Withdraw stand on Gram Sabha consent, rights group urges Ministry

Why in the News

The Tribal Affairs Ministry has held in an office memorandum that there is “no provision” under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 to seek the consent of Gram Sabhas for diverting forest land to non-forest purposes. The Campaign for Survival and Dignity (CSD), a national platform of Adivasi and forest dweller organisations, has demanded immediate withdrawal of the memorandum. The position was arrived at during the Ministry’s discussion with the Power Ministry on the requirement of 100% Gram Sabha consent, which has been described as a “critical bottleneck” delaying large government projects. The contest is over what the consent requirement actually is. Treated as a statutory right it cannot be set aside by an executive communication, and treated as an administrative practice it can.

What does the Forest Rights Act, 2006 give the Gram Sabha?

1. It recognises rights: Section 3 recognises individual rights over forest land under occupation and community rights over minor forest produce, grazing, water bodies and traditional use.
2. The Gram Sabha starts the process: Section 6 makes the Gram Sabha the authority that initiates determination of the nature and extent of individual and community forest rights.
3. It carries powers over the forest itself: Section 5 empowers the Gram Sabha to protect wildlife, forest and biodiversity and to stop any activity that harms the community forest resource.
4. Consent attaches to diversion: An Environment Ministry circular of 3 August 2009 requires written Gram Sabha consent, together with a certificate that rights recognition is complete, before forest land is diverted under the Forest (Conservation) Act, 1980.

What did the Ministry hold, and what produced it?

1. The memorandum’s claim: The office memorandum of 31 August states there is no provision in the Act requiring Gram Sabha consent for diversion of forest land to non-forest use.
2. It came out of an inter-ministerial discussion: The Tribal Affairs Ministry is in discussions with the Power Ministry on the 100% consent requirement, which the discussions treat as a critical bottleneck holding up large government projects.

On what grounds is the memorandum contested?

1. Called factually and legally untenable: The CSD said the position “smacks of dereliction of duty” and that the error could have been avoided by reading the text of the law.
2. It cuts against the Ministry’s own record: A former Union Environment Minister said the stance runs contrary to the Ministry’s own directives, communications, guidelines and the set procedure under law as it stands.
3. It sits against the Niyamgiri ruling: In Orissa Mining Corporation v. Ministry of Environment and Forests (2013), the Supreme Court referred the question of community and religious claims to the Gram Sabhas of Rayagada and Kalahandi districts. All twelve Gram Sabhas consulted rejected bauxite mining in the Niyamgiri hills.
4. A motive is alleged: The CSD alleged the Ministry took the position to appease the interests of project developers, contractors and large corporations.

Challenges to Gram Sabha consent under the Forest Rights Act

1. Consent presumes recognition is finished: Where community forest resource rights have not been recognised, there is no recorded rights holder whose consent can be sought, and the diversion proceeds on that silence. Eg. Gadchiroli district in Maharashtra carries widespread community forest resource titles, and recognition remains thin across most other States.
   The Fix: Complete community forest resource mapping and titling for a block before any diversion proposal for that block is admitted for processing.
2. Consent can be manufactured: Resolutions are recorded without quorum, or with an agenda drafted by the project proponent and read out at the meeting. Eg. Gram Sabha consent resolutions for the Parsa coal block in Chhattisgarh’s Hasdeo Arand were alleged to be forged and were placed under official inquiry.
   The Fix: Video record every consent Gram Sabha and publish the attendance roll and the resolution in the local language before the clearance file moves.
3. Clearance stages have been decoupled from consent: The Forest (Conservation) Rules, 2022 allow the Centre to grant in principle approval before the State certifies that forest rights settlement is complete. Eg. The Rules were challenged before the Supreme Court by retired civil servants and forest rights groups on precisely this ground.
   The Fix: Restore the consent certificate as a condition precedent to the first stage approval rather than an obligation the State discharges afterwards.

Conclusion

The memorandum stands, and only the Ministry that issued it can withdraw it. What is in dispute is not a policy preference but a reading of a statute, which means the answer is available to any court asked the question. The immediate marker is whether the Tribal Affairs Ministry withdraws or reissues its communication to the Power Ministry. The larger one is whether consent survives as a condition of forest diversion or is converted into a clearance stage that the executive can waive when a project is large enough.

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)”