By Atreya Mathur.

India’s rich cultural legacy is embodied in artworks throughout the country. Whether it is a bronze statue of a goddess, an engraved sculpture at a temple, a Tanjore[1] painting at an old gallery or gold and silver Zardozi embroidery,[2] Indian works of art represent a significant part of the country’s past. To preserve its social history and cultural origins, the Indian State must protect antiquities and art treasures in the form of paintings, sculptures, coins, and works of art. Prior to receiving independence from the British Empire in 1947 and for decades following, Indian cultural artifacts were stolen and displayed in museums and private collections across the globe, particularly in Europe. While some of them made their way back to the country due to diplomatic relations and agreements, a majority of artifacts remain untraced and inaccessible.

The Khajuraho Group of Monuments (UNESCO World Heritage Site) in Madhya Pradesh, India. Photo credits: Arvind Mathur.

Relevant laws governing Antiquities in India

India’s legal system is based on common law and recognizes the following as legal authority: (1) the Constitution of India which is the supreme source of law, (2) statutes enacted by the parliament or the state legislatures, (3) customary law inclusive of personal laws based on religion and local customs, and (4) judicial decisions of the Supreme Court and High Courts of India which have precedential value.[3]

The laws which have governed all facets of antiquities and art treasures in India for close to fifty years are the Antiquities and Art Treasures Act of 1972[4] (the “1972 Act”) and the Antiquities and Art Treasures Rules of 1973[5] (the “Rules”). The 1972 Act and the Rules are rooted in the Indian Treasure Trove Act of 1878[6] and the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transport of Ownership of Cultural Property of 1970.[7]

The 1972 Act falls within the purview of the Archaeological Survey of India (“ASI”), the Indian government agency attached to the Ministry of Culture responsible for archaeological research and the conservation and preservation of cultural monuments, and aims at effective regulation of trade and export of antiquities in India. Its objective is to provide a structured and robust mechanism for the preservation of antiquities in public places. However, since 1976, there have been no reforms or amendments to the Act despite numerous attempts and various contemporary issues that have arisen globally in the world of art.

The 1972 Act defines an “antiquity” as a coin, sculpture, painting epigraph or other work of art or craftsmanship that has been in existence for 100 years or more, or refers to any manuscript, record or other document which has been in existence for over 75 years.[8] Specifically, it states that the export of an antiquity is illegal unless the central government of India authorizes such export.[9] Additionally, it mandates a license for the sale of an antiquity within India, to be issued by the government.[10] Pursuant to the 1972 Act, the central government issued a Notification[11] in 1980 (“the 1980 Notification”) laying down certain specifications pertaining to antiquities that must be registered if over a 100 years old.[12]

According to the 1980 Notification, the following antiquities must be registered:

  1. Sculptures in stone, terracotta, metals, ivory or bone;
  2. Paintings in all forms and media that cross over 100 years of age; and
  3. Manuscripts containing a painting, illustration, or illumination. However, if it is only in a textual format, no registration is required even if it passes the 100-year threshold.[13]

It should be noted that ASI registration and the certificate do not serve as proof of genuineness or authenticity.[14]

The effectiveness of the 1972 Act in modern times has been called into question in part due to lack of clarity on the definition of antiquities, little if any incentivization of registration, and the need for stronger punishment as the law has not been very successful evidenced by increased and uncontrolled smuggling of artifacts in India.

Need for a New Law

The 1972 Act was passed to protect antiquities and prevent smuggling and fraudulent activities. However, the act has not been able to meet principal requirements in the administration of cultural heritage.[15]

At the outset, there is a gross lack of awareness of laws surrounding antiquities, and the value of antiquities remains underappreciated in the country. However, the abundance of antiquities in India has made the country a breeding ground for looting and smuggling which the law has not been able to inhibit. The poor implementation of the 1972 Act has led to an increase in the illicit trade of antiquities,[16] to which must be added the lack of an integrated database of stolen or returned artifacts, which complicates the monitoring of illicit activities. Inefficient bureaucracy and delays in the timely return of objects have also led to poor conservation of antiquities. Before articles are received by museums, they are often already beyond repair and restoration, making preservation difficult.[17] Inadequate communication between the central administration, government, and archaeologists, as well as with customs officers, police, and local officials add to the problem with the current law.

