Hydrower projects: How MoTA's one page memo washes its hands of tribal consent

By Palla Trinadha Rao* 

When a small tribal hamlet in Sikkim can single-handedly hold up a hydropower project worth thousands of crores, whose job is it to say no to the company — and whose job is it to say no to the hamlet? A one-page government note quietly answered that question this week: nobody's job.

On 31 August, the Ministry of Tribal Affairs (MoTA) sent a terse office memorandum to the Ministry of Power, responding to a Parliamentary panel that wants the consent of tribal Gram Sabhas — village assemblies — diluted from a requirement of unanimous consent to a 70–75% majority among all affected villages for large hydropower projects. MoTA's reply: there is "no provision" in the Forest Rights Act, 2006 (FRA) for Gram Sabha consent to forest clearance, so "such matters" are none of its business.

It is a short sentence with a long shadow. Behind it lies the stalled Teesta-IV hydel project in Sikkim, where seven Gram Sabhas have consented and three have not; the 2,000 MW Subansiri Lower project, whose cost has swelled by 344% partly over land and forest disputes; and a Lok Sabha Committee's finding that forest clearances for under-construction NHPC projects now take an average of 106 months — nearly nine years.

The Committee on Public Undertakings, in its 31st Report on NHPC (National Hydroelectric Power Corporation) Limited, called the unanimous consent requirement "the single most critical bottleneck" facing India's hydropower push and recommended that the Ministry of Power negotiate a lower, majority-based threshold with MoTA and the Environment Ministry. NHPC told the Committee that 100% consent was "practically unachievable" and cited Brazil, Australia and New Zealand as models for a lower bar. MoTA's answer effectively steps out of that negotiation before it begins.

MoTA is not wrong about the text. The FRA's own consent clause, Section 4(2)(e), is narrow — it applies only to resettling forest dwellers out of Critical Wildlife Habitats, not to forest diversion in general. The sweeping requirement that every affected Gram Sabha must consent before a project gets Stage-II forest clearance does not come from the FRA at all. It comes from a 2009 circular issued by the Environment Ministry, later folded into the Forest Conservation Rules, requiring a district collector's certificate and written Gram Sabha consent with every forest clearance application.

That requirement gained real teeth in 2013, when the Supreme Court, ruling on Vedanta's proposed bauxite mine in Odisha's Niyamgiri hills, held that Gram Sabhas must be allowed to decide for themselves whether a project violates their religious, cultural and community rights under the FRA. The Dongria Kondh tribe's Gram Sabhas said no, and the mine was blocked. It remains India's clearest precedent for what the consent requirement is actually protecting — not a bureaucratic box to tick, but a right that belongs to a specific community, which no neighbouring village's approval can substitute for.

So when MoTA says the "provision" does not exist, it is technically parsing a statute correctly while sidestepping the real question: who is supposed to defend and safeguard what its own nodal ministry — MoTA — was required to serve by law? By disclaiming jurisdiction, MoTA leaves that job to the Environment Ministry and the Power Ministry, both of which have an institutional interest in clearing projects faster, not slower.

This is not the first such retreat. The Forest Conservation Rules of 2022 already restructured the clearance process so that Gram Sabha consent is examined only after a project gets in-principle approval, rather than before — turning a precondition into an afterthought. The proposed 70–75% threshold would go further, diluting not just the timing of consent but its substance.

The comparisons NHPC offered the Committee do not hold up well either. Brazil's FUNAI framework and Australia's Native Title Act govern how indigenous land title is recognised, not how much consent a government can override once title exists. New Zealand's Treaty of Waitangi is a co-governance arrangement, not a majority-vote mechanism. None of these are examples of diluting a settled right by percentage.

The deeper problem is conceptual. If ten Gram Sabhas consent and three do not, a 70% threshold does not resolve anything for the three that refused — it simply authorises the government to proceed over their objection. Free, Prior and Informed Consent — the international human-rights standard the government itself invokes — is by definition not majoritarian. Consent that evaporates once enough neighbours agree is not consent at all for the community that withheld it — it is an override dressed up as a compromise.

Curiously, NHPC's own submissions to the Committee suggest a different fix. The company recommended treating FRA compliance as an ongoing state government function rather than a one-off project task, integrating it at the pre-feasibility stage rather than after a project is designed, standardising Gram Sabha procedures, and building digital, GIS-based tracking of where consent stands. This is not an unreasonably high bar.

A Gram Sabha whose rights-recognition process starts when a project is first conceived, and whose consent status is tracked in real time rather than chased for years by field officers, could plausibly decide in months rather than a decade — without a single village losing its right to refuse. The Committee's own evidence, in other words, undermines its own headline recommendation: the 106-month delay looks far more like a result of disregard for law, lethargy, incapacity, mishandling and chaos rather than any proof that the consent bar itself is too high.

What MoTA's memorandum leaves hanging is simple: if the tribal affairs ministry will not defend Gram Sabha consent, and the power and environment ministries have every incentive to loosen it, who represents the interests of the communities the law was written for? On paper, MoTA is the FRA's nodal ministry. In this exchange, it has chosen not to act like one — and the negotiation over how much of a tribal community's consent still counts as consent will now proceed without anyone in the room whose job it is to ask that question.

In recent times, MoTA has been consistently eager to discard its responsibilities under the FRA. It now declares that the FRA is a matter for state governments, not its own. When asked whether wildlife clearance is required for government agency proposals to provide public facilities under the FRA in protected areas — proposals that are actually exempt from forest clearance under the Forest Conservation Act, 1980 — MoTA did not say 'no'. Instead, it offered an obtuse reply: that only the clearances required under the FRA are applicable. MoTA has deliberately reduced itself to a passive bystander. The current response is yet another episode in this farce.

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*Contact: pallatrinadh5@gmail.com