You are on page 1of 20

659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.

htm

Limits to official legalism


N A M A N P. A H U J A

THE media is filled with reports about the unprecedented rise of the
Indian art market, yet it remains a little understood and exclusive
market, operating on the one hand in overtly sophisticated open
environs (as far as contemporary art goes) and on the other,
shrouded in mystery with covert dealings, money laundering and the
illicit trade in national heritage in the market for antiquities. While
there are no available systematized figures for what this market nets
every year (which is itself part of a wider problem detailed below),
conservative estimates for the sale of just contemporary art in the
Indian metropolises alone (not to speak of the phenomenal prices
Indian art fetches in Europe and the United States) would be over Rs
500 crore annually.

The global value of the Indian art market was Rs 1500 crore in 2005
and according to some figures, the projected worth of the Indian art
market in 2006 was Rs 2000 crore. Significantly for us, this does not
even factor in the value of antiquities; nor does it account for the
illegal trade. All that can be said is that the commodity market in the
grey area usually reflects sales figures which are much higher than
the legal market.1 Since the year 2000, Indian art has appreciated a
staggering 10 per cent faster annually than the stock market. Yet
significant aspects of this emerging market need careful examination
lest it be reduced to a bubble which, on account of ineffective policy,
will burst.

The reasons for the astronomical rise of contemporary art are


apparent: the opening of the economy, the freedom given to both
resident and non-resident Indians to compete in a global market and
the ease with which paintings can be bought, sold, imported and
exported.2 While the market for contemporary art has over the past
ten years grown more transparent and legitimate, the trade in
antiquities remains corrupt and operates largely on unaccounted
cash transactions. While the contemporary art market has become
one of the most important wealth generators for the nation, soliciting
investment from all over the world, antiquities, which used to be
what the world marvelled at, are becoming increasingly
marginalized. There is much debate in different quarters of
governments, museums, academia and amongst art dealers on
rethinking the laws that govern the circulation of art. I shall, in this
article, examine the laws that govern the collecting and sale of
Indian antiquities only.

1 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

Some archaeologists regard a trade in antiquities as being wholly


undesirable, since they believe that the vast majority of objects on
the market have been illicitly excavated in recent times with a
concomitant destruction of archaeological evidence. Furthermore,
many of them believe that an object outside its context is valueless
for the purposes of scholarship, and looting is thought to be the
principal cause of the destruction of this context. The connection
between those who loot antiquities and those who collect, trade, and
preserve them has been a subject of endless international
conferences and has moulded policy on cultural patrimony all over
the world. India was at the forefront of shaping such policies and
one of the first signatories of the (Unesco) 1970 Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export, and
Transfer of Ownership of Cultural Property.

This policy was certainly needed. And in fact some sort of a policy
is still needed. One must remember the extraordinary extent of
despoliation and loot that has taken place from source countries like
India, Greece, Italy, Cambodia and Afghanistan who have, when
they have been economically vulnerable, been forced to attend to
other imperatives rather than the protection of their cultural heritage.
History is rich with incidents on how competitive collectors and
museums in America have been with those of the European empires
in their need for vast acquisitions of the material arts of Greece,
India or Italy. And to that extent it was symptomatic then, that in the
age of post-colonial guilt, the British Museum and British Academe
were to be seen to do the most for the preservation and restitution of
artefacts of source countries.

However, the laws that the so-called ‘source’ countries adopted


need reform. The current laws have been framed from the
perspective of archaeologists. But an archaeologist is not the only
person who is in charge of interpreting what is heritage, and
civilizational memory. Their intentions in fact are shared with
litterateurs, art historians, historians, anthropologists who also
investigate issues of civilizational memory and heritage; however,
these disciplines are not consulted when laws on heritage are
framed. As a result, the concerns of one discipline outweigh others
when formulating the knowledge on that discipline.

Archaeological research requires that sites must be preserved as


wholly as possible, as objects outside their context reveal little of
their civilizational history. Laws that are framed on this principle
make it illegal for museums and collectors to buy artefacts as their
purchase will, in turn, encourage the further pillaging of sites. One
cannot slight this logic, but the nobility of this argument
notwithstanding, it has proved, at least in India, to be impracticable

2 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

where one of the main reasons for the despoliation has been the very
legislation that was enforced to protect heritage. Let me elaborate on
this paradox.

The original provenance or find-spot of an object is of vital


importance to scholarship. To facilitate which, the international legal
position is that an object cannot be traded on the international
market if it was exported from India after 1970. The onus thus lies
on the seller to prove that the secondary provenance (i.e. the
collection from where the object has come from) is legitimate.
However, war, migration, economic development and sheer
indifference have all taken their toll. A number of collectors have
bought objects in good faith. The provenance of a large numbers of
these objects has been discovered by chance, long after they have
been sold. It is therefore unacceptable to imply that lack of
provenance means that a particular object has recently been stolen.

Very often the source of pieces is deliberately obscured for perfectly


legitimate reasons, where, for example, the inheritor of an object
does not wish his family to know that he is selling. All these issues
serve to muddy the water and create an environment in which it is
possible for those opposed to the trade to maintain the pretence that
a majority of objects are on the market illicitly. Even though those
on the inside know that this is not the case, it would also be
disingenuous of us to suggest that there is no problem with illicitly
excavated or exported material. In fact, these are two separate
problems, and in order to address them, we need to understand the
historical context.

