Subhash Kapoor was arrested in October 2011 in Germany over idol smuggling charges and he is still an undertrial in India in June 2021. This is despite a mountain of evidence unearthed and revealed by US Homeland Security seizures and criminal prosecutions under Operation Hidden Idol in New York by the Manhattan district attorney’s office. The operation had also revealed a complex web of middlemen, including receivers in Hong Kong, collaborators and suppliers across India, and restorers in London and America; it also yielded over 2,622 artefacts and a further 38 from various other returns.
During Prime Minister Narendra Modi’s official visit to the US in June 2016, America said it would return a historic 200 sculptures (independent India had restituted only 19 artefacts till 2012). But after five years, only 17 have come home. The rest are stuck in red tape as a senior team from the ASI comprising two experts on an inspection to New York in early 2019 could certify only ‘close to a 100’ and even those have not been restituted. Meanwhile, countries like Afghanistan, Pakistan, Nepal and Sri Lanka have already accepted close to 50 artefacts linked to Kapoor, with the Afghans topping with 33 restitutions—a big thank you to the Manhattan DA’s office for these.
Even a casual glance shows the pan-India nature of this looting empire but why is that the only state that is prosecuting Kapoor is Tamil Nadu—that too with only seven cases? Some of these are clearly open-and-shut cases, which makes it more baffling as to why states are reluctant to charge an art dealer already arrested over running an international smuggling racket and worse, even come forward to claim their artefacts.
Take Madhya Pradesh for instance. The Goddess Mahakoka of Barhut was worshipped as a family deity. The owners in the 1970s registered it with the ASI. On the night of 18 July 2004, robbers broke in and stole her and an FIR was registered the next day. She was broken into three parts to aid smuggling and eventually put together by the now-charged restorer Richard Salmon in Brooklyn on 2 May 2006. Kapoor was listing her for sale for $15 million or about Rs 100 crore! She was seized in 2012 and has since remained in the US. No attempt has been made by the MP police to link the FIR to Kapoor yet.Or Andhra Pradesh. In October 2000, robbers hit the 2,000-year-old Buddhist site of Chandavaram, an ASI site museum at that! Shockingly this organised gang robbed the museum not once but thrice, on 23 February 2001 and again on 23 March 2001 after the October 2000 heist. They apparently came in tractors, tied up security guards, policemen and looted the site in broad daylight. Till date there is no clarity on what all were stolen but what is shocking is until a German scholar pointed out that a Kapoor-linked object from Chandavaram was with the National Gallery of Australia (marked as stolen by investigative journalist Jason Felch in 2012) in 2017, this was not picked up by the ASI. More shockingly, it was only after the physical restitution that the ASI museum accepted that it was stolen from there. There was no initiative apart from filing the mandatory FIR. On 15 August 2019, an anonymous British collector voluntarily surrendered a limestone pilaster from the same site to the Indian High Commission in London; another matched from the same theft has been sold by Wiener Galleries via a Christie’s auction in March 2012 and it remains untraced after that. Similar objects sold via Kapoor’s Art of the Past are still on display in the Louvre Abu Dhabi and Asian Civilisations Museum, Singapore. Despite the physical return of the Chandavaram Worshippers of the Buddha frieze in January 2017 that had a sales invoice of $595,000 and fake provenances created by Kapoor, the Andhra police do not even deem it fit to charge him over the case.
We could give such examples for many more states.
What could explain the lack of intent from the custodians? We analysed 10 cases in Indian courts where law enforcement failed to prosecute heritage crimes, in an attempt to assess the main reasons and see if any lessons can be learnt from the experiences. They range from procedural lapses, sheer incompetence, red tape, loopholes in the law and institutional decay.
In this article, we look at a classic case from Tamil Nadu—heard in front of the Madurai Bench of the Madras HC in June 2014—of a theft that happened on 17 December 1990 at the Viswanathaswamy temple in Anaikudi, Kumbakonam wherein many idols were stolen. A series of arrests made in 1991 of the eight members of the gang revealed the gruesome nature of this theft: The Murugan idol was found in two pieces, head portion and body; Valli was broken into three parts, and buried in the bank of a dry rivulet; the Deivayanai idol was recovered buried under a tamarind tree; Chandrasekara Siva found in five parts; Sivakami in three parts buried underground; another Amman idol hidden inside a granary in a house; Sokkar and Sivakami found hidden in a river bed.
It is pertinent to note that in this case, the theft is connected to the mistaken belief that there is high gold content in panchaloha idols. The robbers wilfully cut the bronzes and used acids to test for gold; scientific tests have shown that the actual precious metal content is a miniscule percentage.
What is actually shocking is not any of the above but the fact that despite all this, the accused were acquitted in 2002. Despite the mountain of evidence, why were they acquitted by the trial court?
1. The stray statement that there was no property register in the temple by P.W.3 (prosecution
witness) had been one of the grounds for the trial court to acquit the accused. The register was subsequently traced in 2014 but why it was not found earlier was never probed.
2. The police failed to secure the broken locks of the temple on the day of the theft and the fingerprint expert could not match any prints.
3. Tamil Nadu amended Section 380 of the IPC in 1993, which deals with theft in houses and robbery, and reduced the sentence for temple robbery by half. This amendment still stays, which means that if someone steals from a house or temple in the rest of India, he will get seven years in jail, but for stealing from a place of worship in Tamil Nadu, he gets a maximum of three years and a fine of `2,000. Further, since the theft occurred in 1990, the court held that the police used the wrong section to book the thieves and they were acquitted.
4. The case of theft was for only seven missing idols but the seizures were of nine idols.
5. The photographs submitted to the Hindu Religious and Charitable Endowments Department were not signed by any HR&CE official and just wrapped in a cover with the temple name written on it and the names of each idol underneath the pictures.
It took over a decade for the injustice to be reversed when the case came to a more focused court in 2014. But after all this trouble, what did the idol thieves get in the 2014 trial? Of the eight accused, four of them received three years rigorous imprisonment and the rest two years.
The inferences are pretty clear in this case: temples need to maintain a property register; HR&CE has to maintain an image archive that can stand scrutiny in court; the 1993 TN special amendment to the IPC has to be removed; officers should be trained to secure theft premises; and the judiciary should be more stringent in punishing heritage crimes and criminals.
Finally, for the HR&CE, just having an archive is not a solution. Rather periodic audits and inventory checks of the same need to be undertaken. But this is easier said than done as we will see from other cases in subsequent columns.
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)