BRIEFING NOTE

May 2017

FREE PRIOR AND INFORMED CONSENT
WHERE INDIAN LEGISLATION STANDS
I. INTRODUCTIONThe concept of Free, Prior and Informed Consent, whichstems from the collective rights of self-determination of indigenous people is largely being seen as becoming a part ofcustomary international law. First formally introduced throughthe International Labour Organisation’s Convention on Indigenous and Tribal Peoples in Independent Countries (ILO 169)1,

the concept was reiterated in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which
laid down a series of situations where FPIC should become thestandard “best practice” for negotiations between indigenous
peoples and any other party.

FREE

No coercion, intimidation or manipulation.

PRIOR

Consent is sought far enough in advance of any authorization or commencement of activities, and the time requirements of indigenous consultation and consensus processes are respected.

INFORMED

All information relating to the activity is provided to indigenous peoples and that the information is objective, accurate and presented in a manner or form that is understandable to indigenous peoples. Relevant information
includes:1. the nature, size, pace, duration, reversibility and scope of any proposed project
2. the reason(s) or purpose of the project
3. the location of areas that will be affected
4. a preliminary assessment of the possible economic, social, cultural and environmental impacts, including potential risks and benefits
5. personnel likely to be involved in the implementation of the project
6. procedures that the project may entail.

CONSENT

Indigenous peoples have agreed to the activity that is the subject of the consultation. Indigenous peoples also havethe prerogative to withhold consent or to offer it with conditions.
Consultation must be undertaken in good faith, which, among other things, requires that indigenous views are accommodated in the process or objective justifications are provided as to why such accommodation is not possible.
The parties must establish a dialogue allowing them to identify appropriate and workable solutions in an atmosphere of mutual respect and full and equitable participation, with ample time to reach decisions. Indigenous peoples
and local communities must be able to participate through their own freely chosen representatives and customaryor other institutions. The participation of women, youth and children is preferable where appropriate.

1 Article 6
1. In applying the provisions of this Convention, governments shall:(a) consult the peoples concerned, through appropriate procedures and inparticular through their representative institutions, whenever consideration
is being given to legislative or administrative measures which may affectthem directly;(b) establish means by which these peoples can freely participate, to at least
the same extent as other sectors of the population, at all levels of decisionmaking in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;(c) establish means for the full development of these peoples’ own institutions

and initiatives, and in appropriate cases provide the resources necessary
for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, withthe objective of achieving agreement or consent to the proposed measures.
Article 7
1. The peoples concerned shall have the right to decide their own priorities
for the process of development as it affects their lives, beliefs, institutions
and spiritual well-being and the lands they occupy or otherwise use, andto exercise control, to the extent possible, over their own economic, social

1II. INTERNATIONAL STATUTES

institutions, in order to maintain their identities, languages, religions, values and their customs.

United Nations Declaration on Rights of Indigenous
Peoples (UNDRIP)CONVENTION ON BIOLOGICAL DIVERSITY
Endorsed by 143 countries, the declaration provides provisions
recognizing the duty of states to secure FPIC in the following
circumstances•••

Ratified by 196 countries, the convention protects indigenous
knowledge by allowing its use only with prior approval. According to Article 8(j)-Population relocations
Dispossession of cultural, intellectual, religious andspiritual property
Confiscated taken, occupied, used or damaged lands,
territories and resources before adopting and implementing legislative or administrative measures andprior to the approval of any project affecting lands or
territories and other resources, particularly in connection with the development, utilization or exploitation ofmineral, water or other resources.

As written in Article 19 of the UN Declaration on the Rights of Indigenous Peoples, “States shall consult and cooperate in goodfaith with the Indigenous Peoples concerned through their own
representative institutions in order to obtain their free, prior andinformed consent before adopting and implementing legislativeor administrative measures that may affect them.”“Subject to its national legislation, respect, preserve andmaintain knowledge, innovations and practices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable
use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices andencourage the equitable sharing of the benefits arisingfrom the utilization of such knowledge, innovations andpractices.”
The Convention has emphasized the mandatory prior informed
approval from the holders of such knowledge, innovations andpractices which are wished to be accessed. Therefore, it has
explicitly affirmed the principle of prior and informed consent.

