Scheduled Areas Need a Fresh Legal Perspective

The recent remarks by Digvijay Singh, senior Congress leader on the root cause of insurgency, the concurrence of another senior Congressman Mani Shankar Aiyar and more importantly, the non-implementation of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) raise the pertinent issue of constitutional obligations on the part of the states with scheduled areas. The primary reasons of unrest have not been addressed in the insurgencyinfested, forest rich, mineral abundant and sadly, poverty stricken scheduled areas of India. The PESA was enacted with very little debate or media attention 14 years ago in 1996. It offered a huge opportunity to turn the tables in the scheduled areas where self-governance and community control over resources were key to empowering the marginalised forest dwelling communities who may be silent witnesses to the violence due to helplessness. The scheduled areas and the other tribaldominated areas also got a shot in the arm with the recently enacted Scheduled Tribes and Other Traditional Forest Dwellers Act of 2006 (FRA) which aims not only to undo historical injustice to the above two categories of people but also mandates that security of tenure is key to integrating the forest dwelling scheduled tribes and other traditional forest dwellers who are dependent on the forest for their livelihoods and for strengthening of the conservation regime.

What the above two tribal welfare legislations along with the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 raise, is a larger constitutional mandate which seems to be long forgotten: the creation and administra-Sanjay Upadhyay tion of scheduled areas (erstwhile partially excluded areas, excluded and tribal areas). These special areas of administration were deliberated upon by the Constitution makers through three subcommittees at the time of independence.¹ The distilled vision on how to manage such areas r esulted in the creation of scheduled areas with specific provisions for administering scheduled areas especially through a d etailed constitutional mandate.