If ever there was an apt example for the adage “Elephant in the room” – it is the problem of illicit trafficking of Indian Antiquities and if you add the classic “fall guy” – the Antiquities and Art Treasures Act, 1972 – is the perfect recipe for disaster that too of epic proportions. Faced with growing pressure to address the rampant theft of its cultural treasures and apparent lacuna in the Act and its enforcement not only from the public but from the highest audit body of the land – the Comptroller & Auditor General in its report (Report No 18 of 2013), India’s Culture Minister Mr Mahesh Sharma told PTI in an interview. "We want this act to be revised.. And we have proposed to the cabinet that the Antiquities Act be changed …. Let in India, anything more than of 100 years of value comes under the antiquity act. Let India have an open market. Once we allow the trade of those antiquities in India this smuggling will stop,"

Historians, activists, scholars and law enforcement officials are still rubbing their eyes on hearing this, but then they have been hearing such statements since 1985. However, this time around The Archaeological Survey of India tasked with formulating the draft has just uploaded the proposal - proposed amendments to the Act to be tabled in the coming session of Parliament 2017. The proposed amendments though are shocking but not surprising as the ASI in its call for   Invitations  for  technical  and  financial  proposal  for drafting of Antiquities  and  Art  Treasures Exports  and  Imports  control  Act  2013- 14  and  Indian Antiquities  and  Art  Treasures  Act,  2013- 14  (To  regulate  and  to  promote  domestic  art market) – a 68 page application letter as early as 2013 and has also formed many committees and sub committees to seek advise on the same – the composition of these committees has never been revealed nor has any minutes of the discussions.

The usage of the word Art Market and Promotion it has to be taken with a pinch of salt. It was exactly this that generations of scholars and stalwarts within the establishment including experts within the ASI fought to thwart. And the current amendments as we will explain skirt the real issues and instead focus on creating a market that will eventually monetise our art treasures – the amendment which if passed would see the greatest plunder of India’s Art Treasures by moving them into private hands.

The Art collecting lobby has been long at work ever since India enacted the Act in 1972 to dilute the provisions of this Act which by the way was part of a bold initiative headed by India to champion the cause of “Source Countries” – countries which have a rich yet dispersed heritage and facing plunder from thieves pillaging its treasures – at the United Nations which eventually led to the UN passing the “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – 1970”. The UN website lists as one of the main reasons for passing this statute as “At the end of the 1960 and in the beginning of the 1970s, thefts were increasing both in museums and at archaeological sites, particularly in the countries of the South. In the North, private collectors and, sometimes, official institutions, were increasingly offered objects that had been fraudulently imported or were of unidentified origin. It is in this context, and to address such situations, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was created in 1970.”

As many as 10 attempts have been made by the various Governments in power since1985 to dilute the provisions of the AAT. In 2011, a committee was setup under R.N. Mishra with representatives from museums, collectors, archaeological departments and the private sector. Once again the main pitch was to fiddle with the Registration of Antiquities – thereby a wielded attempt to ensure free mobility of antiquities within the country. There was no consensus as the negatives of such a dilution far outweighed the “free market” call. A new committee was formed under Justice (retired) Mukul Mudgal, in 2012. The committee never filed a conclusive report due to dissenting notes from members.

Now let’s focus on the CAG report (Report No 18 of 2013) -  Performance Audit of Preservation and Conservation of Monuments and Antiquities.

In the only point about the AAT in the Summary of Recommendations the report says:

“The provisions of AAT Act and the International Conventions should be reviewed in order to make the legislation more contemporary and effective and to facilitate restoration of stolen art objects from other countries.”

Inside the voluminous report there are multiple references to the actual problem faced – it theft of antiquities & the poor performance on retrieval of stolen antiquities. We quote a few herewith:

“The Ministry should expedite the work of registering antiquities and devise procedures for ensuring the genuineness of the registered antiquities in a time bound manner. Electronic format may be considered for the purpose.”

“There is a need for a more concerted approach for retrieval of Indian art objects stolen or illegally exported to other countries. The ASI, as the nodal agency for this purpose needs to be more proactive and vigilant in its efforts and the Ministry needs to develop an aggressive strategy for the same.”

Going into more details the report says :

“ 6.1 Inadequacy of Policy and Legislation

AAT Act provided registration of antiquities with individuals and private collections; however, the registration had not been made mandatory. This resulted in incomplete documentation and was also an impediment in retrieving stolen and lost antiquities.