The 1972 Act so far has not proved to be effective in the protection of artifacts or ensuring the return of stolen artifacts in India. In a 2013 report,[18] the comptroller and auditor general of India (CAG) raised concerns, revealing “security lapses” that had led to the theft of 37 art objects from site museums run by the ASI and 131 antiquities from monuments and sites over the past 50 years.[19] It was found that the ASI had never participated or collected information on Indian antiquities put on sale at well-known international auction houses as there was no explicit provision in the 1972 Act for doing so.[20]

There are several instances of large scale antiquities thefts in India that the government has inadequately addressed. In Tamil Nadu, 1,200 idols were stolen between 1992 and 2017. Despite pressure received from the Madras high court to address the idol theft, very few had been found.[21] Currently in the state, the Hindu Religious and Charitable Endowments Department (HR&CE) which administers Tamil Nadu’s temples, and the Idol Wing Department which investigates cases of theft of idols are in a turf war over administrative control, which has led to futile arrests of officials within the departments.[22] This has taken the focus away from the actual process of finding and bringing back stolen artifacts. Further, in 1968, 125 pieces of antique jewellery and 32 rare gold coins went missing after a theft at the National Museum in Delhi which are yet to be recovered.[23] The historic site of Chandraketugarh in West Bengal has also been a hub of rampant antiquities smuggling in recent times, and its stolen objects are being displayed in museums across the world, like the Museum of Indian Art in Germany and the Metropolitan Museum of Art in New York.[24]

Case Study, Then and Now

As an example of the law’s pitfalls, Her Majesty v. Lord Shiva was a landmark judgement delivered in 1982 in which a British high court ordered the repatriation of a Nataraja statue of Lord Shiva, one of the principal deities of Hinduism, to India.[25] The legal battle began after Scotland Yard seized the statue following a tip received from the British Museum. The idol had been sent to the museum by Bumper Development Corporation (“BDC”), a Canadian based firm, for restoration. The company’s chairman and renowned art collector, Robert Borden, bought the idol from London antiques dealer Julian Sherrier, who claimed the idol had been in his family’s possession for years.

The case was brought by the Indian government against the Queen’s counsel (Adrian Hamilton), BDC, and the metropolitan police as co-defendants. The government of India invoked Hindu personal law stating that temple sculptures are considered living beings and legal persons. Interestingly, divine statues may possess a distinct legal personality under Hindu personal law on a case by case basis.[26] This doctrine was adopted by English judges in India faced with the task of applying Hindu law to religious endowments. In one such case, an Indian court held that where an endowment is made to an idol, the idol is considered as the center of jural relations and attracts the status of a legal person.[27] Furthermore, an Indian court has held in another case that the religious deity stands as the representative and symbol of a particular purpose indicated by the donor of the idol and can figure as a legal person.[28]

In the Lord Shiva case, the statue appeared as a witness before the judge and “spoke” through representatives, expressing His desire to return home. One of the intriguing arguments made in the case was “once a deity, always a deity. An idol remains a juristic person however long buried or damaged, since the deity and its juristic entity survive the total destruction of its earthly form.[29]” Ultimately, an aircraft flew Him to Chennai, where the Chief Minister J. Jayalalithaa received Shiva personally.

Statue of Nataraj (Lord Shiva as the “Divine Dancer”), c. 950-1000, Tamil Nadu, India (Los Angeles County Museum of Art / Public domain). Source: WikiCommons.

However, the statue of Shiva did not have grounds for customs clearance in India. Officials treated the statue as a sculpture, and thus demanded essential import duty and papers in order to prove that the statue was Indian. Without the required documents, the statue of Shiva remained in a customs warehouse in coastal Tamil Nadu for over a decade accruing demurrage charges. Even though the Lord Shiva case was decided almost forty years ago, Indian law today still requires clarification of the term “antiquities.” If an “antiquity” at issue would also be considered as a living being, the state must permit a deity to enjoy the status of a legal person and rights.[30]

