Gram Sabha Rights Over Tribal Land

Context

Recent policy shifts, judicial pronouncements, and executive actions have raised concerns about the dilution of the powers of Gram Sabhas (village assemblies). Tribal rights activists and constitutionalists want Gram Sabhas to have an absolute veto on all decisions of being alienated, acquired or diverted from tribal lands.

Core Pillars of Tribal Land Governance

• Panchayats (Extension to Scheduled Areas) Act, 1996: Absolute powers given to Gram Sabhas in Fifth Schedule areas. It stipulates that the Gram Sabha should not allow the land to be alienated and should take care of the resources of the locality.
• Forest Rights Act (FRA), 2006: The act was passed to correct “historical injustices” by recognizing the rights of individuals and communities over forests.
• The Veto/Consent Spirit: Gram Sabhas are a legal barrier before forest land can be diverted for non-forest purposes. In the past, the Ministry of Environment had issued a circular in 2009 which stated that a Gram Sabha consent certificate is a precondition for project clearance.

Key Issues and Current Contradictions

• The Nodal Ministry’s Recusal: 
• • In the very clear terms of the FRA, the “Ministry of Tribal Affairs is the nodal ministry responsible for implementing the law.”
  • However, by using a technical distinction between the FRA text and Environment Ministry rules to declare the consent issue outside its purview, MoTA effectively abdicates its statutory role.
• “Counting Rule” vs. “Consent Rule”: Shifting to a majority threshold (70–75%) introduces a dangerous arithmetic. Project developer can obtain approval from less affected periphery villages, essentially outvoting the core village which is completely inundated or displaced.
• Jurisprudential Erosion: Customary land ownership is a collective, non-transferable constitutional right. The nature of the rule is changed by the threshold change as follows: “A right held by a certain community due to dependence on a certain forest cannot be relinquished by agreement between other communities”.
• Widening Statutory Exemptions: The Forest (Conservation) Amendment Act, 2023 removes the forest clearance restrictions on areas located in strategic zones as defined in the Bill (e.g. within 100 kms of International border). Since the consent process is a part of the clearance process, the tribal veto is automatically removed in these exempted areas.
• Lack of Finality in Refusals: When a Gram Sabha exercises its veto, it lacks a protected lifespan. Project proponents continue to submit new proposals on the same plot, putting a community veto to death before it can happen.

Statutory & Constitutional Framework

• Nodal Agency Ambiguity: Allocation of Business Rules: Under the Allocation of Business Rules, the Ministry of Tribal Affairs (MoTA) is the nodal ministry for implementing the Forest Rights Act (FRA), 2006. The forest clearances are, however, under the control of the Ministry of Environment, Forest and Climate Change (MoEFCC), and thus there is a classic governance overlap.
• Niyamgiri Precedent (2013): The Supreme Court (Orissa Mining Corporation v. MoEFCC) clarified that Gram Sabha has a quasi-judicial role to protect the religious and cultural rights of tribes, whose mineral exploration clearance determination is binding.
• Constitutional Safehouse: Fifth Schedule (Article 244(1)) requires the establishment of a Tribes Advisory Council (TAC) to provide advice on tribal welfare, and PESA Act, 1996 brings panchayat powers to the tribal areas, including explicit powers to stop land alienation by Gram Sabhas. 

Way Forward

• Statutory integration: The consent requirement must be in the wording of the FRA itself, and must be added to the text by an act of Parliament in order to safeguard it against arbitrary executive dilution.
• Protected Veto Lifespan: Make diversion rules in line with land acquisition rules, and stop fresh diversion proposals from being made on the same land for a certain number of years after the Gram Sabha rejects.
• Uniformity in Exemptions: Continue the mandatory Gram Sabha consent for all categories exempted under the 2023 amendments of Forest Conservation. 

Source: The Hindu

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