquisition and before the resettlement of those displaced, and the planning of the project is coordinated at the state level. Under Section 41 of the land acquisition Act of 2013, the acquisition is to be a demonstrable last resort, and the prior consent of the Gram Sabha or the Panchayats or the autonomous District Councils, as the case may be, is to be obtained in all cases including urgency cases before the notification issues, with the consent of the panchayat or council sufficing only where no Gram Sabha exists or has been constituted. The proponent of the work must therefore run both tracks: the consultation that PESA requires within the standing governance of the area, and the consent that the acquisition statute requires as a condition of its own proceeding. The social impact assessment process of the 2013 Act, with its own public hearing in the affected area, adds a third occasion on which the village speaks, in a forum convened by the administration rather than by the assembly. The reader should note the direction of travel across the three: PESA in 1996 gave the assembly a voice; the acquisition statute seventeen years later gave it, for this subject and in these areas, a decision. The later statute does not amend PESA, and the consultation duty survives alongside the consent duty, but anyone who explains the village’s position on acquisition by citing PESA alone will understate it by exactly the distance between the two verbs, which is the distance this article exists to measure.

A third proceeding, quieter than either, shows the Act in its everyday rather than its contested form: the annual cycle of village development. The village panchayat prepares its plans for the works and programmes it will execute; under clause (e) the plans go to the Gram Sabha and take effect only on its approval; the beneficiaries of the housing, pension and subsidy programmes are identified by the assembly and not by the panchayat office; the works proceed; and under clause (f) the panchayat must obtain the assembly’s certification that the funds were used for the approved purposes, a certificate that is the assembly’s audit of its own executive. Around this cycle the other statutes that use the Gram Sabha have gathered: the rural employment guarantee statute of 2005, to take the best known example, assigns the Gram Sabha the conduct of social audits of works and a recommendatory role in the shelf of projects, so that in a Scheduled Area village the same assembly that approves plans under PESA audits their execution under the employment statute as well. The accumulation is the point. Parliament has repeatedly chosen the Gram Sabha as its instrument in the village, and PESA is the statute that explains why the choice is rational in the Scheduled Areas: the assembly there is not a consultation forum created by grace of the state legislature but a body whose competence the Constitution’s extension statute itself declares.

The courts: alienation, mining and the weight of a recommendation

PESA has generated less appellate litigation than its importance would predict, partly because its obligations run through state law and state machinery, and the disputes it creates are fought at the level of the individual grant, licence and acquisition rather than in facial challenges to the Act. The jurisprudence that surrounds it is instructive all the same, and it comes in three strands: the older law on tribal land alienation, which PESA inherited and reinforced; the great mining judgment of 1997, delivered within months of the Act’s commencement; and the forest rights judgment of 2013, which gave clause (d) a working life.

The alienation strand predates the statute. The land transfer regulations made under the Fifth Schedule, and the state restoration Acts, generated a line of authority in which the Supreme Court consistently read protective legislation for tribal land in the light of its purpose and refused to let form defeat it. In Lingappa Pochanna Appelwar v. State of Maharashtra, decided in 1985, the Court upheld the Maharashtra legislation that provided for the restoration of tribal lands transferred to non-tribals, against challenges founded on equality and property, treating the protection of the tribal landholder from the consequences of unequal bargaining as a constitutionally legitimate and indeed mandated object. The significance of this strand for PESA is that clause (m)(iii), the power to prevent alienation and to restore unlawfully alienated land, did not enter a legal vacuum. It entered a field in which the courts had already accepted that tribal land is not ordinary property in the market, that transfers out of the community are presumptively suspect, and that restoration is a legitimate legislative remedy. PESA’s contribution was to locate a share of that protective power in the village itself.

The strand continues after PESA and is continuous with it. In Amrendra Pratap Singh v. Tej Bahadur Prajapati, decided in 2004, the Supreme Court dealt with a transfer of tribal land in Madhya Pradesh procured, on the findings, by misrepresentation practised on the tribal holder, and held the transfer void under the protective provisions of the state land revenue code, reading the bar on alienation in the light of its protective purpose and treating a transaction that defeats that purpose by fraud as no transaction at all. The case is a useful marker of the judicial temper PESA’s clause (m)(iii) presupposes: the power to restore unlawfully alienated land is not an innovation that the courts would view with suspicion, but the village-level expression of a remedy the legal system had been granting, through collectors and courts, for decades.

The mining judgment is Samatha v. State of Andhra Pradesh, decided by a three-judge bench of the Supreme Court in July 1997. Samatha, an organisation working with tribal communities in the Visakhapatnam hills, challenged mining leases granted by the state to private companies over land in the Scheduled Areas, including leases over the Borra forest tracts. The case turned on the Andhra Pradesh Scheduled Areas Land Transfer Regulation, which prohibits transfer of land in the Scheduled Areas to non-tribals, and on the Fifth Schedule behind it. The Court held that the prohibition reaches the state itself: the government is a person for the purposes of the Regulation, government land, tribal land and forest land in the Scheduled Areas cannot be leased to non-tribals or to private companies for mining or industry, and a transfer by way of lease to a non-tribal or a company is prohibited, void and inoperative, with mining in the Scheduled Areas permissible only through the state mineral development corporation or through cooperatives of the tribal people themselves, and then subject to the forest and environment statutes. In reaching that conclusion the Court quoted and relied upon the features of Section 4 of PESA, including the Gram Sabha’s competence over community resources and the power to prevent alienation in clause (m)(iii), reading the new statute as Parliament’s confirmation of the constitutional design. Samatha is not, strictly, a PESA case; its ratio rests on the Regulation and the Schedule. It is the judgment that fixed the legal atmosphere in which PESA operates, and its insistence that the Scheduled Areas are a zone in which the ordinary market in land is constitutionally suspended remains the strongest judicial statement in the field.

