Perilous retreat: Gram sabhas must have a veto on issues relating to tribal land

Why in the News

The Committee on Public Undertakings has suggested that a project require the consent of only most, rather than all, of the gram sabhas affected by it. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is framed in spirit to require the consent of every affected village assembly before forest land is diverted. The Tribal Affairs Ministry has declined to claim jurisdiction over the question, leaving the reading of that requirement to the Centre and the State governments. The contest is between a consent rule that protects the specific village losing its land and a counting rule under which the villages losing least can decide for the village losing most.

What is the Forest Rights Act, 2006?

1. What it recognises: The Act recognises individual and community rights over forest land for Scheduled Tribes and other traditional forest dwellers who have depended on that land.
2. Why it was passed: It was enacted to undo the “historical injustices” meted out to forest-dependent communities whose occupation of forest land had never been recorded.
3. Where the authority sits: The gram sabha is the body that initiates the determination of the nature and extent of individual and community forest rights.
4. What it does to land diversion: The consent of the affected gram sabhas is the barrier a project must clear before forest land is diverted for non-forest use.

What would a majority consent threshold change?

1. Assemblies become stakeholders: A regime deeming the acquiescence of 70 to 75 per cent of affected gram sabhas to suffice would reduce them from democratic bodies protecting the constitutional rights of their specific inhabitants to corporate stakeholders.
2. The village that loses most can be outvoted: A project developer may bypass the consent of a village located directly within a proposed reservoir, once less affected villages provide their no-objection certificates.
3. The change is jurisprudential, not procedural: A right held by a particular community because of its dependence on a particular forest cannot be surrendered by the agreement of other communities, so the threshold alters what the consent requirement is for.
4. Classification disputes feed the same result: The political fight over classifying tribal communities alters who qualifies as a community member, which makes it easier to split a village assembly and engineer consent.

What does the Tribal Affairs Ministry’s recusal produce?

1. A regulatory vacuum: The refusal of the Tribal Affairs Ministry to claim jurisdiction leaves the Centre and the State governments unchecked in rewriting the rules by which forested land is diverted for non-forest use.
2. The recusal rests on a technicality: The Ministry has located the question between the Forest Rights Act and the Environment Ministry’s rules in order to recuse itself.
3. The consequence is substantive: That bureaucratic manoeuvre could strip forest-dependent communities of their most potent legal instrument.

What is the legal position on consent as it stands?

1. No express clause for every gram sabha: The Forest Rights Act does not include a clause requiring a no-objection certificate from every affected gram sabha.
2. That does not make consent optional: The claim that no legal requirement presently exists, and that gram sabha decisions can be bypassed, is untrue.
3. The route to any change is legislative: A government that wishes to move to a majority rule must change the relevant rules or legislation openly and democratically, rather than through an administrative reading of the existing text.

Why do energy targets and forest rights collide?

1. Infrastructure is being scaled rapidly: The government has been scaling up energy infrastructure, including the long-stalled Teesta-IV project, to meet macroeconomic goals.
2. The same state wrote the protection: The Forest Rights Act was passed by that state to undo historical injustices, so the consent requirement is a commitment it made against its own future convenience.
3. The chosen path avoids the argument: Proceeding on the notion that the consent requirement was never part of the Act settles the conflict by denying that it exists, rather than by weighing the claims on either side.

What does land carry for forest-dependent communities?

1. It is the base of everything else: Land is the foundation of these communities’ livelihoods, culture, identity and political autonomy.
2. The struggle has been over dispossession: Communities have fought to resist displacement and dispossession and to secure customary collective ownership.
3. They also supply public goods: Scheduled Tribe communities render social and environmental services and contribute to national development, including by helping meet India’s climate commitments.
4. The recommendation follows from that: The Centre and the States should strengthen the powers conferred on gram sabhas in Scheduled Areas by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the Panchayats (Extension to the Scheduled Areas) Act, 1996.

Challenges to gram sabha consent under the Forest Rights Act

1. Community forest rights lag individual titles: Most titles distributed under the Act are individual. Community forest resource rights, which are what a gram sabha exercises against a diversion, are recognised in a small share of eligible villages. Eg. Recognised community forest resource titles are concentrated in Maharashtra, Odisha and Chhattisgarh, with minimal recognition in several other States.
   The Fix: Complete community forest resource mapping and vesting in a village before any diversion proposal over its forest is processed.
2. The consent requirement rests on executive instruction: It operates through Ministry circulars in the forest clearance process rather than through an express section of the Act, so it can be narrowed without going to Parliament. Eg. A 2009 circular of the Ministry of Environment and Forests made a gram sabha consent certificate part of the forest clearance record.
   The Fix: Write the consent requirement into the Act itself, so that any dilution requires an amendment debated in Parliament.
3. Statutory exemptions have been widening: The Forest (Conservation) Amendment Act, 2023 removes categories of land from the forest clearance process, and the consent step travels with that process. Eg. Land within 100 km of an international border proposed for a strategic linear project falls outside the clearance requirement.
   The Fix: Retain the gram sabha consent step for every exempted category where forest rights have been recognised, independent of the clearance exemption.
4. A refusal has no protected life: Nothing bars a fresh proposal over the same forest after a gram sabha has rejected one, so refusal delays a project rather than settling the question. Eg. In Orissa Mining Corporation v. Ministry of Environment and Forests (2013) the Supreme Court referred the bauxite mining question in the Niyamgiri hills to 12 gram sabhas, and all of them rejected it.
   The Fix: Bar a fresh diversion proposal over the same land for a fixed period following a gram sabha rejection, as land acquisition law already does.

Conclusion

The consent requirement is the one instrument that makes a village’s refusal legally consequential, and the change under discussion replaces refusal with arithmetic. Two positions cannot both hold: that the right belongs to a particular community because it depends on a particular forest, and that other communities may supply the consent on its behalf. The Environment Ministry can settle which of the two governs, and the honest route to that is an open amendment rather than a fresh reading of existing rules. Until it does, the strength of a village assembly’s veto depends on which ministry is willing to claim jurisdiction over it.

Back2Basics: Panchayats (Extension to the Scheduled Areas) Act, 1996

1. What it does: It extends Part IX of the Constitution, on panchayats, to the Fifth Schedule areas with modifications.
2. The gram sabha’s status: It makes the gram sabha, rather than the elected panchayat, the primary body competent to safeguard traditions, customs, cultural identity and community resources.
3. Consultation before acquisition: It requires consultation with the gram sabha before land is acquired in Scheduled Areas and before displaced persons are resettled.
4. Control over resources: It vests ownership of minor forest produce in the gram sabha and gives it a role in preventing land alienation and in granting minor mineral concessions.

Matching Previous Year Question

“[2013] Under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, who shall be the authority to initiate the process for determining the nature and extent of individual or community forest rights or both? (a) State Forest Department (b) Distrit Collector/Deputy Commissioner (c) Tahsildar/Block Develoment Officer/Mandal Revenue Officer (d) Gram Sabha ANSWER: (d)”