Perilous retreat: On gram sabhas, tribal land issues
A Parliamentary Committee on Public Undertakings has proposed replacing the requirement of unanimous (100%) gram sabha consent for projects affecting forest and tribal land with a qualified super-majority of 70–75% of affected gram sabhas.
Separately, the Union Ministry of Tribal Affairs has communicated to the Ministry of Power that the Forest Rights Act (FRA), 2006, and its rules contain no explicit provision requiring gram sabha consent for Stage-II (final) forest clearance under the Forest (Conservation) Act.
The panel's recommendation followed concerns that infrastructure and power projects, including those of public sector undertakings, face long delays — with average forest-clearance timelines for some under-construction projects running into several years — attributed partly to the requirement of full gram sabha consent.
Observers have flagged that a supermajority-based consent regime could allow developers to proceed with a project even where a specific, most-affected village (for instance, one facing submergence) withholds consent, so long as enough less-affected neighbouring villages approve it.
Gram Sabha and the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)
A gram sabha is the village assembly of all adult members registered on the electoral rolls of a village, recognised under Part IX of the Constitution as the foundational unit of local self-government. In Fifth Schedule Scheduled Areas, the PESA Act, 1996 extends and adapts Panchayati Raj to give gram sabhas special powers not available to panchayats elsewhere — including safeguarding community traditions, managing minor forest produce, and being consulted before land acquisition.
Key Details
- Enacted in 1996 to extend Part IX (73rd Amendment) provisions to Scheduled Areas under Article 244(1) and the Fifth Schedule, covering ten states (Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan).
- Under Section 4(d), the gram sabha is empowered to safeguard and preserve the traditions, customs, and cultural identity of the community; ownership of minor forest produce vests in the gram sabha/panchayat.
- Gram sabhas must be consulted before land acquisition and before granting prospecting licences or mining leases for minor minerals in Scheduled Areas.
The proposed dilution of consent thresholds and the Tribal Affairs Ministry's stance on Stage-II clearance both concern the scope of gram sabha authority that PESA and subsequent case law established over land and forest decisions in Scheduled Areas.
Forest Rights Act, 2006 (Scheduled Tribes and Other Traditional Forest Dwellers Act)
The FRA, 2006 recognises individual and community forest rights of Scheduled Tribes and other traditional forest dwellers who have occupied forest land before December 2005. It empowers the gram sabha as the statutory authority to initiate the process of determining the nature and extent of these rights, and courts have read this power to include a consent function before forest diversion for non-forest use.
The current debate is precisely over whether the FRA's rights-settlement process (as read by courts like in the Niyamgiri case) amounts to a consent requirement before Stage-II forest clearance, and whether that requirement should be diluted to a 70–75% supermajority of affected gram sabhas instead of unanimous consent.
Fifth Schedule and Sixth Schedule Areas
The Fifth Schedule (Article 244(1)) provides special administrative arrangements for Scheduled Areas with significant tribal populations in mainland India, including a Tribes Advisory Council and Governor's powers to regulate land transfer; the Sixth Schedule (Article 244(2)) provides a different, more autonomous framework of Autonomous District/Regional Councils for tribal areas of Assam, Meghalaya, Tripura, and Mizoram.
Key Details
- Fifth Schedule areas are notified by the President, not defined by fixed criteria in the Constitution.
- PESA and the FRA both operate primarily within Fifth Schedule areas.
The gram sabha consent debate is specific to Fifth Schedule areas governed by PESA and the FRA framework, distinguishing it from the separate Sixth Schedule autonomous-council model.
- Proposed consent threshold under discussion: 70–75% of affected gram sabhas (replacing 100%/unanimous consent).
- PESA, 1996 applies to Scheduled Areas in ten states under the Fifth Schedule.
- FRA, 2006 recognition cut-off: forest occupation prior to 13 December 2005.
- Orissa Mining Corporation v. Ministry of Environment and Forest (Niyamgiri case): decided 18 April 2013 by the Supreme Court of India; 12 gram sabhas of Dongria Kondh and Kutia Kandha communities voted against the mining project by August 2013.