6.1.2 Review of the AAT Act, 1972

We noticed that the ASI and the Ministry were conscious of the need for amendment in the AAT Act, 1972 since 1987. The Ministry started an exercise in 1997 to amend the Act. A draft cabinet note was also approved by the Cabinet in 2003. However, the amendment was still under process at the Ministry. Thus, the limitation of the legislation to curb illegal export and smuggling of art objects persists. The Ministry accorded no priority for this work and no timeframe was fixed for this purpose.

Recommendation 6.1: The provisions of AAT Act and the International Conventions

should be reviewed in order to make the legislation more contemporary and effective and to facilitate restoration of stolen art objects from other countries.

The Ministry stated (May 2013) that the proposed amendments to the AAT Act, 1972 were under active consideration by the Ministry.

 

6.3 Registration of Antiquities

The AAT Act, 1972 provided that the Central Government may, specify those antiquities which should be registered under the Act. As per the extant provisions, registration of the artifacts was not mandatory. The Act further provided that the Central Government may appoint Registering Officers for the purpose of the Act.

As per the National Mission for Monument and Antiquities, the country had approximately 70 lakh antiquities. There were no targets and no timeframe for completion of this work. There was no monitoring of progress of work by either the ASI or the Ministry. Further, the registration process was not based on scientific testing but relied on the naked eye. Hence, its accuracy could be contested.

Recommendation 6.4: The Ministry should expedite the work of registering antiquities and devise procedures for ensuring the genuineness of the registered antiquities in a time bound manner. Electronic format may be considered for the purpose.

The Ministry stated (May 2013) that till date 4.8 lakh antiquities had been registered and no targets and time frame to complete the registration process could be fixed,

as every year more objects fall in the category of antiquity. The reply is not acceptable as targets and time frame can be fixed based on the estimation or in absolute numbers of antiquities to be registered every year.

 

6.10 Digitisation and Documentation of Art Objects

6.10.1 Status of Documentation in the ASI

In the ASI, there was no documentation of antiquities taken away from the country before 1947 and hence, such antiquities could not be retrieved. Further, we noted

several cases of art objects taken out of the country before implementation of the AAT Act, 1972 which could not be retrieved due to the absence of documentation.

The ASI stated (October 2012) that the restitution of the objects which were taken out of the country prior to enforcement of the Act were not within its control. Hence

they had to depend on the goodwill of other countries for their restitution.

 

6.11 Stolen and Seized Antiquities

During joint physical inspections, we found that 131 antiquities were stolen from monuments/sites and 37 antiquities from Site Museums from 1981 to 2012. We also found that two Buddha statues and one Garuda statue from Patna Circle were lying with Araria Police Station since 2005. Similarly four antiquities of the Indian War Memorial Musuem,Red Fort Delhi were with the Daryaganj Police Station since 1989.

The ASI informed that FIRs had been lodged for all missing antiquities. Immediately after report of theft of an antiquity, look out notices were also issued to all the enforcing agencies, custom exit channels and CBI-Interpol. However, we observed that in similar situations, worldwide, organisations took many more effective steps including checking of catalogues of international auction house, posting news of such theft on websites, posting information about theft in the International Art Loss Registry, sending photographs of stolen objects electronically to dealers and auction houses and intimate scholars in the field.

We found that the ASI had never participated or collected information on Indian antiquities put on sale at well known international auction houses viz. Sotheby’s, Christie’s, etc. as there was no explicit provision in the AAT Act, 1972 for doing so.

We noticed several examples of antiquities of national importance being sold and displayed abroad. (Idol of Saraswati pertaining to King Bhoj is in British Museum, London).

Many countries had started aggressive campaigns to recover their treasures. Italy, Greece, China etc. had made initiatives in this regard. The Ministry did not have

strategy for such proactive action. As part of its responsibilities, the ASI was also a nodal agency to retrieve stolen or illegally exported art objects. From 1976 to 2001, 19 antiquities had been retrieved by the ASI from foreign countries either through legal means, indemnity agreement, voluntary action or through out of case settlement. But after 2001, the ASI had not been able to achieve any success.

Recommendation 6.8: There is a need for a more concerted approach for retrieval of Indian art objects stolen or illegally exported to other countries. The ASI, as the nodal agency for this purpose needs to be more proactive and vigilant in its efforts and the Ministry needs to develop an aggressive strategy for the same. The Ministry stated (May 2013) that whenever any antiquity surfaces abroad ASI makes efforts for its retrieval.

 

6.12 Export of Antiquities and their shifting for Exhibitions

Abroad

6.12.1 Grant of Non Antiquity Certificate

Every Circle through an Expert Advisory Committee51 headed by Superintending Archaeologist issued Non Antiquity Certificate (NAC) to objects meant for export.