It has not been possible for the state, for whatever reason, to
excavate a site in India, even when large numbers of artefacts are
known to have been found by locals from a particular area. This has
allowed illegal excavations to carry on unabated for decades. India’s
Archaeological Survey, however, should not be unduly criticized for
this. It is clearly beyond a short-staffed body to provide all these
services and even small countries like the UK and Japan have found
it impossible to keep up with the discovery of antiquities. It was for
this very reason that initiatives such as the Portable Antiquities
Scheme in the UK and the selective registration of artefacts in Japan
are finding such success there.

Most source countries have some form of control over the export
of archaeological material; these range from the pragmatic (the UK,
Germany, the Netherlands) to the draconian (lndia, Greece, Turkey,
Egypt). While discussing the ethics of collecting and trading in
antiquities, James Ede, Chairman of the Antiquities Dealers
Association of Britain, noted that the fiercest laws were passed at

3 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

very different times, but were essentially chauvinistic, and it is


interesting to note that in almost all cases they were enacted at a
time of nationalistic revival (in Italy under Mussolini, in Greece
following the War of Independence from Turkey, in Egypt under
Nasser). These laws were designed to foster a belief in outside
cultural imperialism, and are both a symptom and a source of a deep
emotional feeling. Emotion however, is a bad basis for legislation,
and though these laws have proved remarkably ineffective, their
emotional basis makes it difficult for the relevant authorities to
adjust them in a way which might make them work.3

These laws are also by no means uniform; for whereas some


countries (Egypt, Turkey) have taken the drastic step of
‘nationalizing’ all antiquities (even when privately owned for
generations), others have allowed private ownership, and dealing, to
continue. The latter case usually involves a strict embargo on export,
and this has served to produce a false, two-tiered market.4 In India,
the central government reserves the right (the Antiquities and Art
Treasures Act, 1972: clause 19) to compulsorily ‘acquire’ any
object, such that this ‘nationalization’ of legitimately held objects is
tantamount to state theft. Collectors and dealers are left with no
choice but to dispose off their collections by smuggling them out of
the country. The law has had a diametrically opposite effect to what
was intended. Adjustment to encourage legitimate trade would
effectively restrict the smuggling routes on which illicit trade
depends.

The guiding tenets of the Antiquities and Art Treasures Act, 1972,
as set out in its preamble, state that this is, ‘An Act to regulate the
export trade in antiquities and art treasures, to provide for the
prevention of smuggling of, and fraudulent dealings in, antiquities,
to provide for the compulsory acquisition of antiquities or art
treasures for preservation in public places…’

An antiquity is defined in Section 2 as something that is over a


hundred years old (which was subsequently amended to include
manuscripts and documents that are 75 years old). Section 3 states
that it is illegal to export any antiquity unless authorised by the
central government. Section 5 states that an antiquity may be sold
within India only under a license. Sections 5 to 12, thereafter are
concerned with how licences are to be procured and what conditions
must be met in order to have a license to sell anything that may be
over a hundred (or 75) years old in the country.

Section 14(2) states, ‘Every person who owns, controls or is in


possession of any antiquity ... shall register such antiquity before the
[sic] registering officer.’ The following three sections (15-17)
further concern themselves with the matter of registration.
Importantly, however, the government retains the right to override

4 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

private ownership of art works. Section 19(1) states, ‘If the central
government is of the 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.’ Further, Section 20 (1) states, ‘Where any antiquity or
art treasure is compulsorily acquired under Section 19, there shall be
paid compensation...’

There is also, in India, the Treasure Trove Act (16 of 1878) which
makes provision on the subject of chance finds and precious treasure
that may be found buried. It defines treasure as ‘anything of value
hidden in the soil’. When treasure over Rs 10 (!) is discovered, the
finder must inform the collector and deposit the treasure or give
security for its custody. Concealment is a criminal offence. An
inquiry is held upon notice; if declared ownerless the finder has
three-fourths and the owner of the ground one-fourth. The
government, however, has the right of pre-emption.

Before addressing some of the problems with the 1972 Antiquities


and Art Treasures Act, it should, at the outset, be mentioned that
there is no reason, other than historical, to retain a separate Treasure
Troves Act (1878) the purport and guiding principles of which are
akin to the 1972 Act. A single act, concerning itself with all aspects
of antiquities and ‘treasure’ or at least one that makes reference to
the other would be helpful.

The Antiquities and Art Treasures Act’s most urgent guiding


principle is to protect cultural heritage for the nation by enforcing
laws that prohibit the export of antiquities and art treasures. The act
has only been partially successful over the past 30 years, but it has
now outlived its utility and become both regressive and
counterproductive. No doubt it was occasionally a deterrent to the
export of Indian art objects and was successfully used to even
prosecute art smugglers and allow for the repatriation of Indian
antiquities once taken out of the country. However, in truth, the
small handful of illicit art smugglers/dealers who were
imprisoned/booked under it demonstrates how ineffective the
current law has been, while thousands (if not tens of thousands) of
Indian antiques have been exported since 1972, temples and old
houses ripped off their ornamentation, entire sites pillaged to the
point that they are rendered useless for archaeology.5

It is illegal, at present, for an individual with a keen eye who


happens to spot an historical object to acquire it unless he can first
verify that the vendor is licensed. This is, in fact, ridiculous.
Farmers regularly find things in their fields, these are usually passed
on to the thousands of middlemen who operate the art trade in India.

5 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

Garbage collectors sell off old household goods in every city, and
which keen collector has not gone scavenging for treasures amongst
ragpickers, who must all, as per current regulations, seek licenses!