III. INDIA
INTERNATIONAL LABOUR ORGANISATIONCONVENTION 169
Ratified by 22 countries, this convention is binding and it guarantees the rights of indigenous peoples to their land and to be
involved in any decisions that affect their resources and livelihoods. It was the first document to recognize the rights of indigenous communities within their sphere of political and economic
and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for nationaland regional development which may affect them directly.
2. The improvement of the conditions of life and work and levels of healthand education of the peoples concerned, with their participation and cooperation, shall be a matter of priority in plans for the overall economic
development of areas they inhabit. Special projects for development of theareas in question shall also be so designed as to promote such improvement.
3. Governments shall ensure that, whenever appropriate, studies are carriedout, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development
activities. The results of these studies shall be considered as fundamental
criteria for the implementation of these activities.
4. Governments shall take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.
Article 9
1. To the extent compatible with the national legal system and internationallyrecognised human rights, the methods customarily practised by the peoples concerned for dealing with offences committed by their members shallbe respected.
2. The customs of these peoples in regard to penal matters shall be taken into
consideration by the authorities and courts dealing with such cases.

Although party to ILO Convention 107 on Indigenous and Tribal
Populations which guarantees the right to participation in decision making processes with regard to community and traditionallands, India is not yet a signatory to the ILO Convention 169,
which has replaced the former.
Economic, social and political rights of many local communities living within PAs have been undermined without consultation, consent and provision of adequate alternatives as they facephysical displacement. It is important to note that local stewardship for conservation cannot be built if conservation paradigms do
not address the social costs of conservation or take into accountindigenous knowledge and common property management practiced by local communities for the past millennia.
There are various examples2 of forests, wildlife, biodiversity
conserved by people based on their dependence on forests:
a. Runpur block, Bhubaneshwar, Orissa, 180 villages havecome together to form a federation.
b. Nagaland, hunting and resource extraction is completely
prohibited through community decision making in the Khonoma Tragopan and Wildlife Sanctuary.
Within the last year, there have been several instances of activism shown on part of indigenous communities in order to wrest
their rights from violating authorities.
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On March 16, five Adivasi villages in Raigarh, Chhattisgarh, unanimously vetoed the plans of South Eastern
Coalfields Limited (SECL), a subsidiary of India’s public sector coal mining giant Coal India Limited (CIL), tomine their forests. These villages were Pelma, Jarridih,
Sakta, Urba and Maduadumar.
On March 23, the Kamanda gram sabha of Kalta G.P
in Koida Tehsil of Sundargarh district in Odisha unanimously decided not to give its land for the Rungta Mines
proposed by the Industrial Infrastructure Development
Corporation of Odisha Limited (IDCO).
On May 4, the National Green Tribunal directed that before clearance can be given the Kashang hydroelectric
project (to be built by the State-owned body Himachal
Pradesh Power Corporation Ltd. or HPPCL), the proposal be placed for approval before the Lippa village
gram sabha in Kinnaur district of Himachal Pradesh.
The 1,200 residents of Lippa have been waging a seven-year struggle against the project.
And then on May 6, the Supreme Court rejected a petition by the Odisha Mining Corporation seeking the reconvening of gram sabhas in the Niyamgiri hills to consider a mining proposal that the sabhas had rejected
in 2013. The court observed that the conclusion of thegram sabhas at that time was to reject the mining, andthe petitioner would have to approach an appropriate
forum if it wanted to challenge this.

In this context, the Samatha v. State of Andhra Pradesh4(alsocalled Samatha judgment) is of relevance. The judgment states:“The members of (Constituent) Assembly deliberated toprotect tribal land for the economic empowerment, economic justice, social status and dignity of tribal persons.
This entailed retention of land with the tribals, not only
the land belonging to them, but also Government landin Scheduled Areas. …This manifested the intent of thefounding fathers...to prohibit transfer between tribals
and non-tribals and provided for allotment of land to themembers of the Scheduled Tribes in such areas”.5
The judgment went on to prescribe the role of gram sabhas in preventing the alienation of lands in scheduled areas and in ensuringthat the minerals of the areas were tapped solely by the tribal people.