The third strand is Orissa Mining Corporation Ltd v. Ministry of Environment and Forests, the Niyamgiri judgment of 18 April 2013. The Orissa Mining Corporation sought forest clearance for bauxite mining in the Niyamgiri hills of Rayagada and Kalahandi districts, hills sacred to the Dongria Kondh, a particularly vulnerable tribal group whose deity, Niyam Raja, is worshipped at the hilltop. The Supreme Court did not decide the clearance itself. Reading the Forest Rights Act together with clause (d) of Section 4 of PESA, the clause that makes every Gram Sabha competent to safeguard and preserve the traditions and customs of the people, their cultural identity and their community resources, the Court held that the question whether the community held religious and cultural rights over the hills, rights protected by the guarantees of religious freedom in Articles 25 and 26, was a question for the Gram Sabhas of the affected villages to consider and decide, and it directed that the claims be placed before them. The Gram Sabhas that met in the weeks that followed recorded their rejection of the project, and the Union environment ministry thereafter refused the clearance. Niyamgiri matters for PESA because it is the clearest demonstration that clause (d), a clause easily mistaken for a preamble, is operative law: the competence it confers made the Gram Sabha the forum in which a constitutional claim was tried, in a dispute where the statute’s express verbs, consultation and recommendation, did not themselves supply a veto. The judgment also shows the pattern this article has emphasised throughout, that the Gram Sabha’s practical power in a given dispute is assembled from several instruments at once, and that reading any one of them alone understates it.

Below the Supreme Court, the working litigation of PESA has been conducted in the High Courts of the PESA states, in challenges to individual grants, leases and acquisitions, and its pattern is consistent enough to state. Petitioners, frequently Gram Sabhas themselves, organisations assisting them, or rival claimants to a concession, have attacked minor mineral grants made without the recommendation the state rules require, acquisitions notified without the consultation of clause (i), and resolutions recorded in circumstances that denied the assembly a real meeting. The courts in these cases have worked from the record: whether a meeting was convened, whether the subject was placed before it, whether the resolution relied upon is the resolution the assembly passed. Where the record failed, grants and proceedings have been set aside or remanded for the step to be taken lawfully; where the record held, the courts have declined to convert consultation into consent or to substitute their view of the project for the authority’s. The body of practice is unglamorous and is exactly what the statute’s design predicts: because PESA distributes power through procedure, its litigation is litigation about procedure, and the minute book of a village assembly has become, in the mining districts, a document of constitutional significance.

On the consultation clause and the mandatory recommendation, the judicial treatment follows the text with the fidelity described in the preceding section. Consultation under clause (i) is treated as a mandatory procedural condition whose complete absence vitiates the proceeding, while its performance does not transfer the decision; the mandatory recommendation under clauses (k) and (l) is treated as a condition of the grant itself. Neither proposition has been displaced, and the space between them, between being heard and being obeyed, is where the contested cases continue to be fought.

Two statutes, one assembly: PESA and the Forest Rights Act

A decade after PESA, Parliament returned to the Scheduled Areas with the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the Forest Rights Act. The two statutes govern different things. PESA is a law about institutions: it says who governs a Scheduled Area village and with what powers. The Forest Rights Act is a law about entitlements: it recognises and vests forest rights, individual and community, in the people who hold them. But both statutes work through the same body. The Gram Sabha that the Forest Rights Act makes its initiating authority, receiving claims, consolidating and verifying them and passing the resolutions on which recognition depends, is the Gram Sabha that PESA constitutes in every village and equips with authority over village life in the Scheduled Areas, and the series’ pillar on the forest rights statute treats that recognition machinery in full. The overlap is by design, and at village level it is a standing source of confusion, because a meeting of the same assembly, in the same hall, may be exercising functions under both statutes in the same sitting, with different legal consequences attaching to each.

Three distinctions keep the two instruments apart, and a reader who holds them will not confuse the processes. The first is the unit. The Forest Rights Act works with the village as its rules define it and permits the assembly to be convened at the level of the hamlet where the revenue village contains several settlements, a flexibility that matches PESA’s clause (b) definition and works best where the state has actually constituted PESA Gram Sabhas on the habitation pattern. Where it has not, the two statutes pull the village in opposite directions, and claims are heard by an assembly for a territory larger than the community whose rights are being decided. The second distinction is the function. Under the Forest Rights Act the Gram Sabha initiates and recommends within a recognition process that moves upward through a sub-divisional committee to a district committee which takes the final decision on the record. Under PESA the Gram Sabha is not a recommending stage in someone else’s process for the subjects in clauses (d) to (m); it is the authority itself, approving plans, owning produce and certifying expenditure. A resolution that is a step in a pipeline under one Act is the end of the pipeline under the other, and village functionaries who treat every Gram Sabha resolution as advisory are misreading the second statute. The third distinction is the consent practice that has grown around forest diversion. Where forest land is to be diverted for a project, the clearance process under the forest conservation law has been administered, on the strength of instructions issued by the Union environment ministry in 2009, to require evidence that the recognition process is complete and that the Gram Sabha has consented to the diversion, a practice that gives the assembly, in the forest context, a consent power in fact which neither PESA’s clause (i) nor the Forest Rights Act’s text confers in terms. Niyamgiri was decided inside that practice. The honest summary is that the Gram Sabha’s authority over a mining proposal in a Scheduled Area is an alloy of all three instruments, PESA, the forest rights statute and the clearance practice under the forest conservation statute, and that any account attributing the whole of it, or none of it, to PESA alone is wrong.

The friction between the two statutes in practice is mostly a friction of sequence and of the record. The forest rights process is claim-driven and time-consuming; the diversion process is project-driven and impatient; and the two collide in the question of which finishes first. The position the Union ministries converged upon, expressed in the environment ministry’s instructions of 2009 and in the tribal affairs ministry’s guidance that followed, is that the rights process must be completed and the Gram Sabha’s consent obtained before the diversion is granted, a sequence the Supreme Court’s direction in Niyamgiri reinforced by sending the claims back to the assemblies before any clearance could proceed. The village-level reality repeatedly reported from the mining districts is of resolutions produced to satisfy the sequence rather than to record a decision: consent certificates collected at meetings of doubtful quorum, resolutions in favour of diversion passed by assemblies whose own rights claims stood unexamined, and disputes over whether the assembly that consented was the assembly of the affected habitation at all, which is PESA’s clause (b) question returning in forest dress. The lesson connects the forest statute back to the theme of this article. Both statutes entrust the Gram Sabha, and both therefore stand or fall on the procedural integrity of the assembly: on whether it is the assembly of the right village, convened with notice, meeting with a quorum that represents the community, and recording what it actually decided. Those are rules questions, and they are the same rules whose absence defined PESA’s first quarter-century.

The other model: the Fifth Schedule and the Sixth Schedule compared

PESA governs only the Fifth Schedule areas, and the comparison with the Sixth Schedule is not an academic ornament; it is the comparison the Act itself invites in clause (o), and the one readers in the north-eastern states need stated plainly, because the two Schedules embody two different answers to the same question of how tribal communities are to govern themselves inside the Republic. The distribution of legislative subjects between the Union and the states, the background against which both Schedules sit as exceptions, is mapped in the series’ article on the Seventh Schedule and its three lists, and the Schedules depart from that map in opposite directions.

