What can Indian customs do to tackle idol thefts?
A pair of beautiful granite dvarapalas (door guardians), each nearly five feet tall and weighing a ton—massive Vijayanagara dynasty edifices who had guarded the sanctum since the 15th century. The Pazhuvur Nataraja of similar vintage but cast in bronze. All three were targeted by thieves and exported out of our ports in 2005.
The right-side dvarapala had a broken hand while the Nataraja had his whole lower left hand sawn away, for the robbers had assumed He was made of gold and tested it by cutting and then melting His hand only to realise that this was just bronze. Even worse, the Nataraja made a trip around the world to Hong Kong and London, where a now-charged restorer made a new hand for him, before sending him to New York to appear on Subhash Kapoor’s auction catalogue.
The bronze then shockingly made an illicit return to Chennai, to be surrendered quietly to the Tamil Nadu police’s Idol Wing in August 2011. How could these and hundreds of other stolen idols be exported despite such obvious red flags? The World Customs Cooperation Council adopted an important resolution in Brussels in July 2016 on the “role of customs in preventing illicit trafficking of cultural objects”.
It said: “International borders still offer the best opportunity to intercept stolen cultural artefacts and to that end, customs authorities can play an instrumental role in preventing illicit trafficking of cultural objects.” It would come as a surprise to many, but compared to the limited role of the Archaeological Survey of India (ASI) as a custodian, the scope of Indian customs is more significant in the context of combating illicit trafficking of cultural property, not just as a border check but one that goes much further.
The Customs Act of 1962 is used for the bulk of prosecution in antiquities trafficking cases as the Antiquities and Art Treasures Act of 1972 (AAT) lacks a specific provision for prosecution. We will take up the need for reform in legislations later, but here, the focus is on the need for reform in the current procedural aspects covering the export process, search and seizure—and on why India has such a poor record of success in discovery and seizure, and fares even worse in successful prosecution of cultural property crimes.
The start point is obvious—the exit channels from where antiquities are trafficked out of India—gateway ports (both sea and air) and porous borders. The main vectors acting as carriers are ocean and air transport companies, in the initial post-Independence decades via diplomatic pouches and now couriers, accompanied and unaccompanied baggage. The customs export procedure consists of two important steps—assessment and examination. In the last two decades, tremendous progress has been made in the first via Electronic Data Interchange (EDI). This has almost replaced manual document filing and assessment in most gateways. But its true power is yet to be properly harnessed in the antique smuggling domain.
Moving to the second step, it would be impossible to do a 100% physical examination of all export consignments. The logical procedure would be random but assisted sampling—however currently, there is no data available in public domain on how consignments are picked for checking. Today, pattern analysis tech can be used to set up obvious red flags—a treasure trove of shipment data connected to past and current smugglers under probe including exports by Nimbus (Subhash Kapoor case) and Vaman Ghiya, wherein a host of Indian exporters fooled the system and shipped out genuine antiquities declaring them audaciously as garden furniture, brassware, etc.
The Customs Act has stringent penalties against exporters for wrong declarations in shipping bills. But authorised custom house agents file the shipping bills; if in doubt, customs officers are expected to mark any suspected parcels to the ASI for a no-objection certificate. Currently, the ASI has deputed officers for this only in Mumbai and Delhi (airport). There are further hindrances as even the deputed ASI officers are empowered only to declare an object as “suspected to be an antiquity” or non-antiquity on the spot. The Kapoor case has thrown up instances of “favourable officers” and due to the opaque nature of inspections, there is no proper record.
Even if suspected to be an antiquity, the process gets longer invoking the AAT’s Section 24 that says the ASI’s director general is the final authority. But since the DG ASI’s nomination criteria are muddled and he doesn’t necessarily have to come from the field of archaeology, he in turn is to appoint an authorised nominee with the help of three or four field experts. Sadly, the choice of panellists, number of such sittings, minutes of these evaluations and even the number of objects declared as antiquities or otherwise are not published.
The problem is amplified by the method of issuance of a non-antiquity certificate (NAC) for export. This is done by the ASI via its circle offices. The process for obtaining an NAC hasn’t changed for over five decades—the prospective exporter submits the object for assessment to the ASI. After ascertaining it is a non-antiquity (less than 100 years old as per the AAT), the NAC is issued as a paper certificate: A photo of the object is stamped and it is valid for six months for export. With the experience gained from a multitude of cases where smuggler dens were raided yielding hundreds of fakes, it’s a no-brainer that the system has been gamed.
Fakes are submitted for certification while the originals are switched at the time of export with custom officers having to rely on just a photo for comparison. The process is complicated by expert fakers and restorers working hand in hand with the smugglers in creating fakes that are artificially aged and originals painted over to give a recent look. Customs is seriously hampered due to the lack of support with respect to expert opinions and dearth of scientific testing methods that stand the scrutiny of courts and high-profile lawyers employed by the collecting cabal.
A list of suggestions to remedy these flawed processes:
1) Export ban on any artefact that shows damage/mutilation. Countries like Thailand have already banned the export of Buddha heads even if newly made (‘Buddha is not for decoration’ campaign).
2) Complete ban on artificially aged, patinated metal objects.
3) Do away with the six-month time limit of the ASI’s NAC and ensure complete visibility of chain of custody from the time of inspection to export.
4) Create a national panel of experts (an alternating roster); the opinion must be due to a majority vote and the same must be published periodically on the ASI website as an annual report with statistics of the number of objects inspected, stopped and seized at the customs exit point.
5) A toolkit for customs and law enforcement, maybe modelled on the UNESCO-EU’s one on illicit trafficking for European judiciary and law enforcement, with model lookout lists and sample photos of frequently trafficked objects by state.
6) Work on studying past prosecutions to prepare red flags inside the customs EDI framework. As we are not harvesting the virtual treasure trove of customs data spanning two decades, key perpetrators of crimes are still free and actively smuggling our art treasures.
7) Work with reputed universities to create centres of excellence for research, scientific testing and dating methods to support prosecution.
8) Cancel or at least temporarily ban the export and antique dealership licenses of anyone charged with violation of the Customs Act or AAT.
S Vijay Kumar
Co-Founder, India Pride Project and Author of The Idol Thief
(The India Pride Project’s #BringOurGodsHome initiative has helped bring many stolen idols back to our country)(email@example.com)