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- Bu səhifədəki naviqasiya:
- States Percentage of landless households Percentage of Households not owning any dwelling units***
- Chapter Three Governance Issues and Policies Relating to Land 3. Introduction
- 3.1 Land Ceiling
- 3.2 Environmental Issues
- 3.3 PESA Act: Intentions and Outcomes 22
- 3.4 Background
- 3.5 PESA and the State Legislature
- 3.6 PESA and the Community
Source: NSSO, 2003 Table- 2.6: Percent Distribution of Leased Area in India according to duration of lease
Source: NSSO, 2003 Table – 2.7: Proportion of Landless and Homeless Families in Rural Areas
Source: * = Based on NSSO, 59th Round, 2003. ** = Based on NSSO, 60th Round, 2004. Note: NE indicates total of North eastern states other than Manipur, Tripura and Arunachal Pradesh
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Chapter Three Governance Issues and Policies Relating to Land 3. Introduction Issues of governance continue to emerge not just in new concerns such as land acquisition but also previously addressed policies such as land ceiling and tenancy. After a brief reference to governance issues relating to land ceiling and tenancy, this chapter discusses in detail some of the recent land legislations like Land Acquisition Act, 2007, PESA Act 2005 and R & R Bill 2007. 3.1 Land Ceiling
3.2 Environmental Issues 3.2.1 Schedule-I of the EIA notification, 2006 issued by the MoEF under item 7-C covers industrial estate/parks/complexes/areas/Export Promotion Zones/ Special Tourism Zones/ Biotech Parks/ Leather Complexes. The above categories continue to be exempted from the requirement of a public consultation even in the new notification. 3.2.2 The EIA Notification, 2006 divides industries, projects and activities into category-A and category-B where Category-A have to be cleared by the Central government, and projects under Category-B are to be cleared by the State government. Under SEZ Act (2005), the environmental clearances outlined “Special Conditions” which undermine even basic requirement of Environmental Clearance. The condition states- if any zone with homogenous type of industries (under sections of chemical and petrochemicals/bulk drug industries), or those industrial estate with pre-defined set of activities (not necessarily homogeneous) obtains prior environmental clearance, individual industries including proposed industrial housing within such estate/ complex will not be required to take prior environmental clearance. No mention is made of regulatory mechanisms for multi-product, single product zones, tourism zone as well as clearance for entire SEZ clearance Vs clearance for units. 3.2.3 Guidelines for notification of SEZs are silent on environmental and ecological concerns. Single window clearance feature makes the Approval Committee at the State level under the District Collector responsible for approval of all SEZ units and even compliance to conditions of approval if any are to be mentioned by the Assistant Collector. There is no mention of the role of the Pollution Control Board. There is mention of Coastal Regulation related provisions in the SEZ Act and rules. However, the amendment to the CRZ Notification 1991, have allowed for SEZs to be located in ecologically sensitive coastal areas and ‘no development zones’. The interesting point to note is that unlike other schemes which the government usually takes time to pass and implement, land acquisition for SEZ projects have not suffered any delay or legal hassles, rather implementation of projects have been quick paced and smooth sailing. 3.3 PESA Act: Intentions and Outcomes22 3.3.1 The new Acts and policies outlined above are in fundamental contravention with the existing provisions which were instituted with the intention of providing constitutional safeguards to the areas inhabited by Scheduled Castes and Tribes. These communities have an altogether different relationship with the environment in which they inhabit and also therefore have a different understanding and practices of property and rights. However, the Committee is constrained to observe that these constitutional safeguards have not proved effective on account of the upocoming policies related to growth and development. This was the precise reason why the PESA had to be enacted in order to provide a more secure framework for the protection of the tribal rights. 3.3.2 Part IX concerning Panchayats was added to the Constitution in 1993 by the 73rd Amendment Act. The 73rd amendment was the first legislation after independence which was not extended to the scheduled areas (SA) in a routine manner as was the general practice. Accordingly, a high powered Committee comprising select Members of Parliament and Experts was appointed in 1994 to recommend exceptions and modifications that may be made in Part IX while extending its provisions to the SA. The Committee submitted its Report in 1995 and its recommendations were subsequently accepted by the Government of India. The Provisions of Panchayats (Extension to the SA) Act (PESA) was enacted in 1996. The provisions of Part IX of the Constitution were extended to Scheduled Area (SA) subject to the special features mentioned in Section 4. PESA came into force on December 24, 1996. 