The Sixth Schedule, read with Article 244(2), applies to the tribal areas of Assam, Meghalaya, Tripura and Mizoram. It creates Autonomous District Councils and Autonomous Regional Councils, elected bodies with a constitutional status that no panchayat possesses, and it arms them with legislative power. A District Council may make laws, with the assent of the Governor, on the allotment, occupation and use of land other than reserved forests, on the management of forests that are not reserved forests, on the use of water courses for agriculture, on the regulation of shifting cultivation, on the establishment of village councils and town committees and their powers, on public health and sanitation, on the appointment and succession of chiefs and headmen, on inheritance of property, on marriage and divorce, on social customs and on the licensing of money lending and trading by non-tribals within the district. The councils administer justice through village councils and subordinate courts constituted under the Schedule, levy taxes the Schedule enumerates, maintain a district fund, and answer to a constitutional scheme in which the Governor carries special powers of annulment, dissolution and modification. The council is, in short, a small legislature for its district, and its laws are law in the full sense.

The Fifth Schedule model, within which PESA works, is protective rather than legislative. It creates no council and confers no power to make laws. Its instruments are the Governor’s exceptional powers of direction and regulation, the Tribes Advisory Council’s advice, and the President’s supervision, layered over the ordinary institutions of the state. PESA inserts into that protective frame an institution of self-government at the village level only. The Gram Sabha under PESA is stronger than any panchayat in the general system, but it is not a legislature. It cannot enact a law on inheritance or marriage, cannot constitute a court with coercive jurisdiction of the Sixth Schedule kind, cannot tax, and cannot bind anyone beyond the reach of the state laws that endow its powers. Its competence over dispute resolution under clause (d) is a recognition of the customary mode, exercised within a legal system whose courts remain the state’s courts. A resident of a Sixth Schedule district lives under laws his council made. A resident of a Fifth Schedule village lives under state law that Parliament has required to be shaped to his community’s customs and administered through his assembly. The difference between the two is the difference between autonomy and self-governance, and clause (o)’s gentle direction, that the state legislature shall endeavour to follow the pattern of the Sixth Schedule in designing the district tier in the Scheduled Areas, is the Act’s own admission that the district tier is where its model runs out.

The assembly as a working institution: meetings, quorum and the record

Between the constitutional text and the village event stands a layer of procedural questions that PESA, uniquely among statutes of its consequence, leaves entirely unanswered, and a pillar treatment should name them, because they decide whether the powers described in this article exist on any given day in any given village.

PESA does not say how often a Gram Sabha meets. It does not say who convenes it, on what notice, or what happens if the convening authority, ordinarily the sarpanch or the panchayat secretary, simply does not convene it. It does not fix a quorum, does not say who presides, does not require the presence of women or of the hamlets comprised in the village, does not prescribe the form of a resolution, the keeping of minutes, the custody of the record, or the officer bound to act on what the assembly decides. Every one of those questions is answered, where it is answered, by the state panchayat Act and the rules and standing instructions under it, which is the structural reason the rules gap mattered so much: for the subjects in Section 4, the meeting is not an administrative preliminary to the power; the meeting is the power. A Gram Sabha that does not lawfully assemble cannot approve a plan, cannot identify a beneficiary, cannot be consulted, cannot recommend and cannot certify, and a proceeding that treats any of those acts as done without the meeting is building on a vacancy.

The design questions hidden in that silence are genuine, and the states that have framed rules have answered them differently, which is itself instructive. Quorum is the sharpest. A quorum fixed as a small fraction of the electoral roll makes meetings easy to hold and easy to pack; a quorum fixed high, with requirements that those present include members of the Scheduled Tribes in proportion and women in a stated share, protects the authenticity of the decision at the price of meetings that fail for want of attendance in villages scattered across difficult terrain. The notice question runs with it: the value of a Gram Sabha resolution on a mining recommendation or a consent to acquisition depends on whether the village knew the subject was coming, and the reported abuses in the diversion cases are disproportionately abuses of notice and quorum, meetings convened on paper, or held at the panchayat office rather than the habitation, or recorded as deciding what the discussion rejected. Record is the third question. The utilisation certificate of clause (f), the recommendation of clause (k), the approval of clause (e) are all documents, and their legal force in a later dispute depends on the integrity of the minute book, which is why the rules that prescribe registers, signatures of those present, and the transmission of certified copies are not bureaucratic decoration but the evidentiary foundation of every right in the Act.

The fourth question is the assembly’s relation to its own executive between meetings. The Gram Panchayat is elected for five years and works continuously; the Gram Sabha assembles periodically; and the standing temptation of the system is for the continuous body to absorb the periodic body’s authority, the sarpanch’s signature replacing the assembly’s resolution across the long intervals when the assembly is not sitting. Clause (n)’s safeguard against higher tiers assuming the powers of the Gram Sabha is directed at the tiers above, but the same absorption threatens from the tier beside, and the only defences are procedural: short intervals between meetings, a duty on the panchayat to place its proposals and its accounts before the assembly, and the certificate requirement of clause (f), which forces the executive to return to the assembly for the audit of every plan it has executed. A reader assessing any state’s PESA framework should therefore read its rules for these four things, the calendar, the quorum, the record and the return, before reading its recitals of power. The recitals are Parliament’s. The calendar is the state’s, and the calendar is where the power lives between the lines of the Act.

The rules gap: the statute that waited for its machinery

The history of PESA after 1996 divides sharply at the line between amendment and rules. Section 5 gave the inconsistent provisions of state panchayat laws one year to live from the date of assent, and the states responded to that deadline in form. Within the years immediately following the Act, the states with Scheduled Areas amended their panchayat statutes to insert the PESA features, Rajasthan choosing to enact a standalone modification statute in 1999, the Rajasthan Panchayat Raj (Modification of Provisions in their Application to the Scheduled Areas) Act, rather than amending its principal Act. By the measure Section 5 set, compliance was achieved. The statute book of every PESA state came to contain the vocabulary of the Act: Gram Sabha competence, mandatory recommendation, the endowment list.