More recently, a new criminal complaint was lodged in 2019 by the Manhattan District Attorney office against Subhash Kapoor, an Indian art dealer who was charged with operating a $145 million smuggling ring that dealt with thousands of stolen antiquities.[31] He was arrested by Interpol in Germany in 2011 and is now jailed in India.[32] Officials are yet to recover an estimated $36 million worth of artifacts believed to be hidden by Kapoor’s family members after his arrest. They also believe some of the alleged co-conspirators restored the antiquities, enabling Kapoor to portray the artifacts as “legally obtained” treasures. Arrest warrants have been issued to the seven such co-conspirators. American officials have requested for Kapoor’s extradition to the United States, which will likely be granted following the completion of his trial.[33]

The gravity of the crimes along with the publicity the case has received since 2011 have significantly influenced the law surrounding antiquities in India. It has become even more apparent that there must be stronger laws and stricter punishment for art crimes in the country. To create a better legal framework in light of such cases, a draft amendment bill was proposed in 2017, which faces criticism and has yet to be passed into law.

The Draft Antiquities and Art Treasures Regulation, Export and Import Bill, 2017

The draft bill envisions free mobility of antiquities within the country through the removal of the system that mandates a government issued license to trade in antiquities. However, the bill allows for “no-questions-asked” sales where illegally acquired antiquities can be traded freely without declaring the source of an acquisition or provenance, making the source perpetually untraceable. It is exceptionally risky to rely on the good faith of the seller to declare the source without an external vetting process.

The proposed amendment would remain a positive force only if there is stronger action taken on the part of the state. The government must intervene in order to effectively implement the laws to bring about a change in the handling of stolen artifacts. Evidenced by the number of cases that have not been investigated and the low rate of recovery of artifacts, the government should move forward with the aid of technology and digital repositories. This approach must be supplemented by lectures and seminars to increase awareness of the on goings in the art world and about stolen artifacts.

While the draft amendment brings about a positive change in creating a more robust legal framework, the lack of implementation of the law and low accountability remains at the heart of the problem in India. The incentive for change has to come from the state and be furthered by experts and activists in the field. A record of heritage sites and their artifacts should be made through comprehensive enumeration and documentation. Currently, the ASI has only registered about 3,000,000 artifacts out of a possible 30 billion.[34] Though attempts have been made, the government needs a coordinated and concerted effort using the latest technology.

Private initiatives are currently taking on the role of tracking and recovering stolen objects. For example, the Indian Pride Project is an initiative of art enthusiasts who employ social media to identify stolen religious artifacts from Indian temples and secure their return. Vijay Kumar, the co-founder of the project, was able to track a six-and-a-half inch bronze Buddha statue stolen almost 60 years ago from Nalanda, Bihar to a London-based dealer of Indian objects.[35] He is currently attempting to pursue India’s claim on another Buddha statue, suspected to be from a 1961 theft, currently at the Los Angeles County Museum of Art. The support of the government and use of data collected could help in tracking artifacts and assisting in a speedier return.

Let Art Guide the Way

India’s cultural heritage must be preserved to protect the country’s artistic past and ensure a greater appreciation of the art world. Change in the law is inevitable. It is imperative that the law be amended to ensure stronger legal mechanisms that protect antiquities in India.

Greater education would be the first step in ensuring people and change-makers are cognizant of the issues of illicit antiquities trading: the government, lawyers, institutions, galleries and museums need to increase awareness through seminars, conferences, and art discussions. Heightened monitoring through the use of social media, such as The Antiquities Trafficking and Heritage Anthropology Research (ATHAR) Project[36] can further assist the law in curbing illegal trade of antiquities. Finally, the current law in India must be amended to include the following: (1) a stronger definition of “antiquities”, (2) required disclosure of the source of acquisition of an artifact, and (3) incentives such as certification of authenticity and increased transparency of ownership should be provided for those who register antiquities, which would also help in the creation and maintenance of an antiquities ownership database. It has been reported that the ASI will create this digital repository with the help of the Tata Trust through the means of Satellite Mapping as part of its corporate social responsibility.[37]


Endnotes:

