ANTIQUITIES AND ART TREASURE ACT, 1972: A CRITICAL APPRAISAL

Introduction

India’s antiquities and art in the form of sculpture, paintings, jewelry, etc. have always been an important part of its people’s culture. Unfortunately, India’s treasures have been smuggled and destroyed since long before its independence from British Colonialism, and this is still a prevalent problem that needs to be tackled urgently. The Antiquities and Art Treasuries Act (AAT) was passed by the Parliament in 1972, repealing the Antiquities (Export Control) Act of 1947.[1] The Ministry of Culture, through the Archaeological Survey of India (ASI), is responsible for the collection and showcasing of art objects having cultural and historical importance. The following blog gives a brief account of some of its provisions, its drawbacks, and troubling incidents concerning Indian works of art.

Provision Of The Act

Antiquities in Section-2(1) clause (a) of the AAT Act have been described to be inclusive of:

• Any coin, painting, sculpture, epigraph, or other work of art or craftsmanship;
• Any article, object, or thing:
• detached from a cave or building,
• illustrative of arts, crafts, literature, science, religion, customs, morals, or politics of bygone ages,
• of historical interest,
• declared by the central government in the official gazette to be an antiquity that has existed for at least 100 years;
• Any manuscript, or other documents, which are of historic, scientific and literary value and have existed for at least 75 years.

Art treasures, as per Section – 2(1) clause (b) of the AAT Act, have been described as “any human work of art that is not an antiquity, and is declared by the Central Government in the Official Gazette to be an art treasure.” The Act allows only the Central Government, and agencies authorized by it, to export any antiquity or art treasure (as defined under Section 2) on receiving a permit and as per its terms and conditions. At the same time, it also allows the trade of antiquities, by parties other than the Central Government, by applying for a license. Section 5 makes a license mandatory, for all parties other than the Central Government, for carrying on the trade of antiquities. A license officer is responsible for granting a license, for a prescribed period and under prescribed conditions, after considering factors such as the experience of the applicant in trading antiquities, the location where the applicant is going to carry on business, the number of persons already involved it hat business or other factors as may be prescribed. The licensees are also required to maintain records, such as photographs and registers, containing prescribed particulars which should be open to investigation by a licensing officer or any other gazetted officer authorized by the former.[2] One’s license may be revoked if it is obtained by “misrepresentation of fact”, or if the licensee “failed to comply with the conditions subject to which the license has been granted”, or if he “contravenes any of the provisions of the act”.[3] Section 12 allows persons whose license has been revoked to sell all antiquities they own to other licensees.

According to Section 14, the Central Government is to notify which antiquities have to be preserved in the Official Gazette. Persons who control, own or are in possession of the notified antiquity need to get it registered for a certificate in return. The government can also “compulsorily acquire” antiquities and art treasures in a public area if it finds it desirable to preserve them and, under certain circumstances, even prohibit other persons from trading in them.

A notification issued by the Central Government in 1980[4] required antiquities, such as:

• paintings in all forms of media that are over 100 years old,
• sculptures of metals, stone, terracotta, ivory or bone,
• manuscripts containing a painting, illustration or illuminations (if it contains only text, it need not be registered even if it is over 100 years old).

Drawbacks Of The Act and Suggestions

A performance was conducted by the Comptroller and Auditor General of India (CAG) in 2013 to evaluate the performance of the Ministry of Culture on the preservation of India’s tangible heritage.[5] It highlighted certain faults found in the provisions of the Act and the functioning of governing bodies.