The machinery beneath the vocabulary is a different record. A Gram Sabha exercises the powers of Section 4 through meetings, and meetings happen under rules: rules that say how the assembly is convened, what notice is given, what quorum validates a resolution, how often the assembly must sit, who presides, how resolutions are recorded and transmitted, how the beneficiary list is drawn, how the utilisation certificate is issued, and which officer must act on a recommendation and within what time. In the general panchayat system those rules are made by the state government under the state Act, and without them the statutory words confer a competence that no official is procedurally obliged to honour. The Ministry of Panchayati Raj has recorded the position in Parliament and in its published statements with a consistency that amounts to the official history of the gap. In its answer in the Rajya Sabha of 12 February 2021, the Ministry stated that Jharkhand, Odisha, Chhattisgarh and Madhya Pradesh had not framed their State PESA Rules. In a statement of November 2022 the Ministry recorded that eight of the ten states, Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Maharashtra, Madhya Pradesh, Rajasthan and Telangana, had framed and notified State PESA Rules under their respective Panchayati Raj Acts, that Chhattisgarh had notified its rules on 8 August 2022 and Madhya Pradesh had followed in November of that year, and that in Jharkhand and Odisha the process of consultation between departments was still in progress. Andhra Pradesh had been the first state to frame rules, in 2011, fifteen years after the Act. Jharkhand moved later, placing a draft in public consultation, and in the Ministry’s accounting Odisha remained the state in which notified rules were still awaited after every other state had moved.

The pattern deserves to be stated without decoration, because it is the article’s second thesis. Parliament in 1996 conferred powers designed to transfer control over land, minerals, produce, markets and development funds from the district administration and the line departments to the village assembly. The transfer required the administrations that would lose the control to write the instruments of their own dispossession. For between fifteen and twenty-six years, depending on the state, they did not write them, and the statute stood in the books conferring powers that the procedure of the state did not operationalise. Anyone assembling the record of this failure works through a small archive of texts: the Act, the state conformity amendment, the state rules where they exist, the file of a Gram Sabha resolution. Keeping those texts together and legible is the practical precondition of enforcing any of it, which is why practitioners in this field habitually open the documents in an office file viewer that lets a spreadsheet of village resolutions sit beside the text of the state rules they are measured against.

The delay was not the only form the resistance took. The High Level Committee on the socio-economic, health and educational status of tribal communities, chaired by Virginius Xaxa, which reported in May 2014, recorded in its examination of governance that the conformity amendments themselves had in several states been written so as to dilute the Act, subordinating the Gram Sabha to the Gram Panchayat or to officials, transferring the ownership of minor forest produce in practice to state corporations, and framing the assembly’s powers as functions to be exercised under the control of the very administration the Act sought to displace. The Second Administrative Reforms Commission, in its report on local governance, had earlier urged that state laws be brought into conformity with PESA in substance and that the rules the system presupposed be framed. The distinction the Xaxa record establishes is between two kinds of non-compliance: the passive kind, in which the rules are simply never written, and the active kind, in which the state writes its conformity amendment in a way that returns the power the Act removed. Both produce the same village-level result, a Gram Sabha that is told it is sovereign over subjects on which its resolutions have no procedural path to effect.

A fair account must also record what the delay was not. It was not a refusal of the states to hold panchayat elections in the Scheduled Areas, which happened under the amended Acts, nor a uniform refusal across all ten states, since the rules did eventually arrive in most, and the Ministry’s own sustained engagement, model rules circulated to the states, training programmes and the publication of state practice, formed part of the pressure that produced them. Nor did the absence of rules make the Act a dead letter in the courts, since Section 4 binds the legislature’s hand in what it may enact and the mandatory recommendation and consultation clauses have been invoked against grants and acquisitions on the strength of the Act and the conformity amendments alone. The rules gap is best described as a long parenthesis in the Act’s life: a period, covering most of its existence in most of its territory, in which the powers existed in law and were exercised only where a community, an organisation working with it, or a court judgment forced the machinery to move.

The states, one by one: how the gap looked on the ground

The national pattern resolves, at state level, into distinguishable positions that a researcher will meet repeatedly, and the Ministry of Panchayati Raj’s published record allows the main ones to be stated with confidence.

Andhra Pradesh, whose Scheduled Areas in the Agency tracts of the Eastern Ghats were the terrain of the Samatha litigation, was the first state to frame PESA rules, in 2011. The state whose land transfer regulation had produced the strongest judicial protection in the field thus also led, fifteen years after the Act, in writing the procedural machinery, a sequence that illustrates how much of PESA’s activation has depended on pressure generated outside the panchayat department, in litigation, in tribal movements and in the politics of the region. Telangana, on its creation in 2014, carried the Andhra framework into the new state and figures in the Ministry’s later accounting among the states with notified rules.

Rajasthan illustrates the statutory route taken to its logical end. Rather than amending its Panchayat Raj Act section by section, it enacted in 1999 a separate statute modifying the provisions of the panchayat law in their application to the Scheduled Areas, so that the PESA features for its southern tribal belt live in a dedicated instrument. The form is elegant and the substance depends, as everywhere, on what is beneath it: the Ministry’s accounting lists Rajasthan among the states that have framed and notified rules, while the state’s tribal belt, the districts of the south with their long history of tribal organisation, supplies a steady stream of the disputes in which the Act is invoked.

Madhya Pradesh and Chhattisgarh, the two states with the largest tribal populations in the country, are the centre of the delay story. Chhattisgarh, carved out of Madhya Pradesh in 2000, inherited the parent state’s conformity framework and worked under it for over two decades; it notified its PESA Rules on 8 August 2022. Madhya Pradesh notified its rules in November 2022, launching them at Shahdol on the occasion of the Janjatiya Gaurav Divas, a full twenty-six years after the Act the rules were written to serve. The Madhya Pradesh rules, as notified, illustrate what a serious rule book adds to the statute: they prescribe the convening of the Gram Sabha, quorum requirements calibrated to secure the presence of the community, and the procedure by which the assembly’s decisions on the subjects within its competence are recorded and given effect. Chhattisgarh’s rules of the same year likewise address the composition of the assembly’s meetings, with provisions directed at securing the presence of members of the tribal communities and of women, an attempt to write into procedure the representativeness that clause (g) writes into the elected bodies. When rules of this kind are absent, nothing in the bare text of Section 4 tells an individual villager, or an individual official, how a lawful Gram Sabha decision comes into existence, and that absence, repeated across thousands of villages, is what a quarter-century without rules means in practice.

