Limits to official legalism

NAMAN P. AHUJA

back to issue

THE media is filled with reports about the unprecedented rise of the Indian art market, yet it remains a little understood and exclusive market, operating on the one hand in overtly sophisticated open environs (as far as contemporary art goes) and on the other, shrouded in mystery with covert dealings, money laundering and the illicit trade in national heritage in the market for antiquities. While there are no available systematized figures for what this market nets every year (which is itself part of a wider problem detailed below), conservative estimates for the sale of just contemporary art in the Indian metropolises alone (not to speak of the phenomenal prices Indian art fetches in Europe and the United States) would be over Rs 500 crore annually.

The global value of the Indian art market was Rs 1500 crore in 2005 and according to some figures, the projected worth of the Indian art market in 2006 was Rs 2000 crore. Significantly for us, this does not even factor in the value of antiquities; nor does it account for the illegal trade. All that can be said is that the commodity market in the grey area usually reflects sales figures which are much higher than the legal market.1 Since the year 2000, Indian art has appreciated a staggering 10 per cent faster annually than the stock market. Yet significant aspects of this emerging market need careful examination lest it be reduced to a bubble which, on account of ineffective policy, will burst.

The reasons for the astronomical rise of contemporary art are apparent: the opening of the economy, the freedom given to both resident and non-resident Indians to compete in a global market and the ease with which paintings can be bought, sold, imported and exported.2 While the market for contemporary art has over the past ten years grown more transparent and legitimate, the trade in antiquities remains corrupt and operates largely on unaccounted cash transactions. While the contemporary art market has become one of the most important wealth generators for the nation, soliciting investment from all over the world, antiquities, which used to be what the world marvelled at, are becoming increasingly marginalized. There is much debate in different quarters of governments, museums, academia and amongst art dealers on rethinking the laws that govern the circulation of art. I shall, in this article, examine the laws that govern the collecting and sale of Indian antiquities only.

 

Some archaeologists regard a trade in antiquities as being wholly undesirable, since they believe that the vast majority of objects on the market have been illicitly excavated in recent times with a concomitant destruction of archaeological evidence. Furthermore, many of them believe that an object outside its context is valueless for the purposes of scholarship, and looting is thought to be the principal cause of the destruction of this context. The connection between those who loot antiquities and those who collect, trade, and preserve them has been a subject of endless international conferences and has moulded policy on cultural patrimony all over the world. India was at the forefront of shaping such policies and one of the first signatories of the (Unesco) 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

This policy was certainly needed. And in fact some sort of a policy is still needed. One must remember the extraordinary extent of despoliation and loot that has taken place from source countries like India, Greece, Italy, Cambodia and Afghanistan who have, when they have been economically vulnerable, been forced to attend to other imperatives rather than the protection of their cultural heritage. History is rich with incidents on how competitive collectors and museums in America have been with those of the European empires in their need for vast acquisitions of the material arts of Greece, India or Italy. And to that extent it was symptomatic then, that in the age of post-colonial guilt, the British Museum and British Academe were to be seen to do the most for the preservation and restitution of artefacts of source countries.

 

However, the laws that the so-called ‘source’ countries adopted need reform. The current laws have been framed from the perspective of archaeologists. But an archaeologist is not the only person who is in charge of interpreting what is heritage, and civilizational memory. Their intentions in fact are shared with litterateurs, art historians, historians, anthropologists who also investigate issues of civilizational memory and heritage; however, these disciplines are not consulted when laws on heritage are framed. As a result, the concerns of one discipline outweigh others when formulating the knowledge on that discipline.

Archaeological research requires that sites must be preserved as wholly as possible, as objects outside their context reveal little of their civilizational history. Laws that are framed on this principle make it illegal for museums and collectors to buy artefacts as their purchase will, in turn, encourage the further pillaging of sites. One cannot slight this logic, but the nobility of this argument notwithstanding, it has proved, at least in India, to be impracticable where one of the main reasons for the despoliation has been the very legislation that was enforced to protect heritage. Let me elaborate on this paradox.

The original provenance or find-spot of an object is of vital importance to scholarship. To facilitate which, the international legal position is that an object cannot be traded on the international market if it was exported from India after 1970. The onus thus lies on the seller to prove that the secondary provenance (i.e. the collection from where the object has come from) is legitimate. However, war, migration, economic development and sheer indifference have all taken their toll. A number of collectors have bought objects in good faith. The provenance of a large numbers of these objects has been discovered by chance, long after they have been sold. It is therefore unacceptable to imply that lack of provenance means that a particular object has recently been stolen.

Very often the source of pieces is deliberately obscured for perfectly legitimate reasons, where, for example, the inheritor of an object does not wish his family to know that he is selling. All these issues serve to muddy the water and create an environment in which it is possible for those opposed to the trade to maintain the pretence that a majority of objects are on the market illicitly. Even though those on the inside know that this is not the case, it would also be disingenuous of us to suggest that there is no problem with illicitly excavated or exported material. In fact, these are two separate problems, and in order to address them, we need to understand the historical context.

