Why is MoTA distancing itself from Gram Sabha consent for forest clearance? | Explained

The story so far:In deliberations with the Union Ministry of Power over government projects delayed due to the ‘critical bottleneck’ of ‘100% Gram Sabha consent under the Forest Rights Act’ for forest clearance, the Ministry of Tribal Affairs has now said that the 2006 law has ‘no provision for obtaining consent of the Gram Sabha for forest clearance’, adding that ‘such matters’ related to Gram Sabha consent ‘do not fall under the purview of the Ministry of Tribal Affairs’.Forest clearance and Gram Sabha consentWhile the FRA itself does not have the language of Gram Sabha consent specifically with respect to diverting forest land for non-forestry purposes, the Union government’s rules and regulations governing the diversion of forests specifically require that all processes under the FRA be completed before the concerned government authority can issue a certificate diverting the forests formally.These guidelines, under the Forest Conservation Act of 1980, require the identification of potential FRA claimants, the recognition of their rights where applicable, the vesting of these rights, and then obtaining a No Objection Certificate from the Gram Sabhas concerned regarding the proposal to divert the said forest land for the stated purpose — all of it as mandated under the FRA. This procedure of obtaining an NOC from Gram Sabhas is what has commonly come to be known as the procedure for Gram Sabha consent for forest clearance. The FRA explicitly states that the Ministry of Tribal Affairs is the nodal Ministry responsible for the law’s implementation.Why is the Power Ministry discussing Gram Sabha consent with Tribal Affairs Ministry?The deliberations between the two Union Ministries were initiated after a crucial issue was revealed in an August 3 Parliamentary Standing Committee report on the National Hydroelectric Power Corporation Limited with regard to ongoing projects and the delays affecting them. In this report, the NHPC informed the House panel on Public Undertakings that one of the key reasons for the delay in ongoing projects was the provision that required it to obtain the consent of all Gram Sabhas concerned. It told the Committee that the average time for obtaining forest clearance for under-construction projects was 106 months.The House panel, headed by BJP MP Baijayant Panda, noted, “The requirement of 100% Gram Sabha consent under the Forest Rights Act, 2006 for Stage-II Forest Clearance has emerged as the single most critical bottleneck, with projects like the Teesta-IV HEP being indefinitely stalled because consent from a small minority of Gram Panchayats remains pending”.The Committee thus recommended that the Power Ministry should initiate discussions with the Ministry of Tribal Affairs and the Ministry of Environment, Forests, and Climate Change on the feasibility of adopting a “qualified supermajority consent” approach, where consent from 70% to 75% of the affected Gram Sabhas would be sufficient to obtain forest clearance for “large hydropower infrastructure projects of national importance”. It was in these discussions that the Ministry of Tribal Affairs distanced itself completely from the issue of Gram Sabha consent.What were the House panel discussions that led to the inter-ministerial dialogue?Detailed in its report, the Parliamentary Standing Committee of Public Undertakings’ discussions with the NHPC and Power Ministry officials showed what the issue with Gram Sabha consent was. In talking about the delays to projects like the Teesta-IV HEP, Power Ministry officials told the House panel that the project was being stalled because of pending Gram Sabha consent. It noted specifically that while seven Gram Panchayats had granted consent for the project, consent was pending from three Gram Panchayats.Generally, on delays to projects being run by the NHPC, officials told the House panel that while the average time for obtaining Forest Clearance for under-construction projects was the longest at 106 months, the average time taken for obtaining Environmental Clearance and Forest Clearance for Commissioned Projects was 7.2 months and 21 months, respectively.On Gram Sabha consent for forest clearance, NHPC officials stated, “70% consent should suffice where the requirement as of now is 100%. So, we have faced problems in some of the States where we do not get this 100% NOC.” The NHPC officials had further recommended that if a two-thirds majority had given consent, then this would “indicate readiness to proceed, and further NOCs can be obtained subsequently”. In defence of this suggestion, NHPC officials cited international examples in Brazil, Australia, and New Zealand, where a “rationalised consent threshold” approach is employed.Tribal Affairs Ministry’s distancing from FRA issuesWhile the issue in question principally deals with procedures mandated by the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or FRA, that are prescribed to be followed for forest clearance under the Forest Conservation Act, the Tribal Affairs Ministry has told the Power Ministry that issues of Gram Sabha consent “do not fall under the purview of the Ministry of Tribal Affairs”.This position of the Tribal Affairs Ministry distancing itself from this particular issue is in line with the position it has been taking, increasingly, in the last few years, with respect to various issues related to the implementation of the 2006 law.For example, in the Calcutta High Court, where the Gram Sabha consent procedure for the ₹91,000 crore Great Nicobar Island development project is under challenge, the Ministry took a similar stand. It argued that since the on-ground implementation of the FRA has been handed to the State and UT governments, it had no role to play in the matter and even sought that the Tribal Affairs Ministry should be dropped as a respondent in the challenges.The Ministry has taken similar stands in other High Courts and the Supreme Court on FRA implementation cases and in response to questions that are raised in Parliament on the issue.