Whose Customs, Whose Soil? How a PESA Shield Is Being Turned Against Tribal Christians

A Shield for the Community Cannot Be a Sword Against Its Own Members Section

4(d) of the PESA Act, 1996 makes every gram sabha in a Scheduled Area competent to safeguard and preserve the people's traditions, customs, cultural identity, community resources and customary mode of dispute resolution.

That is a real and deliberately wide power, enacted so that tribal communities could protect themselves from outside pressure. Punpalli's gram sabha has used it to rule that tribal residents who are Christian cannot be buried in village land.

The question is not whether PESA is strong, but whether it can reach that far.

The text says:

a gram sabha is "the State" Article 12 defines "the State" for the fundamental rights chapter to include "local or other authorities". A gram sabha operating under a statute is a local authority in that sense. Article 13 then makes any state action inconsistent with fundamental rights void to the extent of the inconsistency.

The consequence is direct. A PESA resolution is not a private community decision; it is state action and it carries every fundamental-rights obligation that comes with being the State. Three of those obligations are engaged here:

• Article 15(2): No citizen may be barred on grounds of religion from places dedicated to the use of the general public. A village burial ground for residents is such a place.
• Article 25: Every person has the freedom to profess and practise religion, subject to public order, morality and health.
• Article 21: The Supreme Court has held that dignity, including a dignified burial, is part of the right to life. Read together, a resolution that denies burial land to residents because they are Christian is very hard to defend, which is why advocate Sudeep Shrivastava calls it plainly unconstitutional.

The rule as practiced:

a gap the Supreme Court left open In practice, the law is less settled than it should be and that is the gap being exploited. In Ramesh Baghel v. State of Chhattisgarh, decided on January 27, 2025, a two-judge Bench split.

Justice B V Nagarathna faulted the gram panchayat for denying burial and would have allowed it on the family's private land. Justice S C Sharma held that the statutory rules required burial at a common ground designated for Christians, in Karkapal.

Baghel buried his father there under heavy security. A split verdict settles nothing. One reading of it, the designated-ground reasoning, has become a template: if Christians may be directed to a separate burial site, why should a village provide any?

That is how Punpalli and by local accounts at least ten Bastar villages, have arrived at resolutions refusing burial outright.

The inversion PESA was enacted to protect tribal people from being overridden by outsiders.

The 75 people in Punpalli's 21 Christian families are tribal residents of the village. The power meant to shield them is now being used to exclude them. Customs can be protected; individual members of the community cannot be stripped of their fundamental rights in the name of those customs.