 

It has not been possible for the state, for whatever reason, to excavate a site in India, even when large numbers of artefacts are known to have been found by locals from a particular area. This has allowed illegal excavations to carry on unabated for decades. India’s Archaeological Survey, however, should not be unduly criticized for this. It is clearly beyond a short-staffed body to provide all these services and even small countries like the UK and Japan have found it impossible to keep up with the discovery of antiquities. It was for this very reason that initiatives such as the Portable Antiquities Scheme in the UK and the selective registration of artefacts in Japan are finding such success there.

 

Most source countries have some form of control over the export of archaeological material; these range from the pragmatic (the UK, Germany, the Netherlands) to the draconian (lndia, Greece, Turkey, Egypt). While discussing the ethics of collecting and trading in antiquities, James Ede, Chairman of the Antiquities Dealers Association of Britain, noted that the fiercest laws were passed at very different times, but were essentially chauvinistic, and it is interesting to note that in almost all cases they were enacted at a time of nationalistic revival (in Italy under Mussolini, in Greece following the War of Independence from Turkey, in Egypt under Nasser). These laws were designed to foster a belief in outside cultural imperialism, and are both a symptom and a source of a deep emotional feeling. Emotion however, is a bad basis for legislation, and though these laws have proved remarkably ineffective, their emotional basis makes it difficult for the relevant authorities to adjust them in a way which might make them work.3 

These laws are also by no means uniform; for whereas some countries (Egypt, Turkey) have taken the drastic step of ‘nationalizing’ all antiquities (even when privately owned for generations), others have allowed private ownership, and dealing, to continue. The latter case usually involves a strict embargo on export, and this has served to produce a false, two-tiered market.4 In India, the central government reserves the right (the Antiquities and Art Treasures Act, 1972: clause 19) to compulsorily ‘acquire’ any object, such that this ‘nationalization’ of legitimately held objects is tantamount to state theft. Collectors and dealers are left with no choice but to dispose off their collections by smuggling them out of the country. The law has had a diametrically opposite effect to what was intended. Adjustment to encourage legitimate trade would effectively restrict the smuggling routes on which illicit trade depends.

 

The guiding tenets of the Antiquities and Art Treasures Act, 1972, as set out in its preamble, state that this is, ‘An Act to regulate the export trade in antiquities and art treasures, to provide for the prevention of smuggling of, and fraudulent dealings in, antiquities, to provide for the compulsory acquisition of antiquities or art treasures for preservation in public places…’

An antiquity is defined in Section 2 as something that is over a hundred years old (which was subsequently amended to include manuscripts and documents that are 75 years old). Section 3 states that it is illegal to export any antiquity unless authorised by the central government. Section 5 states that an antiquity may be sold within India only under a license. Sections 5 to 12, thereafter are concerned with how licences are to be procured and what conditions must be met in order to have a license to sell anything that may be over a hundred (or 75) years old in the country.

Section 14(2) states, ‘Every person who owns, controls or is in possession of any antiquity ... shall register such antiquity before the [sic] registering officer.’ The following three sections (15-17) further concern themselves with the matter of registration. Importantly, however, the government retains the right to override private ownership of art works. Section 19(1) states, ‘If the central government is of the opinion that it is desirable to preserve any antiquity or art treasure in a public place, that government may make an order for the compulsory acquisition of such antiquity or art treasure.’ Further, Section 20 (1) states, ‘Where any antiquity or art treasure is compulsorily acquired under Section 19, there shall be paid compensation...’

 

There is also, in India, the Treasure Trove Act (16 of 1878) which makes provision on the subject of chance finds and precious treasure that may be found buried. It defines treasure as ‘anything of value hidden in the soil’. When treasure over Rs 10 (!) is discovered, the finder must inform the collector and deposit the treasure or give security for its custody. Concealment is a criminal offence. An inquiry is held upon notice; if declared ownerless the finder has three-fourths and the owner of the ground one-fourth. The government, however, has the right of pre-emption.

Before addressing some of the problems with the 1972 Antiquities and Art Treasures Act, it should, at the outset, be mentioned that there is no reason, other than historical, to retain a separate Treasure Troves Act (1878) the purport and guiding principles of which are akin to the 1972 Act. A single act, concerning itself with all aspects of antiquities and ‘treasure’ or at least one that makes reference to the other would be helpful.

The Antiquities and Art Treasures Act’s most urgent guiding principle is to protect cultural heritage for the nation by enforcing laws that prohibit the export of antiquities and art treasures. The act has only been partially successful over the past 30 years, but it has now outlived its utility and become both regressive and counterproductive. No doubt it was occasionally a deterrent to the export of Indian art objects and was successfully used to even prosecute art smugglers and allow for the repatriation of Indian antiquities once taken out of the country. However, in truth, the small handful of illicit art smugglers/dealers who were imprisoned/booked under it demonstrates how ineffective the current law has been, while thousands (if not tens of thousands) of Indian antiques have been exported since 1972, temples and old houses ripped off their ornamentation, entire sites pillaged to the point that they are rendered useless for archaeology.5 

 

It is illegal, at present, for an individual with a keen eye who happens to spot an historical object to acquire it unless he can first verify that the vendor is licensed. This is, in fact, ridiculous. Farmers regularly find things in their fields, these are usually passed on to the thousands of middlemen who operate the art trade in India. Garbage collectors sell off old household goods in every city, and which keen collector has not gone scavenging for treasures amongst ragpickers, who must all, as per current regulations, seek licenses!

