August 5, 2011

Laws on Antiquities and Cultural Heritage

The treasure found at the Sri Padmanabhaswamy temple in Thiruvananthapuram has opened up the question of determining the ownership.  Press reports suggest that the contents have been valued over a trillion rupees, with two more vaults yet to be opened.

There have been questions about the future ownership of these assets.  In this context, we discuss the various laws that govern our historical and cultural heritage and assets.

Four Acts of Parliament are relevant. These are the Indian Treasure Trove Act, 1878; the Ancient Monuments Preservation Act, 1904; the Ancient Monuments and Archaeological Sites and Remains Act, 1958; and the Antiquities and Art Treasures Act, 1972. In addition, the National Commission for Heritage Sites Bill, 2009 is pending in Parliament. Some states also have laws to protect monuments.

What do you do if you find a pot of gold buried under your house? The Indian Treasure Trove Act, 1878 deals with this issue. The finder is required to inform the district collector about the nature and approximate value of the treasure, and date and place of finding. The finder is also required to deposit the treasure or provide security. The collector with then issue a notice inviting claims. If the collector determines that there is reason to believe that the claimant had hidden the treasure in the previous 100 years, he will allow time to file a civil suit to establish the right. In other cases, or if the suit is rejected, the collector will declare the treasure to be ownerless. The treasure will be divided between the finder and the owner of the place where it was found in the ratio of three-fourths and one-fourth. In short, the law says “finders, keepers”, with some caveats. If the finder does not inform the collector or deposit the treasure, his share shall vest in the government; he may also face a one-year jail term and a fine.

What are the safeguards against valuable antiques being exported? The Antiquities and Art Treasures Act, 1972 regulates the trade in antiquities and art treasures. It defines antiquities as a coin, sculpture, painting, an object detached from a building or a cave, or of historical interest, and which is over 100 years old. Art treasures are any other human work of art declared to be so by the Union government. Only the Union government or an agency authorised by it are permitted to export antiquities or art treasures. All dealers in these items need to obtain a licence. The government may specify certain objects that need to be registered; every sale of those objects require registration. The Act also permits the government to compulsorily acquire any antiquity or art treasure with the objective of preserving it in a public place (such as a museum). In such cases, the government must pay compensation of 120 percent of the value of the object; the fair value is to be decided by agreement or arbitration. The decision of whether or not an article is an antiquity or art treasure will be determined by the director-general of the Archaeological Society of India.

What about monuments and sites? Two Acts, enacted in 1904 and 1958 seek to protect such sites. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 permits the Union government to notify an archaeological site or a monument older than 100 years as a being of national importance. These are then called protected area or protected monument. The Ancient Monuments Preservation Act, 1904 has jurisdiction over any structure, monument, cave and inscription of historical, archaeological or artistic interest, and which has not been declared to be of national importance. Most of the provisions of the two Acts are similar. The key difference is that the 1958 Act specifies the director general of archaeology as the relevant authority, whereas this role is with the district collector in the 1904 Act.

The Union government may purchase, take lease of, or accept as a gift any protected monument. In other cases, the government may enter into an agreement with the owner of the monument to ensure that it is maintained, not defaced or altered, and access permitted to the public. If a protected monument does not have an owner, the government can assume guardianship. It can also use the “public purpose” provision of the Land Acquisition Act, 1894 to compulsorily acquire a monument (and pay compensation using the principles laid down in that Act). There are special provisions for places of worship that ensure that there is access for religious usage and any customary restrictions are followed. There are also provisions to protect archaeological sites and restrict activities such as mining, blasting and construction in such areas. The government can also restrict the moving of any antiquity, and may also compulsorily acquire antiquities.

Is there any new law in the offing? The government has introduced the National Commission for Heritage Sites Bill, 2009 in Rajya Sabha. Currently, the Archaeological Survey of India maintains 3,667 monuments and sites, and state governments protect 3,573 monuments. In addition, there are a large number of unprotected monuments and sites; there is no comprehensive list of such sites. This Bill seeks to establish a commission that would notify heritage sites, and maintain a roster of these sites. The commission will also recommend policies to conserve, protect and maintain such sites. It can also issue directions to any person owning such site to provide access to the site for its maintenance.

So what happens to the Thiruvananthapuram treasure? This belongs to the temple, and in turn, to whoever is in charge of the temple. The accession agreement signed by the Ruler of the pricely state of Travancore provided that the administration of the temple will remain vested in trust in the Ruler of Travancore. These provisions were incorporated in the Travancore-Cochin Hindu Religious Institutions Act, 1950. After the death of the then Ruler, his brother claimed that he had inherited the trusteeship. However, the Kerala High Court, in January this year, held that the Constitution has abolished the concept of Ruler, and the new “ruler” would be the state government. However, as the state is secular, it ordered the state government to create an authority to administer the temple. It also said that the treasures should be exhibited in a museum for public viewing. From this judgement, it appears that the government will be a “trustee” to the temple, but cannot monetise the treasure. The Supreme Court has constituted a committee to take inventory of the treasure. Either the courts, or a new law by the Kerala Legislative Assembly, will have to provide a final decision on this issue.

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