The first serious attempt to make the sale of antiquities in India


public was in 1992 when Sotheby’s tried to enter the Indian market.
They were stopped by the courts at the instigation of the
Archaeological Survey of India. In June 2003, Bowrings, an Indian
auction house, was forced to cease operations because at the ASI’s
instigation, the CBI and the ASI raided their premises to seize
artworks that were over a hundred years old (and hence
‘antiquities’) which, as per their interpretation of the act, required
Bowrings to have a license to sell.

The case moved from the lower courts to the High Court in Delhi
which, importantly, ruled in favour of Bowrings in 2005 that the
auction house was merely operating as an agent, and middlemen,
who did not themselves own the artwork they were selling, were
exempt from licences. The ASI, however, has taken the case up to
the Supreme Court, where it is now pending. Should the ASI win,
every ragpicker and artisan buying and using raw materials that may
be old, and middlemen who bring artefacts from rural areas to urban
centres, will have to be licensed.

It is widely known that bribes have to be paid to get a license to sell


antiquities, to get ‘non-antiquity’ certificates in order to be able to
export things from the country, to even register an antiquity with the
authorities! Collectors in the country have been left frustrated and
the best art collections in India have been forced under cover. There
are known cases where collectors have even gone to the extent of
having multiple copies of their artworks faked, so that when
inspected, they can claim the works are modern. However, the result
in some of these cases has been tragic where it is no longer possible
to determine the authentic article from the reproduction! Other
collectors have shifted their resources to the more transparent
market for contemporary art.

Customs officials, it is widely known, have no effective training in


telling original antiquities from modern handicrafts or fakes, they
are incapable of implementing the law, and yet it invests them with
powers of harassment which several unsuspecting tourists have been
at the receiving end of at Indian ports. In an age when the forces of
an open market and liberalisation seem to have percolated to most
sectors of the Indian economy, this law still represses a market,
invests officialdom with powers of extortion and engenders
corruption.

6 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

The 100/75-year rule leads to an anomalous situation. Ten years


ago, for example, something made prior to 1904/1929 would have
been an ‘antiquity’. In the year 2014, the cut-off years become
1914/1939. What is not an ‘antiquity’ in 2013 (being 99 years old)
becomes an ‘antiquity’ in the year 2014 and so on. This provides a
year-to-year shift, which assumes significance when read with the
requirement of the act that all antiquities must be registered with
ASI. It is too much to expect an ordinary citizen to be so vigilant as
to reassess his possessions year by year; and the state certainly does
not have the mechanism to either ascertain or register objects that
become antiquities every year.

Today’s artists are tomorrow’s national heritage. But we are


allowing them to be traded legally on the international market. Are
we then, judging by the spirit of the present act, planning on fighting
battles of repatriation of those very artworks we have allowed
lawfully to be exported at the moment?

It is also for consideration if every object of art over 100 years old
should be registered. The Archaeological Survey’s officers are, in
practical terms, only interested in registering sculptures and
miniature paintings. However, the act purports to govern all kinds of
antiquities, and indeed, if heritage is its concern, then it should cover
all manner of material culture. But is this possible? Since any object
older than 75 or 100 years is labelled an antiquity, it would mean
that a grandfather’s watch, or every little piece of family jewellery
lovingly passed on from mother to daughter in this country is illegal
if it is not accompanied, as per section 17 of the act, by a certificate
to transfer registration of the antiquity.

There are thousands of Tanjore paintings of Krishna, Rama and


other deities as also bronze and silver idols which abound in the
puja altars of a million or more of Hindu households, particularly in
South India. Is the government willing to enter every village home
in this country to assess which utensils are over a hundred years old,
or try and regulate and license the time-honoured practices of every
rural or urban Indian woman who inherits and passes on old family
jewellery? Is it the intention of the act that even these (and a variety
of similar objects) must be registered compulsorily? What
mechanism can they realistically develop to monitor such data? And
most important, why is it even necessary?

The act further makes no provision for mass-produced antiquities.


Should, for instance, printed books and pictures that are older than
75 years be governed by the same yardstick? Printed oleographs and
lithographs, of which there are several copies, have never been
regarded as being particularly collectible by government bodies, yet

7 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

are an important record of Indian history. Mass-production is not a


feature of modern history only. Even in the case of very ancient
artefacts, not all of them are unique. For instance, the tens of
thousands of pottery shards or moulded plaques from ancient
periods are the usual nemesis of any excavation. After an initial
analysis of these has been made, and representative examples
housed in museums, surely there is no virtue in zealously storing all
these in our museums’ reserve collections, or registering all of these,
even if they are hundreds of years old? There is no easy solution to
such problems.

Textiles have been exempted from this act for this reason. After all
things like Nathdwara textile paintings – pichwais – thousands of
which abound in the homes of Gujarat and Rajasthan are, by and
large, a century or older. They have come down generations in
families and may have been objects of worship at home. But surely,
judging by the significance of textiles in recreating trade history, the
fact that the only material culture of several Indian communities is
in the form of jewellery, utensils and textiles, the law must give
greater importance to them.

Similarly, the act makes no reference to ancient coins, a plainly


absurd situation, (leaving it to the Treasure Trove Act, which does
not deal with the matter of export of art). Numismatic evidence is
one of the most fundamental of historical sources. Coins provide
some of the most reliable evidence for dynasties (some of whom are
not mentioned in any other record), the deities depicted on them
(and hence the dating of several religious cults), and economic and
social history. As the law is silent on the rules governing them,
ancient Indian coins are widely exported. (And once again, it is
worth noting that as they are allowed on the international market for
antiquarians and museums to collect, both prices and scholarship in
the field have increased exponentially over the past two decades.)