  1. A classical form of art and South Indian painting style, which was inaugurated from the town of Thanjavur characterised by dense composition, surface richness and vibrant colors. See Generally Tanjore Paintings on Fabric, Utsavpedia (last accessed May 10, 2020), available at https://www.utsavpedia.com/motifs-embroideries/tanjore-painting/.
  2. Zari zardosi is an art of metal embroidery which was usually done with gold and silver threads to decorate the attire of the kings and royals in ancient India. See Generally Bibhudutta Baral et al., The Art of Metal Embroidery (last accessed May 10, 2020), available at http://dsource.in/sites/default/files/resource/zari-zardosi-agra/downloads/file/zari-zardosi-agra.pdf.
  3. V.S Deshpande, Nature of the Indian Legal System, available at http://14.139.60.114:8080/jspui/bitstream/123456789/738/5/Nature%20of%20the%20Indian%20Legal%20System.pdf (last accessed May 28, 2020).
  4. The Antiquities and Art Treasures Act 1972, No. 52 of 1972, India Code (1972), available at https://www.wipo.int/edocs/lexdocs/laws/en/in/in090en.pdf.
  5. The Antiquities and Art Treasure Rules, 1973, Gen. S. R. & O. 405(E) (India), available at https://www.wipo.int/edocs/lexdocs/laws/en/in/in091en.pdf.
  6. The Indian Treasure Trove Act, No. 6 of 1878, India Code (1878), available at https://www.indiaculture.nic.in/sites/default/files/Legislations/9.pdf.
  7. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, Nov. 14, 1970, 16 U.N.T.S. 11806, available at http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html.
  8. The Antiquities and Art Treasures Act, 1972, §2.
  9. The Antiquities and Art Treasures Act, 1972, §3.
  10. The Antiquities and Art Treasures Act, 1972, §5.
  11. A Notification is a formal announcement of a legally relevant fact that is published in the Official Gazette of India. It is issued on formal declaration and publication of an order and must be in accordance with the declared policies.
  12. The Antiquities and Art Treasures Act, 1972, §14.
  13. Ministry of Education and Social Welfare (Archaeological Survey of India), Amendment to powers of Antiquities and Art Treasures Act, S.O.397 (E) (notified on May 15, 1980).
  14. Id.
  15. Kate Fitz Gibbon, New Art Law for India: Is the Antiquities and Art Treasures Regulation, Export and Import Control Bill, 2017, a Cure?, Cultural Property News (Oct. 27, 2017), available at https://culturalpropertynews.org/new-art-law-for-india/ (last accessed May 10, 2020).
  16. Neeta Lal, Smuggling India’s Antiquities: Existing measures to protect India’s rich heritage have proven to be woefully inadequate, The Diplomat (Sept. 16, 2015), available at https://thediplomat.com/2015/09/smuggling-indian-antiquities/ (last accessed May 21, 2020).
  17. ForumIAS, Antiquities and Art Treasures Act in India: An Analysis, ForumIAS Blog (Nov. 3, 2018), available at https://blog.forumias.com/antiquities-and-art-treasures-act-in-india-an-analysis/ (last accessed May 11, 2020).
  18. Ministry of Culture, Report of the Comptroller and Auditor General of India on Performance Audit of Preservation and Conservation of Monuments and Antiquities, No. 18 of 2013 (2013), available at https://saiindia.gov.in/sites/default/files/audit_report_files/Union_Performance_Ministry_Cultures_Monuments_Antiquities_18_2013.pdf (last accessed May 23, 2020).
  19. Maria Thomas, An unlikely detective is fighting to bring back India’s stolen gods, Quartz India (Aug. 23, 2018), available at https://qz.com/india/1366136/the-unlikely-force-behind-indias-efforts-to-trace-its-stolen-idols/ (last accessed May 23, 2020).
  20. Id.
  21. Yogesh Kabirdoss, 1200 ancient idols stolen from Tamil Nadu temples in 25 years: Audit, Times of India (Jan. 23, 2018), available at https://timesofindia.indiatimes.com/city/chennai/1200-ancient-idols-stolen-from-tamil-nadu-temples-in-25-years-audit/articleshow/62611654.cms (last accessed May 23, 2020); see alsoR. Sivaraman, What about idols stolen before 1992?, The Hindu (Jan. 30, 2018), available at https://www.thehindu.com/news/cities/chennai/what-about-idols-stolen-before-1992/article22548433.ece (last accessed May 23, 2020).
  22. Deepa H. Ramakrishnan, “A turf war over missing idols” (Aug. 2018) available at https://www.thehindu.com/news/national/tamil-nadu/a-turf-war-over-missing-idols/article24728338.ece (last accessed May 23, 2020).
