Illicit art market & piercing the statute of limitations veil
For too long, the art world has used loopholes in global regulations, helped by many nations that aid and promote the continued opaqueness of the art market via their outdated laws.
Published: 25th February 2021 07:14 AM | Last Updated: 25th February 2021 07:14 AM | A+A A-
For too long, the art world has used loopholes in global regulations, helped by many nations that aid and promote the continued opaqueness of the art market via their outdated laws.These draconian regulations were originally created to handle ownership disputes for immovable properties. They have since been usurped by the collectors cabal to cite precedence and used for cases involving movable (and hideable) art. The major argument that helps this lobby is the oft-repeated threat to the state of loss of business and the cascading loss of revenues to the exchequer. Since the main consumers are high-net-worth influential collectors—the cream of the wealthy elite they have been successful in blocking attempts to bring much-needed transparency in the art world.
These outdated and illogical regulations have led to long and often unsuccessful legal claims by rightful owners and have now become a major deterrent for law enforcement officials on the art crime beat. Considering the already scarce resource allocations, they are often reluctant to take up older cases of theft and robbery fearing the cost of litigation and lack of value for time spent battling these odds. Let us look at one such loophole that needs to be removed to enable greater transparency in the art world.
The Statute of Limitations: To put it simply, it is the maximum time after an event within which legal proceedings may be initiated. This is set by the state’s legislation and means that a claim might no longer be filed after the statute of limitation has expired or, if it is filed, it may be subject to dismissal if the defence against that claim is that it is time-barred. For example, in the UK, for simple claims in contract, the limit is six years and for claims brought with respect to deeds, it is 12 years.
Let us consider a few examples that clearly show the need to pierce the statute of limitations veil (yes, the reference here is to the parallel in corporate law wherein the ‘lifting of the corporate veil’ is warranted in exceptional cases). The first example is that of the looted Buddha in Bumisparshamudra from the Tapsi Math at Bilhari in Katni district of Madhya Pradesh, a site of national importance under the protection of the ASI. The 10th century CE stele was a documented antiquity. It was stolen on the night of 21 January 2007 along with two other sculptures. The theft was reported to the Kuthla police station under FIR no. 0/07 of the same date.
The details of this case were uploaded on plunderedpast.in by Dr Kirit Mankodi after securing the theft data on 3 February 2014. As part of our routine monitoring of India art sales, we added this to our watchlist. Normal internet searches and checks on online and physical catalogues did not turn up any matches. However, in February 2016, as luck would have it, while reviewing old YouTube videos, we chanced upon an interview of a British antiquities dealer with what appeared to be the Bilhari Buddha prominently displayed behind him. It was uploaded on 22 January 2010.
We informed the relevant authorities but the approach has been ‘soft’ at best due to the passage of timewith the dealer conveniently claiming to not remember the details! The case has been hanging since 2016; it doesn’t concern just this Buddha, but also hampers the probe into the other two artefacts stolen on the same night. The second is the case of the Thachur temple Murugan. A free-standing sculpture of an 8th century CE Pallava Skanda was stolen from the village of Thachur in Tamil Nadu in early 2002. Considering the ruined nature of the temple, the theft was not reported even when the site was documented by the French Institute of Pondicherry in 2008.
It came to light during our research in 2016; we managed to trace a small local publication, a booklet with an in situ photo of the Skanda prior to the theft. Now the same Skanda was advertised and offered for sale in NYC as a Pandya period Shiva by Art of the Past (Subhash Kapoor’s gallery again!). So any check prior to 2016 of a Pandya Shiva or even Muruga in any database would have come back negative. It was sheer luck that it was documented in a booklet. US authorities had already seized it in raids in storage locations in NYC after Kapoor’s arrest; without the above, the Skanda would have been housed in the Purana Qila Museum. Thankfully, he can be restored to his original abode. (Due to other reasons, the Skanda, seized in NYC in 2012, still awaits a return to India!)
The third case is that of a limestone relief with Dharmachakra (2nd century CE). It was sold by the auction house Christie’s on 20 March 2012 as part of the Doris Wiener collection. They were sold as from Amaravati; the provenance was listed as Doris Wiener Gallery, NYC, 1986! We now know that these were part of a series of thefts: in fact three separate thefts at the same ASI-protected site museum in Chandavaram, Andhra, on 9 October 2000, 2 February 2001 and 23 March 2001. These thefts happened after tying up the watchmen and sedating the local cops! Despite all the above, till 2017 when a German scholar studying the National Gallery of Australia’s Worshippers of Buddha frieze identified that it belonged to the Chandavaram site, no effort was made to trace them.
The NGA, which had bought it from Kapoor, eventually restituted the same. Another sale to the Louvre Abu Dhabi of a related artefact matched to a robber photo from the Kapoor dossier is currently under a long-drawn claim process. A third ASI documented artefact has been broken into two and only the top part has been tracked so far to a Christie’s sale on behalf of Wiener Galleries. India for some reason prefers to work these clear cases via soft diplomacy with national museums and refuses to launch legal challenges to auction houses unlike Italy and Cambodia, which go to great extents leaving no stone unturned to establish their claims even with prolonged litigation.
We are currently working on a double-digit number of such cases all over India, especially some very important Chola bronzes from Tamil Nadu. The auctions are already completed and information has since come up to prove the thefts. India has to first lodge proper claims to avoid the statute of limitations expiry. To give credit to courts, they have increasingly looked at the merits of individual cases before dismissing them citing the time bar. But this is happening in only a few countries and is more the exception than the rule.
In all these cases, the basic premise is the same—sacred objects looted due to the dollar-driven greed of Western collectors and museums that objectify them as showpiece curios and thus sustain the illicit trade in antiquities. The Western world has used different yardsticks for Holocaust restitution maybe since they can feel the ‘pain’ but there is no reason why our sacred objects should be seen differently.
S Vijay Kumar (email@example.com)
Co-Founder of India Pride Project, which has helped bring back many stolen idols