However, the case of coins is cited here for another complex


reason. A large number of ancient Roman coins have been found in
Tamil Nadu where they had reached well before AD 200. Even
earlier, while the Northwest Frontier and Punjab were controlled by
the Greek successors of Alexander, they used their own Greek coins
(alongside the more common Indian mints). The converse is also
true. For instance, Harappan seals have been found in excavations in
Iraq, various kings in history (Mahmud of Ghazni, Nadir Shah,
among others) we know took away large amounts of bullion from
India in war booty, not to mention the fact that Indians have traded
with the rest of the world for millennia. And as a result of these
factors, there is no way of proving that a particular coin available on
the international market was excavated or illegally smuggled from
India, or had left India in ancient or medieval times.

8 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

Further, should India now start examining all Roman coins on the
international market because of their seminal evidence of the
richness of ‘Indian’ history? And is it equally valid to extend the
paradigm to all British coins as well? For instance, British Indian
postage, bank notes and coins were legal tender in various parts of
the Empire, including various parts of Africa.

Incidentally, and this is not germane to the discussion at hand but is


nonetheless an important spin off, nowhere does the act address the
matter of human remains. Graves, and grave goods form a
significant part of archaeological assemblages and the act must
expand to include a policy about those too.6 This is a sensitive issue
involving the ownership of graves and regulations for exhumation.
The most widespread desecration of graves in India is for cultic
practices which require parts of human bones (skulls in particular)
and not for trade on the art market.

However, the matter of grave goods and human remains is not


being cited here entirely without reason. In a famous case, the
Government of India successfully brought back the relics of the
Buddha from the UK where they lay in the many relic caskets that
had been removed from stupas across central and eastern India by
British archaeologists and civil servants. Grave goods in that
instance, constituted the most sacred relics of Buddhism and
although not all the contents of graves or all human remains are of
this significance, they remain of importance to archaeology, and the
act must be allowed to consider that.

In a rapidly urbanizing India, ‘ethnographic’ and ‘folkloric’ items


may not be antiquities, but are the last vestiges of traditional Indian
communities’ material culture. It need hardly be pointed out that
they need to be incorporated into the framework, which makes us
wonder as to why the nomenclature of the act should continue to
utilize the word ‘antiquity’ rather than just use ‘heritage’.

Amongst the worst cases of the opportunistic nature of how India


would like to define the nature of what is an antiquity as well as
bureaucratic red tape, is the infamous story of the repatriation of the
Pathur Nataraja. The details of the case are too long to enter here,
however the significant point is that despite all sorts of evidence,
proving its illegal export from India, and hence claim for
repatriation, was not necessarily going to be as easy as the ASI had
imagined. The Indian government successfully (and rather famously
elaborated upon by Justice Ian Kennedy in the case of Her Majesty
vs. the Lord Shiva in the UK High Court) used the Indian Penal
Code’s remarkable statute that states temples sculptures to be living
beings. The judge was expected to ask the statue of Shiva to plead

9 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

his case in the witness box at the Old Bailey. ‘Shiva’ spoke through
His representatives and was granted His desire to return home. A
special Air India aircraft flew Him to Chennai, and Chief Minister J.
Jayalalithaa received Him personally.

However, He did not have grounds for customs clearance in India!


Customs and Excise officials were not interested in speaking to the
god in the sculpture, and treating it merely as a sculpture demanded
either the requisite import duty, or papers to show that he was Indian
and left India with the necessary paperwork in which case he could
come back for free. Without a solution to such a problem in the
rulebook, Shiva remained in a customs warehouse for over a decade
accruing demurrage charges. Before one elaborates further on the
problems of market value, rules of customs and excise, what is
worth recording is that this gives at least some of the things that we
are discussing a completely different definition: one wherein they
are simultaneously considered living entities, even as they are
‘antiquities’.7

onsidering the state of our short-staffed museums and their


conservative collecting practices, it is debatable whether an object
would be better maintained and preserved in ‘a public place’ than in
the custody, care and possession of a private owner. The law grants
government the right of pre-emption to compulsorily acquire works
and offer owners compensation instead.

10 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

The methods of compensation when the government decides to


invoke section 19(2) of the act and compulsorily acquires an
antiquity are blatantly unfair because the owner of the artwork is
forced to surrender it at a price established by government appointed
nominees who are, at best, ill-equipped and not adequately
conversant about art prices (in a country that has little regard for the
international value of the piece in question) and at worst, acting at
the behest of vested interests (as in the all too famous case of the
Nizam’s jewels). The criteria for assessing the compensation for
such compulsory acquisitions are too general and wide-ranging
under section 20 of the act, with particular reference to the quantum
of compensation. Apart from that, section 20 of the act also does not
provide for an appeal against the decision of the arbitrator to be
appointed under section 20(c) of the act.

With few transparent public sales of antiquities in India, even when


the conscientious citizen registers an artwork, there is no sound way
of establishing its value. By contrast, Indian antiquities have been
openly and regularly sold in auctions on the international market for
a hundred-odd years, and there are as a result systems in place to
assess the value of artworks more correctly. This further brings order
to insurance values, wealth tax and so on.

