A CRITICAL ANALYSIS OF THE ANTIQUITIES AND ART TREASURES ACT 1972

This article is written by L M  Lakshmi Priya of Sathyabama Institute of Science and Technology, Chennai, an intern under Legal Vidhiya

ABSTRACT

The Antiquities and Art Treasures Act of 1972, which is under the jurisdiction of the Archeological Survey of India, Union Ministry of Culture, governs antiquities in India. As per the act, it is the buyer’s responsibility to verify whether the item he is buying is an antique and, if so, whether the seller is permitted to sell it and has a certificate of registration. The Archaeological Survey of India states that registration needs to be completed in front of an authorized officer. However, the statute penalizes the owner of the unregistered antiquity. The legislation was intended to control the ownership and trading of antiquities and art treasures, as well as to prevent smuggling and fraudulent antiquities. The licensed individual may also sell it. Let’s go over the legislative provisions of this act in more detail below.

Keywords: antiquities, art treasures, licensing officer, registration of antiquities, transferring ownership of antiquities.

INTRODUCTION

Indian culture has long placed a high value on its antiquities and cultural creations,  such as jewelry and puppets. Unfortunately, India’s treasures were stolen and destroyed long before it was freed from British colonialism, and this issue needs to be resolved right away. The Antiquities Export Control Act of 1947 was repealed in 1972 by the Antiquities and Art Treasures Act, which was passed by Parliament. The Archaeological Survey of India, a division of the Ministry of Culture, is in charge of gathering and flaunting works of art with significant artistic and literal significance. Although the British didn’t prioritize the protection of India’s artistic heritage, they did play a  pivotal role in developing a legal framework for it. Indeed, though India became a democracy in 1950 and the Indian Constitution became the Grundnorm, the laws pertaining to the preservation of heritage are still social in nature or continue to be innovated on ideas that prioritize preservation above growth.

CONSTITUTIONAL PROVISIONS

1. According to Article 49 of the Constitution, the state is required to preserve any monument, place, or object of historical or artistic value since they are significant to the country.
2. According to Article 51A(f) of the Constitution, it shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture.
3. According  to Article 51A(g) of the Constitution, it is the duty of every individual to have compassion for all living things and to preserve and enhance the natural environment, which includes woods, lakes, rivers, and wildlife;

The above-mentioned articles from the constitution urge the state and people to protect the rich heritage, culture, arts, monuments, and all the treasures and to make them protected and display them as the nation’s assets for future generations.

HISTORICAL VIEW

The Indian Constitution was not created until after the British established the legal framework for preserving culture and legacy. Colonial laws remained in effect and are being implemented in independent India because of the savings clause found in the Constitution.  Sir William Jones began his excavations in 1784 and completed the first archaeological project in India. The Crown did not take direct control of India until the 1857 rebellion. Serving as the first archaeological surveyor under the British Raj, Alexander Cunningham “surveyed areas stretching from Gaya in the east to Indus in the north-west, and from Kalsi in the north to Narmada in the south, between 1861 and 1865.” He essentially did this by following in the footsteps of the Chinese traveler Hiuen Tsang, but there was an unexpected end to the archaeological survey.

In 1863, the first statute was passed with the intention of “preventing injury to and preserving the buildings remarkable for their antiquity and historical or architectural value.” After that, the Treasure Trove Act of 1878 was passed and is still in effect today. Following that, the Antiquities and Art Treasures Act of 1972 was approved by Parliament.

SCHEME AND APPLICABILITY OF THE ACT

The primary goal of the Antiquities and Art Treasures Act of 1972 was to safeguard movable cultural property, which includes art treasures and antiquities. The Act is applicable throughout India and consists of 33 sections, as it was enacted by the parliament in the twenty-third year of the republic. It came into force on June 4, 1976.

DEFINITIONS

 ANTIQUITY

According to the Antiquities and Art Treasures Act of 1972, a piece of material must be at least a century old to be considered an “antiquity.” These portray historical subjects like science, literature, art, crafts, religion, and more. any piece of coinage, artwork, craft, sculpture, painting, or epigraph.