1. The ASI lacks comprehensive policy guidelines for the management of antiquities that it owns and many of them were found to be stored in poor conditions during the inspection. Serious defects were found in the acquisition, documentation and conservation of acquired artifacts in museums. Most of them did not have guidelines for the evaluation of the genuineness of acquired artifacts. There was no assurance of their authenticity.
2. The Archeological Survey India has also never made attempts to collect information on Indian antiquities auctioned and sold at popular international auction houses because there are no explicit provisions in the Antiquities and Art Treasures Act for the same.
3. There is little incentive provided to encourage the registration of antiquities under the act, limited to a certificate. Moreover, people are not aware of it. If antiquities are not registered, they are more likely to be smuggled or damaged.
4. Guidelines mentioned in Section-10, for maintenance of records, photos and registers by licensees, are unambiguous and need to be specified separately for each form of antiquity.
5. As per the 1980 notification[6], manuscripts having only text need not be registered. This provision should be modified because textual manuscripts also contain important historical and cultural information which needs to be uncovered.
6. The definition of ‘antiquities’ in Section 2 also needs modification. It doesn’t specifically include all kinds of articles of historical importance. For example, India is a land rich in gold and other precious metals. Heavy jewelry and ornaments were used in India in the past. They amount to a lot of wealth, not just culturally but also monetarily. Yet, there is no specific provision for their preservation. Statues and idols, which form a large proportion of antiquities, are also not included in the definition.
7. In Subhash Chandra Kapoor v. the Inspector of Police, the accused (Mr. Kapoor) is a citizen of the United States who was arrested in Germany for prosecution in the Special Court of Idol Theft Cases, Kumbakonam. In 2008, 18 panchaloha idols were stolen from the Arulmigu Sundereswarar and Vardharaja Perumal Thirukovil Temples in the Udayarapalayam Taluk of Tamil Nadu. A case on the same was filed by a police inspector of Udayarapalayam. During the investigation, it was found that seven persons were involved in the above act. Though the arrested accused were investigated and their confessions recorded, the idols still haven’t been recovered. In September 2022, the petitioner argued that the idols were purchased through a proper channel under documents from the Institutions/Governments/Persons as per law. The Additional Chief Judicial Magistrate dismissed the petition for cross-examination of prosecution witnesses. Most recently, in October 2022, the Madras High Court directed the Kumbakonam Court to complete the trial of the idol theft case in one month, following which, the Central Bureau of Investigation registered a case to investigate the same.[7] The above case emphasizes the need for the inclusion of ‘idols’ in the definition of antiquities in the Act.
8. Section 18 exempts museums, offices, archives, and educational or cultural institutions (owned, controlled or managed by the Central Government or its authorized agencies) from compulsory registration of antiquities. This leaves a large room for smuggling and other fraudulent activities.
9. The Act gives the registration officers leave to examine antiquities as they deem fit. Provisions for inquiry into the genuineness and authenticity of the antiquities being registered need to be unambiguously codified.
10. Section 12 allows persons, whose license has been revoked, to sell all the antiquities they own, to another licensee. The grounds for revocation of the license have been a violation of the provisions of the Act or the terms and conditions for the grant of the license. Suppose, someone does not get some antiquities registered and their license is revoked, they have 6 months from revocation of the license to sell their antiquities to another licensee of their choice. In this way, they could smartly sell it to a close relative or friend and indirectly retain control over the antiquities.
11. One of the biggest drawbacks of the Antiquities and Art Treasures Act has been its lack of provisions for retrieving stolen antiquities and artifacts back from outside of India.

The colonial era was marked by the large-scale transfer of artifacts from India to Europe, either through theft or under the pretense of “better preservation”.[8] The same, unfortunately, has continued even after India’s independence. The Sivapuram Nataraja can serve as a good example to throw light upon the complicacies that occur with India’s artifacts. In 1951, a metal idol was unburied from a field in the Sivapuram village of Thanjavur district of Tamil Nadu (along with 5 other metal antiques). They were handed over by the District Collector to the Sivagurunathaswamy Temple authorities, who sent them to a sculptor for repairs. The sculptor replaced 5 of the artifact (including the Natraja) with counterfeits and sold the originals to an art collector in Bombay. This duplicity was discovered in the 1960s, by which time, the artifacts had long been out of the country. Douglas E. Barrett’s book on early Chola bronze artifacts (published in 1965) claimed that the Sivapuram artifacts were fake. Douglas was responsible for looking after the antiquities from India at the British museum. This got the attention of the Tamil Nadu government and an investigation was begun by the Crime Bench. After much effort, the Natraja idol was traced to the ownership of the Norton Simon Foundation in California, which had had no knowledge of the theft while purchasing the idols in 1973 and had sent it to the British museum for repairs, where the idol was identified. Indian authorities filed lawsuits against the Foundation, in both the United States and England, to recover the idol. After a prolonged legal battle, the Sivapuram Natraja was brought back to its rightful country in 1986.[9]

Conclusion

The Intergovernmental Committee for Promoting the Return of Cultural Property (ICPRCP) had been initiated by UNESCO in 1978 to encourage discussion between countries for restoring properties wrongfully smuggled from one country to another. But, many countries (like Britain) have strict laws that restrict the removal of properties from public collections because their museums then run the risk of completely emptying. Their justification for not complying with the provision of the ICPRCP is that India used to be a part of the British Empire, so what they did was not theft but mere relocation. This has proved to be a major hindrance in the restoration of Indian artifacts to their original glory. The way forward demands several amendments in the above-discussed act.

Author(s) Name: Paridhi Sharma (Symbiosis International University)

References:

[1] Antiquities and Art Treasure Act, 1972, § 32, No. 52, Act of Parliament, 1972 (India).

[2] Antiquities and Art Treasure Act, 1972, § 10, No. 52, Act of Parliament, 1972 (India).

[3] Antiquities and Art Treasure Act, 1972, § 11(1), No. 52, Act of Parliament, 1972 (India).

[4] Antiquities and Art treasure Act, 1972, Notification S.O 397(E) dated 15.5.1980.

[5] Comptroller and Auditor General, Performance Audit of Preservation and Conservation of Monuments and Antiquities of Union Government, Report No. 18 of 2013, (2013).

[6] Antiquities and Art treasure Act, 1972, Notification S.O 397(E) dated 15.5.1980.

[7] The Hindu, https://www.thehindu.com/, (last visited Nov. 13, 2022).

[8] INDIAN CULTURE, https://indianculture.gov.in/ (last visited Nov. 7^th, 2022).

[9] Union of India v. the Norton Simon Foundation, United States District, Southern District of New York, 74 Cir. 5331 (SDNY 1976).