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Limits to official legalism

Report given to the Taskforce of Creative Industries as a position paper to the Planning

Commission of India as well as the Ministry of Culture on the required changes in the

Antiquities and Art Treasures Act 0f 1972 and the Treasure Trove Act of 1878.

NAMAN P. AHUJA

Associate Professor, JNU

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 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.

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

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(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 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.

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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 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 involve 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

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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 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 that 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. 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

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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.

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

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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 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

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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.

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 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

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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

Considering 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.

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.

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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 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 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

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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 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

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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 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

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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 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 Uneso 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

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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 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

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

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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 increas 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 article.

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.

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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 subsequent ignominious treatment by the government.

8. For examples, a painting by Amrita Shergil fetched Rs 6.9 crores 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 Viswanathan (ed.), Forthcoming, Sage Publishers, New Delhi 2014. Originally delivered as a Plenary

Address on 5 April 2012, for the Association of Social Anthro-lopologists 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