Govt of India must enact Municipalities Extension to Scheduled Areas bill, pending for two decades

20130415_9By Dr Palla Trinadha Rao

There is no clue where the Municipalities Extension to Scheduled Area (MESA) Bill drafted as far back as 2001 is lying in the Parliament Houses. The Union Government has the constitutional responsibility to guide the State Governments on tribal affairs. But there is a deadly silence over the governance law for urban enclaves in the Scheduled Areas. This has resulted in an unprecedented constitutional crisis that our parliamentarians, the governments and political parties are simply not bothered about.

The non-tribal population in the Scheduled Areas of Andhra Pradesh continues to rise unabated marginalising the powers and rights of tribals in local self-governance. Neither is there any specific policy or approach to deal with this surge of non-tribal population in the scheduled tracts nor to neutralise the unlawful marginalisation of the tribal peoples.  A major looming concern is the way by which their economic activities are undermined by these outsiders playing havoc with production and commercial activities of the tribals.  The newly established economic activities also accelerated the pace of urbanisation which in turn attracted more non tribals to migrate into the scheduled areas, reducing the local tribals into a minority.

The emergence of market forces through the penetration of business houses into tribal areas is affecting the survival resources of tribals including forests and lands. This is also changing the socio-economic and cultural milieu in the regions. A marked change in tribal life style is seen in their food habits, dresses and entertainment which has led to an upsurge of a new culture. The economic prosperity of the new entrants subdues the cultural identity of the tribals. Whatever earnings the tribals make through wage labour and production are captured by the market forces. Although a small section of economically empowered tribal employees have emerged over a period of time, their investments invariably are in the plain areas due to the availability of facilities and opportunities for upward mobility and economic growth rather than in the tribal areas.

The rapid changes brought in by commercial enterprises increases the demands for more costly urban infrastructure and services beyond what the Panchayat institutions are allocated. This exerts pressure to upgrade the Panchayats into the next level in order to make it eligible for additional allocations and associated facilities and services. The result has been the transition of more and more areas into several transitional areas or small urban areas in the Scheduled Areas of the State. Araku, Paderu, Chinthapalli, Rampachodavaram and Buttayagudem, Jeelugumilli are few examples of such.

Constitutional background

The 73rd and 74th Constitutional Amendments were enacted in 1992 to confer Constitutional status to the Panchayats and Municipalities as institutions of local self – governments. The Constitution (74th Amendment) Act, 1992 is a landmark initiative of the Government of India to strengthen local self-government in cities and towns.

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) that specifically extends Part IX of the Constitution to the Scheduled Areas was a direct result of the Constitution Seventy-third Amendment) Act, 1992.  But there is no corresponding statute relating to the extension of Part IX-A of the Constitution relating to municipalities to Scheduled Areas.

There is a clear bar under Article 243ZC affirming that the provisions of Part IX A of the Constitution shall not apply to the Scheduled Areas and Tribal Areas, and the Parliament alone can extend the provisions of that part to the Scheduled Area and Tribal Areas. The State Legislature does not have the power to legislate and extend the provisions relating to Municipalities to the Scheduled Area.  Further the Article 243-ZF provides that any law relating to municipalities that is in existence in the State shall continue to apply even to a Scheduled Area only for one year.

A committee of MPs and experts was set up by the Ministry of Urban Development to make recommendations on the key features of the law for extension of the Municipal law to the Scheduled Areas. After elaborate consultations with concerned Ministries, the Ministry of Urban Development and Poverty Alleviation introduced a Bill namely the Provisions of the Municipalities (Extension to the Scheduled Areas) Bill in 2001. Subsequently it was referred to the Parliamentary Standing Committee on Urban and Rural Development, which recommended its adoption in November 2003. Some reports confirm that the Bill figured during the monsoon session of Parliament in the year 2010.  But so far the Bill for the urban enclaves in the Scheduled Areas has not seen the light.

The extension of the existing Municipalities Act to the upgraded rural areas certainly will affect the self-rule rights ensured under the PESA to the tribals. The upgradation of rural areas into a transitional or municipal area will take the area out of the purview of the protection under PESA without an equivalent provision in the Municipalities Act. There clearly is a vacuum in the local self-governance institutional framework in the Scheduled Areas for the urban or suburban areas.

As per the Article 243Q, every State should constitute three types of municipalities in urban areas. They are Nagar Panchayat, for a transitional area, Municipal Council for a smaller urban area and Municipal Corporation for a larger urban area.  Therefore to create any types of Municipalities in the scheduled Areas a separate legislation (MESA) is to be enacted by the Parliament.

Conflicting views of Courts

In Arka Vasantha Rao and others Vs Govt of AP (AIR  1995 AP 274) case, the  Divisional Bench  held that AP Panchayat Raj Act 1994 is not applicable to the Scheduled Areas of Andhra Pradesh and the  power of Governor under Schedule V para 5 to apply any enactment in the Scheduled Area does not have overriding effect on prohibition contained in Art.243 M of the Constitution. No State law which is inconsistent with any of the provisions of Part IX of the Constitution can survive for more than a maximum period of one year. So far as the Scheduled Areas are concerned, there is a specific injunction by clause (1) of Article 243 M that nothing in IX shall apply to the Scheduled Areas. Thus the power of the Governor under para 5(1) of the V Schedule does not prevail over Part IX of the constitution. The High Court of AP further held that the power of the Governor under para 5 of the V Schedule does not cover Part IX of the Constitution.

However the Jharkand High Court in Debashish Soren vs The State Of Jharkhand (2007) held that the extension of the Ranchi Municipal Corporation (Amendment) Act, 2006 and Jharkhand Municipal Act, 2000 to the Ranchi District including the Schedule Area is valid because the original Bihar Municipal Act 1922 was made even prior to the 74th Constitutional Amendment, and the same was adopted by the newly created State of  Jharkand subsequently. The HC justified on the ground that the  Article 243ZF provides for the continuance of the existing laws relating to Municipalities which were introduced and enforced even before the introduction of 74th Amendment Act.

A similar petition was filed before the Supreme Court by Sundargarh Zilla Adivasi Advocates Association against the Government of Odisha demanding that Sundargarh District, a Scheduled district of Odisha, be kept out of the purview of the Orissa Municipal Act of 1950. The Supreme Court, held in 2012 that the Governor directed that the provisions of the Orissa Municipal Act, 1950 shall be applicable to the Scheduled Areas of the State with certain exception and modification. Further, the Supreme Court felt that the Governor’s order itself was not under challenge before it. It also held that the issue of whether there is inconsistency between the Municipal Act 1950 Act and Part IX-A of the Constitution is left open. It observed that there are several High Court decisions on this issue, but since this judgment is on the specific facts in issue, they are not being examined.  Thus there is a lot of scope for future litigation to raise several legal issues on the powers of the Governor under Vth Schedule to the Constitution of India versus the powers of Parliament IXA of  the  Constitution in respect of Scheduled Areas.

This state of illegality and legal vacuum cannot be continued in the Scheduled Areas; nor can the continued denial of constitutional rights be continued. The Union Government should be pressurised to enact Municipalities Extension to the Scheduled Areas (MESA) that is pending for more than two decades.

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