Let us look at an important case that shows how weak our existing law on antiquities theft is. The case also shows how the highest officials of the Archaeological Survey of India didn’t do their duty properly and thus failed to prosecute heritage criminals—who then use it to build a virtual cheat sheet based on the precedent.
The case is State vs. Bhuwan Chand Josh, etc. On 9 May 2010, the Delhi Police received information about a murthi being moved in a Maruti car (colour and number included). They pursued the lead, put up barricades and stopped the said car. When the person in the back seat started running, they apprehended him as well as the man who was driving the vehicle. Bhuwan, who was in the back seat, had a bag that the police found had “one idol of Lord Vishnu and Lord Shiva having four hands”. The idols were seized and an FIR was registered.
The police then requested the ASI for a report about the idols. According to the judgment, Dr Urmila Sant, Director, Antiquity, ASI, “examined the object with the help of a committee of experts at her office and prepared a detailed report regarding the said object”. The judgment adds that Mohammad K K, Retired Director (North Zone), ASI, “deposed that ... he examined the antiquity and told him (the police inspector) that he can only give his opinion as to whether the same is an antiquity or not and the final declaration will be made by a panel of experts appointed by the Director General of ASI. He further deposed that on examination, the antiquity in question, which is an idol of either lord Shiva or lord Vishnu was having a Kirita Mukuta and in one hand a bowl ... and also having a Trishul, appeared to him as six hundred years old ... . The said witness has also opined about the value of the said antiquity as Rs 5 crore.”
But both the accused were acquitted and cleared of all the charges! So why did this seemingly open-and-shut case fail?
1) The only penalising part under the Antiquities and Art Treasures Act, 1972 (AAT) is Section 25 and the accused were booked under its Subsections 1 and 3 i.e., attempt to export and preventing a licencing officer from inspecting an antiquity.
In this case, no export documents were found and the seizure was by the police and not the ASI officer. The only other section available was Subsection 2 of Section 25, which is about attempting to sell an antiquity without licence or being in possession of an antiquity without registration.
2) Further the points raised by the court on how the idols were determined to be antiquities, who has the authority to do so and how the loopholes in the AAT allowed the case to fail are important. Section 24 of the AAT vests the powers of determining whether an idol is an antiquity with the director general of the ASI, or an officer not below the rank of director but authorised by the DG. However, the DG of the ASI currently doesn’t need to have an archaeological background. Hence he/she ends up delegating the powers to the DG Antiquity, who in turn delegates it to a committee.
a) This case highlights the pitfalls of this in the DG’s own words: “It is true that I only signed the detailed report ... after obtaining the verbal consent of all the committee members. I do not know what is the difference between asth dhatu and bronze. The committee has not done scientific analysis/forensic examination of the case property. On the basis of observation of the art pieces, the experts draw a conclusion on whether any particular art piece is an antique or not.”
b) Further the other expert witness, Mohammad K K, “has not been even able to state whether it is a statue of Lord Shiva or Lord Vishnu”, the judgment said. The witness had said: “I examined the antiquity in question that is an idol of either Lord Shiva or Lord Vishnu. It appeared to me as 600 years old, hence I opined that it is an antiquity. ... It is true that my opinion is not on the basis of scientific method. It is on the basis of stylistic method.”
3) The judgment also cites a rather strange argument: “The specific words of provisions (of the AAT) inter alia are ‘The Central government may from time to time by notification in the Official Gazette specify those antiquities which shall be registered under this Act.’ The words used are ‘may from time to time’ meaning thereby that there should be a specific notification prior in time regarding the article sought to be described as an antiquity. Then under Section 14 (3) of the Act, it is provided that ‘every person who owns, controls or is in possession of antiquity specified in the notification under sub section (1) shall register said antiquity within the time provided’. In the present case, as there is no notification in respect of the artifact, the accused were not liable to get it registered.”
4) It was also held in the said case that before a person could be expected to account for possession of an article, it must be established that there is a reason to believe that the same is stolen property.
Thus in the above case, despite a public seizure, an attempt to run away with a murthi on the scene, a three-member expert committee ruling on its antiquity and an expert calling it 600 years old, the two accused did not serve even the minimum six month sentence for non-registration of antiquities.
This makes for sad reading and reinforces what we have been saying for long: that the AAT is a toothless act. Here are some lessons from the above case. 1) India urgently needs to legislate a clearer and importantly tougher Act with stringent penalties to tackle rampant heritage crimes, not dilute the existing law by listening to the idol collecting lobby. 2) Law enforcement needs to be put through better capacity building and sensitisation exercises to combat heritage criminals. 3) The Centre needs to invest in building academic and research capability in institutions to bring in more accurate tests for dating antiquities and increase awareness about conservation. One hopes that the new Indian Institute of Heritage, which the government earlier this week announced it would set up in Noida, would be the first of many institutions to address this crying need. 4) The government and the ASI need to seriously consider forming expert panels with members who are not just experts, but also committed to the cause of heritage conservation and willing to sign disclosures over conflict of interest, etc.
(The India Pride Project’s #BringOurGodsHome initiative has helped bring many stolen idols back to our country)
S Vijay Kumar
Co-Founder, India Pride Project, and author of The Idol Thief