Panchayats (Extension to Scheduled Areas) Act, 1996
(PESA)The Act provides a place for the Gram Sabha at the heart oflocal governance by creating a mechanism for autonomous decision making through jurisdiction over local resources such as
minor forest produce, minor minerals, and minor water bodies.
Section 4(d):A. CONSTITUTIONAL PROVISIONS AND
OTHER LEGISLATION“Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural
identity, community resources and the customary mode of dispute resolution.”

Under Schedule V of the Constitution of India, laws are to be framedby State Governments to ‘prohibit or restrict the transfer of land byor among members of the Scheduled Tribes’ in Scheduled Areas.3

Section 4(i):3CONSTITUTION OF INDIA, 1950
5. Law applicable to Scheduled Areas.(2) The Governor may make regulations for the peace and good
government of any area in a State which is for the time being a
Scheduled Area.
In particular and without prejudice to the generality of the foregoing power, such regulations maya)b)c)prohibit or restrict the transfer of land by or among membersof the Scheduled Tribes in such area;
regulate the allotment of land to members of the Scheduled
Tribes in such area;
regulate the carrying on of business as money-lender by
persons who lend money to members of the Scheduled
Tribes in such area.

(3) In making any such regulation as is referred to in sub-paragraph(2) of this paragraph, the Governor may repeal or amend any Act
of Parliament or of the Legislature of the State or any existing law
which is for the time being applicable to the area in question.
(4) All regulations made under this paragraph shall be submitted
forthwith to the President and, until assented to by him, shallhave no effect.
(5) No regulation shall be made under this paragraph unless theGovernor making the regulation has, in the case where there is a
Tribes Advisory Council for the State, consulted such Council.

“The Gram Sabha or the Panchayats at the appropriate level shallbe consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled
Areas; the actual planning and implementation of the projects in
the Scheduled Areas shall be coordinated at the State level.”
The act empowers the Gram Sabha to safeguard and preserve its community resources, and requires that the Gram
Sabha or Panchayat at appropriate level be consulted before
acquiring land in Scheduled Areas for development projects.

Scheduled Tribes and Other Traditional Forest Dwellers(Recognition of Forest Rights) Act, 2006 (FRA)
It also places the village/ hamlet level Gram Sabha at the centreof the rights recognition process. As per Section 5 the Gram

4
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(1997) 8 SCC 191
Dias, Anthony: Development and its human cost: Land acquisition, displacement and rehabilitation of tribals. New Delhi: Rawat Publications, 2012.

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Sabha of forest dwellers is vested with the power, as well as aduty, to protect, preserve, conserve and manage its community
forest resources which it has traditionally been conserving forsustainable use:
“5. The holder of any forest right, Gram Sabha and village
level institutions in areas where there are holders of
any forest right under this Act are empowered to:a) protect the wildlife, forest and biodiversity;b) ensure that adjoining catchments area, water
sources and other ecological sensitive areas areadequately protected;c) ensure that the habitat of forest dwelling Scheduled Tribes and other traditional forest dwellers ispreserved from any form of destructive practices
affecting their cultural and natural heritage;d) ensure that the decisions taken in the Gram
Sabha to regulate access to community forest
resources and stop any activity which adversely
affects the wild animals, forest and the biodiversity are complied with.”the guidelines issued by the Ministry of Tribal Affairs vide
its letter dated 12.7.2012.” (Para 58)
In this manner, the court was able to ‘construct’ the FRA in amanner which was binding on every High Court , Supreme Court
bench of less than three judges as well as on the Government.
There is no mention of “the national interest in mining”, “development projects” or the “need” to mine. Thus these rights and powers are asserted without any caveats.
The Court’s construction of the FRA says that the gram sabha can decide on rights, that decision is final, and the gram sabha
has the power to decide on protecting forests and natural heritage. In particular, by sending the matter back to the gram sabha
because a key matter has “not been placed before it for its active
consideration” the court is treating the gram sabha as a statutory,
legal authority at the same rank as, say, the FAC or MoEF. In thatsense the court has gone well beyond the question of “consent”
as such and instead treated the gram sabha as a regulatory authority. Notably the court says nothing about anyone having thepower to overrule the gram sabha.6
Further, the Court also directed the MoEF take into accountother illegalities in the nvironmental clearance, and the gram sabha proceedings should be verified by a district judge to ensure
there is no interference by the government or by the company.

