Forest Rights Act – The Dispute Over Gram Sabha Consent

Forest Rights Act Latest News

• The Union Ministry of Tribal Affairs has told the Power Ministry that the Forest Rights Act, 2006 has “no provision for obtaining consent of the Gram Sabha for forest clearance,” and that such matters fall outside its purview.

The Forest Rights Act, 2006

• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, commonly called the Forest Rights Act (FRA), was enacted to correct the historical injustice faced by forest-dwelling communities.
• The law recognises individual and community rights of Scheduled Tribes and other traditional forest dwellers over forest land and resources. 
• Crucially, it makes the Gram Sabha the primary authority for initiating the process of determining forest rights.
• The Act explicitly states that the Ministry of Tribal Affairs is the nodal ministry responsible for its implementation. 
• This designation is central to the current dispute.

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How Gram Sabha Consent Became a Requirement

• A key point of confusion lies in where the consent requirement actually originates.
• The FRA itself does not contain language on Gram Sabha consent specifically with respect to diverting forest land for non-forestry purposes.
• However, the Union government’s own rules and regulations governing forest diversion, framed under the Forest Conservation Act, 1980, require that all processes under the FRA be completed before any authority can formally issue a certificate diverting forest land.
• These guidelines mandate four sequential steps:
  • Identification of potential FRA claimants
  • Recognition of their rights where applicable
  • Vesting of these rights
  • Obtaining a no-objection certificate (NOC) from the concerned Gram Sabhas regarding the diversion proposal
• It is this final step, obtaining an NOC from Gram Sabhas, that has come to be known as the procedure for Gram Sabha consent for forest clearance.

News Summary: The Ministry’s Position

• In an official communication, the Ministry of Tribal Affairs stated that there is no provision for obtaining Gram Sabha consent for Stage-II forest clearance under the FRA or the Rules made under it.
• It concluded that “such matters do not fall under the purview of the Ministry of Tribal Affairs.”
• This position has drawn criticism. A Supreme Court advocate who previously served as legal adviser to the Ministry of Tribal Affairs under successive governments has raised concerns, asking that if such matters are not under the Tribal Affairs Ministry’s purview, whose purview they fall under.
• The observation carries weight because the FRA itself names the Ministry as the nodal authority for implementation.

What Triggered the Deliberations

• The exchange between the two ministries followed a report by the Parliamentary Standing Committee on Public Undertakings on NHPC Limited.
• Based on discussions with NHPC officials, the committee observed that the average time for forest clearance of under-construction projects was 106 months, close to nine years.
• It identified the requirement that all concerned Gram Sabhas consent to forest diversion as the “single most critical bottleneck.” 
• The report specifically noted projects such as the Teesta-IV hydroelectric project being indefinitely stalled because consent from a small minority of gram panchayats remained pending.

The Super-Majority Proposal

• The committee took up an NHPC recommendation that a “qualified super-majority consent”, consent of 70-75% of affected Gram Sabhas, should be sufficient for “large hydropower infrastructure projects of national importance.”
• It recommended that the Power Ministry discuss the feasibility of such a proposal with the Ministry of Tribal Affairs.
• This proposal is significant because it would fundamentally alter the nature of the consent requirement. 
• Under the current framework, a single Gram Sabha withholding consent can halt a project. Under a super-majority model, a minority of affected communities could be overridden.

The Core Tension

• Two legitimate concerns pull against each other here.
• On one side is infrastructure delay. An average forest clearance timeline of 106 months imposes real costs on project economics, on power generation capacity, and on public investment. 
• Hydropower projects in particular are concentrated in forested Himalayan and north-eastern regions where FRA claims are widespread.
• On the other side is the purpose of the consent requirement itself. The NOC procedure exists precisely to ensure that communities whose rights are recognised under the FRA are not dispossessed without agreement. Diluting it to a super-majority threshold would mean that some recognised rights-holders could lose their land despite objecting.
• The question of whether consent is a procedural formality or a substantive right sits at the heart of the dispute.

Constitutional and Legal Context

• The PESA Act, 1996 already grants Gram Sabhas in Scheduled Areas a significant role in decisions affecting land and resources. The Fifth and Sixth Schedules of the Constitution provide special protections for tribal areas.
• Judicial pronouncements have also reinforced community consent. 
• In the Samatha judgment (1997) and the Orissa Mining Corporation case (2013) concerning Niyamgiri, the Supreme Court affirmed the role of Gram Sabhas in decisions over forest land and mineral resources.
• Any move to introduce a super-majority threshold would therefore need to reconcile with this broader legal framework, not merely with the FRA’s text.

Way Forward

• Several approaches could address the underlying problem without weakening rights.
• Completing FRA recognition first would remove much of the delay. 
• A significant part of the 106-month timeline stems from unsettled claims rather than refused consent. Expediting recognition would clarify who holds rights before diversion is proposed.
• Strengthening state-level capacity for FRA implementation would reduce backlogs, since the Ministry itself attributes operational responsibility to states.
• Improving consultation quality, through early engagement, transparent information sharing, and genuine benefit-sharing arrangements, is more likely to secure consent than procedural shortcuts.
• Clarifying institutional responsibility is essential. If the nodal ministry disclaims jurisdiction over consent disputes, the framework has a gap that no amount of procedural reform will fix.

Source: TH