The first serious attempt to make the sale of antiquities in India public was in 1992 when Sotheby’s tried to enter the Indian market. They were stopped by the courts at the instigation of the Archaeological Survey of India. In June 2003, Bowrings, an Indian auction house, was forced to cease operations because at the ASI’s instigation, the CBI and the ASI raided their premises to seize artworks that were over a hundred years old (and hence ‘antiquities’) which, as per their interpretation of the act, required Bowrings to have a license to sell.

 

The case moved from the lower courts to the High Court in Delhi which, importantly, ruled in favour of Bowrings in 2005 that the auction house was merely operating as an agent, and middlemen, who did not themselves own the artwork they were selling, were exempt from licences. The ASI, however, has taken the case up to the Supreme Court, where it is now pending. Should the ASI win, every ragpicker and artisan buying and using raw materials that may be old, and middlemen who bring artefacts from rural areas to urban centres, will have to be licensed.

It is widely known that bribes have to be paid to get a license to sell antiquities, to get ‘non-antiquity’ certificates in order to be able to export things from the country, to even register an antiquity with the authorities! Collectors in the country have been left frustrated and the best art collections in India have been forced under cover. There are known cases where collectors have even gone to the extent of having multiple copies of their artworks faked, so that when inspected, they can claim the works are modern. However, the result in some of these cases has been tragic where it is no longer possible to determine the authentic article from the reproduction! Other collectors have shifted their resources to the more transparent market for contemporary art.

Customs officials, it is widely known, have no effective training in telling original antiquities from modern handicrafts or fakes, they are incapable of implementing the law, and yet it invests them with powers of harassment which several unsuspecting tourists have been at the receiving end of at Indian ports. In an age when the forces of an open market and liberalisation seem to have percolated to most sectors of the Indian economy, this law still represses a market, invests officialdom with powers of extortion and engenders corruption.

 

The 100/75-year rule leads to an anomalous situation. Ten years ago, for example, something made prior to 1904/1929 would have been an ‘antiquity’. In the year 2014, the cut-off years become 1914/1939. What is not an ‘antiquity’ in 2013 (being 99 years old) becomes an ‘antiquity’ in the year 2014 and so on. This provides a year-to-year shift, which assumes significance when read with the requirement of the act that all antiquities must be registered with ASI. It is too much to expect an ordinary citizen to be so vigilant as to reassess his possessions year by year; and the state certainly does not have the mechanism to either ascertain or register objects that become antiquities every year.

Today’s artists are tomorrow’s national heritage. But we are allowing them to be traded legally on the international market. Are we then, judging by the spirit of the present act, planning on fighting battles of repatriation of those very artworks we have allowed lawfully to be exported at the moment?

 

It is also for consideration if every object of art over 100 years old should be registered. The Archaeological Survey’s officers are, in practical terms, only interested in registering sculptures and miniature paintings. However, the act purports to govern all kinds of antiquities, and indeed, if heritage is its concern, then it should cover all manner of material culture. But is this possible? Since any object older than 75 or 100 years is labelled an antiquity, it would mean that a grandfather’s watch, or every little piece of family jewellery lovingly passed on from mother to daughter in this country is illegal if it is not accompanied, as per section 17 of the act, by a certificate to transfer registration of the antiquity.

There are thousands of Tanjore paintings of Krishna, Rama and other deities as also bronze and silver idols which abound in the puja altars of a million or more of Hindu households, particularly in South India. Is the government willing to enter every village home in this country to assess which utensils are over a hundred years old, or try and regulate and license the time-honoured practices of every rural or urban Indian woman who inherits and passes on old family jewellery? Is it the intention of the act that even these (and a variety of similar objects) must be registered compulsorily? What mechanism can they realistically develop to monitor such data? And most important, why is it even necessary?

 

The act further makes no provision for mass-produced antiquities. Should, for instance, printed books and pictures that are older than 75 years be governed by the same yardstick? Printed oleographs and lithographs, of which there are several copies, have never been regarded as being particularly collectible by government bodies, yet are an important record of Indian history. Mass-production is not a feature of modern history only. Even in the case of very ancient artefacts, not all of them are unique. For instance, the tens of thousands of pottery shards or moulded plaques from ancient periods are the usual nemesis of any excavation. After an initial analysis of these has been made, and representative examples housed in museums, surely there is no virtue in zealously storing all these in our museums’ reserve collections, or registering all of these, even if they are hundreds of years old? There is no easy solution to such problems.

Textiles have been exempted from this act for this reason. After all things like Nathdwara textile paintings – pichwais – thousands of which abound in the homes of Gujarat and Rajasthan are, by and large, a century or older. They have come down generations in families and may have been objects of worship at home. But surely, judging by the significance of textiles in recreating trade history, the fact that the only material culture of several Indian communities is in the form of jewellery, utensils and textiles, the law must give greater importance to them.

Similarly, the act makes no reference to ancient coins, a plainly absurd situation, (leaving it to the Treasure Trove Act, which does not deal with the matter of export of art). Numismatic evidence is one of the most fundamental of historical sources. Coins provide some of the most reliable evidence for dynasties (some of whom are not mentioned in any other record), the deities depicted on them (and hence the dating of several religious cults), and economic and social history. As the law is silent on the rules governing them, ancient Indian coins are widely exported. (And once again, it is worth noting that as they are allowed on the international market for antiquarians and museums to collect, both prices and scholarship in the field have increased exponentially over the past two decades.)