Section 2(1)(a) defines antiquity as any coinage, sculptures, paintings, epigraphs, or any other object or article taken out of a cave or building, or as any other object or article that the central government has officially declared to be antiquated because it has been in existence for more than a century.

ART TREASURES

Section 2(1)(b) provides a definition Treasures in art are not antiquities; they are works of human creation that the Center honors for their aesthetic worth following the artist’s passing. In the same way, art treasures are not old; rather, they are works of human creation that the Center has honored for their creative merit long after the creator has passed away. The finest example is the Chola Bronzes. Additionally, after a license application is submitted, it allows entities other than the Central Government to trade antiquities. Except for the Central Government, all participants in the antiquity trade must apply for a license in line with Section 5.

SALIENT  FEATURES OF THE ACT

The below-mentioned are the salient features of the Antiquities and Art Treasures Act 1972.

EXPORT TRADE IN ANTIQUITIES AND ART TREASURES

According to Section 3 of the Act, only the central government, or any authority or agency authorized by the central government acting on its behalf, is permitted to export antiquities or works of art; no other individual is entitled to do such an act.

SELLING OF ANTIQUITIES

According to Section 5 of the act, no person may engage in the business of selling or offering to sell any antiquity, either on their own behalf or through another person, unless they do so in compliance with the terms and conditions of a license issued according to Section 8.

APPOINTMENT OF LICENSING OFFICERS

As per Section 6 of the act, the central government has the authority to designate any individual as a licensing officer if they seem suitable for that position by publishing a notification in the official gazette. It should be mandatory for the central government to indicate the limits of the area where the license officer is authorized to perform their duties.

APPLYING AND GRANTING OF LICENSE

1. As per the provisions of Section 7 of the Act, an individual intending to get involved in the business of selling or offering to sell antiquities, either independently or on behalf of another party, may apply for a license from the licensing officer.
2. In accordance with Section 8 of the Act, the license may be awarded to the individual who submitted an application under Section 7 of the Act, following the licensing officer’s necessary investigation. If the licensing officer deems it appropriate, he may also award the license to the individual who possesses experience in the trade of antiquity, provided that the required fees are paid.

IMPORTANT PROVISIONS

CENTRAL GOVERNMENT TO SELL ANTIQUITIES

Section 13 of the act states that in order to preserve antiquities or to protect the public interest, the Central Government may, by notice published in the Official Gazette, declare that, as of the date indicated in the notification, only the Central Government or any authority or agency designated by the Central Government in this regard is permitted to engage in the antiquities business of selling or offering for sale.

REGISTRATION OF ANTIQUITIES

When determining whether to register antiquities under Section 14 of the Act, the central government should take the following criteria into account:

1. The need for conserving the objects of art,
2. The need to take care of such objects within India to develop their cultural
3. Other reasons that intimidate safeguarding the cultural heritage of Idia

TRANSFERRING OWNERSHIP SHOULD BE INTIMATED TO REGISTERING OFFICER

As per the provisions of Section 17 of the Act, any individual who transfers ownership, control, or possession of antiquities must notify the registration officer of the transfer within the stipulated timeframe, providing full details of the transfer, including the purpose behind it.

OTHER PROVISIONS

OBLIGATED PURCHASE OF ANTIQUITIES AND ART TREASURES

1. As per Section 19 of the Act, the Central Government may issue an order mandating the forced acquisition of antiquities or works of art if it believes that they should be preserved in a public place.
2. Following the issuance of an order pursuant to sub-section (1), the district collector of the antiquity or art treasure in question shall notify the owner of the same of the Central Government’s decision to purchase it. At that point, the collector may lawfully take possession of the antiquity or art treasure, employing whatever force may be required to do so.
3. The owner of any antiquity or artwork whose possession has been taken over by the Collector in accordance with sub-section (2) may, within thirty days of the date on which such possession was taken over, make a representation to the Central Government.
4. Upon receiving a representation under sub-section (3), the Central Government shall, within ninety days of the date of receipt of the representation, either confirm or rescind the order made by it under sub-section (1), after conducting any inquiry it deems appropriate and providing the one who objects with a chance to be heard in the matter.
5. The antique or art treasure must be promptly returned to its rightful owner at the Central Government’s expense in the event that any order issued by the government under subsection (1) is revoked under subsection (4).
6. Ancient antiques or treasures shall belong to the Central Government upon the Collector’s taking possession of them in accordance with sub-section (2), unless the Central Government’s order under sub-section (1) is upheld by sub-section (4).
7. Any art treasure or antiquity used for legitimate religious observances is not subject to the power of compulsory acquisition granted by this provision.