Jharkhand and Odisha close the list as its longest-running exceptions. Jharkhand, created in 2000 out of the southern districts of Bihar, adopted the panchayat framework of the parent state and then held its first panchayat elections only in 2010, so that for the first decade of the state’s existence the institutions PESA presupposes did not exist in elected form at all; its PESA rules remained unframed through the Ministry’s 2021 answer and its 2022 statement, and the state moved thereafter to place a draft in public consultation. Odisha, whose Scheduled Areas cover a large part of its western and southern districts and whose Niyamgiri hills produced the Act’s most famous judgment, stands in the Ministry’s published accounting as the state in which notified PESA rules were still awaited after the other states had moved. The juxtaposition is the sharpest form of the article’s second thesis: the state whose Gram Sabhas were entrusted by the Supreme Court with deciding a constitutional question about a mountain had not, in the Ministry’s record, written the rule book that tells those assemblies how to meet.

Maharashtra and Gujarat occupy the middle of the record. Maharashtra, with Scheduled Areas across its northern and eastern districts, figures among the eight states the Ministry listed in 2022 as having framed and notified rules, and its Gadchiroli district supplies, in Mendha Lekha, the example of community assertion discussed elsewhere in this article. Gujarat likewise appears in that list of eight. Himachal Pradesh, whose Scheduled Areas are small and concentrated in its tribal districts, completes the Ministry’s list. The honest generalisation across all ten is that the arrival of rules, when it came, followed sustained engagement by the Union ministry, the circulation of model provisions, and political competition for the tribal vote, rather than any legal compulsion the Act itself supplies, since PESA prescribes no consequence for a state that simply never writes them.

The argument about PESA, stated from both sides

The case for the self-governance reading, in its strongest form, is the case the Bhuria Committee made and the Xaxa Committee repeated a generation later with the evidence of the interval behind it. It runs as follows. The communities of the Scheduled Areas governed themselves for centuries through institutions that allocated land, managed the forest, settled disputes and regulated the village economy, and those institutions did not vanish in 1950; they were overlaid by an administration that treated the tribal village as a problem of welfare and extraction rather than as a polity. The record of that administration is the record that fills the Fifth Schedule’s own protective law: land alienated on a vast scale despite transfer regulations, money-lending that converted debt into bondage, forest produce monopolised by state corporations that paid the gatherer a wage for what had been the community’s property, and development planning done to the village rather than by it. PESA, on this reading, is not an experiment in decentralisation. It is a restitution. It returns to the community, in statutory form, competences the community had exercised by custom, and it does so at the only level at which those competences can be exercised without being captured, the assembly of the whole village. Where the powers have been operationalised, the reading continues, the results vindicate the design: Gram Sabhas that have taken control of minor forest produce marketing have raised the share of the price that reaches the gatherer; assemblies that have exercised the customary dispute function dispose of the quarrels of village life at a speed and with an acceptance that the formal courts, distant and expensive, cannot approach; and the recorded instances of Gram Sabhas regulating the liquor trade within their villages show a community using clause (m)(i) for exactly the protective purpose the Bhuria Committee intended. The village of Mendha Lekha in Gadchiroli district of Maharashtra has become the emblem of this reading: its Gram Sabha, studying the statute and organising around it, asserted the community’s authority over its resources and its development decisions under the slogan that in Delhi and Mumbai there is their government, but in the village the villagers are the government, and its experience is cited wherever the case for PESA is made. The conclusion of this side is that the Act’s failures are failures of the states to obey it, and that the remedy is enforcement, not redesign.

The administrative objection, stated at its strongest and fairly, begins from a different feature of the same text. The Scheduled Areas contain a large share of the country’s mineral wealth, its coal, iron ore, bauxite and manganese, and they are crossed by the corridors, the railways, roads, transmission lines and canals, through which the national economy moves. A system in which every habitation assembly holds an approval power over plans, a blocking right over concessions and a mandatory voice in acquisition is a system with a very large number of veto points, no statutory timetable for their exercise, no appellate structure when an assembly is divided, captured by a local faction, or simply unable to assemble a quorum, and no mechanism for weighing the interest of the village against the interest of the region whose power station, irrigation command or mineral supply the project serves. State governments that delayed the rules, on this account, were not merely defending bureaucratic turf. They were declining to activate a machinery whose failure modes they would be answerable for: the project stalled mid-corridor by one village’s refusal, the welfare programme frozen because beneficiary selection became a factional contest, the school and the health sub-centre paralysed because control over functionaries was read as a power to countermand postings. The objection finds support in the Act’s own silences. PESA does not prescribe the quorum of a Gram Sabha, the frequency of its meetings, the recording of its resolutions or the consequence of its failure to meet; it leaves the entire procedural constitution of the assembly to the states, and a state that fears the consequences of an unstructured veto may rationally hesitate before writing the rules that arm it. There is also a representation point that this side presses and the other side must answer: the Gram Sabha is the whole body of voters, and in a village with substantial non-tribal population, or with deep internal divisions of clan and gender, the assembly’s decision is a majority decision, and majority decision inside the village can reproduce, at a smaller scale, the very domination the Act exists to prevent, which is why the Act’s own design hedges the assembly with the reservation provisions of clause (g) and the competence of clause (d) rather than treating every resolution as self-validating.

The honest observation that adjudicates between these cases is the one the text compels. The coordination problem the administrative objection fears is, in its sharpest form, a fear of a Gram Sabha veto over infrastructure and minerals. But the Act, as the verb analysis in this article has shown, confers no such veto over major projects. It confers approval over the village panchayat’s own plans, a mandatory recommendation over minor minerals alone, ownership and control over the village’s internal economy, and consultation over acquisition. A state that wished to honour the Act while protecting linear projects and major minerals had the whole of that design available to it from 1997, and the design already contained the balance the objection demands. The decades of delay therefore cannot be explained by the fear of a veto the statute never granted. They are better explained by the parts of the Act that did transfer power unconditionally: the ownership of minor forest produce against state corporations, the control of money lending against the trading interests of the plains, the certification of fund utilisation against the panchayat and departmental machinery, and the beneficiary list against the patronage networks through which welfare reached the village. On those subjects the Act asked officials and intermediaries to surrender real and profitable control, and on exactly those subjects the rules and the endowments lagged longest. That is a verdict on the implementation, reached from the Act’s own text, and it is the verdict this article records.

What PESA does not do

An accurate account of the Act must be as clear about its negative space as about its powers, because most public error about PESA consists of attributing to it things that live in other instruments or nowhere.

PESA does not extend Part IXA. The municipalities of the Scheduled Areas, the nagar panchayats and councils of its small towns, are governed by the municipal framework, which has its own application provisions, and the Gram Sabha has no existence there. A Scheduled Tribe resident of a town in a Scheduled Area is outside the Act’s protection precisely where the town begins, a boundary that matters more with every mining township and industrial estate planted in the tribal belt.