 

However, the case of coins is cited here for another complex reason. A large number of ancient Roman coins have been found in Tamil Nadu where they had reached well before AD 200. Even earlier, while the Northwest Frontier and Punjab were controlled by the Greek successors of Alexander, they used their own Greek coins (alongside the more common Indian mints). The converse is also true. For instance, Harappan seals have been found in excavations in Iraq, various kings in history (Mahmud of Ghazni, Nadir Shah, among others) we know took away large amounts of bullion from India in war booty, not to mention the fact that Indians have traded with the rest of the world for millennia. And as a result of these factors, there is no way of proving that a particular coin available on the international market was excavated or illegally smuggled from India, or had left India in ancient or medieval times.

Further, should India now start examining all Roman coins on the international market because of their seminal evidence of the richness of ‘Indian’ history? And is it equally valid to extend the paradigm to all British coins as well? For instance, British Indian postage, bank notes and coins were legal tender in various parts of the Empire, including various parts of Africa.

Incidentally, and this is not germane to the discussion at hand but is nonetheless an important spin off, nowhere does the act address the matter of human remains. Graves, and grave goods form a significant part of archaeological assemblages and the act must expand to include a policy about those too.6 This is a sensitive issue involving the ownership of graves and regulations for exhumation. The most widespread desecration of graves in India is for cultic practices which require parts of human bones (skulls in particular) and not for trade on the art market.

 

However, the matter of grave goods and human remains is not being cited here entirely without reason. In a famous case, the Government of India successfully brought back the relics of the Buddha from the UK where they lay in the many relic caskets that had been removed from stupas across central and eastern India by British archaeologists and civil servants. Grave goods in that instance, constituted the most sacred relics of Buddhism and although not all the contents of graves or all human remains are of this significance, they remain of importance to archaeology, and the act must be allowed to consider that.

In a rapidly urbanizing India, ‘ethnographic’ and ‘folkloric’ items may not be antiquities, but are the last vestiges of traditional Indian communities’ material culture. It need hardly be pointed out that they need to be incorporated into the framework, which makes us wonder as to why the nomenclature of the act should continue to utilize the word ‘antiquity’ rather than just use ‘heritage’.

 

Amongst the worst cases of the opportunistic nature of how India would like to define the nature of what is an antiquity as well as bureaucratic red tape, is the infamous story of the repatriation of the Pathur Nataraja. The details of the case are too long to enter here, however the significant point is that despite all sorts of evidence, proving its illegal export from India, and hence claim for repatriation, was not necessarily going to be as easy as the ASI had imagined. The Indian government successfully (and rather famously elaborated upon by Justice Ian Kennedy in the case of Her Majesty vs. the Lord Shiva in the UK High Court) used the Indian Penal Code’s remarkable statute that states temples sculptures to be living beings. The judge was expected to ask the statue of Shiva to plead his case in the witness box at the Old Bailey. ‘Shiva’ spoke through His representatives and was granted His desire to return home. A special Air India aircraft flew Him to Chennai, and Chief Minister J. Jayalalithaa received Him personally.

 

However, He did not have grounds for customs clearance in India! Customs and Excise officials were not interested in speaking to the god in the sculpture, and treating it merely as a sculpture demanded either the requisite import duty, or papers to show that he was Indian and left India with the necessary paperwork in which case he could come back for free. Without a solution to such a problem in the rulebook, Shiva remained in a customs warehouse for over a decade accruing demurrage charges. Before one elaborates further on the problems of market value, rules of customs and excise, what is worth recording is that this gives at least some of the things that we are discussing a completely different definition: one wherein they are simultaneously considered living entities, even as they are ‘antiquities’.7

 

Considering the state of our short-staffed museums and their conservative collecting practices, it is debatable whether an object would be better maintained and preserved in ‘a public place’ than in the custody, care and possession of a private owner. The law grants government the right of pre-emption to compulsorily acquire works and offer owners compensation instead.

The methods of compensation when the government decides to invoke section 19(2) of the act and compulsorily acquires an antiquity are blatantly unfair because the owner of the artwork is forced to surrender it at a price established by government appointed nominees who are, at best, ill-equipped and not adequately conversant about art prices (in a country that has little regard for the international value of the piece in question) and at worst, acting at the behest of vested interests (as in the all too famous case of the Nizam’s jewels). The criteria for assessing the compensation for such compulsory acquisitions are too general and wide-ranging under section 20 of the act, with particular reference to the quantum of compensation. Apart from that, section 20 of the act also does not provide for an appeal against the decision of the arbitrator to be appointed under section 20(c) of the act.

With few transparent public sales of antiquities in India, even when the conscientious citizen registers an artwork, there is no sound way of establishing its value. By contrast, Indian antiquities have been openly and regularly sold in auctions on the international market for a hundred-odd years, and there are as a result systems in place to assess the value of artworks more correctly. This further brings order to insurance values, wealth tax and so on.