PAYMENT OF COMPENSATION FOR ACQUIRED ANTIQUITIES

As per Section 20 of the Act, in the event that any ancient or artistic value is obtained through compulsory acquisition under Section 19, compensation will be provided; the precise amount will be decided based on the guidelines outlined below.

1. A written agreement may specify the amount of compensation.
2. If there is no such agreement, then the central government can appoint any fit individual as the arbitrator for this concern.
3. The central government shall appoint a person with expert knowledge of antiquities and artwork to assist the arbitrators.
4. The concerned person to be compensated can give their opinion regarding the compensation to the arbitrators.

POWER OF THE ARBITRATORS

Section 20(3) of the legislation grants the appointed arbitrator the following powers under the Code of Civil Procedure 1908, much like a civil court would have while handling the proceedings:

1. Calling someone to account and requiring their presence,
2.  Demanding that any document be located and produced,
3.  Asking any office for any public records
4.  Requesting that the witnesses be examined.

APPEALS

1. A person who is aggrieved by a license officer’s decision may file an appeal with the designated authority within 30 days of receiving the decision, as per Section 21 of the act. The relevant body will then provide the appellant with the right to be heard.
2. As to Section 22 of the act, an individual who feels unsatisfied with an arbitrator’s decision reached under Section 20 has thirty days from the date of the award communicated to him to file an appeal with the High Court that has jurisdiction over their residence. With the understanding that the High Court may consider the appeal beyond the thirty-day limit if it determines that the appellant was prohibited from filing the appeal in a timely manner for a valid reason,

PENALTY

1. In line with the act’s Section 25(1), any individual who exports or attempts to export any antiquity or art treasure in violation of Section 3—either on their own or through another person acting on their behalf—will be subject to a fine and imprisonment for a minimum of six months, up to a maximum of three years.
2. According to the act’s Section 25(2), anyone who violates Section 5, Section 12, Sub-sections (2) or (3) of Section 13, Section 14, or Section 17 may be sentenced to imprisonment for a period of six months, with a fine, or with both. The antique that is the subject of the offense may also be subject to confiscation.
3. Section 25(3) of the act states that any individual who prevents a licensing officer from viewing any record, photo, or register kept under section 10 or who stops an officer authorized by the Central Government under section 23 sub-section (1) from entering or searching any place under that sub-section will be punished with a term of imprisonment that may not exceed six months, a fine, or both.

POWER OF THE MAGISTRATE TO IMPOSE ENHANCED PENALTIES

Section 27 of the Act states that any Presidency Magistrate or First-Class Magistrate may sentence someone under this Act in excess of their authority under Section 32 of the Code of Criminal Procedure, 1898 (5 of 1898), regardless of what is stated in that section.

ACTION TAKEN IN GOOD FAITH

As stated in the act’s Section 29, no lawsuits or other legal actions against the government or any other authority may be brought when actions are taken in good faith to enforce this legislation.

AUTHORITIES

1. The Archaeological Survey of India (ASI), which is housed under the Ministry of Culture, is in charge of conducting archaeological research at the national level. The Ancient Monuments and Archaeological Sites and Remains Act 1958 (AMASR Act) gives it authority over these.
2. Monuments under governmental protection are overseen by the Directorate of Governmental Archaeology and Museums.
3. The 1947 Antiquities Export Control Act and its implementing regulations govern the export of antiquities.
4. The Antiquities and Art Treasures Act 1972 was passed in order to establish a practical framework for managing movable cultural property, which includes art treasures and antiquities. 