The Appellate Committee headed by the DG ASI decides on applications that disputed the action of the Expert Advisory Committee. We noted that in the ASI circles, this certificate was given without any fee after mere inspection of the object without stamping to avoid tampering before export.

Besides, the ASI did not maintain any centralised information on grant of these certificates. In the absence of these controls, the entire procedure for the grant of the nonantiquity certificate was completely open to the risk of malpractice. 

6.12.3 Non- signing of Conventions

We found that in 1977, India had ratified the Convention on the means of Prohibiting and Preventing Illicit Export, Import and Transfer of Ownership of Cultural Property, Paris, 1970. Subsequently, no other multilateral or bilateral instrument had been signed or ratified to facilitate restoration of stolen art objects.

Recommendation 6.9: The Ministry should frame a comprehensive policy for Management of Antiquities owned by the Organisation. The Ministry stated (May 2013) that ASI would work towards achieving comprehensive policy on Antiquities.

 There is no fine print here – the CAG recommendations clearly indicate the need for better water tight registration processes and also highlight the fact that India is nowhere prepared in preparing its Antiquities archive database, nor has it reached anywhere in its registration of antiquities scope.

Further there is an important finding in the CAG report

“The collections of CAC included 3979 antiquities confiscated and seized by

CBI, Custom and Directorate of Revenue Intelligence. No action was taken to

return these antiquities to their original places or to place them in

appropriate Museums.”

We need to read this with other data – 2622 artefacts were seized by US customs valued at 108 million USD ( approx. 800 crore rupees) from 12 storage facilities of accused antique smuggler Subhash Kapoor – just his holding stock in New York, his associate in Chennai Deenadayal’s house yielded a further 500 antiquities. In 2002 another notorious art smuggler Vaman Ghiya was arrested ( now released due to a botched up investigation) and raids on his facilities yeielded over 800 antiutes of which 400 were certified as antiues by the ASI – to this day they rot in a police station as without a credible archive there is no way to locate their original abodes.

In an interview for India Today Magaine in june 2015, Prateep V  Philip, ADG of Tamil Nadu police in-charge of the Economic Offences Wing says:

“As far as Tamil Nadu is concerned, it is true that the HR & CE department does not have comprehensive objective data base for all the antique (stone & metal, jewelry & wooden) idols in the approximately 45,000 places of worship in Tamil Nadu under auspices of HR & CE department. It is true that more than 90% of the antique idols in the 45,000 temples remains legally unregistered as per the provisions of Antiquities and Art Treasures Act of 1972.” http://indiatoday.intoday.in/story/tamil-nadu-stolen-antique-idols-wing-prateep-v-philip/1/445384.html

Global Outlook on Antiquities:

In july of this year, the EU – far long a major end or buyer market for antiquities proposed new reform including A licensing system for the import of archaeological objects, parts of monuments, and ancient books and manuscripts has been proposed as part of the new regulations. This system would require importers to obtain a license, issued by authorities in the Member State of entry after they have examined the evidence submitted by the importer that the cultural good has been exported legally from the third country.

The proposal also suggests there should be a new EU-wide definition of “cultural goods” not unlike that established in 1970 by UNESCO, which specifically includes archaeological finds, ancient scrolls, the remains of historical monuments, artwork, collections, and antiques.

The European Commission will also deploy a number of campaigns to raise awareness of the rising instances of illicit antiquities popping up on the market, hoping in particular to change some buyers’s lackadaisical attitudes towards provenance information.

Basing the above we did a critical review of current AAT to find if there is just case for the negative perception.

1. Anything that left India prior to 1972 even under questionable means is non recoverable as the Indian law was passed only in 1972 and in the same year India signed the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – 1970.   This is untrue. The Antiquities and Art Treasures Act, 1972  is read in addition to, and not in derogation of, the provisions of the Ancient Monuments Preservation Act, 1904 or the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or any other law for the time being in force and India had the Indian Treasure Trove Act of 1878. Further the AAT replaced The Antiquities (Export Control) Act, 1947 -  Act No. 31 of 1947, Passed by the Indian Legislature (Received the assent of the Governor General on the 18th April, 1947)
2. The act is cumbersome as it is classifies any object over 100 years as an antiquity. This is the International Standard and the Article 1 (e) of the The UN convention itself defines “cultural property” as antiquities more than one hundred years old.
3. The Act calls for compulsory registration of dealers and antiquities and is a time consuming process. The registration form is a simple application form which has to be filled with very basic details and a photograph. Regional registration centers were opened manned by specific officials with this task. Moreover with current IT empowered technology this can be further simplied. The same is also the recommendation of the CAG report.  
4. The Government can forcibly acquire any object by using this Act based on the registration process. If and only if the Central Government is of opinion that it is desirable to preserve any antiquity or art treasure in a public place, that Government may make an order for the compulsory acquisition of such antiquity or art treasure. The local collector is then empowered to take possession of the artefact but only after given written notice to the owner. Further the owner has 30 days to file his objection with the Government for the same. 
5. The Government will not pay the correct price for such acquisition. The Act clearly (sec  20) talks of compensation – the first being mutually agreed price and if no agreement is reached, the act provides for appointment of an arbitrator ( in the rank Judge of a  High Court) and also employ the services of domain / subject expert to assist.
6. The Government will acquire ancestral under worshipdeities:The Act clearly exempts as per 19 (7) The power of compulsory acquisition conferred by this section shall not extend to any object, being an antiquity or art treasure, used for bona fide religious observances.