PESA does not touch the Sixth Schedule areas. The tribal areas of Assam, Meghalaya, Tripura and Mizoram are excluded from its world altogether, because Article 243M’s exclusion covered them and the Act’s definition of its territory runs through Article 244(1) alone. Statements that PESA applies to all tribal areas of India are wrong in both directions: it does not apply to the Sixth Schedule, and within the Fifth Schedule states it applies only to the areas declared under the Schedule, not to tribal populations scattered through districts that contain no Scheduled Area.

PESA creates no offence and prescribes no penalty. An official who grants a minor mineral concession without the mandatory recommendation, or a panchayat that implements a plan the Gram Sabha has not approved, commits no crime created by this Act, and the Act gives the Gram Sabha no inspector, no tribunal and no complaint procedure of its own. The remedies are the general ones: the writ jurisdiction of the High Courts, the invalidity of the act done in breach of a mandatory condition, and the political process. This silence is a large part of the explanation for the Act’s enforcement pattern, in which compliance clusters where communities are organised enough to litigate or to mobilise.

PESA devolves no money of its own. It creates no fund, no finance commission and no transfer. The resources its assemblies control are the resources of the schemes, plans and sub-plans that flow through the panchayat system, together with the produce, market fees and local assets the endowments cover. The State Finance Commission mechanism of Part IX applies to the Scheduled Areas as it applies elsewhere, and the chronic under-resourcing of panchayats generally is not cured by anything in this Act.

PESA does not require consent for land acquisition, does not extend its mandatory recommendation beyond minor minerals, and does not give the Gram Sabha a veto over projects of the state. Those propositions have been established from the text earlier in this article and are collected here because they are the three errors a reader will meet most often in advocacy and journalism about the Act. Each error flatters the statute in the direction of the writer’s argument, and each hands the Act’s opponents an easy refutation of claims the Act never made, at the cost of the claims it did.

Finally, PESA has stood unamended since its enactment. The statute Parliament passed in December 1996 is the statute in force, word for word, in the Scheduled Areas. Whatever has changed around it, the 2013 acquisition Act’s consent provision, the forest rights statute of 2006, the slow arrival of state rules, has changed by accumulation rather than by revision, so that the governing law of the Scheduled Area village is a sediment of instruments laid over an unaltered foundation. Reading the foundation carefully, which is what this article has attempted, remains the necessary first step, because every later layer assumes it.

Assessment and verdict

What works in PESA is its design intelligence. In five sections it identifies the correct unit of tribal self-government, the community of the habitation rather than the revenue village; the correct institution, the assembly of all voters rather than the elected council alone; the correct subjects, the material bases of village life rather than the schemes of the development state; and the correct instrument for calibrating power across subjects, the graded verb. Its recognition that the state legislature must be forbidden, not requested, to depart from the features, and its pairing of plan approval with utilisation certification, show a drafter who understood exactly how village power is lost in practice, through the list, the licence and the certificate, and who stationed the Gram Sabha at each of those points.

What does not work is the Act’s dependence on the governed machinery of the states for its own activation, a dependence that the one-year deadline of Section 5 was too blunt to cure, because the deadline reached statutes and not rules, and reached inconsistency and not absence. A conformity amendment that recites the features satisfies Section 5 while leaving every operative question, quorum, notice, timing, transmission, consequence, to rules that may not be made for a quarter of a century. The second weakness is internal to clause (m), whose endowments, the most valuable part of the design, are drafted as duties of the state legislature rather than as powers of the Gram Sabha, so that the community’s ownership of its produce and its control of its lenders await an act of the very legislature whose predecessors presided over the alienation. The third weakness is the Act’s silence about its own enforcement: it creates no offence, no penalty, no authority charged with securing compliance, and no forum in which a Gram Sabha can complain that the state has failed to endow it. Enforcement has accordingly been assembled from outside, from the courts reading Section 4 as a limit on legislative power, from the Union ministry’s reporting and persuasion, and from organised communities invoking the Act as a charter.

The verdict follows from the record. PESA is the strongest instrument of village self-government in Indian law, and for most of its life in most of its territory it has been a strong text in a weak procedural world. Its powers are real, as Samatha assumed and Niyamgiri demonstrated, and a Gram Sabha that organises, records its resolutions and insists on the statute can exercise them. But a right that depends for its exercise on the organisation and confidence of each village, against an administration that was left in control of the rule book, will be exercised unevenly, in the Mendha Lekhas and the Niyamgiris where leadership and support converge, and not in the thousands of villages where they do not. The statute’s quarter-century of delay is therefore not an epilogue to its story. It is the story, and it is the standing lesson this series draws from it: in Indian legislation, the distance between the section and the rule made under it is one of the places where power actually resides, and a reader who wants to know what a statute does should ask not only what it says, but who was trusted to write the machinery, and how long they took. For the individual reader with a matter in hand, the positions described here are general information about the statute, not advice on a particular case, and the forum and limitation rules that govern any real proceeding are unforgiving of delay.

Frequently Asked Questions

Q: What does PESA extend to Scheduled Areas?

PESA extends the provisions of Part IX of the Constitution, the part that establishes the panchayat system of village, intermediate and district bodies, to the Scheduled Areas declared under the Fifth Schedule. Article 243M had excluded those areas from Part IX when the Seventy-third Amendment was enacted, while empowering Parliament to extend the Part by law with exceptions and modifications. PESA is that law. Section 3 performs the extension in one sentence, and Section 4 supplies the exceptions and modifications, which are extensive: customary law is made the measure of state legislation, the Gram Sabha is given decisional powers unknown elsewhere, seats and chairpersons are reserved on a special pattern, and the endowment catalogue of clause (m) is imposed on every state legislature.

Q: What powers does a Gram Sabha have under PESA?

The Gram Sabha in a Scheduled Area is competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution. It must approve the plans, programmes and projects for social and economic development before the village panchayat implements them, and it is responsible for identifying the beneficiaries of poverty alleviation and other programmes. The village panchayat must obtain its certification that funds were used for the approved purposes. It must be consulted before land acquisition and resettlement. Its recommendation is mandatory before a minor mineral concession is granted. And the state legislature must endow it, with the panchayats, with ownership of minor forest produce and powers over intoxicants, land alienation, village markets, money lending, social sector institutions and local plans.

Q: Must a Gram Sabha agree before mining in a Scheduled Area?