Considering that movable property, like jewellery, forms part of a


women’s traditional wealth, considering also that many tribal and
nomadic communities may have a communitarian sense of land, but
value their material possessions highly and the fact that artefacts,
paintings and jewels can command prices in the same league as
land, a comparison with a similar situation with the Land
Acquisition Act is appropriate.8 In revising that act, more than three
decades ago, the Supreme Court decreed that the practice of
determining compensation by taking a five year average price of
property in the vicinity was not enough and totally unjust. They
decreed that in the future it was necessary to consider both its
current market value as well as its potential value. This directive of
the court has been followed ever since.

The law was recently changed to state that anyone who wishes to
bring an object to India for public display can do so without paying
duty; however only if the object is for display in a public museum. It
would be of interest to note that this section ‘empowers the central
government on its being satisfied that it is so necessary in the public
interest to exempt any goods on which duty leviable, by a special
order in each case, from the payment of duty under circumstances of
an exceptional nature, to be stated in such order.’ It would seem to
be indisputable that ‘import of an art treasure’ back into India is
always in ‘public interest’ and hence such objects should be
exempted from duty automatically, of course, after establishing
through experts and other means that it is indeed an ‘art treasure’ as

11 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

defined in The Antiquities and Art Treasures Act (1972).

In fact, an allied point would be such exemption for any ‘antiquity’


too, which is of exceptional historical, cultural, civilizational and
heritage value whose presence in the country would arguably be in
the best interests of the country. Of course, here again, the process of
establishing beyond doubt that the antiquity is indeed one which
conforms to these criteria, as also perhaps imposing a condition that
it shall not ever again be exported out of India, can and ought to be
laid down in clear and lucid terms. In the case of an ‘art treasure’,
under the provisions of the 1972 Act, it can never be exported.
These changes relate to the Customs Act (1962). There are some
provisions in the Manual of the Director General, Foreign Trade,
that would need to be appropriately amended in order to facilitate
the importation of art objects into India, without the insistence on
obtaining an import licence, e.g. in respect of film/sports
memorabilia.

Serious collectors in India become even more nervous when cases


like Vijay Mallya’s efforts to bring back national treasures to India
are thwarted by bureaucracy and antediluvian laws. It is worth
recalling that in that case, it took the enormous influence of an MP
and a leader of Indian industry (i.e. Mallya) to acquire, personally,
dispensation from Chidambaram, the finance minister, to have
customs regulations relaxed in order to bring back Tipu Sultan’s
sword to India. And in a marvellous show of the current state of
affairs, he still failed, and was forced to lend the object to the Asian
Art Museum of San Francisco. If such is the plight of the mighty,
where does the ordinary Indian collector stand? Mallya was
expected to (a) pay customs duty to bring back a sword he had just
spent Rs 1.5 crore to buy back for India (!) and (b) provide
documentation for the export and re-entry of the object.

In an article on the Paradox of International Laws on Protecting and


Preserving Heritage,9 I argued that, ‘…[the current] laws are
philosophically anachronistic with our age… The discourse on art
and aesthetics in a globalising world rests on the premise of
movement, or rather, circulation of people, art and ideas.
Paradoxically, even in the twenty-first century, the laws that govern
such movement are informed by colonialism and early twentieth
century nationalism. Is the claim on an object of a land and/or a
nation greater than a person’s?

A nation is meant to represent its people (not just its soil/geography)


and its people are not the same people who lived on that geography
when the object was made. Deterritorialization, migrations,
diasporas cannot be disassociated from the history of colonialism

12 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

and Empire, and, as is commonly known, the rather modern history


of the creation of nation states happened alongside. Yet, the histories
that the museums of those nations represent are often told through
objects when that region’s cultural past was vastly different. These
religious pasts, or for that matter political pasts, can often sit
uncomfortably with how modern nation states have defined
themselves, or how ruling political parties may wish to interpret
history.

Museums often display tribal and nomadic pasts of communities


which even now do not fully subscribe to nation states. With such
fundamentally disparate and varied claims to the past, it is curious
that we have laws that seek to protect a vision of the past on behalf
of a nation’s interest. That is not to say that it should not be done.
But it is worth questioning what is being done, can it be efficacious
and how can what is being done be modified so that it serves
peoples’ interests better.’

What do collectors provide? This is rather like asking why do we


need libraries, history or memory? However platitudinous this may
sound, it must be stated that the private ownership of art and the
connoisseurship which collecting inspires, are desirable in a cultured
society. This tenet has been held by almost everyone for the last five
hundred years. It has had an enormously important effect on the way
in which the great museums of the world have developed, and this in
turn has led to a much wider appreciation of world cultural heritage.
Antiquities have been collected for thousands of years – for
example, the Romans were avid collectors of Greek sculpture – and
even at that time the number of pieces coming on to the market ran
to millions. At the same time it would be disingenuous to not
acknowledge that collecting can become so avaricious as to give
fillip to the destruction of archaeological contexts. This has been a
long-standing dilemma that many countries have faced and, again,
the only sensible way out is to provide for both sides: archaeological
needs and the desire of the market and collecting.

Let us first look into what private collecting can give to a nation.
The list of private collections on which India’s premier museums are
founded is not small. Prior to independence, it was India’s maharajas
who were avid collectors, and their private museums still form some
of the most significant collections of Indian art in the world. After
independence, a new breed of antiquarians and professionals became
prominent Indian collectors and the nation owes much to the efforts
of the likes of Rai Krishnadas of Banaras who founded the finest
collection of Indian painting, Raja Dinkar Kelkar’s collection of folk
art, the Sarabhais in Ahmedabad, the Birlas, Kanorias and Neotias,
Rani Rajwade’s collection of brassware, Sharan Rani Backliwal’s
collection of musical instruments, and so on. The list of such
educated connoisseurs is long. Often their collections have formed

13 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

the bases of the premier museums of India.