Further to address points 4 – 6, we submit a relevant finding in the CAG report:

6.2.2 Compulsory Acquisition of Antiquities

The ASI was empowered to compulsorily acquire antiquities but no antiquity had been compulsorily acquired till date. There were also no schemes of incentive for

voluntary disclosure of antiquities.

1. Once registered an artefact cannot be sold within India.Sec 17 of the Act clearly mentions that whenever any person transfers the ownership, control or possession of any antiquity specified in any notification issued under sub-section (1) of section 14 such person shall intimate, within such period and in such form as may be prescribed, the fact of such transfer to the registering officer.
2. The Act was useless as it has not helped to curb smuggling: This is true but the problem is not in the ACT but in the lack of clarity on enforcing agency. ASI is purely seen as a custodian of declared heritage sites and is not empowered with policing authority.  Various Acts are used to actually secure the conviction including the Customs Act of 1962. Once again to quote Mr Pradeep Phillip in the same India Today Interview

“ Inconsequential and weak legislations (like AAT Act, AM&AS & Remains Act, AM Preservation Act 1904, TN A&HM & AS&R Act 1966 and TN Act 28 of 1993) - Ex: trial held for 7 yrs but the sentence imposed for the offences u/s 380 & 457 IPC is 6 months. The offence of temple lock breaking followed by lurking criminal trespass by night in order to commit an offence of theft entails a maximum sentence of 14 yrs as per S.457 IPC. Since 1947 no offence of idol theft was ever visited with a sentence of 14 yrs. Because penal law provides discretion to the punishing magistrate to impose lesser punishment of even 6 months for the same offence u/s 457 IPC.”

1. The act could not even help register even 5% of antiquities in India. This is true but once again the issue was not with the Act. The Act gave enough time to voluntarily register with bonafide credentials – as how the dealer came in possession of the artefact. Unfortunately many of the current dealers operate in the grey.
2. There is no finder fee : In a country with such a rich wealth of cultural property still unexplored providing for a finders fee will be detrimental to actual study of heritage sites and instead unleash a wake a treasure hunters plundering sites for sellable goods destroying context. An example cited FOR this is the laws in Britain, which defines gold or silver finds older than 300 years as treasure and claims them for the Crown – there are slight differences in Scotland where it also allows Museums to bid for them. In all cases the finder is paid a current market price by a government appointed valuer. Unlike Europe however, we are talking of millions of heritage sites which are not even on the sites lists of the ASI – not even 5% of the listed sites have been documented properly. It is difficult to distinguish between a newly found buried object and one that has been in worship and stolen. Context is everything in archaeology; if an object is removed improperly or if details of the dig are not properly documented the artefact loses its very soul. The findersfinder’s fee will unleash a wave of amateur Indiana Joneses to wreck havocwreak havoc on our still-unknown sites in search of marketable treasure. As an example,  as part of US hoard of Kapoor cited earlier  included were terracotta figures clearly from Chandretugarh in West Bengal dating to the 1st C BCE.  Sadly we will never know their real stories . They are reduced to just curios to adorn a wealthy billionaires living room but to the average Indian and the academic word at large – Chandraketugarh with its abundance of delightful terracotta doesn’t even find a scant mention in the great civilisations of India.  Take the recent case of Keezhadi in Tamil Nadu – the controversial 3^rd phase yielded  roughly 1,800 artefacts ,of which nearly 90% were glass beads, five small objects made of gold, a broken piece of a comb made of ivory, copper coins, earrings, and small toys. Atleast 14 inscriptions of names in Tamil Brahmi script, were found in pot shreds.  Now for an archaeologist – these are important but for an amateur treasure digger ? Further it is a known fact that even coinage discovered during sanctioned digs are considered genuine and amateur finds are often dismissed from academic circles due to the rampant presence of fakes.

