New Delhi: Jairam Ramesh, general secretary of the All India Congress Committee, criticised the Ministry of Tribal Affairs over its memo saying that the consent of the Gram Sabha was not necessary to divert forest land for building roads, mining, or setting up industries.
“This shocking stance of the Union Ministry of Tribal Affairs reflects a serious misunderstanding of the law and an abdication of the Ministry’s statutory responsibility. It is particularly concerning because it contradicts the Ministry’s own earlier guidelines and communications. Is it under pressure from the Modani conglomerate and other mining companies?” wrote Ramesh in an INC statement released on 8 September.
Ramesh’s statement was in response to an official memo issued by the Ministry of Tribal Affairs (MoTA) to the National Hydroelectric Power Corporation Limited (NHPCL) on 31 August. It said that there was “no provision” under the Forest Rights Act, 2006 for obtaining approvals from the Gram Sabha for projects in forest areas. MoTA added that the matter did not come under its purview.
What is the FRA?
The Forests Rights Act (FRA) was passed to recognise the rights of Schedule Tribes and other forest dwellers. To do so, the Gram Sabha often becomes the starting point. When there is a proposal for a project in a forest, it first goes through a Forests Rights Committee, which then sends its recommendations to sub-divisional and district-level committees. Section 5 of the Act empowers Gram Sabhas with the right to protect wildlife, forests, and biodiversity, and to “protect, regenerate or conserve or manage any community forest resource for sustainable use”.
“The holders of any forest right, Gram Sabha, and village level institutions…are empowered to ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity are complied with,” reads the Act.
This is important because when a forest is “diverted” for a mine, dam, road, or any other non-forest use, the project must go through a two-stage forest-clearance process. Stage-I is the “in principle” approval by the government, and Stage-II is where the Gram Sabha plays a key role.
In his statement on Tuesday, Ramesh highlighted earlier positions of MoTA in 2012, 2018, and even in 2023 where Gram Sabha consent was mandatory for project proposals in forest land. He added that the MoTA’s own website confirms that it is the ministry in charge of implementing the FRA.
‘Gram Sabha consent’
The dispute comes after a standing committee on public undertakings published a report on the NHPCL in early August. The committee said that several hydropower projects were delayed because of the “100 per cent Gram Sabha consent” rule.
“Under the Forest Rights Act, 2006, 100% consent of the relevant Gram Sabha is required as part of forest clearance (i.e. approval to use forest land for non-forest purpose). The Committee noted that some projects are indefinitely stalled because of the delay in consent from a small minority of gram panchayats,” read the report.
The report recommended reducing that “100 per cent” consent to 70 to 75 per cent for “large hydropower infrastructure projects of national importance”.
The dispute stems from a legal ambiguity. While the FRA does not explicitly say that 100 per cent gram sabha consent is required for non-forest projects on forest land, the act does give the gram sabha a key role in deciding forest rights. The FRA is also not confined to a few tribal states and has been implemented across 20 states in the country. However, Gram Sabhas often don’t have the records, maps, or administrative support to actually speak out against projects.
The Supreme Court’s 2013 Niyamgiri judgement highlighted the importance of the Gram Sabha in making forest-related decisions and protecting the rights of forest-dwelling communities.
The Niyamgiri case arose from a proposed bauxite mining in the Niyamgiri Hills in Odisha’s Rayagada and Kalahandi districts. The Odisha Mining Corporation was pushing the project as a way to supply bauxite to a refinery in Lanjigarh operated by Vedanta. The mine faced severe opposition from forest dwelling communities and the Dogria Kondh argued that it would damage their forests, livelihoods, and sacred sites, including the home of their deity, Niyam-Raja.
Eventually, when the environment ministry rejected the Odisha Mining Corporation’s proposal to divert 660.7 hectares of forest land for the mine, the corporation approached the Supreme Court. After several rounds of litigation, the court eventually acknowledged the rights of the forest-dwellers and local communities and asked the Odisha government to let Gram Sabhas take the final call. All 12 Gram Sabhas in the region rejected the proposed mining, making the case a landmark to prove that the FRA can give local communities a say in the future of their forests.
“These safeguards are not technicalities… MoTA cannot simply distance itself from the operations of the FRA when those very rights are at stake and are under real threat. To do so… would make a mockery of the law and of the communities it was enacted to protect,” wrote Ramesh.