A museum, in turn, is looked upon the world over as a repository of


history and identity, preserver and disseminator of cultural heritage
and shaper of the aesthetic sensibilities of the world. However,
governments the world over have at various points found it difficult
to afford the running of museums. At such points in all developed
economies, the important role of private funding for the arts has
always been sought, corporate philanthropy in underwriting museum
collections, exhibitions and development, puts private collectors
(individual or corporate) at the forefront of sustaining the art market,
museums and guiding research.10 Clearly it is beyond the ability of
the government to buy all available Indian antiquities or preserve
them or conserve them or display them. There is thus little choice
but to actively involve the citizenry in the preservation, caring and
collecting of their own heritage. So why has it been made difficult to
collect Indian antiquities?

The patriotism that a nation strives to elicit is founded on the


promotion of a cultural past/identity which is at best a selective
representation of history. The extraordinarily large migrations,
mixing of races, languages and communities over the past century,
however, have challenged national propaganda agendas on how to
define patriotism for a changing population. And in fact, the
resultant globalization and multiculturalism is probably the most
important factor in government policy to such an extent that it has
forced us to rethink what we even mean in a modern society by
‘nation state’ and the patriotism it is meant to elicit. India and
Indianness today also live in places outside India. The laws have to
be changed if we plan to elicit foreign and non-resident Indians’
investment in Indian heritage.

The current policy is a result of certain historical reasons, but the


climate has now changed to render the act, as it stands, obsolete. It
was founded on an attitude in which an open market stood opposed
to national interests, for which the most archaic and draconian form
of protectionism was required. This has killed the domestic market
for antiquities, while the international demand for them has
remained consistent. Surely a way can be found that both opens up
the domestic market, preserves the best for the nation’s museums
and yet, even allows objects of lesser value to be traded
internationally. Keeping art in source countries denies others in the
world the right to appreciate art and culture. Art-importing countries
conserve and safeguard the art they acquire and promote research
and study. Museums make the art available to millions. At a time
when trade interests are increasingly global, the world of art is one
sector of the world economy in which national borders and

14 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

nationalist ideology still form a significant barrier to exchange.

Today the public is aware that art compares favourably with other
financial investments. Launching credible art funds, towards
developing a mutual fund structure, like with the real estate market,
now seems to be the future path for investments in art, one which
can attract the larger public. If the wealth generated for the economy
by living artists in the field of contemporary art can reach such
staggering proportions, it is presently inestimable how much greater
5000 years of historical Indian art, where each piece has the aura of
being unique and irreplaceable, might be worth annually. But for
this market to be stable and responsible, to serve both the needs of
archaeologists and art historians as well as create the necessary
feeling of ownership of the past amongst the citizenry, needs
infrastructure and a frame of progressive rules to operate within.

Unlike in more sophisticated markets, there is little by way of


information, few critics, few curators, no indices and, unlike the
contemporary art market, the antiquities market is largely an
operation of the black economy. For this market to become viable
the most important conditions are the easing of government policies
and an investment in the public knowledge base. As Neville Tuli,
chairman and CEO of Osian’s, which till recently led in the sales of
contemporary art in India, explains: ‘Art should be seen as having
four key dimensions – aesthetic, historical, financial and
educational, all functioning within a legal context. In the past India
did not give respect to the financial, failing to systematically link the
historical to the financial. History is the key to pricing art. Once
public perception clarifies on this issue, the momentum would be
irreversible.’11

What is the case with Chinese art? Some years ago, the Chinese
government approached the United States to impose an embargo on
the import and sale of Chinese art that was older than 70 years. The
Chinese wished to protect their heritage and the US was keen to
placate China. However, it is worth noting two important
observations that were raised then, and are extremely pertinent to the
Indian situation. First, In 2004, Sotheby’s and Christie’s recorded
$224 million in their worldwide sales of Chinese art. Of that, sales at
their American branches added up to only $34 million. There is a
rapidly growing auction market in China in which the same art and
antiques listed in the embargo are being bought and sold. Auction
houses in China, established with the support and protection of the
Chinese government, have sold in excess of $700 million of Chinese
art every year for the past five years. Importantly, the Chinese
government has backed this market boom with an unprecedented
rise of museums and faculties of art history across China, so that a

15 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

few years from now, their 100+ new museums will have a trained
cadre of professionals.

The second important observation, akin to the Indian situation, is


that American buyers are not the top players in the international
Chinese art market any more. On the contrary, they account for only
a small portion of worldwide trade in this art. In fact, it is the
Chinese themselves who have become the dominant force in the
international Chinese art market. The strength of Indian buyers has
already been noted by the international art auction houses, who are
all too eager to foster sales in India.

We seem to have a policy which on the one hand wishes a state of


retentive cultural nationalism, and yet we accept that art is one of the
best cultural ambassadors that can create a worthy cultural
internationalism on the other. We are one of the primary signatories
of the (Unesco) 1970 Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export, and Transfer of Ownership of
Cultural Property. Having been signed by one hundred countries, it
was the first and most important international agreement to protect
cultural property from thieves and smugglers. The convention
created a legal framework allowing signatory governments to
negotiate for the return of looted items. Over the years the Unesco
regulations have seen several amendments. Surely, the time has
come for India to initiate an International discussion on forming a
more tempered policy that will encourage the legitimate circulation
of cultural objects?