Any finder’s fee has to be on par with the international market rate, and with the recent record prices quoted for indianIndian works, the Government is not going to be able to outbid them. Even if there is such an attempt the Government is better off in channelling those funds to bankroll the actual excavations by qualified researchers.

1. There is no procedure to lawfully bring back an antiquity / restitution : This needs to be addressed. Even the famed London Pathur Nataraja was stuck in customs for 10 years as India had no clear law on restitutions. Again the Act could be read in line with Customs Act to allow for say interested groups trying to bring back heritage objects bought in auction houses with a noble aim to return them to India.
2. There is no incentive for heritage sleuths / whistle blower fee. Currently there is no provision in the Act of a reward  to encourage more heritage wardens and enforcement officials to provide information to combat smuggling and in restitution of smuggled / trafficked artefacts.
3. There is no Art Squad: Read in reference to the CAG report of 2013 on the ASI and Museums, it is clear that the scale and scope of heritage theft in India is enormous and there is dire need for a dedicated agency to combat this modelled on the famous Carbenerri Art squad in Italy. Countries like Cambodia, Greece, African nations have all woken up to this need.
4. MOU and Treaties: Again an observation fom the CAG report of 2013, India in the last 4 decades has not signed any reciprocal treaties with what are termed trade nations – ie, United Kingdom, America, Switzerland which help for better co ordination and monitoring of heritage trafficking. The US has already signed such with over 14 source countries – ie countries rich in cultural heritage and targets for plunder by looters. The US side is willing to sign this MOU with India.
5. Lack ofa National Archive: Article 5 of the UN Statue clearly defines this “establishing and keeping up to date, on the basis of a national inventory of protected property, a list of important public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage;”
6. Publishing loss registers Nationally and updating Interpol stolen works databases. In continuation of the same article 5 places emphasis on the Loss database “seeing that appropriate publicity is given to the disappearance of any items of cultural property.” The Interpol also maintains a Stolen works database but India has only so far put up 6 objects in it.

So now lets see the proposed bill -  THE ANTIQUITIES AND ART TREASURES REGULATION, EXPORT & IMPORT CONTROL BILL, 2017

BILL to provide for the preservation, protection and promotion of antiquities and art treasures, to provide for the sound development and regulation of domestic trade in antiquities and art treasures, to provide for the prevention of fraudulent dealings in antiquities and art treasures, to provide for the compulsory acquisition thereof for preservation in public places, to regulate the export and import in antiquities and art treasures, to provide for the prevention of smuggling of, and fraudulent dealings in, antiquities and art treasures and to provide for certain other matters connected therewith or incidental thereto.

The main amendments are as under

We follow the AAT 1972 and the proposed amendments

License to sell Antiquities

7: Application for licence

(1) Any person desiring to carry on, himself or by any other person on his behalf, the business of selling or offering to sell antiquities may make an application for the grant of a licence to the licensing officer having jurisdiction.

(2) Every application under sub-section (1) shall be made in such form and shall contain such particulars as may be prescribed.

8. Grant of licence

(1) On receipt of an application for the grant of a licence under section 7, the licensing officer may, after holding such inquiry as he deems fit, grant a licence to the applicant having regard to the following factors, namely:--

(a) the experience of the applicant with respect to trade in antiquities;

(b) the village, town or city where the applicant intends to carry on business;

(c) the number of persons already engaged in the business of selling, or offering for sale of, antiquities in the said village, town or city; and

(d) such other factors as may be prescribed: Provided that no licence shall be granted to the applicant if he is convicted of an offence punishable under the Antiquities (Export Control) Act, 1947 unless a period of ten years has elapsed since the date of the conviction.

(2) Every licence granted under this section shall be on payment of such fees as may be prescribed.

(3) Every licence granted under this section shall be for such period, subject to such conditions and in such form and shall contain such particulars, as may be prescribed.

(4) No application for the grant of a licence made under section 7 shall be rejected unless the applicant has been given a reasonable opportunity of being heard in the matter.

9. Renewal of licence

(1) A licence granted under section 8 may, on an application made by the licencee, be renewed by the licensing officer for such period and on payment on such fees as may be prescribed.

(2) No application made under this section shall be rejected unless the applicant has been given a reasonable opportunity of being heard in the matter.

10. Maintenance of records, photographs, and registers by licencees.

(1) Every holder of a licence granted under section 8 or renewed under section 9 shall maintain such records, photographs and registers, in such manner and containing such particulars, as may be prescribed.

