Article 243 ZC of Part IX A of the Constitution (Seventy-fourth Amendment) Act 1992 provides that nothing in Part IXA shall apply to the Scheduled Areas and the tribal areas. It was mentioned that the Parliament may, by law, extend the provisions of Part IXA to these areas with such exceptions and modifications as may be specified in such law.
In this context, a Committee of select Members of Parliament and experts was constituted under the Chairmanship of Shri Dilip Singh Bhuria to examine the issue. The Committee presented its Report in 1995 making a number of recommendations and observations. Based on the recommendations of the Bhuria Committee as well as comments of the concerned Central Ministries, and the concerned State Governments having Scheduled Areas, ‘The Provisions of the Municipalities (Extension to the Scheduled Areas) Bill, 2001’ was introduced in Rajya Sabha on 30 July 2001. Later, it was referred to the Standing Committee on Urban and Rural Development.
The Statement of Objects and Reasons appended to the Bill, is as follows:
“.....the provisions of the Bill seek to achieve the objective of setting up of Urban Local Bodies in the Scheduled Areas as per the provisions of Part IXA of the Constitution, subject to various exceptions and modifications..... All provisions of Part IXA of the Constitution are proposed to be extended to the Scheduled Areas with certain modifications. The main modifications are as under:
(i) Urban Local Bodies under Scheduled Areas may be designated as Nagar Panchayats, Municipal Councils, Municipal Corporations and Industrial or Mining Townships; (ii) seats may be reserved for Scheduled Tribes in proportion to their population or one-third whichever is higher; (iii) in all programmes of developments like housing colonies, trading centres, etc., and also in educational institutions, industrial training institutions, reservations shall be made for the tribal people in proportion to their population; (iv) there shall be constituted a Standing Committee for Tribal Affairs and a Standing Committee for Rural Development in each Municipality; (v) municipality in a Scheduled Area shall be endowed with powers and responsibilities of preparing five year development plan and annual plan for development of human resources and socio-economic advancement of the community; (vi) no land may be acquired except for specific purpose. Where land is acquired, reasonable and adequate compensation shall be paid and alternative means of livelihood to an affected person shall be made available, so, however, that no Scheduled Tribe is rendered landless on such acquisition; (vii) no urban tax shall be leviable on a tribal who continues to live in his traditional style as per the norms as prescribed in the Bill; and (viii) functional power as mentioned in clause 4 of the above Bill would also be devolved on Urban Local Bodies in the Scheduled Areas.”
Some of the recommendations of the Standing Committee are relevant to our on-going discussion. To quote some of the relevant text from the Fiftieth report of the standing committee on Urban and Rural development of the Thirteenth Lok Sabha (2003):
“The Committee find that the Scheduled Areas were initially notified in 1950. They also find that as per article 339 of the Constitution, the Scheduled Areas and Scheduled Tribes Commission review the Fifth Scheduled Areas. First such Commission, i.e. the Dhebar Commission was constituted in 1960. Thereafter, the second Commission has been constituted in July 2002, i.e. nearly after a gap of four decades. The Committee are concerned to note such a huge gap and the way the Government have been addressing such an important issue. Such a cavalier treatment of the tribals and their peculiar problems cannot be condoned. As is given to understand, the Committee feel that during the intervening period of the constitution of the two Commissions, the demographic composition as well as socio-economic character of the Scheduled Areas might have undergone a vast change. Due to lack of periodic reviews, there might be tribal dominant areas in the country, which are economically backward and isolated, but have not been notified as the Fifth Scheduled Area. Consequently, these areas are not getting any benefits meant for the marginalised tribals. On the other hand, there are Scheduled Areas with even 10 per cent tribal population enjoying all the benefits meant for the Scheduled Areas”. Thus the Committee recommended that “ …….The process of reviewing the Scheduled Areas may be undertaken to notify fresh areas as Scheduled Area and also to denotify the areas after applying the relevant criteria judiciously after a specified period of time. Without proper categorization of tribal dominant areas in the list of Scheduled Areas and their administrative reorganization, benefits of any number of progressive or benevolent legislation will not reach the majority, giving rise to discontent and unrest among the excluded category of tribal population”. (For the complete report of the Standing Committee and the Bill See http://www.solutionexchange-un.net.in/decn/cr/res10110902.pdf ; Size: 326 KB. The Bill is given as Appendix 1).
Clause 3(3) of the Bill pertains to exceptions/modifications in article 243T relating to “Reservation of Seats”. The said clause provides that seats shall be reserved in every Municipality in the Scheduled Areas in proportion to the population of the Scheduled Tribes in the Municipal area or one-third of the total number of seats, whichever is higher. Further, seats of all the Gram Sabhas, Tribal Mohallas, Ward Sabhas included in the Municipality in the Scheduled Areas may be reserved for the Scheduled Tribes. The remaining seats shall be allotted by rotation among other wards in the Municipality. Not less than one-half of the members of Nagar Panchayat shall be from Scheduled Tribes. The seat of Chairman or Vice-Chairman shall be reserved. Along with these, in all programmes of development, like housing colonies, educational institutions, etc., reservation shall be made in favour of tribal people in proportion to their population in the concerned district and there shall be no de-reservation.
Further, there were the Third report of the Standing Committee on Urban and Rural Development of the Fourteenth Lok Sabha (2004-2005) and the Tenth report, which has the Action Taken report by the Government of India. (See http://www.solutionexchange-un.net.in/decn/cr/res10110903.pdf ; Size: 268 KB and http://www.solutionexchange-un.net.in/decn/cr/res10110904.pdf ; Size: 243 KB)
We work with Debate in Madhya Pradesh. Recently, Jabalpur High Court has passed an order which will have far reaching implication on status of local bodies in Urban Areas. The Court has stayed holding of civic body elections in Scheduled Areas inhabited by tribals. Though the order is for Urban Local Bodies (ULBs) in Fifth Scheduled (dealing with provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes) areas of Madhya Pradesh but honourable High Court has asked Parliament to pass a separate legislation for ULBs in Scheduled Areas. We are trying to get the copy of the order from the High Court which might take time so we are quoting the summary of text published in the news papers. (See http://www.solutionexchange-un.net.in/decn/cr/res10110901.doc; Size: 25 KB)
There are two important points related to this issue that have implications for uniform functioning of ULBs. The first point is linked with the issues of power and authority of ULBs in urban areas. If the principle used for rural local bodies is followed then the ULBs will get control over all the institutions working in the social sector and then the related funds and functions will be transferred.
The second point is linked with the provision of reservation in the urban areas if PESA is extended to ULBs. The provision of PESA (Panchayat extension to Scheduled Areas Act) says that all the seats of Chairpersons shall be reserved for the members of the Scheduled Tribe community and a minimum of fifty percent of all the seats shall be reserved for the members of Scheduled Tribe community.
With respect to the above two issues, we would like members to respond to the following questions:
· What could be the mechanism to ensure that a uniform system is followed (between the rural local bodies and ULBs) and all the state governments frame proper rules for ensuring the smooth transfer of power and authority to ULBs of Fifth Schedule Areas?
· Should the provision of reservation as in PESA be applicable to the ULBs as well or there should be some change and amendment in this provision keeping in mind that the composition of population in urban areas are different than they are in rural areas?
We would like to have opinion of members on these issues so that there could be a common approach among the groups working on such issues as following states will be affected by this interim order: Madhya Pradesh, Rajasthan, Gujarat, Orissa, Maharashtra , Andhra Pradesh, Jharkhand, Himachal Pradesh and Chhattisgarh.