Our own policies seem to be rather opportunistic. We build dams


like Nagarjunasagar and the Sardar Sarovar knowing that
archaeological sites have to be sacrificed at the altar of economic
necessities, and yet take a puritanical stance when it comes to the
free trade of art. The truth is that a desire for the possession of art
objects is no longer the main driving force for the desecration or
pillaging of ancient sites. It is the advance of man: urbanization, the
cutting down of forests, the construction of dams and expanding
agriculture.

In 2004, hundreds of terracotta fragments, including moulded


plaques from the first century BC, surfaced when Hutch telecom dug
the foundations for a transponder in the Berachampa area just
outside Kolkata.12 With more and more buildings, tube wells, metros,
agriculture and mining, it is inevitable that there will be many
discoveries in the next couple of decades. The Archaeological
Survey of India and Indian museums are already hard pressed for
resources and we have little other infrastructure to protect and
preserve these artefacts as they are discovered. In fact, our papers

16 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

are replete with stories about how museums are unable to cope with
their present holdings, which are regularly pilfered.

Rather than registering all antiquities, a system should be devised


whereby it must also be an intrinsic and inalienable part of a historic
past, it need not be an ‘antiquity’ per se, but as a cultural treasure it
must warrant the nation’s protection and attention. This would make
the process of registration purposeful and goal oriented. In this
regard it is worth following the Japanese policy which distinguishes
qualitatively between all its antiquities, keeping only the very best in
national registered collections, or registered private Japanese
collections, and releasing the rest into the market, both Japanese and
international. This allows the resources of the state to be effectively
utilized in preserving only what they can.

Increasing development and pressure on land are revealing


archaeological sites at a spate we can scarcely cope with. Unless a
proper system of reward exists, since the finder will usually channel
such objects into an illicit market or destroy the pieces rather than
bear the burden of paying bribes to have the works registered, or risk
a court’s stay order to carry on developing the site, all in the hope of
awaiting the unfair compensation given. Farmers of fertile lands
frequently live in fear that they may be over a major archaeological
site which could be confiscated (as is the case of Chandraketugarh)
and have all too often revealed that they would rather deliberately
destroy pieces than run the risk of being caught with them.

In this respect the laws of the UK, drafted under a newly revised
policy called the ‘Portable Antiquities Scheme’ (see their website at:
www. finds.org.uk) offer a model for a solution that may be adapted.
There a finder has an inducement to declare his discovery. Either the
state takes ownership and pays a reward equivalent to the (more
fairly established) market value, or, if the piece is not of particular
importance, ownership is granted to the finder. Either way, the
archaeological information is preserved and above all, the
enthusiasm of the finder, and his interest in history is fostered.13 It
would be even better to formulate a system whereby the reward was
greater for finds left in situ whilst the report was made.

The Vijaynagara kings and temples imitated and collected Chola


sculptures, the Romans collected Greek art, the great collectors of
the Renaissance defined their civilization by collecting objects from
antiquity – there can and should be no doubt that a market for
antiquities will continue to exist – man’s interest in his own past, not
to mention the legitimate impulse to collect beautiful objects, will
see to that. A choice therefore has to be made: either legitimate
collectors and dealers may be driven out of business by a process of
increasing red tape, in which case the illicit trade will flourish, or the
legitimate trade may be allowed to exist in a controlled context

17 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

which would help to strangle the illegitimate traffic.

The market and desire to possess antiquities cannot be penalized


because of the dilatory responses of the ASI to the needs of
excavation and the slow publication of excavated materials. Their
inability to preserve the outrageously large holdings, or excavate at
sites where land is becoming punitively expensive, are not problems
that can be fixed by increasing their annual budgetary allocations
alone. Their role has to be made more pragmatic so as to guide
policy and foster the private collecting of those objects which are
not worthy of their specialized care. Certainly, in an ideal scenario,
there should be a moratorium on the sale of unprovenanced
materials. However, several poor nations did not have the means of
excavating sites in a timely way, nor laws that were meant to protect
their heritage. This forced their artefacts into an underground trade,
while the sites they came from are no longer recognizable.
Intelligent pragmatism allows for some opening of the market, yet
preserving the best for the nation.

The international laws that govern the illegal export of art need not
be tampered with for the moment, but unless it is recognized that a
domestic market is essential for safeguarding Indian antiquities, we
may continue to force the illicit trade. The easing of the sale of such
items within India will go a long way in preserving national heritage
as an awareness of art, history and heritage will increase rapidly in
the market. This in turn will make the market more conscious about
the authenticity of objects offered for sale. Once the environment to
love and invest in art becomes more transparent, and information
moves with greater ease, the growth in the art market will receive its
next major impetus. And that impetus could potentially be at least as
significant, if not more financially dynamic, than the contemporary
art market. In the first instance, the law needs to be relaxed, licences
to sell antiques need to be done away with, owners of artworks
should have no reason to register their pieces. Simplification of the
tax and duty structure will further add momentum to the growth.

However, alongside the easing up of the bureaucratic red tape


comes a concomitant increase in government responsibility to
museums, and the disciplines of archaeology and art history. For
what should matter to government is not ownership, but access –
that a many more people get access to the richest aesthetic
experience possible; that an increasing number of Indians are drawn
to history and culture, and interested in the preservation of their
heritage. This calls for a radical shake-up of the administration of
museums in India with greater emphasis on accessibility, local site
museums, shrewd acquisitions and educational displays. This,
however, is a complex subject, beyond the scope of the present

18 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

article.