(2) Every record, photograph and register maintained under sub-section (1) shall, at all reasonable times, be open to inspection by the licensing officer or by any other gazetted officer of Government

12. Persons whose licences have been revoked may sell antiquities to other licencees.

Notwithstanding anything contained in section 5, any person whose licence has been revoked under section 11 may, after making a declaration before the licensing officer, within such period, in such form and in such manner, as may be prescribed, of all the antiquities in his ownership, control or possession immediately before such revocation, sell such antiquities to any other person holding a valid licence under this Act: Provided that no such antiquity shall be sold after the expiry of a period of six months from the date of revocation of the licence.

As per the proposed amendments to AAT

3. Carrying on Business of selling or offering to sell antiquities and art treasures to be free.

(1) Subject to the provisions of sub-section (2), any person may, on and from the commencement of this Act, carry on freely within the country the business of selling or offering to sell antiquities or art treasures himself or by any other person on his behalf:

Provided that the provisions of local laws in so far as they apply to the relevant business establishments shall regulate the business of antiquities and art treasures.

Explanation.- For the purpose of this section, the expression “local laws” means such Central or State laws, including the rules, regulations, guidelines or instructions issued thereunder, which are in force in the area where the business of selling or offer to sell antiquities or art treasures is being carried on by a person.

(2) Whenever any person intends to carry on the business of selling or offering to sell antiquities or art treasures himself or by any other person on his behalf under sub-section (1), he shall,-

(i) upload such details of the antiquities or art treasures in such manner on the web portal as may be prescribed:

Provided that at the end of upload of the details referred to in clause (i), a disclaimer to the effect that the details uploaded on the web portal does not render, such antiquity or art treasure as authentic and genuine;

(ii) deliver a copy of the details uploaded on the web portal along with the sold antiquity or the sold art treasure to the purchaser;

(iii) take due care that the details uploaded on the web portal by him or any other person on his

behalf remains secured or un-tampered.

(3) Where any person sells any antiquity or art treasure in violation of the provisions of this section, such sale of antiquity or art treasure shall be void.

It is very clear that the proposed amendment is vague to say the least – and so far we have not seen any instance even in the CAG report of any comment to do away with the process of license for dealers intending to trade in Antiquities. In India when almost every trader needs to be registered why is there a need for this waiver. Who lobbied for this important clause to be waived? A one time registration cannot be a big damper for someone who wants to trade in our antiquities – the 1972 AAT is infact a well thought out Act especially with regard to licneses – so the only clause that would be alarming to someone is the “Provided that no licence shall be granted to the applicant if he is convicted of an offence punishable under the Antiquities (Export Control) Act, 1947 unless a period of ten years has elapsed since the date of the conviction.”

Lets take this case for example :

KOCHI: Customs officials have foiled an attempt by a reputed antiques dealer to bring in priceless ancient Indian artefacts from Switzerland by wrongly declaring them as items made of clay, brass and stone. The seized antiques belong to a period ranging from post-Maurya (200 BC) to 5th century AD, according to Archaeological Survey of India.

The 19 items collectively worth around Rs 10 crore were smuggled out of the country and imported back, officials said in an affidavit to the Kerala high court. The court is hearing a petition filed by Natesan Antiqarts seeking directions to customs department for release of the goods. Natesan Antiqarts had declared the value of the items at Rs 5 lakh. The import appears to be a method to camouflage and legalise the acquisition of articles which cannot be otherwise accounted for before the authorities,'' the affidavit said.

Natesan Antiqarts, an established dealer in handicrafts and antiques with branches in Thiruvananthapuram, Bangalore, Mumbai and London, has accused customs officials of purposefully delaying the clearance of goods. They have also contended that the consignment need only be cleared by the customs authority of the country from where imports were made. The imports were made in January this year.

They were declared by Natesan Antiqarts as articles of clay, stone and brass and not as antiques, according to the affidavit. Customs has produced a report from ASI to the court with details of origin of each piece of the seized antiques. The subject artefacts are extremely precious national treasures and the cultural property of India. These goods being cultural properties of our country cannot be treated as mere merchandising goods."

The items seized were illegally exported out of India as no antiques are permitted to be taken out of the country. This would make the goods at par with stolen goods as per Indian Penal Code, and the importer is liable for action for receiving stolen property, officials said.

If the declarations of the items were made correctly, Switzerland Customs authority would not have permitted the import as such illicit import is not allowed as per a 2003 Swiss law named Cultural Property Transfer Act, the customs department said.

https://timesofindia.indiatimes.com/city/kochi/Rs-10-crore-worth-artefacts-smuggled-in-as-clay-objects/articleshow/42939311.cms

The said dealers license was never cancelled in fact they are rumoured to be on the select panel that advised the proposed amendments !