 

Considering that movable property, like jewellery, forms part of a women’s traditional wealth, considering also that many tribal and nomadic communities may have a communitarian sense of land, but value their material possessions highly and the fact that artefacts, paintings and jewels can command prices in the same league as land, a comparison with a similar situation with the Land Acquisition Act is appropriate.8 In revising that act, more than three decades ago, the Supreme Court decreed that the practice of determining compensation by taking a five year average price of property in the vicinity was not enough and totally unjust. They decreed that in the future it was necessary to consider both its current market value as well as its potential value. This directive of the court has been followed ever since.

The law was recently changed to state that anyone who wishes to bring an object to India for public display can do so without paying duty; however only if the object is for display in a public museum. It would be of interest to note that this section ‘empowers the central government on its being satisfied that it is so necessary in the public interest to exempt any goods on which duty leviable, by a special order in each case, from the payment of duty under circumstances of an exceptional nature, to be stated in such order.’ It would seem to be indisputable that ‘import of an art treasure’ back into India is always in ‘public interest’ and hence such objects should be exempted from duty automatically, of course, after establishing through experts and other means that it is indeed an ‘art treasure’ as defined in The Antiquities and Art Treasures Act (1972).

 

In fact, an allied point would be such exemption for any ‘antiquity’ too, which is of exceptional historical, cultural, civilizational and heritage value whose presence in the country would arguably be in the best interests of the country. Of course, here again, the process of establishing beyond doubt that the antiquity is indeed one which conforms to these criteria, as also perhaps imposing a condition that it shall not ever again be exported out of India, can and ought to be laid down in clear and lucid terms. In the case of an ‘art treasure’, under the provisions of the 1972 Act, it can never be exported. These changes relate to the Customs Act (1962). There are some provisions in the Manual of the Director General, Foreign Trade, that would need to be appropriately amended in order to facilitate the importation of art objects into India, without the insistence on obtaining an import licence, e.g. in respect of film/sports memorabilia.

Serious collectors in India become even more nervous when cases like Vijay Mallya’s efforts to bring back national treasures to India are thwarted by bureaucracy and antediluvian laws. It is worth recalling that in that case, it took the enormous influence of an MP and a leader of Indian industry (i.e. Mallya) to acquire, personally, dispensation from Chidambaram, the finance minister, to have customs regulations relaxed in order to bring back Tipu Sultan’s sword to India. And in a marvellous show of the current state of affairs, he still failed, and was forced to lend the object to the Asian Art Museum of San Francisco. If such is the plight of the mighty, where does the ordinary Indian collector stand? Mallya was expected to (a) pay customs duty to bring back a sword he had just spent Rs 1.5 crore to buy back for India (!) and (b) provide documentation for the export and re-entry of the object.

 

In an article on the Paradox of International Laws on Protecting and Preserving Heritage,9 I argued that, ‘…[the current] laws are philosophically anachronistic with our age… The discourse on art and aesthetics in a globalising world rests on the premise of movement, or rather, circulation of people, art and ideas. Paradoxically, even in the twenty-first century, the laws that govern such movement are informed by colonialism and early twentieth century nationalism. Is the claim on an object of a land and/or a nation greater than a person’s?

A nation is meant to represent its people (not just its soil/geography) and its people are not the same people who lived on that geography when the object was made. Deterritorialization, migrations, diasporas cannot be disassociated from the history of colonialism and Empire, and, as is commonly known, the rather modern history of the creation of nation states happened alongside. Yet, the histories that the museums of those nations represent are often told through objects when that region’s cultural past was vastly different. These religious pasts, or for that matter political pasts, can often sit uncomfortably with how modern nation states have defined themselves, or how ruling political parties may wish to interpret history.

 

Museums often display tribal and nomadic pasts of communities which even now do not fully subscribe to nation states. With such fundamentally disparate and varied claims to the past, it is curious that we have laws that seek to protect a vision of the past on behalf of a nation’s interest. That is not to say that it should not be done. But it is worth questioning what is being done, can it be efficacious and how can what is being done be modified so that it serves peoples’ interests better.’

What do collectors provide? This is rather like asking why do we need libraries, history or memory? However platitudinous this may sound, it must be stated that the private ownership of art and the connoisseurship which collecting inspires, are desirable in a cultured society. This tenet has been held by almost everyone for the last five hundred years. It has had an enormously important effect on the way in which the great museums of the world have developed, and this in turn has led to a much wider appreciation of world cultural heritage. Antiquities have been collected for thousands of years – for example, the Romans were avid collectors of Greek sculpture – and even at that time the number of pieces coming on to the market ran to millions. At the same time it would be disingenuous to not acknowledge that collecting can become so avaricious as to give fillip to the destruction of archaeological contexts. This has been a long-standing dilemma that many countries have faced and, again, the only sensible way out is to provide for both sides: archaeological needs and the desire of the market and collecting.

Let us first look into what private collecting can give to a nation. The list of private collections on which India’s premier museums are founded is not small. Prior to independence, it was India’s maharajas who were avid collectors, and their private museums still form some of the most significant collections of Indian art in the world. After independence, a new breed of antiquarians and professionals became prominent Indian collectors and the nation owes much to the efforts of the likes of Rai Krishnadas of Banaras who founded the finest collection of Indian painting, Raja Dinkar Kelkar’s collection of folk art, the Sarabhais in Ahmedabad, the Birlas, Kanorias and Neotias, Rani Rajwade’s collection of brassware, Sharan Rani Backliwal’s collection of musical instruments, and so on. The list of such educated connoisseurs is long. Often their collections have formed the bases of the premier museums of India.

