REPATRIATION OF INDIAN ANTIQUITIES WORTH $ 15 MILLION BY USA TO INDIA: A DIVE INTO THE PRESENT CULTURAL PROPERTY LAWS

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INTRODUCTION

Over the countless centuries it has become a well-established fact that the Cultural Heritage of India has remained one of the most enviable aspects of our country due to the wonderful blend of diverse ethnicities and traditions which keep it evergreen. It is even more well-known that due to such wealth India has been a constant victim of innumerable loots that have degraded the culture in India. As such, the Sisyphean battle for the Restoration and Repatriation of our Cultural Heritage has always been at the heart of the nation and reached a pivotal moment last year when India experienced one of the most rewarding moments in history.

28th October 2021 cemented itself as a milestone in our archives for the simple fact that it has been the day on which the repatriation of the largest haul of stolen and smuggled Indian artworks took place in a single sitting. The Manhattan District Attorney’s Office announced the return of 248 Indian Antiquities, estimated to be worth 15 million dollars, to India in an official Repatriation Ceremony, attended by the Indian Consul General Randhir Jaiswal as well as US Homeland Security Investigation Deputy Special Agent in Charge Erik Rosenblatt. In his 2021 visit to the United States, Prime Minister Narendra Modi returned to India with 157 antiquities, personally in hand. The returned haul contained priceless Antiquities including an ancient bronze statue of Lord Shiva, known as the ‘Shiv Nataraja’ belonging to the 12th Century. The idol depicts Lord Shiva dancing encircled in a circle of flames. The statue, valued in Millions of dollars, was estimated to be stolen from India in the 1960s. Moreover, various items from the Common Era have been identified in the haul, ranging from copper idols to terracotta vases belonging to 2CE. The haul also consisted of around 45 antiques belonging to the period before the Common Era.

From Famous to Infamous: The Steals of Subhash Kapoor

These invaluable antiquities and artworks were unearthed as part of a stolen artwork investigation over a period of five decades, out of which 235 of these pieces were found to be illegally smuggled in connection to Subhash Kapoor. It has been noted that the idol of Shiv Nataraja had been sold to Doris Weiner, who in turn allegedly came into the possession of the same through Kapoor.  Once well renowned as an antiquities dealer in New York, Subhash Kapoor now stands facing charges in both India and US on numerous accounts of antique pilferage, forgery, possession of stolen property and is accused of establishing a network that facilitates international traders to deal in the sale and purchase of stolen cultural property from places such as India, Nepal, Thailand, Cambodia, Sri Lanka and Pakistan. These antiquities had been smuggled from various parts of India by Kapoor and sent to the US and it was uncovered that over the many years of illicit looting Kapoor had, in totality trafficked around 2600 items, worth over $ 145 million to the US in collusion with international gangs of art smugglers. He had reportedly denied all allegations despite the fact that antiquities have been found from his very own storage locker.

It is these consistent efforts of the US authorities and the Hidden Idol Operation by the Homeland Securities that has resulted in the restoration of India’s cultural artefacts. “Today’s event also serves as a potent reminder that individuals who maraud sacred temples in pursuit of individual profit are committing crimes not only against a country’s heritage but also its present and future,[1]” remarked Manhattan District Attorney Cy Vance at the repatriation ceremony.

It is evident that the Repatriation of these antiquities has cultivated major significance globally. It is not just the respect and recognition of India’s Culture and Heritage, rather it also gives us a hope for justice against the ongoing degradation of cultural heritage taking place continuously in many other countries who in the past and till today  suffer from these crimes.

CULTURAL PROPERTY LAWS IN INDIA

A considerable question that arises often is ‘what is cultural property? If we think of it in a general sense then it means any property that relates to or pertains to our cultural heritage and our cultural identity. However to understand the full impact of the repatriation above we must analyse this question in the language of the law. 

Cultural Property: the essence of cultural heritage

As per United Nations Educational, Scientific and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural property, cultural property is defined as, “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science … .”[2] Furthermore, Article 1 of the UNESCO Convention lists eleven categories of properties as part of cultural property. These categories include rare collections of fauna and flora, antiquities over one hundred years old, properties of artistic interest, old musical instruments and also elements of dismembered archaeological sites. Similarly in India, property over one hundred years old falls under the ambit of cultural property laws.