B. Orissa Mining Corporation vs. Union of India andOrs – Conceptualizing FPIC in India
Problems
The Supreme Court’s judgment on the Vedanta mining project inOrissa was delivered on April 18th, 2013, in the case Orissa Mining Corporation vs. Union of India and Ors. In this case the Court
has made a number of key observations about forest dwellers
and the Forest Rights Act.
1. Linkages of indigenous rights, the constitutional provisions for the protection of Scheduled Tribes (Article 244)
and religious rights (Article 25 and 26) and the FRA, as
part of one set of protections, intended for the protectionof STs and Other Forest Dwellers (Para 38)
2. That the gram sabha has both, a duty and a power overforest management, which it is “empowered to carryout”, as per section 5 of the Act. This includes “the preservation of habitat from any form of destructive practices
affecting their cultural and natural heritage.”
3. That the “Gram Sabha has a role to play in safeguarding the customary and religious rights of the STs andother TFDs under the Forest Rights Act. Section 6 of
the Act confers powers on the Gram Sabha to determine the nature and extent of “individual” or “community
rights”. In this connection, reference may also be madeto Section 13 of the Act coupled with the provisions of
PESA Act...” (para 56) followed by “Therefore, Grama
Sabha functioning under the Forest Rights Act read with
Section 4(d) of PESA Act has an obligation to safeguard
and preserve the traditions and customs of the STs andother forest dwellers, their cultural identity, community
resources etc., which they have to discharge following

The Tribal Committee Report of June 2014,7 provides one withdata reinforcing the fraudulent nature of ‘consent’ obtained on

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59. Under Section 6 of the Act, Gram Sabha shall be the authority to initiate
the process for determining the nature and extent of individual or community
forest rights or both and that may be given to the forest dwelling STs andother TFDs within the local limits of the jurisdiction. For the said purpose it
receive claims, and after consolidating and verifying them it has to preparea plan delineating the area of each recommended claim in such manner as
may be prescribed for exercise of such rights. The Gram Sabha shall, then,pass a resolution to that effect and thereafter forward a copy of the sameto the Sub-Divisional Level Committee. Any aggrieved person may move a
petition before the Sub- Divisional Level Committee against the resolutionof the Gram Sabha. Sub- section (4) of Section 6 confers a right on the aggrieved person to prefer a petition to the District Level Committee against thedecision of the Sub- Divisional Level Committee. Sub-section (7) of Section
6 enables the State Government to constitute a State Level Monitoring Committee to monitor the process of recognition and vesting of forest rights andto submit to the nodal agency. Such returns and reports shall be called for bythat agency.
60. Functions of the Gram Sabha, Sub-Divisional Level Committee, District
Level Committee, State Level Monitoring Committee and procedure to befollowed and the process of verification of claims etc. have been elaborately
dealt with in 2007 Rules read with 2012 Amendment Rules. Elaborate procedures have therefore been laid down by Forest Rights Act read with 2007
and 2012 Amendment Rules with regard to the manner in which the natureand extent of individual or customary forest rights or both have to be decided. Reference has already been made to the details of forest rights whichhave been conferred on the forest dwelling STs as well as TFDs in the earlier
part of the Judgment.
REPORT OF THE HIGH LEVEL COMMITTEE ON SOCIO-ECONOMIC,HEALTH AND EDUCATIONAL STATUS OF TRIBAL COMMUNITIES OF
INDIA, June 2014