Now we come to most important clause

In the AAT 1972

14. Registration of antiquities

(1) The Central Government may, from time to time, by notification in the Official Gazette, specify those antiquities which shall be registered under this Act.

(2) In specifying the antiquities under sub-section (1), the Central Government shall have regard to the following factors, namely:.—

(i) The necessity for conserving the objects of art;

(ii) The need to preserve such objects within India for the better appreciation of the cultural heritage of India;

(iii) Such other factors as will, or are likely to, contribute to the safeguarding of the cultural heritage of India.

(3) Every person who owns, controls or is in possession of any antiquity specified in the notification issued under subsection (1) shall register such antiquity before the

registering officer—

(a) in the case of a person who owns, controls or possesses such antiquity on the date of issue of such notification, within three months of such date; and

(b) in the case of any other person, within fifteen days of the date on which he comes into ownership, control or possession of such antiquity, and obtain a certificate in token of such registration.

15. Appointment of registering officers.

The Central Government may, by notified order—

(a) appoint such persons, as it thinks fit, to be registering officers for the purposes of this Act; and

(b) define the limits of the area within which a registering officer shall exercise the powers conferred on registering officers by or under this Act.

1. Application for registration and grant of certificate of registration.

(1) Every person required to register any antiquity before the registering officer under section 14 shall make an application to the registering officer for the grant of a certificate of registration.

(2) Every application under sub-section (1) 1[shall, in the case of such antiquities or class of antiquities as the Central Government may, by notification in the Official Gazette, specify, be accompanied] by such photographs of the antiquity which is to be registered and by such number of copies, not exceeding six, as may be prescribed and shall be made in such form and shall contain such particulars as may

be prescribed.

(3) On receipt of an application under sub-section (1), the registering officer may, after holding such inquiry as he deems fit grant a certificate of registration containing such particulars as may be prescribed.

(4) No application made under this section shall be rejected unless the applicant has been given a reasonable opportunity of being heard in the matter.

1. Transfer of ownership, etc., of antiquities to be intimated to the registering officer.

Whenever any person transfers the ownership, control or possession of any antiquity specified in any notification issued under sub-section (1) of section 14 such person shall intimate, within such period and in such form as may be prescribed, the

fact of such transfer to the registering officer.

The entire provision has been nullified with just a single clause in the proposed amendment “(i) upload such details of the antiquities or art treasures in such manner on the web portal as may be prescribed:”

Compare this to the AAT 1972 – application

Form VII

Licence No

Application for registration of antiquities

(See rule 11)

1. Name of applicant (person or firm)

2. Address of applicant (person or firm)

3. Identification and description of object with 1[three copies of photographs in post card or quarter size.]

4. Material

5. Size

6. Approximate date

7. Source of acquisition

8. Where the applicant has come into ownership, control or possession of any antiquity which is already registered under the Act, registration number of such antiquity and the name of the registering officer, who had registered it.

9. Date of acquisition

10. Mode of acquisition

11. Price paid, if any

12. (a) Present location and (b) condition of preservation and security

13. If the antiquity is already registered under the Act, whether its registration certificate has been attached

 

I declare that the above information is correct and complete to the best of my knowledge

and belief. I also undertake to observe the provisions of the Antiquities and Art Treasures Act,

1972, and the rules made thereunder.

Seal of the Organisation

Place……………………..

…………………………………..

Signature

Date………………………

…………………………….

Name of the applicant

1. If the application is on behalf of an organisation, the name thereof should be given

2. If the application is on behalf of an organisation, the signature should be that of the head

of that .organisation.

So basically what this means is ( though the proposed amendment is vague on upload such details of the antiquities or art treasures in such manner on the web portal as may be prescribed:”) any person can take a photograph of an antiquity – say an abandoned hero stone or sculpture along field or forest, upload it on the website – there will be no expert / authority from the Government or statutory body to certify or ask questions to check ( providing the website mirrors the same questions which were asked in  the FORM VII which is a big IF) and claim it to be his and start selling it legally !

So do the new proposed amendments fix the problems in the AAT 1972 – a few but it’s a yes & No. For example in the newly included clause 10

10: Export of Antiquities

(3) Whenever the Central Government comes to know that an antiquity of Indian origin, which was,-

(a) taken out of India illegally or clandestinely; or

(b) exported in contravention of any provisions of

law in force governing export of antiquities at the time of making such export,

is or has been found in a foreign land, the Central Government shall immediately make all efforts to ensure r the retrieval of such antiquity from that foreign land.

But how – there is no attempt to bell the Cat. Who or which organisation will be tasked with tracking down such illicit antiquities ?

