We saw how the statute of limitations was problematic in idol theft cases in the previous column. Let us look at what else courts currently focus on before deciding the time bar: a) Is the current owner truly a good faith purchaser and has he done proper due diligence?; b) Have the original owners been diligent in reporting thefts; and c) Have the original owners followed up in the search for their lost works?
We have covered the good faith purchaser and due diligence myths in the previous columns and so we can look here into the options open to the owners of the lost property, b) and c). We will also be referring frequently to the 1970 UNESCO Convention on theft of cultural property to show how despite being a signatory to the same, India’s lack of implementation of it has hamstrung its claims in seeking the return of stolen works of Art.
Article 5 of the UN Statute clearly says: To ensure protection of their cultural property against illicit import, export and transfer of ownership, the States Parties to this Convention undertake to set up within their territories one or more national services ... for the protection of the cultural heritage … for carrying out of the following functions: a) Draft laws and regulations designed to secure the protection; b) Establishing and keeping up to date a national inventory of protected property; ... g) Seeing that appropriate publicity is given to the disappearance of any items of cultural property.
Reporting thefts: This is the single biggest problem where the stakeholders, for various reasons including politician-criminal-custodian nexus, are scared to report crimes. And even when in cases where crimes have been reported, the police have been quick to close FIRs as untraceable (sometimes within 24 months) to apparently reduce the risk of adverse performance appraisals. In some other cases where the arrests of robbers did not lead to actual seizure of the stolen idols, the FIRs have been quashed. So the cases are no longer open though the idols have not been found. This hampers recovery as the data about stolen idols becomes unavailable.
This lackadaisical attitude stems from lack of incentives to pursue cases of heritage crimes. To understand how this endemic rot has eaten at the core of our law enforcement, one has to see how much of the reporting pipeline of our agencies has been amputated. Take a look at the paper presented in March 1976 by India and Italy jointly to the United Nations Social Defence Research Institute (UNSDRI) titled ‘The Protection of the Artistic and Archeological Heritage’. One can see from the table in the report that law enforcement authorities had access to state-wise data of heritage crimes. This has been discontinued.
India has to come up with two immediate steps: 1) The PMO should take the personal lead in instructing police stations to disclose all reported thefts going back to the source of the UNSDRI report and update the findings. We have demonstrated a tremendous amount of success in reopening such closed cases by collecting evidence on our own. If the government instructs all police stations to reopen cases of stolen artefacts and upload the details, it would help us bring more idols back.
2) Creating a national portal for secure reporting of heritage crimes wherein such information can be reported with anonymity as required (to help whistleblowers). In time, this could become a citizen-sourced national stolen art works database in line with the UN Statute.
However, this stolen art works database model should not become a provenance verification service and access to it must be strictly policed. There are some who argue about using existing databases such as the Interpol’s one on stolen works of art, in which as per a 2016 study, of the 47,000 objects listed as stolen, just 3% were from Asia Pacific! And this has been cited as being the second-most checked database for Indian works of art by museums including the National Gallery of Australia (NGA)!
The problem with such global access databases for India is the minimal number of objects that are currently listed as missing, defeating the purpose of such a service. There is also a problem over transparency and lack of understanding of art market intermediaries. In comparison, private art loss databases are run for profit and require money to sustain their operations. In our case, this requires impoverished and ruined temples in India to pay annual subscriptions. Such a service might work for paintings (in particular Holocaust Nazi looted art) where the heirs have the wherewithal to explore old archives and register with such loss registers, not for stolen idols from here.
It is also pertinent to mention that the most popular UK-based provenance verification agency provided provenance certificates for almost all the Subhash Kapoor sales to various museums—including the Sripuranthan Nataraja since restituted by the NGA (it had bought it for $5 million!). Considering the number of artefacts that have since been restituted to India, law enforcement here should consider seeking the full disclosure of all such verification certifications issued by this private company not just for Kapoor sales but for all Indian art that it validated, and make it compulsory for any global art auction sales of Indian artefacts to run a check through it along with the detailed provenance information.
Further there are larger concerns. Imagine a shady art market smuggler has on his payroll a scholar with access to private provenance verification services: he gets information that the artefact that he intends to buy (or already has in his stash) is on the database. If he has already openly exhibited it or shown it to clients, then he is at risk and might well do the innocent good faith purchaser act and try to keep his name clean with a restitution photo-op. If the artefact is still en route or in storage in the numerous free ports and art storages in favourable regimes around the world, he will likely take a business call to destroy the artefact rather than expose himself and his shady nexus.
How can this be avoided? Users must not be allowed access to view the database. Instead the database admin must seek the submission of every object, including all available provenance and current ownership and proof of legitimate export details, and then engage an in-house provenance verification expert to check against the database. Further quite often, the theft details may come to light in a subsequent period and hence any submission to the database will allow law enforcement authorities to use the submitted information for future prosecution if new information comes up.
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)
(vj.episteme@gmail.com)