Revisiting an antiquated law


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AS we look at an India that recently celebrated its sashtipoorthi, we face a nation that has come a long way since it gained independence. The reform process that began in the early ’90s has tried to rectify the failed policies put in motion in the early years and help erase the long catalogue of erroneous policy-making that brought the country to the brink of bankruptcy. Today, on the verge of signing a watershed nuclear deal with the USA and boasting the second highest economic growth in the world, India has never felt more self-confident.

Yet, even though India has been able to reform itself in areas ranging from finance to foreign policy, we have let ourselves down miserably in the area of culture. If India is the envy of the world in sectors such as I.T., it is also a global laughing stock as far as its policies and response to cultural issues is concerned. In the last 60 years, even as we have enhanced our GDP manyfold, our laws have also systematically diminished our understanding of culture to a degree unrivalled by any comparison throughout the developing world.

It is exactly 35 years to the day that the Antiquities and Art Treasures Act of 1972 was tabled, leading to the biggest systematic decay in the area of culture. Like all correction, change, modernization, and even privatization of many a ministry, the time is ripe to re-examine this law and its validity in contemporary India before we destroy our remaining cultural heritage.

Not a day goes by without yet another record being broken by a contemporary Indian artist, fetching higher and higher prices for their recent productions in auction rooms from Hong Kong to New York. But it is no strange coincidence that art prices continue to spiral year after year. Even as many attribute this to rising incomes or a better understanding among educated Indians about their culture, the real reason is that unlike elsewhere in the world, Indian’s do not have a transparent mechanism to purchase, trade or acquire any other forms of its art, namely antiques.

Unlike London, Paris, New York, Singapore or even Bangkok, where one can find dealers of old Indian cartography, furniture, textiles, art objects and antiques, there is no such provision in India. This leads to funnelling of all cultural expenditure by the private sector into contemporary art alone. Policy-makers need to take note that trade in the arts not only encourages its rightful appreciation, but also facilitates scholarship, conservation and, above all, education about it. No doubt this further gets reflected in their markets.

The Antiquities and Art Treasures Act of 1972 has, however, made it virtually impossible for any legitimate person or business to transparently trade in antiquities or rather, in any category of the arts other than the contemporary, and thereby is almost entirely responsible for the needless decline in appreciation of our rich past. A closer look at some of the main sections of this act will put into perspective the startling nature of its obsolete content that desperately needs change.

The words ‘license raj’ conjure up images of an India we have painfully but only recently put behind us. The long overdue resurgence of Indian industry and above all our global competitiveness in the area of services seem unthinkable if licenses were required in those sectors even today. The plain fact is that the laws were amended and done away with mainly because there was no merit in them. However, the Ministry of Culture still requires a license to trade in antiquities which only it can grant. The bureaucratic muscle-flexing that appears unthinkable in a capitalist India elsewhere is still exercised in the arena of culture to the day, causing more harm than good.


Even if a license is rightfully granted to a prospective applicant, the law further requires a record of every transaction by means of keeping a register and photograph of every work traded. The gazetted officers, at their discretion have the right to enter any household which is in possession of an antique or a national art treasure, and check if it is physically present in its recorded location. The initial misuse and abuse of powers by officials soon after the act came into force scared off most of the genuine and passionate collectors who even now shy away from acquisitions. Coupled with lethargic and almost nonexistent museums, interest in the area of antiquities has slowly dwindled, contributing to low levels of understanding and a decline in appreciation for more than a generation of Indian citizens.

Things are no better for people or businesses who wish to transact legally and transparently. In 1989, Sotheby’s India held its first and last auction in New Delhi. After obtaining all necessary permissions, it sold the works of several old western artists in Indian collections to collectors and institutions abroad. As the antiquities act gives officers complete discretion to interpret and define what constitutes a national treasure, they took full advantage of their power by making the works non-exportable.


After the successful sale of the works of art, the ministry, at its whim, declared an entire tranche of authorized and sanctioned for export auctioned items as national treasures, leading to the sale being cancelled by the auction house. This was followed by an income tax raid on successful Indian bidders soon after, resulting in the swift exit of the old auction house. The ministry’s inability to liaise with scholars in their specific areas of expertise to rightfully ascertain what a national treasure is has institutionalised a scary arbitrariness that has flourished since.

More recently, another auction house publicly selling a body of Raja Ravi Varma paintings was raided and its trade license revoked. The government should be encouraging legal public auctions or dealers, who not only generate jobs and contribute by means of taxes, but also educate the public through exhibitions and help document all works that go under the hammer or are exhibited. However, in the name of protecting our county’s heritage, the law gives far too much undesired powers to our babus. No doubt some of them have done a wonderful job by raiding and exposing smuggling rackets, but unfortunately, their discoveries do not end up benefitting the society at large as these recovered items invariably land up in CBI vaults gathering dust, if not lie in junkyards.

If we wish to preserve our culture, we should rather allow the works to leave our country as soon as possible for the chances are that these ‘stolen’ items will most likely land up in some of the best museums visited by millions and will be preserved, documented and housed in temperature and humidity controlled environs. When was the last time we witnessed a Gupta exhibition like the one hosted at the Grand Palais in Paris this year or the Chola exhibit at the Royal Academy in London last year?