  23. Samayita Banerjee, India’s ancient treasures: Lost and found, but still inaccessible, The Statesman (Sept. 20, 2018), available at https://www.thestatesman.com/features/indias-ancient-treasures-lost-found-still-inaccessible-1502686951.html (last accessed May 23, 2020).
  24. Id.
  25. Naman P. Ahuja, Limits To Official Legalism, 659 Seminar (2014) available at https://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm(last accessed 9 May 2020); see also Ramesh Chandran, Indian Government wins stolen Nataraja idol case in British court, India Today (March 15, 1998), https://www.indiatoday.in/magazine/international/story/19880315-indian-government-wins-stolen-nataraja-idol-case-in-british-court-797028-1988-03-15 (last accessed May 11, 2020).
  26. See Yashee, The Lord as a juristic person: What legal rights do deities enjoy?, The Indian Express (Oct. 4, 2019), available at https://indianexpress.com/article/explained/ayodhya-title-suit-lord-ram-the-lord-as-a-juristic-person-what-legal-rights-do-deities-enjoy-6052442/ (last accessed May 21, 2020).
  27. Manohar Ganesh Tambekar v. Lakhmiram Govindram, (1888) ILR 12 Bom 247 (India), available at https://indiankanoon.org/doc/2843/.
  28. Yogendra Nath Naskar v. Commissioner of Income Tax, (1969) 3 SCR 742 (India), , available at https://indiankanoon.org/doc/1874024/.
  29. See Chandran, supra note 17 (citing Hamilton and Ghorpade in Her Majesty v. Lord Shiva).
  30. See generally Umamageswari M, Rights of a Deity, Legal Service India Blog (last accessed May 12, 2020), available at http://ftp.legalserviceindia.com/legal/article-1199-rights-of-a-deity.html.
  31. People of New York v. Sanjeeve Asokan et al., 2019 NY 022431 (N.Y. Crim. Ct. filed July 10, 2019).
  32. Special Correspondent, ASI identifies Indian artefacts seized from smuggler Subhash Kapoor, The Hindu (May 9, 2019), available at https://www.thehindu.com/news/national/asi-identifies-indian-artefacts-seized-from-smuggler/article27072785.ece (last accessed May 23, 2020).
  33. Sarah Cascone, New York Files Charges Against Disgraced Art Dealer Subhash Kapoor in $145 Million Smuggling Ring, Artnet News (Jul. 11, 2019), available at https://news.artnet.com/art-world/new-york-files-charges-145-million-art-smuggling-ring-1598293 (last accessed May 23, 2020).
  34. Analysis of Antiquities and Art Treasure Act in India, IAS Academy (Feb. 19, 2020), available at https://www.jatinverma.org/analysis-of-antiquities-and-art-treasures-act-in-india (last accessed May 23, 2020).
  35. Supra note 27.
  36. The Antiquities Trafficking and Heritage Anthropology Research (ATHAR) Project is an investigative study led by a collection of anthropologists and heritage experts digging into the digital underworld of transnational trafficking, terrorism financing, and organized crime. Read more at https://atharproject.org/ (last accessed May 14, 2020).
  37. The Economic Times, Central Heritage Database of Archaeological sites, Artefacts through Satellite Mapping Soon, News18 India (Sept. 22, 2019), available at https://www.news18.com/news/india/central-heritage-database-of-archaeological-sites-artefacts-through-satellite-mapping-soon-2318453.html (last accessed May 12, 2020).

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About the Author: Atreya Mathur is an NYU LL.M. Candidate ’21 specializing in Competition, Innovation and Information Law with a focus on Intellectual Property Rights. She aims to pursue higher education and to contribute to the evolution of Law in her professional capacity and, as an academic. Atreya completed her Bachelor of Business Administration & Law (Honours) from Christ University, Bangalore, India. She attended the United Nations’ WIPO Summer Program on Intellectual Property in Geneva and has presented her papers at international conferences in Budapest and Rome, which have further been published in reputed law journals. Inspired by art and its relevance in the modern era, Atreya has had her dissertation titled “A Critical Analysis of the Relationship between Contemporary Art and Intellectual Property in India in Comparison to the USA” approved for publication and believes that in this complicated world, art and cultural heritage is the way forward.