 

A museum, in turn, is looked upon the world over as a repository of history and identity, preserver and disseminator of cultural heritage and shaper of the aesthetic sensibilities of the world. However, governments the world over have at various points found it difficult to afford the running of museums. At such points in all developed economies, the important role of private funding for the arts has always been sought, corporate philanthropy in underwriting museum collections, exhibitions and development, puts private collectors (individual or corporate) at the forefront of sustaining the art market, museums and guiding research.10 Clearly it is beyond the ability of the government to buy all available Indian antiquities or preserve them or conserve them or display them. There is thus little choice but to actively involve the citizenry in the preservation, caring and collecting of their own heritage. So why has it been made difficult to collect Indian antiquities?

 

The patriotism that a nation strives to elicit is founded on the promotion of a cultural past/identity which is at best a selective representation of history. The extraordinarily large migrations, mixing of races, languages and communities over the past century, however, have challenged national propaganda agendas on how to define patriotism for a changing population. And in fact, the resultant globalization and multiculturalism is probably the most important factor in government policy to such an extent that it has forced us to rethink what we even mean in a modern society by ‘nation state’ and the patriotism it is meant to elicit. India and Indianness today also live in places outside India. The laws have to be changed if we plan to elicit foreign and non-resident Indians’ investment in Indian heritage.

The current policy is a result of certain historical reasons, but the climate has now changed to render the act, as it stands, obsolete. It was founded on an attitude in which an open market stood opposed to national interests, for which the most archaic and draconian form of protectionism was required. This has killed the domestic market for antiquities, while the international demand for them has remained consistent. Surely a way can be found that both opens up the domestic market, preserves the best for the nation’s museums and yet, even allows objects of lesser value to be traded internationally. Keeping art in source countries denies others in the world the right to appreciate art and culture. Art-importing countries conserve and safeguard the art they acquire and promote research and study. Museums make the art available to millions. At a time when trade interests are increasingly global, the world of art is one sector of the world economy in which national borders and nationalist ideology still form a significant barrier to exchange.

 

Today the public is aware that art compares favourably with other financial investments. Launching credible art funds, towards developing a mutual fund structure, like with the real estate market, now seems to be the future path for investments in art, one which can attract the larger public. If the wealth generated for the economy by living artists in the field of contemporary art can reach such staggering proportions, it is presently inestimable how much greater 5000 years of historical Indian art, where each piece has the aura of being unique and irreplaceable, might be worth annually. But for this market to be stable and responsible, to serve both the needs of archaeologists and art historians as well as create the necessary feeling of ownership of the past amongst the citizenry, needs infrastructure and a frame of progressive rules to operate within.

Unlike in more sophisticated markets, there is little by way of information, few critics, few curators, no indices and, unlike the contemporary art market, the antiquities market is largely an operation of the black economy. For this market to become viable the most important conditions are the easing of government policies and an investment in the public knowledge base. As Neville Tuli, chairman and CEO of Osian’s, which till recently led in the sales of contemporary art in India, explains: ‘Art should be seen as having four key dimensions – aesthetic, historical, financial and educational, all functioning within a legal context. In the past India did not give respect to the financial, failing to systematically link the historical to the financial. History is the key to pricing art. Once public perception clarifies on this issue, the momentum would be irreversible.’11 

 

What is the case with Chinese art? Some years ago, the Chinese government approached the United States to impose an embargo on the import and sale of Chinese art that was older than 70 years. The Chinese wished to protect their heritage and the US was keen to placate China. However, it is worth noting two important observations that were raised then, and are extremely pertinent to the Indian situation. First, In 2004, Sotheby’s and Christie’s recorded $224 million in their worldwide sales of Chinese art. Of that, sales at their American branches added up to only $34 million. There is a rapidly growing auction market in China in which the same art and antiques listed in the embargo are being bought and sold. Auction houses in China, established with the support and protection of the Chinese government, have sold in excess of $700 million of Chinese art every year for the past five years. Importantly, the Chinese government has backed this market boom with an unprecedented rise of museums and faculties of art history across China, so that a few years from now, their 100+ new museums will have a trained cadre of professionals.

 

The second important observation, akin to the Indian situation, is that American buyers are not the top players in the international Chinese art market any more. On the contrary, they account for only a small portion of worldwide trade in this art. In fact, it is the Chinese themselves who have become the dominant force in the international Chinese art market. The strength of Indian buyers has already been noted by the international art auction houses, who are all too eager to foster sales in India.

We seem to have a policy which on the one hand wishes a state of retentive cultural nationalism, and yet we accept that art is one of the best cultural ambassadors that can create a worthy cultural internationalism on the other. We are one of the primary signatories of the (Unesco) 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. Having been signed by one hundred countries, it was the first and most important international agreement to protect cultural property from thieves and smugglers. The convention created a legal framework allowing signatory governments to negotiate for the return of looted items. Over the years the Unesco regulations have seen several amendments. Surely, the time has come for India to initiate an International discussion on forming a more tempered policy that will encourage the legitimate circulation of cultural objects?