Footnotes:

1. Kishore Singh, ‘Awesome Money is Chasing Indian Art’, 25 March 2006,


Rediff.com. Some indication of the (incidence of this trade, and its effects on the
archaeological record), were obtained from a symposium at Cambridge on 22-25
October 1999 on ‘Illicit Antiquities: the Destruction of the World’s Archaeological
Heritage’. The report on this symposium (Culture Without Context, Issue 5, Autumn
1999; Cambridge, 16-24) provides statistics and surveys, from a number of
countries and was recommended to Parliament in Britian. Lord Renfrew has,
however, retracted the published figure of $200 billion for the amount of trade in
illicit artworks.

2. The global market for contemporary Indian art is changing rapidly and Indian art
is beginning to command a much more substantial chunk of the world art market. As
the July 2006 issue of Insight reported, ‘Unwilling to be left behind, auctioneers too
are exploring new categories and sale venues. Leading the pack is Christie’s, who
recently added Dubai to its worldwide sales locations. The inaugural sale in Dubai
this May (2006) featured Arab, Indian, and Iranian paintings alongside major works
by artists like Picasso and Andy Warhol. Of the $8.4 million achieved, Indian
paintings contributed almost $6 million, setting eight new records.’

3. See a succinct summary of these views by James Ede in ‘Ethics: the Antiquities
Trade and Archaeology’, in http://www.theada. co.uk/ethics.htm accessed 21 May
2014.

4. More on this can be read in Naman P. Ahuja, ‘India: A Tale of Two Markets’, The
Arts Newspaper (London), No. 194, September 2008. And, Naman P. Ahuja, ‘Why
is Liberalised India Smuggling its Heritage Abroad?’, The Hindu, 22 July 2012,
http://www.the hindu.com/arts/why-is-liberalised-india-smuggling-its-heritage-
abroad/article 3666911.ece accessed 21 May 2014.

5. The cases of various 2nd century AD Kushan (Mathura) sites in Haryana and UP,
Chandraketugarh in West Bengal, bronzes from Thanjavur district in Tamil Nadu,
collections of manuscripts from various religious institutions’ libraries and the
large-scale exodus of artefacts from Buddhist monasteries in the higher Himalayas
are well-known examples. Peter Watson’s book Sotheby’s: Inside Story (Random
House, 1998), famously recounts the instance of how a Mumbai based art dealer
was imprisoned because a Channel-4 journalist carried a spy camera in her clutch
bag through which she shot the scene of her interactions with an art dealer eager to
sell her pink sandstone Kushan period pillars of the 2nd century AD, which they
both agreed would look excellent in her London sitting room. The sale price agreed
to was the same as what the dealer had offered for another pair of pillars from the
same site via a Sotheby’s sale in London. On the facing page of the Sotheby’s
catalogue that offered the Kushan pillar were a series of terracotta plaques from
Chandraketugarh. Even though Chandraketugarh has been known to those
knowledgeable on Bengal’s ancient history for over a century, it was common
knowledge that the site had begun to be indiscriminately looted in the mid-1990s.
Watson used the evidence from that sale to reveal the covert smuggling of Indian
artefacts.

6. J. Buikstra and D. Ubelaker, Standards for Data Collection from Human Skeletal
Remains, Arkansas Archeological Survey Research Series No. 44, 1994, provide
some solutions to the problems of dealing with human remains.

7. Richard Davis, Lives of Indian Images, (Princeton, 1997, and in Indian reprint)
provides a masterly study of different approaches to Indian sculptures, historical,
contemporary, art historical, as something marketable and anthropological. Of
particular relevance to the matter discussed in this article is Chapter 7, ‘Loss and
Recovery of Ritual Self’ (pp. 222-259) detailing the famous case of the Pathur
Nataraja’s illicit export to Canada via the UK and repatriation to Madras and

19 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm

subsequent ignominious treatment by the government.

8. For examples, a painting by Amrita Shergil fetched Rs 6.9 crore in a public


auction in Delhi in March 2006. Even in 1979 the trustees of the Nizam of
Hyderabad’s jewels were forced to accept arbitration under a compromise agreement
with the Government of India. After protracted proceedings before the arbiter and
the Supreme Court, the government finally acquired the art collection by paying a
compensation of Rs 218 crore in terms of the arbitration award, a figure very much
below its value in the international market then.

9. Susan Visvanathan (ed.), forthcoming, Sage Publishers, New Delhi 2014.


Originally delivered as a Plenary Address on 5 April 2012 for the Association of
Social Anthrolopologists of Great Britain and the Commonwealth Conference on
‘Arts and Aesthetics in a Globalising World’.

10. A more comprehensive study of what damages current policies can do to a free
market may be seen in Kate Fitz Gibbon (ed.), Who Owns the Past? Cultural Policy,
Cultural Property and the Law, Rutgers Series on the Public Life of the Arts Series,
published in association with the American Council for Cultural Policy. Rutgers
University Press, New Brunswick and London, 2005. The book was sponsored by
the American Council for Cultural Policy, an organization founded in 2002 as a
not-for-profit organization dedicated to informing the public on arts and associated
issues.

11. Outlook Money, 16 January 2006.

12. ‘Archaeologists halt telecom work at heritage site’, Times of India, 21 July 2004:
see online at: http://timesofindia.indiatimes.com/city/kolkata/Archaeologists-
halt-telecom-work-at-heritage-site/articleshow/785017. cms, accessed 21 May 2014.

13. For a summary of rules and frequently asked questions about chance finds of
treasure in Britain, see http://www.britarch. ac.uklcba/potantl5.html

20 of 20 23/8/2014 8:48 PM