behalf of the Gram Sabha. For eg: In Chattisgarh, the Report
noted:
1. That the information collected by RTI researchers revealed
that the consent of the Gram Sabhas was not obtained as
per the provisions of PESA.
2. That in connection with the acquired land for the Loker Dam,that in various districts, no Gram Sabha meeting had takenplace to approve the project which was set to affect 9 Panchayats.
3. That people have started organizing themselves to protect
natural resources and resources of their livelihood under thebanner of Jashpur Jan Sangharsh Samittee, Jashpur andChhattisgarh Visthapan Virodhi Manch, Raipur against theunconstitutional and illegal way of exploring minerals and alienating tribal land in the name of development and thereby
destroying their traditions and distinctive cultures and disrupting well-knit communities.
This is unquestionably in contravention of both ILO 107 as
well as 169.
4. That there have been recorded cases of Gram Sabha consent being fraudulently obtained or forged; such conduct
must face penalties, and projects that proceed on the basisof consent so obtained cannot be allowed to proceed.
5. That the effective participation of women in FRA processes
has to be increased, given the close relationship between
forests, forest produce and women’s lives.
6. On the question of Critical Tiger Habitats (CTHs) and Critical Wildlife Habitats (CWHs), the Committee recommended
a sound and complete policy for Protected Areas (PAs),
which incorporated the consent of the gram sabhas in theundertaking of any project of either category. While thepurpose of CTHs is tiger conservation, CWHs are for the
purpose of general wildlife conservation. CWHs mention
the ‘free informed consent’ of the Gram Sabha in writing asa pre-condition, which CTH only mentions ‘informed consent’. CWH, from which relocation has taken place, cannot
be subsequently diverted by the state government, central
government or any other entity for any other use. There isno such restriction on CTH.

munities in their national laws, Australia, Bolivia, South Africa,
South Sudan and Tanzania have also made some progress by
incorporating a skeletal form of FPIC as part of negotiations between the government and indigenous groups. More recently
in 2016, India, the African Group, Timor Leste and Indonesia
lobbied for a diluted guideline structure that allowed countries
to obtain consent as per their national legislations for commercially using their traditional knowledge at the UN Conventionof Biological Diversity (CBD). Eventually, the CBD approved
a compromised text of the guideline that says the countries
can seek “prior informed consent,” “free prior informed consent” or “approval and involvement,” depending on “national
circumstances”.8

2. CONSENT, NOT CONSULTATION
Another important aspect of the FPIC debate is the fine line
between consultation and consent. Keeping in mind the rightto collective self-determination of indigenous populations, theprocess of seeking consent cannot be reduced to mere consultation, bereft of active participation. Recently, a set of amendments proposed by the National Advisory Council (NAC) to thePanchayat (Extension to Scheduled Areas) Act, 1996 (known
as PESA) has been a refreshing development . The NAC recommended that the free prior and informed consent (FPIC) ofaffected Adivasi communities be mandatorily obtained before
the government acquires any land for development projects, ordecides on rehabilitation packages. Not “consultation”, or “recommendation”, as the PESA currently says, but “prior informed
consent”. Indigenous Peoples from US, Australia, New Zealandand Canada also argue that a ”consultative” approach doesn’t
always benefit their communities.9
FPIC cannot be fully realized without governments incorporating it into domestic laws and implementing it in gender-sensitive ways. When protected by law and implemented appropriately, FPIC can ensure that lands and resources are governed
responsibly.10
Gayatri Raghunandan
Research Associate, Supreme Court of India, New Delhi

CONCLUSION: CHALLENGES TO FPIC AND
THE WAY AHEAD
1. DICLINATION TO ADOPT FPIC INTO DOMESTIC LEGISLATION
Although the ILO 169 is legally binding, it has only been ratified
by 22 countries. Such conventions and guidelines are largely
seen as ‘soft law’ and therefore, glossed over by most nation
states. In most cases, the inducements for the acquisition ofland without FPIC include false promises of relevant schemes,
creation of jobs and pipe dreams of development.
While the Philippines, Colombia and Peru are the only threethat have incorporated strong FPIC rights for indigenous com-8

http://www.hindustantimes.com/india-news/india-others-get-un-rules-ontribal-rights-diluted/story-xtD82yGjIeEAo4jV8y7QZI.html, Accessed on 10thof February, 2017.
9 http://www.deepseaminingoutofourdepth.org/what-is-free-prior-and-informed-consent/, Accessed on 10th of February, 2017.
10 The article reflects the authors’ own views and opinions and not necessarily
those of IWGIA itself. IWGIA can furthermore not be held responsible forthe accuracy of the content.