Our own policies seem to be rather opportunistic. We build dams like Nagarjunasagar and the Sardar Sarovar knowing that archaeological sites have to be sacrificed at the altar of economic necessities, and yet take a puritanical stance when it comes to the free trade of art. The truth is that a desire for the possession of art objects is no longer the main driving force for the desecration or pillaging of ancient sites. It is the advance of man: urbanization, the cutting down of forests, the construction of dams and expanding agriculture.

 

In 2004, hundreds of terracotta fragments, including moulded plaques from the first century BC, surfaced when Hutch telecom dug the foundations for a transponder in the Berachampa area just outside Kolkata.12 With more and more buildings, tube wells, metros, agriculture and mining, it is inevitable that there will be many discoveries in the next couple of decades. The Archaeological Survey of India and Indian museums are already hard pressed for resources and we have little other infrastructure to protect and preserve these artefacts as they are discovered. In fact, our papers are replete with stories about how museums are unable to cope with their present holdings, which are regularly pilfered.

Rather than registering all antiquities, a system should be devised whereby it must also be an intrinsic and inalienable part of a historic past, it need not be an ‘antiquity’ per se, but as a cultural treasure it must warrant the nation’s protection and attention. This would make the process of registration purposeful and goal oriented. In this regard it is worth following the Japanese policy which distinguishes qualitatively between all its antiquities, keeping only the very best in national registered collections, or registered private Japanese collections, and releasing the rest into the market, both Japanese and international. This allows the resources of the state to be effectively utilized in preserving only what they can.

 

Increasing development and pressure on land are revealing archaeological sites at a spate we can scarcely cope with. Unless a proper system of reward exists, since the finder will usually channel such objects into an illicit market or destroy the pieces rather than bear the burden of paying bribes to have the works registered, or risk a court’s stay order to carry on developing the site, all in the hope of awaiting the unfair compensation given. Farmers of fertile lands frequently live in fear that they may be over a major archaeological site which could be confiscated (as is the case of Chandraketugarh) and have all too often revealed that they would rather deliberately destroy pieces than run the risk of being caught with them.

In this respect the laws of the UK, drafted under a newly revised policy called the ‘Portable Antiquities Scheme’ (see their website at: www. finds.org.uk) offer a model for a solution that may be adapted. There a finder has an inducement to declare his discovery. Either the state takes ownership and pays a reward equivalent to the (more fairly established) market value, or, if the piece is not of particular importance, ownership is granted to the finder. Either way, the archaeological information is preserved and above all, the enthusiasm of the finder, and his interest in history is fostered.13 It would be even better to formulate a system whereby the reward was greater for finds left in situ whilst the report was made.

The Vijaynagara kings and temples imitated and collected Chola sculptures, the Romans collected Greek art, the great collectors of the Renaissance defined their civilization by collecting objects from antiquity – there can and should be no doubt that a market for antiquities will continue to exist – man’s interest in his own past, not to mention the legitimate impulse to collect beautiful objects, will see to that. A choice therefore has to be made: either legitimate collectors and dealers may be driven out of business by a process of increasing red tape, in which case the illicit trade will flourish, or the legitimate trade may be allowed to exist in a controlled context which would help to strangle the illegitimate traffic.

 

The market and desire to possess antiquities cannot be penalized because of the dilatory responses of the ASI to the needs of excavation and the slow publication of excavated materials. Their inability to preserve the outrageously large holdings, or excavate at sites where land is becoming punitively expensive, are not problems that can be fixed by increasing their annual budgetary allocations alone. Their role has to be made more pragmatic so as to guide policy and foster the private collecting of those objects which are not worthy of their specialized care. Certainly, in an ideal scenario, there should be a moratorium on the sale of unprovenanced materials. However, several poor nations did not have the means of excavating sites in a timely way, nor laws that were meant to protect their heritage. This forced their artefacts into an underground trade, while the sites they came from are no longer recognizable. Intelligent pragmatism allows for some opening of the market, yet preserving the best for the nation.

The international laws that govern the illegal export of art need not be tampered with for the moment, but unless it is recognized that a domestic market is essential for safeguarding Indian antiquities, we may continue to force the illicit trade. The easing of the sale of such items within India will go a long way in preserving national heritage as an awareness of art, history and heritage will increase rapidly in the market. This in turn will make the market more conscious about the authenticity of objects offered for sale. Once the environment to love and invest in art becomes more transparent, and information moves with greater ease, the growth in the art market will receive its next major impetus. And that impetus could potentially be at least as significant, if not more financially dynamic, than the contemporary art market. In the first instance, the law needs to be relaxed, licences to sell antiques need to be done away with, owners of artworks should have no reason to register their pieces. Simplification of the tax and duty structure will further add momentum to the growth.

 

However, alongside the easing up of the bureaucratic red tape comes a concomitant increase in government responsibility to museums, and the disciplines of archaeology and art history. For what should matter to government is not ownership, but access – that a many more people get access to the richest aesthetic experience possible; that an increasing number of Indians are drawn to history and culture, and interested in the preservation of their heritage. This calls for a radical shake-up of the administration of museums in India with greater emphasis on accessibility, local site museums, shrewd acquisitions and educational displays. This, however, is a complex subject, beyond the scope of the present article.