In order to protect our culture like other civilized countries, we should look at more progressive methods such as those followed by the Dutch, where the sale of an object that is classified as a national treasure is allowed to any individual or institution in any country, but only after the first choice is given to the state to acquire it at market value. In contrast, the laws in India act as a deterrent to preserving our culture, let alone incentivize promotion.


Given national laws that prevent exports, it seems only logical that there be laws that provide incentives for the import of art. However, let alone incentives, the import of any work of Indian art bought abroad attracts a stiff customs duty. (Of course, even that only after one has acquired an import license.) Is it not ironic that one can buy two litres of duty free alcohol on each visit abroad but no laws exist to incentivize the citizen to bring back cultural heritage that under our antiquities act is seen as being so important that it cannot be traded or leave the country since it is deemed ‘a national treasure’!

Many countries offer benefactors a tax break if they donate works to museums, but in India even if one wishes to donate a priceless work of art to a museum, forget the tax break, there is no provision to do so and be formally recognized for one’s benevolence.

Political parties have so far decided to concentrate on agriculture instead of culture, probably because it is the former that brings in the votes. As for as the bureaucracy, much like prohibition in Gujarat, it feels it has nothing to gain if trade is allowed freely. More likely, as in industry, colluding with illegal traders has always been more profitable for corrupt officials.


India is at a critical juncture in its development. In our attempt to integrate with the world economy, we have achieved some success by opening up trade and investment in many areas where trade is both possible and symbiotic. Foreigners are allowed to buy agricultural land, exploit natural resources, provide insurance to our citizens, guide banking institutions and even buy a share in our navratna PSUs; indeed we have come a long way since the days of nationalization. However, in the domain of culture we are almost certainly in reverse gear. The law not only covers art and artifacts that are over a hundred years old, the ministry has also added a list of 20th century artists such as the Tagores and Jamini Roy, among others, to the list of non-exportable art treasures. Far from letting go, its jurisdiction and control is even encroaching on the so far only unregulated area of culture – contemporary art.

As a consequence, no collector wishes to acquire the work of artists on the list of ‘national treasures’. Not only are these works non-tradable outside India, the government has the right to acquire them. Under the provision of the act, any gazetted officer from the Ministry of Culture has the power to visit and search any location where a national treasure is housed. No wonder, alongside low prices, the importance of such artists too has dwindled over the years, leading to a proliferation of fakes and illegal trade, akin to developments in the antiquities market. Restrictions on legitimate trade only redirects interests and resources to other non-regulated alternatives. Note that in the last decade there have been more than a dozen books on the contemporary artist S.H. Raza, but not a single one on Jamini Roy.

There is little doubt that laws are required in the area of art and culture, but a blanket ban of trade, without foreseeing its repercussions has done no good. Yes, laws are required to preserve what we already have and ensure serious punishment to those in positions of authority who choose to ignore basic international standards on how to keep works of arts in government institutions. A national museum in Chamba displays priceless miniatures stuck together with scotch tape. The National Museum in Delhi freely scratches out reference numbers on sculptures, only to later cast them in concrete for display!


Let alone antiques, even contemporary art that has been acquired by museums in the country since independence has been deteriorating rapidly. Amrita Sher-Gil’s mother complained to the authorities about the poor upkeep of her daughter’s works the family donated in the 1950s. The works were poorly restored in the 1990s, many of them painted over. The Punjab University Museum in Chandigarh has a collection of contemporary art worth many millions, but there are no funds for an electricity connection to the museum. The Bharat Bhavan in Bhopal lost hundreds of important works in their monsoon-flooded basement last year. The Lalit Kala Akademi was unable to exhibit some its best acquisitions for its golden jubilee celebration as many of the works were either missing or had deteriorated beyond repair. Has anyone thought about the need for laws to protect these and other works of national importance? What is better, punishment for the theft/ sale of a work of art to a collection abroad or the permanent destruction of a work of art by a callous government employee? Who should be punished more severely?


The ministry can do much good by making the destruction of works of art under any circumstances punishable. It can enhance its role and presence by interacting with other branches of the government to give tax payers an account of the art that has been bought with their money. Documenting and exhibiting the works in government collections could be a start. Ensuring the freedom of expression and welcoming back our exiled Padmashrees like Husain could be another. Liaising with the Ministry of HRD for creating a contemporary curriculum for our youth would be welcome.

Perhaps it could help establish more museums on the outskirts, say in Gurgaon and Noida outside of Delhi, Malad and Powai in Mumbai and Salt Lake in Kolkata? Combine the portfolios of tourism and culture as every other country has done? There is certainly a lot more that needs to be done than to go about blindly policing an outdated law.

As India grows richer, in all likelihood society will become more responsive to cultural issues. The stupendous surge in contemporary art prices is one such indication. However, as India has done in virtually every other area, we need to address the obsolete laws in the area of culture as well. So the next time you hear of contemporary artist Subodh Gupta’s gigantic steel buckets fetching half a million euros at an auction abroad, think about buying a genuine Gupta period antique for a hundredth of this price, but only if you can obtain a license.