We had earlier highlighted the point on easing regulations to bring back antiquities

11. Import of antiquities

(1) On and from the commencement of this Act, it shall not be lawful for any person to import any antiquity or art treasure himself or by another person on his behalf unless such person complies with the provisions of sub-section (2).

(2) Whenever any person intends to import any antiquity or art treasure himself or by another person on his behalf such import shall be made only if he uploads on the web portal such details of the antiquity or art treasure (which he intends to import) in such manner as may be prescribed.

(3) The Central Government may relax the duty on import of certain antiquities or art treasures on such terms and conditions as may be prescribed.

However, who or which agency will be tasked with the job of ascertaining if the antiquity left India legally and what stops this from becoming a route to launder!

The last point that we take up for deliberation is the Penalty under the proposed ACT

15. Penalty

(1) If any person, himself or by any other person on his behalf, exports or attempts to export any antiquity or art treasure in contravention of section 10, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962 as applied by section 4, be punishable with imprisonment for a term which shall not be less than 5 years and with fine.

(2) If any person, himself or by any other person on his behalf, import or attempts to import any antiquity or art treasure in contravention of section 11, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962 as applied by section 4, be punishable with imprisonment for a term of 6 months and with fine.

(3) If any person contravenes the provisions of section 3(2), he shall be punishable with imprisonment for a term which may extend to six months or with fine not exceeding Rupees Five Lacs or with both and the antiquity in respect of which the offence has been committed shall be liable to confiscation.

Heritage theft is an offence in its own stand and is not to be linked only when linked to export or import and be tried under the Customs Act. There are a multitude of inter state gangs operating in systematically plundering our heritage treasures - Stealing a heritage treasure must be made an offence in its own sense under the Act as the current provisions under IPC are too vague.

.

To understand this question we need to know how the objects leave the country?t is true that current laws have not been successful in preventing theft. The most common modus operandi by thieves is to target isolated temples and heritage sites. It doesn’t help that we have them in every village and town – many of them still under worship on road sides and under banyan trees. Given that these stone and metal sculptures are not something you can slip in your pocket and leave – a bronze can weight as much as half a ton and a stone kosta sculpture more than a ton. So they usually throw them in the nearby ponds or lakes and wait for the commotion to die down. Later they are transported via road.

This is the most dangerous leg for the thieves and most of the seizures by the police currently are during routine police vehicle checks. The next stage is the actual transportation on the international leg  - preferably via Ocean containers and some via air freight. The more accomplished dealers get poorly made replicas use it to obtain the necessary certificates as newly made and then switch the original while shipping – usually with the connivance of customs officials. If this is not enough the regular dealers have their routes via customs already greased and they declare these as Garden Furniture

Further, The shipments are usually routed to middle men in Hongkong, Singapore, Thailand or even Dubai before eventually landing up in Switzerland. In Switzerland there is an elaborate ruse of sale to either an European or American buyer or auction houses -  landing up with the now clean provenance showing as bought from a wealthy Swiss collector. If the objects need some cosmetic touchup or cleaning they are sent to professional restorers in London.  !!

If the Act is diluted and there is a golden era where antiquities can be freely traded within India with no registration – even these scant seizures will cease. The current capabilities of the police force to deal with antiquities is already well known and without knowing to distinguish one from another and to check if the paperwork is legitimate etc is hardly reassuring.

Reading all the above lends credence to the statement that you have to fix something that is broken – but not by throwing it away as thrash but to first try and mend it.  India without a national archive of its heritage treasures will be a sitting duck to looters and plunderers – who have thrived even with this AAT and looted and smuggled over 30,000 objects in the past two decades.

The right direction should be strengthening the act – where it is deficient. In its enforcement as currently the custodians have no powers to enforce. Further the Government has to seriously consider, work on proposals for creating the platforms for a building a national archive and setting up of a National Art Squad of competent experts to go after the smugglers – taking examples from Italy , Greece, Egypt and Cambodia.  There has to be a strong deterrent to Museums and collectors buying our looted Art treasures after optical due diligence by showing that India is serious about safe guarding her National treasures - instead of trying to dilute an already toothless AAT. .  Sadly, the new proposals seem to giving the wrong signals instead aiding and abetting collectors who have robbed our Nation, resisted from registering their antiquities citing superficial reasons and wanting a golden voluntary disclosure scheme to reduce our sacred to profane – destroy context of archaeological discoveries thereby robbing future generations the ability to uncover hidden history thereby destroying our ancestral treasures by reducing them to show piece curios.

Pic Credit: By Flickr user Ghost Particle [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons