Criminology

Socio Economic Offences: Issues and Dimensions Cultural Objects Theft

DISCRIPTION OF THE MODULE

Items Description of Module Subject Name Criminology Paper Name Socio Economic Offences: Issues and

Dimensions Module Name/Title

Cultural Object Theft

Module Id

Objectives

Learning Outcome:

To make the learners understand importance of cultural objects, what amounts to theft of cultural objects.

To make the learners understand the legal regime to combat such crime.

To acquaint the learners with some landmark cases of cultural object theft.

Prerequisites Knowledge of law of crime and basics of socio economic crimes.

Key words

Title of the Module: Cultural Object Theft

Role Name Affiliation Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi Paper Coordinator Dr. Kavita Singh Associate Professor,

WBNUJS Content Writer/Author Dr. Kavita Singh Associate Professor,

WBNUJS Content Reviewer Dr. Phanikant Misra Director Archeological

Survey of India

1. WHAT IS A CULTURAL OBJECT?

Cultural objects are essentially material manifestations of the usually abstract concept

of culture. Culture is not uniform and differs in essence from one community to

another. As a result the type of objects which are considered to be holding cultural

importance also varies according to the community in question. However it may be

accepted that cultural objects majorly include artworks and artifacts. While artworks

can range from carvings on stone walls to Mughal paintings, they are usually treated

as cultural objects only if they have an illustrious history which usually dates back

several hundred years. Artifacts on the other hand can range from coins to sculptures,

and they need not necessarily belong very far back in history to be seen as a cultural

object. Take for instance, the case of the Nobel Prize that Rabindranath Tagore

received almost a century back. It was indeed a prized cultural object for India prior

to being stolen. At the same time its age is far less in comparison to various other

artifacts that are preserved in Indian museums. It must thus be kept in mind that the

cultural value of an object is not necessarily dependent on how old it is but in fact on

what impact it has with regard to the cultural heritage of the country.1 “ On 7 June

2016, US Attorney began the process of returning more than 200 stolen cultural

objects back to India,”2 On this occasion Prime Minister of India said, “Usually its the

present that brings nations together, but sometimes its the heritage that brings two

nations closer.” He added, “For some, these artifacts may be measured in monetary

terms but for us this is beyond that. It’s a part of our culture and heritage.”

1 Martyna Piaskowska, 'Who Owns Art? - The Problem Of Trade In Cultural Objects' (2015) 4

Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza (Adam Mickiewicz Univeristy Law

Review). 2 http://newsworldindia.in/world/modi-in-us-pm-attends-repatriation-ceremony-at-blair-house-in-pics/195433/

Source: Idol 23

3https://www.google.co.in/search?q=cultural+objects+stolen+from+india&hl=hi&tbm=isch&tbs=rimg:

CbabdK3w9om3IjgcbRGJVLfoZ3hl7NG58PtcwPxPRQ1nLHhLl4ONMHonvvMQvRMFCEgR02SKq

tHjNtIkzSKt97BQVioSCRxtEYlUt-hnEWYRJrTgI141KhIJeGXs0bnw-

1wRa3eRBEomqEAqEgnA_1E9FDWcseBGJCIPbB1qYASoSCUuXg40weie-

Ed9JRVEcYu4HKhIJ8xC9EwUISBERy9tu2lWO564qEgnTZIqq0eM20hF5iNxyw2qLiSoSCSTNIq33

sFBWEV1yjv1lX2fx&tbo=u&sa=X&ved=0ahUKEwjFloSuvrTRAhVMso8KHfCnBM4Q9C8ICQ&bi

w=1280&bih=694&dpr=1#imgrc=njrk4G3pwarXmM%3A visited on 19 June 2016.

Source4

2. OWNERSHIP OF CULTURAL OBJECT

Since cultural objects are integral to the cultural identity of nations it may appear that

cultural objects belong solely to the State. However a glance at various private

galleries and collections housing precious historical artifacts and artworks shall prove

otherwise. The cultural objects that are found in these galleries are most often

purchased from other private owners who have received the objects by means of it

being passed over from generation to generation, or from auction houses or antique

dealers. Various paintings which are part of private galleries for instance are bought

from legal auctions where descendants of artists or those closely related to them put

up artworks in their possession for sale.5

Another type of cultural objects which are under the ownership of private

individuals is known as unprovenanced antiquities. This refers to cultural objects

which have no properly established history. As a result of this it is often quite difficult

4 http://www.thehindu.com/multimedia/dynamic/01434/Nataraja_1434712f.jpg 5 See Kristen A. Carpenter, Sonia K. Katyal and Angela R. Riley, 'In Defense Of Property' (2009) 118

Yale Law Journal.

to trace its ownership. Unless there is any evidence to suggest any mala fide intention

in the discovery or excavation of this type of objects, there is no restriction on their

purchase and sale. In these cases subject to legality of transaction and absence of

evidence suggesting illegal procurement, the ownership of cultural objects lie with the

private individual who purchases it or who has received it through other genuine

means.6

There are also various notable cases where cultural objects are donated to

museums by private persons. In case of donations the transfer is in the nature of a gift.

As a result the ownership of the cultural objects shifts from the private owner to the

museum board. It must be noted that the intention of the donor must be kept in mind

while determining whether there has been a change in the ownership of the object. For

instance if the donor provides the object(s) to the museum for a period of 1 year for

the purpose of display in its special shows, there is only a borrowing and lending or

loan of the cultural property rather than a change in title. However if the donor

provides the object(s) to the museum with the objective that they be preserved and

displayed for perpetuity, and divests himself of all claims in the said objects, it will be

a case of change in title.7

In the event of the museum which is in possession of the cultural objects being under

the union or state government, the State is the owner of the cultural objects. With

regard to cultural objects discovered during excavations conducted by the

Archaeological Survey of India, which is under the Ministry of Culture, the

Government of India is the rightful owner. Moreover as per international conventions,

in particular UNESCO undiscovered cultural objects are presumed to be owned by the

State unless there is proof furnished in favour of a private individual’s ownership.

Noteably this arrangement of ascribing ownership of unclaimed cultural objects to the

6 Kathryn Walker Tubb, 'Irreconcilable Differences? Problems With Unprovenanced Antiquities'

(2007) 18 Papers from the Institute of Archaeology. 7 See Kanishk Tharoor, 'Museums And Looted Art: The Ethical Dilemma Of Preserving World

Cultures' The Guardian (2015).

State can be considered to be emerging from the idea that it is the duty of the State to

preserve the historical essence of the various communities which reside within its

territorial boundaries. Ultimately statutory provisions enable the Government of India

or various state governments to acquire cultural property from private members of

society in lieu of compensation for the purpose of preservation of the cultural heritage

of the nation.8

3. MEANING OF CULTURAL OBJECT THEFT

Cultural object theft is simply put, the theft of such objects which have cultural value.

It can be broadly divided in two categories. The first category would involve stealing

privately collected cultural articles from galleries, safes or warehouses where they are

stored or displayed. Since in these cases these objects form a part of the personal

belongings of the individuals, the general law embodied in the Indian Penal Code

with regard to theft, robbery and dacoity will apply alongside additional provisions

specific to offences related to property. However Indian Penal Code is only one of the

many laws which can be applied in such cases. If the antiquity or artwork which was

stolen was of considerable importance for the nation, the government may intervene

through the application of specific legislations which are meant for preserving cultural

remains.

The second category majorly involves the pilfering of historically significant sites or

areas with ancient relics. These are usually protected sites due to their historical

significance and the usual abundance of artifacts in and around these areas. The

perpetrators in these cases begin by trespassing into the site and thereafter either

removing pre existing structural elements or illegally excavating and carrying off

finds from such excavations. The looting that takes place in archaeological sites

provide most of the materials for the flourishing of an illegal trade network where

8 Antonio Gambaro, 'Community, State, Individuals And The Ownership Of Cultural Objects', The

Convention de la UNESCO de sus nuevos 1970 Desafios (1st edn, Universidad Nacional Autonoma de

Mexico 2013).

cultural objects are treated as quick selling, highly profitable goods by the smugglers

and status demarcating commodities by the buyers.

A thriving market for cultural artifacts worth billions of dollars exists at a global

level. The historical linkage as well as the aesthetic appeal in many cases drives up

the price for cultural objects. An illicit trafficking network operating with regard to

the procurement and smuggling of cultural objects across state and national borders

provides a steady supply of commodities.9 In such cases culture is seemingly diluted

into a commodity available for sale and exchange. Very often theft of cultural objects

can also be related to attack on the culture of a community. This global scale illegal

trade in cultural objects has in various cases also provided funding for various

activities threatening peace and security of different countries.

Source: Idol 110

4. LEGAL REGIME ON THEFT OF CULTURAL OBJECTS

9 Eric A. Posner, 'The International Protection Of Cultural Property: Some Skeptical Observations'

(Public Law and Legal Theory Working Paper No 141, University of Chicago 2016). 10 http://newsworldindia.in/world/modi-in-us-pm-attends-repatriation-ceremony-at-blair-house-in-

pics/195433/ visited on 19 June 2016.

Since the theft of cultural objects is highly detrimental to not only the cultural heritage of

the nation, but also a loss of valuable information which could have helped in unraveling

parts of world history, certain special legislations have been enacted to deal with such

cases of property theft. Countries all around the world have enacted special legislations in

an effort to curb the theft and smuggling of cultural property. India has also enacted such

legislations in order to ensure that the cultural property of the nation is not subject to

commercial trade. These statutes are primarily concerned with controlling the theft of

cultural objects within the territory of India and are applicable all over the country.

Certain Indian states like Bihar, Kerala, Jharkhand and Goa have also enacted state

legislations to control illegal transactions of cultural property. Certain bilateral and

multilateral agreements that India has forged over time with various countries also

regulate matters of smuggling of cultural objects across national boundaries and their

subsequent repatriation. While the laws are in force till there is repeal, the applicability of

the international agreements is subject to the continuance of smooth diplomatic channels

between the nations and their changing priorities.

Two Indian legislations are relevant in the present scenario. The first is the Indian

Treasure Trove Act, 1878 hereinafter referred as ITTA which deals with matters of

possession and ownership of buried treasures. The second and more prominent legislation

is the The Antiquities and Art Treasures Act, 1972 hereinafter referred as AATA which

deals with the export, conservation and protection from smuggling of cultural objects.

The Indian Treasure Trove Act 1878 is seldom used in recent times. This is

because the legislation is outdated and as a result not very relevant for application in

today’s world. The changes that came about as a result of the last amendment made in the

year 1949 are not adequate to sustain the Act in the present time. The provisions thus

require thorough amendment in order to ensure that they are in pace with the

requirements of the world.

To begin with the treasures that the ITTA deals with are objects of “any value

hidden in the soil”. This definition is highly problematic in light of the fact that there is

no demarcation as to either monetary or cultural valuation of the treasure in question.

Moreover Section 4 of the ITTA requires reporting in writing of the discovery of

treasures which have a value of more than 10 rupees. In view of the current day valuation

of antiquities which ranges anywhere from few thousand to even few crore rupees, the

provision provides a serious underestimation of the value of such cultural entities.

Moreover the provisions of the ITTA in fact, discourage finders from reporting

any chance discoveries to the authorities due to the unnecessary hassle that one has to go

through just because an item he/she picked up from the ground costs over 10 rupees in the

market. Seeing the change in economic conditions in the country, this ‘above 10 rupees’

clause renders the ITTA almost obsolete in its scope. Based on the current demand for

showcasing antiques in Indian homes, even imitation pieces retail at a rate higher than the

designated Rs 10 threshold. In various cases, it may be observed that the value of the

discovered item(s) is lesser than the amount of expenditure required for fulfilling of all

the formalities which are required under this ITTA. This may lead to a situation where

even if one discovers something of high value from the soil, he/she will in absence of

knowledge regarding the value of the same omit reporting about his find in order to avoid

possible administrative hassle and economic loss. In such situations, an important artifact

which could have helped in furthering some important historical study may not come to

the attention of historians at all.

Once the discovered objects are presented before the official authority, the ITTA

empowers the designated official to acquire the objects on behalf of the government

through payment of money equivalent to the value to the object. Since the ITTA does not

have provisions providing specific instructions regarding the valuation of such objects

and there is no indication that the valuation to be derived by reading into another statute,

there lies an ambiguity with regard to the amount that should be paid to the finders. While

the finders may overstate the value on one hand, on the other hand the official may also

understate the value of the items either intentionally or as a result of limited knowledge

about the class of items he/she is dealing with. Although S.16 of the Act mentions that the

valuation should be based on the materials in the items plus an additional amount of one-

fifth of this value should be provided to the owner, it appears to be oversimplifying the

issue. It is a well known fact that the value of antique items is based on several

parameters of which the type of materials used is only one. The value of antiquities is

usually based on its historical significance, an aspect which has been completely omitted

by the legislation while laying down the formula for calculation of compensation.

Finally S.20 of ITTA speaks about the penalty to be imposed on a person who

fails to report the finding of an object hidden in the soil with a value exceeding Rs 10. In

absence of an alteration in the lower limit of the valuation which comes under the ambit

of this ITTA, this can easily become a tool for harassing persons who pick up random

objects from the soil either during a playful treasure hunt expedition or otherwise.

Moreover considering any objects hidden under the soil with some value to be a treasure

is an absurd proposition. As per the current market conditions and the various forms of

niche markets that exist all over the world, anything from a stick of wood to an old coin

can have some monetary value. However this existence of value does nothing to indicate

the cultural nature of an object. So also consider a case of some household object having

been hidden under the soil by a dog as a matter of habit, or by children in the nature of a

time capsule. Although they may be treasures in the narrower sense to those who hide

them, they are definitely not treasures in the larger national context. So we find that this

definition of treasure which is laid down in the interpretation clause unnecessarily

expands the scope of the ITTA to ordinary trinkets of little value also. Not only does this

lead to a logistic problem, but it also appears to defeat the ultimate purpose of the ITTA

itself.11

The Antiquities and Art Treasures Act, 1972 is the more widely used statute in the

context of unauthorised transactions of cultural objects. It provides detailed regulations

11 Editorial Opinion, 'Protecting Antiquities' The Hindu, January 29 (2010).

regarding the nature of antiquities and various formalities that have to be observed for

trade of such items in an attempt to ensure that cultural property does not exit the nation

without the knowledge and permit of the government. The Act requires private owners of

antiquities12 to register the antique items in their possession with the government. This

allows the government to enumerate the number of antiquities which lie in private

collections and acquire them at a later stage if the need may so arise. Such tabulation of

data may also aid the government in tracking the whereabouts of cultural objects when

they go missing or are required for the purpose of historical research.

This Act also requires antique dealers to acquire licenses before entering into

transactions involving cultural objects. This helps the government regulate the trade in

antiquities and reduce cases of illegal trade in such items. Moreover the Act allows the

government to acquire antiquities and art treasures from private persons for the purpose

of preservation by payment of adequate compensation in appropriate cases. The

Archaeological Survey of India is designated as the nodal body for determination of

whether an article is an antiquity or an art treasure. This ensures that the possibility of

error is minimised and a panel of experts can make such determination after due

investigation.13 While the Act is quite well drafted, an analysis of real life cases indicates

that certain lapses at the implementation stage still need to be ironed out.14 The UNESCO

1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export

and Ownership of Cultural Property has been ratified by India and can be looked upon as

an important set of guidelines regarding the prevention of illicit trade in cultural objects.

It defines cultural objects in Article 1 as, “the term ‘cultural property’ means property

which, on religious or secular grounds, is specifically designated by each State as

being of importance for archaeology, prehistory, history, literature, art or science 12 Section 2(I) I (a) of AATA, “antiquity” includes “(i) any coin, sculpture, painting epigraph or

other work of art or craftsmanship; (ii) any article, object or thing detached from a building or cave;

(iii) any article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals

or politics in bygone ages; (iv) any article, object or thing of historical interest; (v) any article, object

or thing declared by the Central Government, by notification in the Official Gazette, to be an antiquity

for the purposes of this Act, which has been in existence for not less than one hundred years; and any

manuscript, record or other document which is of scientific, historical, literary or aesthetic value and

which has been in existence for not less than seventy-five years.” 13 A. Srivatsan, 'Apathy Towards Antiquities' The Hindu, April 27(2016). 14 Rishabh Shroff and Tanmay Patnaik, 'Windows To The Past' The Indian Express, June 30 (2015).

and which belongs to the categories identified in the same Article.” Among the

categories of cultural property, as enumerated in Article 1 of the Convention, three

categories pose special challenges in terms of their specific designation, as follows:

The UNIDROIT 1995 Convention on Stolen or Illegally Exported Cultural

Objects is also important in the international arena and lays down the need for buyers

of cultural objects to show that they did their due diligence while purchasing the items

and cross referred the same with available databases of stolen artifacts. India is yet to

become a party to the UNIDROIT Convention, however important lessons can be

learnt from both the main convention as well as the UNIDROIT Model Provisions on

State’s Ownership of Undiscovered Cultural Objects which provides insightful

suggestions about how matters regarding ownership of previously undiscovered

cultural entities are to be determined once they are discovered.

Objects of ethnological interest and items of indigenous communities:

State Parties are invited to draw and appropriately update lists by type of such significant objects in

order to support the fight against their illicit traffic

return of objects from indigenous communities whose absence has deprived them of significant cultural items necessary for the continuance of

their culture, education of their children and respect for their traditions.

Elements of artistic or historical monuments or archaeological sites which have been dismembered:

The specific designation of objects severed or torn from artistic or historical monuments

States Parties are invited to define these types of objects that are susceptible to pillage

Products of archaeological and paleontological clandestine excavations:

States are unable to produce any specific inventories.

one useful approach is to make a clear assertion of State ownership of undiscovered objects

This Act does not apply to the arts and artifacts kept in museum, offices,

cultural and educational institutions 15 ownership remains with the State. Global

Financial Integrity (GFI) Report16 says that Illegal trade of artifacts and antiquities is

one of the world’s most Profitable Criminal Enterprises ($6 Billion dollar). GFI is a

Washington based non-profit, research, advisory, and advocacy organization, which

produces analyses of illicit financial flows. It was founded by Raymond baker.

UNESCO recently confirmed that ISIS is trafficking in art and antiquities to finance

its operations, and earning approximately $1 million of revenue a day.

5. CASES ON CULTURAL OBJECT THEFT

With a thriving worldwide black market for stolen artwork and historical

artifacts, it is now common to come across cases of cultural property theft being

reported by the media. In recent years concerted efforts made by countries with regard

to repatriation of cultural objects once stolen from them have also caught attention of

reporters.17

15 Section 18 of AATA, “Nothing in section 14 or section 16 or section 17 shall apply to any antiquity

kept— (i) in a museum; or (ii) in an office; or (iii) in an archive; or (iv) in an educational or cultural

institution, owned, controlled or managed by the Government 1 [or by any local authority or by any

such body as the Central Government may, for reasons to be recorded in writing, approve for the

purpose of this section by general or special order].” 16 http://www.gfintegrity.org/ visited on 19th December 2016. 17 Chandannath Temple Guthi committee, priest suspended (South and East Asia; India) Buda, DB

(2016) Chandannath Temple Guthi committee, priest suspended. Republica. 3 December.Arrests

confirm more thefts in NGA collection (Oceania; Australia; South and East Asia; India) Boland,

Michaela (2016) Arrests confirm more thefts in NGA collection. The Australian. 2 December. 2

Nepalese henchmen of idol racket kingpin held (South and East Asia; India; Nepal) Service, Express

News (2016) 2 Nepalese henchmen of idol racket kingpin held. The New Indian Express. 30

November. 206 ancient silver coins seized from villagers in Vellore district (South and East

Asia; India) TNN (2016) 206 ancient silver coins seized from villagers in Vellore district. The Times

of India. 30 November. 4 idols stolen from TN temple seized, man, son arrested (South and East

Asia; India) TNN (2016) 4 idols stolen from TN temple seized, man, son arrested. The Times of India.

30 November. Crowns, necklaces of Rampur Nawabs up for auction; family says no clue how it

reached London (South and East Asia; India) Fareed, Faisal (2016) Crowns, necklaces of Rampur

Nawabs up for auction; family says no clue how it reached London. Two Circles. 30 November. Harn

Museum turns over sculpture bought from alleged smuggler (South and East

Asia; India; Americas; United States of America) Fry, Paige (2016) Harn Museum turns over sculpture

bought from alleged smuggler. Alligator. 30 November. ICE HSI, Tamil Nadu Police arrest major

India-based artifact smugglers (South and East Asia; India; Nepal; Americas; United States of

America) ICE (2016) ICE HSI, Tamil Nadu Police arrest major India-based artifact smugglers. ICE. 30

Important case of cultural object theft in the Indian context is with the theft of

the Nobel Prize that had been conferred on Rabindranath Tagore. The medal and

citation that the Nobel laureate had received in the year 1913 went missing in March

2004 from the safety vault of the museum which forms a part of the Vishwa Bharati

University in Shantiniketan. This served as a big blow to the country’s cultural

heritage with an eminent symbol of literary prowess being removed from its place.18

The case was taken over by the Central Bureau of Investigation (CBI) but

subsequently closed in the year 2007 due to the lack of leads. The case was reopened

in 2008 but closed once again in 2009. Despite the continuance of prolonged

investigations, the Nobel Prize is yet to be recovered. In November 2016, arrests were

made by a Special Investigation Team in connection with the Nobel Prize theft. It thus

appears that hope regarding the recovery of the Nobel Prize may not have been

entirely lost yet.19

In recent years, the looting of historical sites alongside the massive destruction

of ancient relics in Syria and Iraq by affiliates of the terrorist organisation ISIS has

been a cause of serious concern in the international community. Several of the stolen

items have been found to be surfacing in the international black market.20 As per

investigations that been conducted by different global organisations and governments,

these stolen items of cultural value are being sold at high prices and the amount

recovered from such transactions is being utilised for the purpose of funding terrorism

in different parts of the world.21 On 11th March 2016, Immigration and Customs

Enforcement 22 seized two other sculptures from India: one of the highlights, a

sandstone panel of Revanta and his entourage; and one of the less advertised pieces, a

November. Khalanga shut for third day over temple robbery (South and East Asia; India) The

Kathmandu Post (2016) Khalanga shut for third day over temple robbery. The Kathmandu Post. 30

November. Nalanda cops recover 3 stolen idols, arrest 1 (South and East Asia; India) TNN (2016)

Nalanda cops recover 3 stolen idols, arrest 1. The Times of India. 30 November. 18 Outlook, 'Tagore's Nobel Prize Medal Stolen From Shantiniketan', March 25 (2004). 19 The Times of India, 'Tagore's Nobel Medal Theft: Baul Singer Arrested', November 25 (2016). 20 Alison Smale, 'Stemming A Tide Of Cultural Theft' The New York Times, December 17 (2014). 21 Deborah Lehr and Tess Davis, 'Looted Art Helps Fund Jihadists In Europe' The Wall Street Journal,

August 25 (2016). 22 http://www.thehindu.com/news/international/stolen-indian-antiques-seized-in-us/article8346640.ece

visited on 19 June 2016.

sandstone stele of the first Jain Tirthankara, Rishabhanatha. This is particularly

alarming due to the emerging nexus between cultural object theft, destruction of

cultural heritage and terrorism in these nations.

The statue of Rishbhanata appears to have been sold to London-based Brandon Lynch

Ltd between 2006 – 2007.23

In 2011, Subhash Kapoor, an infamous smuggler of ancient Indian artifacts

was caught in Europe and extradited to India. Several of the antiquities stolen by him

were recovered from USA, Singapore and Australia. The number of confiscated items

total up to over 1000 if reports are to be believed.24 Different sources have also

indicated on multiple occasions about the possibility of collusion between luxury

auction houses and smugglers of antiquities, allowing for such transactions to take

place with increased frequency. While some blame the lackadaisical attitude of the

government, demanding better protection of historical sites, others see the need to

tighten surveillance over cross border trade.

23 Ibid. 24 Arun Janardhanan, 'The Rogue’S Gallery: Subhash Kapoor And India’S Stolen Artefacts' The Indian

Express, July 17(2016).

The year 2016 has been promising with respect to the return of cultural objects

back into Indian territory. In June 2016, the US government announced its decision to

return about 200 artifacts of Indian origin which were in their possession back to the

Government of India. 25 It is possible that better training to the CBI Economic

Offences Wing which deals with such crimes against India’s cultural heritage can

help in speedy recovery of stolen cultural items. Moreover India should consider

starting targeted projects like Operation Hidden Idol which took place in USA, for the

purpose of identification, retrieval and repatriation of both Indian cultural objects

smuggled abroad and cultural objects from foreign communities which have made

their way into the country.26 Noting that cultural object theft is an issue which plagues

not only India but also the rest of the world in some form or the other, collaborative

efforts at a global scale to prevent and punish such offences strictly could perhaps

yield good results.