 

Footnotes:

1. Kishore Singh, ‘Awesome Money is Chasing Indian Art’, 25 March 2006, Rediff.com. Some indication of the (incidence of this trade, and its effects on the archaeological record), were obtained from a symposium at Cambridge on 22-25 October 1999 on ‘Illicit Antiquities: the Destruction of the World’s Archaeological Heritage’. The report on this symposium (Culture Without Context, Issue 5, Autumn 1999; Cambridge, 16-24) provides statistics and surveys, from a number of countries and was recommended to Parliament in Britian. Lord Renfrew has, however, retracted the published figure of $200 billion for the amount of trade in illicit artworks.

2. The global market for contemporary Indian art is changing rapidly and Indian art is beginning to command a much more substantial chunk of the world art market. As the July 2006 issue of Insight reported, ‘Unwilling to be left behind, auctioneers too are exploring new categories and sale venues. Leading the pack is Christie’s, who recently added Dubai to its worldwide sales locations. The inaugural sale in Dubai this May (2006) featured Arab, Indian, and Iranian paintings alongside major works by artists like Picasso and Andy Warhol. Of the $8.4 million achieved, Indian paintings contributed almost $6 million, setting eight new records.’

3. See a succinct summary of these views by James Ede in ‘Ethics: the Antiquities Trade and Archaeology’, in http://www.theada. co.uk/ethics.htm accessed 21 May 2014.

4. More on this can be read in Naman P. Ahuja, ‘India: A Tale of Two Markets’, The Arts Newspaper (London), No. 194, September 2008. And, Naman P. Ahuja, ‘Why is Liberalised India Smuggling its Heritage Abroad?’, The Hindu, 22 July 2012, http://www.the hindu.com/arts/why-is-liberalised-india-smuggling-its-heritage-abroad/article 3666911.ece accessed 21 May 2014.

5. The cases of various 2nd century AD Kushan (Mathura) sites in Haryana and UP, Chandraketugarh in West Bengal, bronzes from Thanjavur district in Tamil Nadu, collections of manuscripts from various religious institutions’ libraries and the large-scale exodus of artefacts from Buddhist monasteries in the higher Himalayas are well-known examples. Peter Watson’s book Sotheby’s: Inside Story (Random House, 1998), famously recounts the instance of how a Mumbai based art dealer was imprisoned because a Channel-4 journalist carried a spy camera in her clutch bag through which she shot the scene of her interactions with an art dealer eager to sell her pink sandstone Kushan period pillars of the 2nd century AD, which they both agreed would look excellent in her London sitting room. The sale price agreed to was the same as what the dealer had offered for another pair of pillars from the same site via a Sotheby’s sale in London. On the facing page of the Sotheby’s catalogue that offered the Kushan pillar were a series of terracotta plaques from Chandraketugarh. Even though Chandraketugarh has been known to those knowledgeable on Bengal’s ancient history for over a century, it was common knowledge that the site had begun to be indiscriminately looted in the mid-1990s. Watson used the evidence from that sale to reveal the covert smuggling of Indian artefacts.

6. J. Buikstra and D. Ubelaker, Standards for Data Collection from Human Skeletal Remains, Arkansas Archeological Survey Research Series No. 44, 1994, provide some solutions to the problems of dealing with human remains.

7. Richard Davis, Lives of Indian Images, (Princeton, 1997, and in Indian reprint) provides a masterly study of different approaches to Indian sculptures, historical, contemporary, art historical, as something marketable and anthropological. Of particular relevance to the matter discussed in this article is Chapter 7, ‘Loss and Recovery of Ritual Self’ (pp. 222-259) detailing the famous case of the Pathur Nataraja’s illicit export to Canada via the UK and repatriation to Madras and subsequent ignominious treatment by the government.

8. For examples, a painting by Amrita Shergil fetched Rs 6.9 crore in a public auction in Delhi in March 2006. Even in 1979 the trustees of the Nizam of Hyderabad’s jewels were forced to accept arbitration under a compromise agreement with the Government of India. After protracted proceedings before the arbiter and the Supreme Court, the government finally acquired the art collection by paying a compensation of Rs 218 crore in terms of the arbitration award, a figure very much below its value in the international market then.

9. Susan Visvanathan (ed.), forthcoming, Sage Publishers, New Delhi 2014. Originally delivered as a Plenary Address on 5 April 2012 for the Association of Social Anthrolopologists of Great Britain and the Commonwealth Conference on ‘Arts and Aesthetics in a Globalising World’.

10. A more comprehensive study of what damages current policies can do to a free market may be seen in Kate Fitz Gibbon (ed.), Who Owns the Past? Cultural Policy, Cultural Property and the Law, Rutgers Series on the Public Life of the Arts Series, published in association with the American Council for Cultural Policy. Rutgers University Press, New Brunswick and London, 2005. The book was sponsored by the American Council for Cultural Policy, an organization founded in 2002 as a not-for-profit organization dedicated to informing the public on arts and associated issues.

11. Outlook Money, 16 January 2006.

12. ‘Archaeologists halt telecom work at heritage site’, Times of India, 21 July 2004: see online at: http://timesofindia.indiatimes.com/city/kolkata/Archaeologists-halt-telecom-work-at-heritage-site/articleshow/785017. cms, accessed 21 May 2014.

13. For a summary of rules and frequently asked questions about chance finds of treasure in Britain, see http://www.britarch. ac.uklcba/potantl5.html

top