In August, the Ministry of Tribal Affairs said there was no provision in the landmark Forest Rights Act for clearance from gram sabhas for major infrastructure projects.
It was yet another instance of how the tribal affairs ministry has gradually withdrawn from the precedent it had set after the Supreme Court in its verdict in the 2013 Odisha Niyamgiri mining case said it was up to gram sabha to give clearance for the project.
Over the years, the tribal affairs ministry has taken contradictory positions on the issue of forest rights, for instance in the Great Nicobar Island mega infrastructure project.
The ministry’s recent remarks were in response to a Parliamentary Standing Committee report on the National Hydroelectric Power Corporation Limited, which was tabled on August 3.
In the report, the committee said that “the requirement of 100% Gram Sabha consent under the Forest Rights Act, 2006 for Forest Clearance has emerged as a critical bottleneck”.
The committee recommended that the power ministry hold talks with the tribal affairs ministry and environment ministry on adopting a consent threshold of 70%-75% for large hydropower infrastructure projects of national importance.
The National Hydroelectric Power Corporation Limited is under the purview of the power ministry.
The tribal affairs ministry told the National Hydroelectric Power Corporation that the Forest Rights Act, 2006, has “no provision for obtaining consent of the Gram Sabha for forest clearance” and that “therefore, such matters do not fall under the purview of the MoTA”.
Section 11 of the Forest Rights Act states that the Tribal Affairs Ministry is the nodal agency for the implementation of the act.
Activists, experts and environmental journalists have pointed out that there is no specific provision in Forest Rights Act on “100% approval” from the gram sabhas.
But the guidelines for the act state that in case of giving a go-ahead for a development project, the gram sabha can make a decision after it convenes a meeting with a minimum quorum of 50%.
This highlights yet another instance of difficulty in implementing the Forest Rights Act and the intergovernmental conflicts over the past two decades since the Act came into force.
It reflects “governmental lawlessness” – a term used by legal scholars when the state and its institutions do not demonstrate the ability and willingness to uphold the laws it makes.
Such inability and unwillingness raises the issue of the “ethics of legalism” – which underlines that the law is the same for everyone and has to be followed without any distortion.
However, when it comes to safeguarding the interest of marginalised groups, the law often gets a differential interpretation and implementation.
What does the Forest Rights Act say? Since its introduction as a draft, the Forest Rights Act has faced widespread resistance and lobbying efforts to dilute the legal provisions safeguarding the rights of Scheduled Tribes and Other Traditional Forest Dwellers in India.
The initial draft had legal ambiguities on crucial points, such as who is covered under its “benefits”, what constitutes “bona fide livelihood”, and the “cut-off time” for the implementation of the act.
After sustained efforts, the draft sought to clarify these points, but not all of them were reflected in the final rules issued for act.
But sections of the act provide for the gram sabhas to recommend diversion of forest land towards specific government projects.
Section 3(2) of the Act says that any diversion of forest land for non-forest “facilities managed by the government”, which involves the felling of trees not exceeding seventy-five per hectare, shall be allowed only after fulfilling two conditions: the amount of forest....