3.4 Background 3.4.1 The Fifth Schedule (FS) of the Constitution provides the basic frame for administration of the SA. The canvas of administration in this case is inclusive and comprehensive. The Governor is the supreme legislator for the SA. He enjoys limitless powers under Para 5 of the FS for (i) adapting any law of the State or the Union in its application to the SA in the State or any part thereof, and (ii) framing Regulations ‘for the peace and the good government of...a Scheduled Area’, cutting across the formal boundaries set out in the Seventh Schedule. Thus, the FS has the great potential for creating a flexible and comprehensive frame of administration dedicated to the protection and advancement of the tribal people. It is a pity that this potential has remained largely unexplored. Instances where Governors have used the powers under Para 5 (1) of the FS for adaptation of any law are few and far between, notwithstanding the accentuating dissonance between the ground reality and the legal frame in the tribal areas. 3.4.2 It is important to note that tribal affairs and SAs are not specifically mentioned in any of the three lists in the Seventh Schedule. Accordingly any law concerning these items can be enacted either in term of specific provisions in the Constitution including ‘regulations’ under the FS, or under Item 97, ‘any other matter…’ of the Union List. On the other hand, various laws enacted by the State Legislatures (SL) are automatically extended to the SA. Some such laws even have special provisions for the SA. This legal frame has given rise to a milieu of ambivalence about tribal affairs, compounded by indecision and inaction on the part of the executive. 3.5 PESA and the State Legislature 3.5.1 PESA for the first time calls upon the State Legislature (SL) to legislate in matters concerning Panchayats located in SA. Space has been created in the frame of PESA for this purpose. Section 4(m) specifically mentions ‘endowing Panchayats in SA with such powers and authority as may be necessary to enable them to function as institutions of self government’. 3.5.2 This provision is on the same lines as in the general areas. However, the jurisdiction of the State Legislative (SL) envisaged here is subject to the specific provisions of PESA that have been set out in unequivocal terms in Section 4 as the basic ‘features’ of governance in the Scheduled Areas (SA), in keeping with the spirit of the Fifth Schedule (FS). It begins with a mandate, making the features listed therein binding on the State Legislatures. ‘Notwithstanding anything contained under Part IX of the Constitution, the Legislature of a State shall not make any law under that Part which is inconsistent with any of the following features’. 3.5.3 Section 5, in the same vein, mandates the fall out of non-action by the concerned authorities. It envisages that any provision of any law relating to Panchayats which is inconsistent with the provisions of PESA ‘shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until the expiry of one year from the date on which this Act receives the assent of the President’. Accordingly, all inconsistent provisions in relevant laws are deemed to have lapsed on 23.12.1997, a fact that is lost on all state legislatures. 3.5.4 The most distinguishing ‘feature’ of governance at the village level in PESA is the ‘creation of space’ in the legal frame for the functioning system of self-governance of the tribal people. Moreover, detailed provisions have been made in PESA itself in that regard, leaving no choice with the SL, which is mandated to ensure that the frame of governance is in consonance with the local situation. 3.6 PESA and the Community 3.6.1 The community at the village level was excluded from the general legal frame adopted by the British in India beginning with 1860s. The objective was clear, viz., ‘Break the community so that the authority of the Imperial Regime remains unchallenged.’ The tribal tradition of self-governance during this period, however, remained largely undisturbed in the face of their dogged resistance against the colonizers. This continued till the adoption of the Indian Constitution. The colonial legal frame got inadvertently superimposed, as it was, on the tribal people living in hitherto excluded areas. This inadvertent action of the State has rendered the tribal people totally helpless in dealing with the outside world. This paradigm of governance would have been totally transformed into a non-centralized frame if PESA had been honestly implemented. The Act begins with redefining the village in terms of habitations that comprise a ‘community’ and accepting ‘the competence of the community’ to manage its affairs as is clear in Sec 4(d). Yüklə 2,42 Mb. Dostları ilə paylaş:
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