It depends on the mineral, because PESA grades its protection by category. For minor minerals, the building stones, gravel, ordinary clay and ordinary sand defined under the mining statute, clauses (k) and (l) of Section 4 require that the recommendation of the Gram Sabha or the Panchayat at the appropriate level be made mandatory before a prospecting licence, a mining lease or an auctioned concession is granted, so a grant made without the recommendation is exposed to being set aside. For major minerals such as coal, iron ore and bauxite, PESA itself confers no recommendation right; the assembly’s entitlements there come from the consultation clause where land is acquired, from the consent requirement of the land acquisition Act of 2013, and from the Gram Sabha’s role under the Forest Rights Act where forest land is diverted.

Q: Does PESA require consent or only consultation for land acquisition?

PESA requires consultation. Clause (i) of Section 4 provides that the Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected. Consultation is a mandatory procedural step, and an acquisition conducted without it is vulnerable, but it is not agreement: the acquiring authority must seek and hear the assembly’s view, and need not obtain its concurrence. The consent requirement for Scheduled Areas exists in a different statute. Section 41 of the land acquisition Act of 2013 requires the prior consent of the Gram Sabha or the Panchayats or the autonomous District Councils in all cases of acquisition in Scheduled Areas, including urgency cases, before the notification issues. The two requirements are cumulative.

Q: Why did states take decades to frame PESA rules?

Because the Act’s deadline reached statutes and not rules. Section 5 gave inconsistent provisions of state panchayat laws one year from the date of assent, and the states met it by amending their Acts. But a Gram Sabha exercises power through meetings, and meetings need rules on convening, notice, quorum, recording and transmission, which only the state executive could make under the amended Acts. Those rules required the district administration and the line departments to write the instruments of their own dispossession: the endowments transfer ownership of minor forest produce from state corporations, control of beneficiary lists from the panchayat machinery and certification of expenditure to the assembly. The Ministry of Panchayati Raj recorded in February 2021 that four states still had no rules, and the last of the large states notified rules only in 2022.

Q: Which states have Fifth Schedule areas?

Ten states have areas declared as Scheduled Areas under the Fifth Schedule: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. The areas are declared by order of the President under Paragraph 6 of the Schedule, and within each state they cover specified districts or parts of districts of predominantly tribal habitation, not the whole state. PESA applies only inside the declared areas. The four north-eastern states of Assam, Meghalaya, Tripura and Mizoram are outside the Fifth Schedule altogether; their tribal areas are governed by the Sixth Schedule and its Autonomous District Councils, and PESA does not extend to them. A village is within PESA only if its land lies inside an area the President has declared, which is a question answered from the declaration orders for that state.

Q: How does PESA interact with the Forest Rights Act?

The two statutes govern different subjects through the same institution. PESA is a law of governance: it constitutes the Gram Sabha in every Scheduled Area village and fixes its powers. The Forest Rights Act of 2006 is a law of entitlements: it recognises individual and community forest rights and makes the Gram Sabha the authority that initiates the recognition process, receiving and verifying claims and passing the resolutions on which the sub-divisional and district committees act. In the diversion of forest land for projects, the clearance process has additionally required completion of the rights process and the Gram Sabha’s consent, a practice the Supreme Court worked with in the Niyamgiri judgment of 2013, where it read the Forest Rights Act together with clause (d) of Section 4 of PESA and sent the community’s religious and cultural claims to the Gram Sabhas to decide.

Q: How does Sixth Schedule governance differ from PESA?

The Sixth Schedule creates legislatures; PESA creates an assembly inside a protective frame. In the tribal areas of Assam, Meghalaya, Tripura and Mizoram, Autonomous District Councils elected under the Sixth Schedule may make laws, with the Governor’s assent, on land allotment and use, forests other than reserved forests, water for agriculture, shifting cultivation, village administration, inheritance, marriage and divorce, social customs and the licensing of money lending and trade by non-tribals, and they run courts and levy taxes under the Schedule. No body under PESA can do any of that. The Gram Sabha’s powers are powers within state law: to approve plans, select beneficiaries, own minor forest produce, control markets and lenders, be consulted and recommend. The Fifth Schedule model protects through the Governor and empowers through the village; the Sixth Schedule model governs through a council.

Q: Which committee’s recommendations led to PESA?

The Bhuria Committee. In June 1994 the Government of India constituted a committee of Members of Parliament and experts, chaired by Dileep Singh Bhuria, a tribal Member of Parliament from Madhya Pradesh, to examine how Part IX of the Constitution should be extended to the Scheduled Areas. The committee reported in January 1995. Its central recommendations were that the extension be built around the Gram Sabha of a village understood as the community itself defines it, that the assembly be recognised as competent over traditions, customs, cultural identity, community resources and customary dispute resolution, and that it receive real authority over land, minor forest produce, water, markets, intoxicants, money lending and development plans. Parliament enacted PESA the following year, and Section 4 of the Act follows the report’s design closely, including its insistence that higher tiers must not absorb the assembly’s powers.

Q: What is the difference between a Gram Sabha and a Gram Panchayat under PESA?

They are different kinds of body. The Gram Sabha is the assembly of all persons whose names are on the electoral rolls for the village panchayat: the whole body of voters, meeting as an institution. The Gram Panchayat is the small elected executive, chosen by those voters for a five-year term, which administers the village between the assembly’s meetings. In the general panchayat system the panchayat is the institution of self-government and the Gram Sabha’s functions are whatever the state law assigns. PESA reverses the emphasis in the Scheduled Areas: the Gram Sabha approves the plans, selects the beneficiaries and certifies the use of funds, and the panchayat implements and accounts. Clause (n) further requires state law to safeguard the assembly and the lower tiers against the higher tiers assuming their powers.

Q: Can a Gram Sabha enforce prohibition of intoxicants in its village?

The power exists in the Act, and its exercise depends on the state endowment. Clause (m)(i) of Section 4 requires the State Legislature, when endowing the Panchayats in the Scheduled Areas with the powers of self-government, to ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant. Where the state law and rules have made the endowment, the assembly may decide that liquor shall not be sold in the village, or may restrict its sale and consumption, and communities in the Scheduled Areas have used the power against licensed vends as well as illicit distillation. Where the state has not endowed the power in workable form, the clause remains a direction to the legislature rather than an instrument the village can pick up unaided.

Q: Who owns minor forest produce under PESA?

The village institutions. Clause (m)(ii) of Section 4 requires that the Panchayats at the appropriate level and the Gram Sabha be endowed specifically with the ownership of minor forest produce: the tendu leaf, mahua, lac, honey, bamboo, gums, resins and other produce the forest yields without felling, which forms the cash economy of the forest village. Ownership is the strongest word the Act uses on the subject, stronger than a share of proceeds or a right to be consulted, and it collides directly with the older state arrangements under which forest corporations and monopoly procurement systems took title to the produce and paid the gatherer a collection wage. The extent to which ownership is real in a given state depends on whether that state’s law and rules have dismantled or adjusted the monopoly structure for the produce concerned, which has happened unevenly and item by item.