MEASURES INITIATED BY THE GOVERNMENT

 UNION BUDGET 2020-2021

The Union Budget 2020–21 called for the creation of an Indian Institute of Heritage and Conservation under the Ministry of Culture. Five archaeological sites with on-site museums are to be built in Tamil Nadu, Uttar Pradesh, Assam, Gujarat, and Haryana.

NMMA

The National Mission on Monuments and Antiquities (NMMA) was established in 2007 with the goal of creating a National Register of Antiquities through the uniform documentation of antiquities from various sources. The NMMA has documented over 14 lakh antiquities nationwide.

HRIDAY

The National Heritage City Development and Augmentation Yojana (HRIDAY) program was introduced by the Ministry of Housing and Urban Affairs with an emphasis on the comprehensive development of heritage cities.

INTERNATIONAL MEASURES

UNESCO

The 1970 Convention on the Means of Prohibiting and Preventing the Illegal Import, Export, and Transfer of Ownership of Cultural Property is an international agreement. According to the agreement, States Parties should take action to forbid and stop the illegal trafficking of cultural property. It offers the States Parties a standard framework for actions to be taken in order to forbid and hinder the import, export, and transfer of cultural property.  India is one of the 143 states that have ratified the Convention to date.

UNIDROIT

The Convention on the Prohibition of the Illegal Export of Cultural Objects (UNIDROIT, 1995) outlines the kinds of items that are covered and contains clauses that deal with returning stolen property. The Convention specifies the conditions under which cultural property that has been unlawfully exported may be ordered to be returned and calls for the return of such material.

CASE LAWS

S.R Kiran V  CBI, Bangalore

The Honourable Court examined whether Section 25(2) of the Act applied to the penal provisions. The petitioner in this case possessed objects that were 100 years old, and they had not yet received the registration certificate required by the Antiquities and Art Treasures Act of 1972. The Honourable Court noted that the items were antiquities that needed to be registered because failing to do so was against the Act. However, the Honourable Court gave the petitioner a chance to make the required application to the appropriate authority and ordered the authorities to return his antiquities if they did not know the articles were 100 years old and he had not misused them for any purpose. While the court in the aforementioned case gave the petitioner the benefit of the doubt, it is important to keep in mind that breaking the law is never an acceptable reason and that anyone in possession of antiquity that falls under Section 14 above is required to notify the relevant authorities and get it registered.

Subhash Candra Kapoor, v  Inspector of Police

Mr. Kapoor, the accused, is an American citizen who was detained in Germany so that he might face charges in the Special Court of Idol Theft Cases, Kumbakonam. In 2008, eighteen panchaloha statues were removed from the Vardharaja Perumal Thirukovil and Arulmigu Sundereswarar temples in the Udayarapalayam Taluk of Tamil Nadu. Regarding the same, a police inspector from Udayarapalayam filed a case. During the inquiry, it was found that seven persons were involved in the occurrence in question. Despite an inquiry and recording of the confessions made by the detained suspects, the idols have not been located. The petitioner contended in September 2022 that the idols were legally acquired through the appropriate channels and with documentation from the governments. The aforementioned instance highlights the necessity of including “idols” in the Act’s definition of antiquities.

ISSUES UNDER THE ACT

1. Unlawful Trade: India is a desirable location for looting and the smuggling of antiquities for sale on the international market due to its rich cultural legacy, bureaucratic indifference, and inadequate enforcement of the antiquities protection law. Growing concerns regarding antiques being smuggled and sold to fund terrorist organizations have been voiced in recent years.
2. Deficiency of database: An integrated database containing both authentic and stolen antiquities is absent. The risk of losing antiquities is always considerable when there is no centralized database for information.
3.  The barrier to registration: The statute offers a number of legal channels for bringing charges against a private collector for “inadequate maintenance of the object.” This clause discourages individual collectors from registering their antiques. In this instance, antique smuggling began and discouraged domestic antiquity trading.
4. Deficient Ability of the Investigative Body:  The agency’s capacity for investigating crimes pertaining to antiquity is inadequate as it lacks specialized knowledge.
5. Challenges with the Investigation: The investigating agency for antique theft and smuggling is not experienced in handling these kinds of cases. The CBI lacks the necessary resources to handle antiquities that have been stolen. A small number of state governments with specialized police units are similarly understaffed and undertrained. This also resulted in Indian artifacts showing up less frequently on Interpol’s stolen list.