Another aspect intertwined with cultural property is the connection of cultural heritage to the same. It was noted in Article 2 of the above mentioned 1970 UNESCO Convention, that all state parties to the convention recognize that the practice of illicit import, export and transfer of ownership of cultural property stands as the major reasons for the impoverishment of the cultural heritage of the countries of origin of such property. A glance at the plain reading of the language of the convention proves to us the clear correlation between cultural property and cultural heritage. The article plainly reads that if cultural property is transferred in any illegal manner, then such illicit transfer is depleting the cultural heritage of the country to which such property belongs, in other words, cultural property stands as one of the strongest features of cultural property, it is property that is tied intrinsically with the heritage of a culture. It was noted by one expert in the field that Cultural property is “that specific form of property that enhances identity, understanding, and appreciation for the culture that produced that property.”[3] Therefore, it can be said that cultural property is the very essence of a culture, it can have aesthetic attributes that may make it religiously or historically sentimental to a particular culture and society. The same was observed in the famous case of the Elgin Marbles, wherein Greece fought for its claim on the sculptures of the Parthenon that were removed from the temple in Athens and shipped overseas, the whole claim of Greece was based on the fact that these sculptures are the very essence of Greek culture and heritage. Similarly India holds many cultural properties ranging from the forts in Delhi and Rajasthan as well as the prized Taj Mahal to various paintings and utensils centuries old. These monuments and properties are a reflection of the story of our history and people identify with them. Cultural heritage is the culture we inherit from our past and our ancestors. India’s culture is in our teachings of the Vedas[4], in our traditional dance forms and music[5] and from the stories before us, similarly, cultural property is also one tangible facet of our heritage.

The Constitution of India

Article 51A of the Constitution of India enumerates the fundamental duties that every citizen of India must uphold. Under this Article, it is the duty of every citizen of India to “to value and preserve the rich heritage of our composite culture.”[6] A fundamental duty is an imposition that is placed upon every citizen and must be upheld by all.

Additionally, as per Article 49, the Constitution imposes an obligation on the state to ensure the protection of “every monument or place or object of artistic or historic interest, to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export.”[7] Although as a Directive Principle of State Policy, Article 49 still stands at an equitable footing with Fundamental Rights and must be executed to preserve the rich culture of our nation.

The Antiquities and Art Treasures Act 1972

Antiquities and Artefacts are one of the most coveted items on the commercial front. Over the years there has been a continuous rise in the economic and commercial interest of these items. This led to a high rate of illicit trading of such items. In order to combat such actions, India enacted the Antiquities and Art Treasures Act 1972 (AATA) alongside the Antiquities and Art Treasures Rules 1973. This act and rule falls within the authority of the Archaeological Survey of India and in connection with the Ministry of Culture of India and is built upon the foundations of the 1970 UNESCO Convention and the Indian Treasure Trove Act 1878. The Act and Rules aim to provide a steady and effective procedure for the preservation of Antiquities.

Section 2(1) (a) of the AATA lists the criteria for antiquities. It defines antiquity as any ‘coin’, sculpture, painting, any article or object of historic interest, any object notified by the Government to be an antiquity in the Official Gazette, being in existence for not less than a hundred years old. Additionally, manuscripts, records or other documents which have scientific, historic, literary or aesthetic value shall also be classified as antiquity if it has been in existence for not less than seventy five years. Moreover any human work of art, not being an antiquity, as declared by the Central Government in the Official Gazette shall be classified as an ‘Art Treasure’. Provided the same shall not be treated as an art treasure while the life of the author of such work.

Under section 3 of the AATA, export trade of any art treasure or antiquity may only be done by the Central Government or any authority sanctioned by the Central Government to conduct such export. The provision clearly states that any other person engaging in such activity shall deem it unlawful and would be liable to face penalty under section 25 of this Act.[8] This provision aims to provide regulatory control of the antiquities to the Government and to keep track of them. 

When it comes to the sale of such antiquities and art treasures the same must only be done so under a license.[9] Section 7, 8, and 9 pertains to the procedure for application, grant and renewal of license respectively. Under the mandates of these provisions any sale of antiquities without a license will be held unlawful. Aside from licenses the Act also requires the registration of certain antiquities. Section 14 of the AATA states that the Central Government can by way of a notification in the Official Gazette, specify the antiquities that must be registered. The provision allows the Central Government to preserve and safeguard those items that are intrinsically connected to the cultural heritage of India and to provide better appreciation of the cultural heritage of India.

The above mentioned registration of antiquities is required for individuals who are in possession who own property that may be classified as antiquity to come forward and register the same with the ASI.  As per the 1980 notification, the Central Government specified the following items, more than a hundred years old to be registered under the AATA:

  1. “Sculptures in stone, terracotta, metals, ivory and bone;
  2.  Paintings (miniatures and tanks) in all media including paper, wood, silk and the like;
  3. Manuscripts where such manuscripts contain paintings, illustrations or illuminations;
  4. Sculpted figures in wood.”[10]

Furthermore, if the Central Government is of the opinion that it must preserve certain antiquity or art treasure that is in a public place, then the AATA gives it authority to enact compulsory acquisition on it.[11]

The Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation Act 2010 (AMASRA)

This act was enacted to further amend the AMASRA 1958 and aims at protecting ancient monuments and archaeological sites by declaring them to be of national importance. Under sec 4A such declaration of importance shall be made by having regard to the Historical, Archaeological and Architectural value of the sites.

The amendment act inserted section 20A that pertains to the prohibited and regulated areas. It denoted the area and limits that are to be considered as prohibited areas surrounding the monument or site.

Moreover section 20F enacts the Construction of the National Monuments Authority. This Act empowers the authority to certain functions, namely:

  1. Put forward make recommendations to the Central Government to facilitate grading and classifying those monuments and areas that would be of national importance
  2. Suggest the measures that must be taken in order to implement the provisions of this Act.
  3. To take into account the bearing of the large scale developmental projects such as public projects and those project for public interest which may be proposed in the regulated areas.[12]

The Customs Act 1962

Under the regulations of section 11 of this Act the Central Government can prohibit the import and export of certain items including national treasures of artistic, historic or archaeological value through a notification in the Official Gazette if it feels it is necessary to do so for the protection of the same. Any export of these items is liable to punishment under the Customs independent of the penalty prescribed in the AATA.

International Framework

Under Article 51 of the Indian Constitution, India is required to foster respect for international law and its treaty obligations. [13] Therefore, India is obligated to uphold the obligations it is a state party to in all the international treaties and conventions ratified by it. In the preservation of cultural property, India has ratified the following International Conventions:

  1. The 1970 UNESCO Convention on 24th January 1977.
  2. Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1954 Hague Convention on 16th June 1958.
  3. First Protocol to the Convention for the Protection of Cultural property in the Event of Armed Conflict on 16th June 1958.

Aside from the above, India has also signed bilateral agreements with numerous countries with respect to illegal export protection and documentation of art and museum objects.

HOPE FOR THE FUTURE

It has never been a secret that India has suffered immense loss of culture and heritage through looting and smuggling. As a country that dates back to multiple colorizations and epic warfare there has been unaccountable loot of artifacts. Even prior to the British colonization of India, various invaders and usurpers had robbed India of its culture. [14] However the freshest loot has struck India in its very heart of culture. Once regarded as the ‘Sone ki Chidiya’ by the time India achieved its independence, the phrase had been rendered redundant.

The introduction of the above laws have, however, brought a gradual increase in the restoration of Indian culture. The above legislations have played a heavy role in facilitating the restitution of our artefacts. Since India became a signatory to the 1970 UNESCO Convention, it has repatriated many artefacts including A Mahishasuramardini idol from Germany, a terracotta statue of a female figure belonging to the Mauryan period and more.[15] During the years 1976 to 2013, India had only been able to secure a meagre thirteen antiquities[16], this recovery was still a change of pace from the years before when India had been absolutely bereft of its stolen artefacts. In the case of Bumper Development Corporation Ltd. v. Commissioner of Police of the Metropolis,[17]  the Court of Appeal had cemented the decision of the House of Lords to repatriate the bronze idol of Nataraja to India.

Similarly the Indian judiciary has passed many judgements that have ensured the protection of the cultural heritage in India. In the case of Vishwanath Pratap Singh v. Union of India[18] the court applied Article 49 of the Constitution and the provisions of AMASRA to prohibit the construction that took place near the Siri Fort Wall. The court relied on the national importance of the Siri Fort Wall as a relic of our history and upheld the claims of the public interest litigation. In the case of Dr. Anhita Pandole v.  State of Maharashtra[19] the court upheld the advice of the Mumbai Heritage Conservation Committee over the advice of the Mumbai Municipal Commissioner. In the case of Subhas Datta v. Union of India and Ors.[20] The court reiterated the duties of the museums and the Ministry of Cultures and held that there must be a periodic review taken in this matter of protection of objects of historical value which are kept in museums countrywide.

A look behind the curtain of the law shows us the awareness of the Indian people for their cultural Heritage. In the past decade, there have been many movements in the country that have dedicated themselves to the heritage of India. A key person in this fight is S. Vijay Kumar, a blogger based in Singapore. Kumar is the creator of the website ‘Poetry in Stone’ and played a profound role in the arrest of the disgraced dealer Subhash Kapoor in 2011. He noted that this repatriation that took place last year is an integral event with respect to the history of repatriation in India. Kumar co-founded the India Pride Project, a group of art enthusiasts who with the help of social media seek to identify stolen artefacts and antiquities from Indian temples. Today, they have spread their presence globally with activists spread across the world. Many scholars of art and history have also played a critical role in ensuring the restoration of art. Kirit Mankodi is one such person who has been determined to repatriate Indian heritage. His incessant determination resulted in the repatriation of two rare Mithuna idols that were stolen from Atru Rajasthan. These idols have been brought back to India in 2021 as part of the repatriated haul from the US. Another expert is Donna Yates who specializes in the Latin American sacred art and has been mapping the thefts of Indian artefacts and mentions them on her website called ‘Stolen Goods.’

CONCLUSION

As far as Indian culture and heritage goes, we know that there has been an unimaginable amount of deprivation over the centuries. It has been estimated by scholars in the archaeology and history of art field that India loses thousands of artefacts in a decade. India has lost signature antiquities such as the coveted Koh-I-Noor, its counterpart the Dariya-i-noor, the hope diamond that was stolen from the statue of Buddha and these are just items that have become famous at a large scale. We cannot even account for those antiquities and treasures that have been unknown and overlooked. There is such an intrinsic tie between India and art that started eons ago. Emperors and Rulers of India have offered ready patronage to all forms of art and these actions formed our culture and identity.  It is imperative that today we increase awareness of these relics of our culture, there needs to be a conscious recognition of the heritage that has been built over ages and then passed down to us as part of our traditions and customs.

India has made much progress in its mission to retrieve its heritage but there are still miles to go before we can restore our heritage to its rightful place. It will require a joint effort on the part of all persons of India and our Government to be in sync to make it possible. We have already seen the proof of it before us today, our Government and the aforementioned experts such as Mankodi and Kumar allowed for our idols to return home. This Repatriation has set a precedent for the years to come and will hopefully pave a way for India to enrich itself once again.


[1] Shante Escalante De mattei, “More than 200 Looted Objects Connected to Dealer Subhash Kapoor Sent back to India by U.S.” ARTnews, October 29 2021, available at https://www.artnews.com/art-news/news/looted-items-returned-india-kapoor-1234608336/

Last visited on 19th February 2022.

[2] United Nations Educational, Scientific and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural property, art. 1 April 24, 1972, 823 U.N.T.S. 231 {Hereinafter referred to as the UNESCO Convention}

[3] Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U.L. Rev. 559, 569 (1995)

[4] India consists of four Vedas, the Samveda, Rigveda, Atharvaveda and Yajurveda, these are the religious ancient scriptures that are the oldest and the most sacred texts of Hinduism.

[5] India has various regional dance forms including Kathak, Bharatanatyam, Sattriya and more that pertain to separate regions of the country. Similarly India also holds two broad sects of classical music, North Indian Classical Music and Carnatic Indian Classical music which then further divide into regional versions. All of these art forms are a part of the Cultural Heritage of India.

[6] The Constitution of India, art. 51A(f)

[7] The Constitution of India, art. 49: Protection of monuments and places and objects of national importance.

[8] The Antiquities and Art Treasures Act, s. 25 (1), imprisonment shall be up to a term not less than six months but may extend up to the three years or a fine.

[9]  Id, s. 5

[10]  Ministry of Education and Social Welfare (Archaeological Survey of India) S.O. 448 E dated 2.7.1976 as amended by S.O. 397 (E), dated 5.5.1980

[11] Supra note 8, s. 19

[12] The Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act 2010, s. 20 (I) (1).

[13] The Constitution of India, art. 51(c): Promotion of international peace and security.

[14] The famous Peacock throne known as Takt- Murassa built in circa 1635 and was viciously looted by the Persian Emperor Nadir Shah in the 18th century. Today it stands dismembered and spread across many countries and has transcended into a legend rather than history.

[15] Kamala Naganand, “Art Law: Restrictions on the export of cultural property and artwork.” December 2020.

[16] Vinay Kumar Gupta, “Retrieval of Indian Antiquities: Issues and Challenges” Art Antiquity and Law, (October 2019)

[17] (1991) 4 All Er. 638.

[18] MANU/DE/1490/2002

[19] MANU/MH/0396/2008

[20] WRIT PETITION (C) No. 252 of 2004, adjudged on 3rd February 2015.

Author: Kritika Kalra, Student at O.P. Jindal Law School

Editor: Kanishka VaishSenior Editor, LexLife India

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