Q: What happens when a state panchayat law is inconsistent with PESA?

The state law is one the legislature was forbidden to make, and the inconsistent provision has no secure life. Section 4 opens by providing that, notwithstanding anything in Part IX, the Legislature of a State shall not make any law under that Part which is inconsistent with the features the section lists. Section 5 dealt with the laws already in force at the commencement: a provision of a panchayat law in force in the Scheduled Areas that was inconsistent with Part IX as modified by PESA continued only until it was amended or repealed or until one year expired from the date the Act received the President’s assent, whichever was earlier. For laws made afterwards, inconsistency with the Section 4 features is a ground on which the provision may be challenged and read down or struck at in the courts, and the features are the standard against which a state’s conformity amendment is judged.

Q: How does PESA reserve seats and chairperson posts for Scheduled Tribes?

Clause (g) of Section 4 sets the pattern. Reservation of seats at every Panchayat in the Scheduled Areas is to be in proportion to the population of the communities for whom reservation is given under Part IX, subject to two provisos: the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats, and all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes. The first proviso guarantees at least half the seats even where population proportion would yield fewer; the second is categorical and admits no rotation, so every sarpanch and every chairperson of the intermediate and district panchayats in a Scheduled Area is a member of a Scheduled Tribe. Clause (h) adds a corrective: the state government may nominate members of Scheduled Tribes that have no representation at the intermediate or district level, up to one-tenth of the elected membership.

Q: Can the Gram Sabha restore tribal land that has been unlawfully alienated?

Clause (m)(iii) of Section 4 requires the state legislature to endow the Panchayats at the appropriate level and the Gram Sabha with the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe. The power, where endowed in workable form, lets the village institutions act against transfers that the land transfer regulations prohibit, including sales and arrangements that defeat the prohibition in substance. It operates alongside, and not instead of, the older machinery: the Governor’s regulations under the Fifth Schedule, the state land transfer regulations administered by revenue authorities, and the restoration jurisdiction the courts have upheld since Lingappa Pochanna Appelwar in 1985 and applied in cases such as Amrendra Pratap Singh in 2004. The village power’s advantage is knowledge: the assembly knows which field passed to whom, against what debt, in a way the land record does not show.

Q: Does PESA apply to municipalities and towns in Scheduled Areas?

No. PESA extends Part IX of the Constitution, which is the panchayat part, and nothing else. Municipalities are governed by Part IXA, which has its own scheme and its own application to the Scheduled Areas, and the Gram Sabha has no existence in a town. The consequence is a boundary that runs through the tribal belt: a tribal resident of a village inside a declared Scheduled Area is within the Act’s institutions, while a tribal resident of a municipal town in the same district, including the mining and industrial townships planted in Scheduled Area districts, is governed by the municipal framework alone and holds none of the Gram Sabha’s powers. Arguments about PESA in urbanising parts of the Scheduled Areas usually begin at exactly this boundary, since the character of a settlement can decide which of two wholly different systems of local government applies to it.

Q: What did the Supreme Court hold in Samatha about mining in Scheduled Areas?

In Samatha v. State of Andhra Pradesh, decided in July 1997, a three-judge bench of the Supreme Court held that the prohibition in the Andhra Pradesh Scheduled Areas Land Transfer Regulation on the transfer of land to non-tribals reaches the state itself. The government is a person for the purposes of the Regulation, and government land, tribal land and forest land in the Scheduled Areas cannot be leased to non-tribals or to private companies for mining or industrial purposes; a transfer by lease to a non-tribal or a company is prohibited, void and inoperative. Mining in the Scheduled Areas could be undertaken only by the state mineral development corporation or by cooperatives of the tribal people, subject to the forest conservation and environment statutes. The Court read the Fifth Schedule as a constitutional commitment to keep the tribal land base intact, and quoted the features of Section 4 of PESA, including the Gram Sabha’s competence over community resources, in support of that reading.

Q: What power does PESA give the Gram Sabha over money lending to Scheduled Tribes?

Clause (m)(v) of Section 4 requires the state legislature to endow the Panchayats at the appropriate level and the Gram Sabha with the power to exercise control over money lending to the Scheduled Tribes. The subject is one of the oldest in the protective law of the Scheduled Areas: Paragraph 5 of the Fifth Schedule authorises the Governor to make regulations regulating the carrying on of business as a money-lender by persons who lend money to members of the Scheduled Tribes, and the mechanism the law has always feared is credit extended against land and produce until default transfers both to the lender. PESA moves a share of that control from the Governor’s regulation and the district licensing office to the village itself, on the reasoning that the assembly knows the terms on which its members borrow. As with the other clause (m) items, the power operates through the state law that endows it, and its practical strength varies with the rules beneath it.

Q: Why does PESA define a village by habitation and custom instead of revenue boundaries?

Because the community the Act means to empower is a social fact, not a revenue unit. Clause (b) of Section 4 provides that a village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs. The revenue village, drawn for the collection of land revenue, frequently bundles together settlements that have no community in common and splits none that do. In much of the Scheduled Areas the real unit of common life is the hamlet, small, cohesive and self-governing by custom. Defining the village by the revenue map would have constituted Gram Sabhas for populations that do not deliberate together and drowned the hamlet in a larger assembly. The clause therefore constitutes one Gram Sabha for each community, so a single revenue village and a single elected panchayat may contain several PESA villages, each with its own assembly.

Q: What is the Governor’s role in the administration of Fifth Schedule areas?

The Governor is the Schedule’s operating authority. Under Paragraph 3 of the Fifth Schedule, the Governor of a state having Scheduled Areas reports annually, or whenever the President requires, to the President on their administration, and the Union may give directions to the state on that administration. Under Paragraph 5, the Governor may direct that an Act of Parliament or of the state legislature shall not apply to a Scheduled Area, or shall apply with exceptions and modifications, and may make regulations for the peace and good government of the area after consulting the Tribes Advisory Council, including regulations prohibiting or restricting the transfer of land by or among members of the Scheduled Tribes, regulating the allotment of land to them, and regulating money lending to them; such regulations take effect with the President’s assent. PESA does not add to the Governor’s powers. It builds beneath them, supplying the elected and assembly institutions the Schedule never created.