Return of Varaha, Source 27 : (A ninth century idol with the carvings of the ten

incarnations of Lord Vishnu was stolen from the Varaha temple in Mandsour,

Madhya Pradesh. The idol had been stolen in 2000, and although investigations led to

the discovery of the owner of a gallery in possession of the stolen deity, nobody could

25 Divya A, 'Lost And Often Not Found: Issues In India’S Stumbling Treasure Hunt' The Indian

Express, June 8 (2016). 26 Atir Khan, 'Seeds Of Operation Hidden Idol Were Sown 10 Years Ago' (India Today, 2016)

<http://indiatoday.intoday.in/story/seeds-of-operation-hidden-idol-were-sown-10-years-

ago/1/688811.html> accessed 22 December 2016. 27 http://swarajyamag.com/culture/operation-hidden-idol-the-struggle-to-bring-back-indian-antiquities

be arrested because of the absence of appropriate evidence. The good news which

eclipsed the indifference of Indian authorities was that the idol returned to its home,

the Mandsour temple.)

6. SUMMARY

To summarise the international legal regimes and Indian legal regimes:

Protection Under Hague Convention It Provides for protection of Cultural Property in the event of Armed

Conflicts. Rules to protect cultural goods during armed conflicts such as

monuments, art, archeological sites, scientific collections, manuscripts, books and other objects of artistic, historical or archaeological interest to ensure the cultural legacy doesn’t get affected during war.

The Hague Convention was adopted in the wake of the severe cultural destruction that occurred during the Second World War.

Convention defines a Protective Sign (Blue Sheild) to facilitate the Identification of protected cultural property during an armed conflict.

2. Protection under Geneva Convention on War Establishes the standards of international law for the humanitarian treatment

of war. Under Article 53 of Protection of Cultural Objects and Places of Worship in the

event of Armed Conflict- it provides for protection of UNESCO world Heritage sites.

3. Under UNESCO Convention (1970) on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural

Property Circulation of artifacts are prohibited under this UNESCO treaty. India is signatory and Party to this Treaty.

Indian Legal Regime to deal with Cultural Object Theft

1. Antiquities And Art Treasures Act 1972

2. Indian Treasure Trove Act 1949

3. National Mission On Monuments And Antiquities– it creates a National

Register On Artifacts that are unprotected

4. National Manuscript Mission for Documenting Heritage

5. Bilateral agreements to recover smuggled artifacts

“Indian Treasure Trove Act (1949)

o This act is too obsolete, was last amended in 1949

o Because any object worth more than (mere) 10 Rs found hidden in

soil is regarded as “Treasure”!

o Barriers to Good Samaritans: Person who dutifully reports the find is

often made to go through Cumbersome procedure

Antiquities And Art Treasures Act

o Under this act- antiquities in private possession must be registered

and person trading in them must get a license.

o But improper enforcement of law, and lack of punitive action on

traders without licences has made a mockery of this law

Archaeological Survey of India (ASI) has been criticized by a 2013 CAG

report for failing to even recognize few artifacts set to return for repatriation

by USA and Australian authorities

o That ASI has no policy for management of antiquities. Storage

conditions of these antiquities in monuments like Safdarjung’s Tomb

and Purana Qila are pathetic and also the ASI Officers are also not

able to take correct decision.

Our laws inhibit Community Participation

o Local community is usually the first respondant to path-breaking

discoveries

o Many a cases such as recent Rakhigarhi Excavation of Harrapan

site (which went on to become largest IVC site) was first reported on

Farming land by local workers and farmers

o In absence of incentives to identify and report such Treasure Troves

to authorities, they suffer irreparable damage as people treat them as

derelicts.”

India should follow the following methods to recover and combat the theft of Cultural

Objects:

(i) “Community Participation- Best practices in England and Wales have shown

remarkable success in reducing theft of artefacts. Portable Antiquities Scheme:

Encourages local communities to voluntarily report and registr discovery of artefacts

with help of experts. Resulting database is placed in the public domain. India can

learn from such laws and adapt features to suit Indian Conditions.

(ii) Enhanced And Dedicated Policing- Dedicated Art Police in Italy (country with

highest UNESCO Natural and Cultural Heritage sites). In 2009 itself, they recovered

60,000 pieces of looted antiquities and helped reduce art theft by 15%.

(iii) India should learn from USA’s Operation Hidden Idol- India should work on

a mission mode to recover theft of its own artifacts by launching a policy for

management of Antiquities and make ASI accountable for it. It includes checking

catalogues at international auction houses, 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

scholars in the field.”