PREVENTIVE  MEASURES

1. National database: To control the trade in antiquity, a national database of antiquity should exist. The Cultural Heritage Squad, which has collected a database of lost artifacts, is one example we might use in this situation. When it comes to safeguarding antiques, it is among the most remarkable police forces.
2. Increasing the Capacity of ASI:  With the objective of controlling the antiquity market more successfully, additional funds and assets should be provided to it. Similarly, the Draught Antiquities and Art Treasures Regulation, Export and Import Bill, 2017 gives the ASI the authority to search any home if it believes that antiques have been improperly stored.

• Antiquities exports are prohibited: Appropriate regulatory measures have to be established to control the ancient trade. Antiquities cannot be exported to foreign nations, according to the Antiquities and Art Treasures Regulation, Export and Import Bill, 2017.

THE ANTIQUITIES AND ART TREASURES EXPORT AND IMPORT BILL, 2017

The draft bill removes the requirement for a government-issued license to trade in antiquities, allowing antiquities to move freely within the nation. The bill, however, permits “no-questions-asked” sales, in which illicitly obtained artifacts can be freely exchanged without disclosing the provenance or source of an item, rendering the source permanently untraceable. Relying solely on the seller’s good intentions to disclose the source in the absence of an outside verification method is extremely dangerous. The proposed amendment would only continue to be beneficial if the state took more aggressive measures. To bring about a change in the way stolen artifacts are handled, the government must step in and successfully implement the laws. The government should proceed with the use of technology and digital repositories, as demonstrated by the number of instances that remain uninvestigated and the low rate of artifact recovery.

CONCLUSION

One of the most crucial things the country can do is preserve its cultural legacy, and people should be educated about antiquities and heritage in order to show this and maintain national consciousness. The Antiquities and Treasures Act of 1972 was criticized by many experts, although it did include most of the components that legally support the protection of art treasures and antiquities.

REFERENCES

• Gurav Pathak, Legal Regime for the Protection of Cultural Heritage in India, ejournals, East Asian Studies 2022/22, https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.ejournals.eu/pliki/art/22763/&ved=2ahUKEwjY0cbAga2CAxVdp1YBHR3-A5U4HhAWegQIBRAB&usg=AOvVaw36nolJ_IS4pWJqxJRudmYr, (last visited on November 5,2023,8:30PM) 
• India Const. Art. 49, 51A(f), 51A(g).
• Paridhi Sharma, Jus Corpus Law Journal, Antiquities and Art Treasure Act, 1972: A Critical Appraisal

https://www.juscorpus.com/antiquities-and-art-treasure-act-1972-a-critical-appraisal/ (last visited: November 5, 2023, 8:46 PM)

• Vinay Vaish, Lexology and Law relating to Antiquities in India, https://www.lexology.com/library/detail.aspx?g=8f43ddb5-29a1-4079-8216-95f91b31cf90#:~:text=Antiquities%20 ( last visited on November 9, 2023, 7:35 PM)
• Antiquities and Art Treasure Act, 1972, No. 52, Act of Parliament, 1972 (India)
• S.R Kiran V  CBI, Bangalore, https://indiankanoon.org/doc/13355/, https://quillbot.com/

 (last visited November 17, 2023, 8:20 PM)

• Subhash Candra Kapoor v  Inspector of Police, Jus Corpus Law Journal, https://www.juscorpus.com/antiquities-and-art-treasure-act-1972-a-critical-appraisal/ (last visited: November 17, 2023, 10: 20 PM)
• Forum IAS, https://forumias.com/blog/antiquities-and-art-treasures-act-in-india-an-analysis/ (last visited November 17, 2023, 10:30 PM)
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•  Optimize IAS Team, https://optimizeias.com/antiquities-abroad-indian-and-international-laws/ (last visited November 17, 2023, 10:50 PM)
• Center for Law, https://itsartlaw.org/2020/06/01/an-excursion-into-the-antiquities-law-of-india/ (last visited November 17, 2023, 10:50 PM )