Bringing Our Antiquities Home: Implications of HR&CE Judgment of Madras HC

Bringing Our Antiquities Home: Implications of HR&CE Judgment of Madras HC

On 21 July 2017, the Madurai bench of the Madras High Court pronounced a major verdict, which has surprisingly been met with complete silence in the mainstream media. The court ordered a twenty-point judgment in the matter of idols being stolen from Chola era temples of Thanjavur district of the State of Tamil Nadu, directing the state government to fast track investigations against the accused employees of the state’s Hindu Religious and Charitable Endowment (HR&CE) department and the conniving police officers, who together attempted to smuggle them out of India by forging a paper trail while hiding the idols in a tunnel and then in a safe-house, all the while pretending that the idol has been secured in an ICON centre by them. The strength of the mafia was such that it took court orders to reinstate Pon Manickavel, the crack officer in-charge of idol theft in the state, to the investigation. Also, Justice R Mahadevan ordered daily hearings under a special Chief Judicial Magistrate to fast track this and all other cases of idol theft that were brought to surface by several petitioners, including a criminal offence petition filed by petitioner Elephant G Rajendran.
While the judgment has gained attention amongst Indic intellectuals and activists for its far-reaching impact in understanding the relation of temple and state, the judgment is not restricted to just that. The judgment is highly comprehensive as it also defines a security framework for temple heritage. This is significant, because the Antiquities and Art Treasures Act 1972 has so far restricted itself to just ensuring paperwork for ensuring legitimate trade in antiques. Moreover, the Act is severely restrictive in its scope. Section 18 of the Act says that
Nothing in section 14 or section 16 or section 17 shall apply to any antiquity kept—
(i) in a museum; or
(ii) in an office; or
(iii) in an archive; or 
(iv) in an educational or cultural institution,
owned, controlled or managed by the Government [or by any local authority or by any such body as the Central Government may, for reasons to be recorded in writing, approve for the purpose of this section by general or special order].
That leaves the responsibility of the security of antiquities in India to the states, where capacity is mostly limited, and there is often disinterest to the point of apathy. In the case of states controlling religious institutions, it leaves the responsibility of the temple and its movable assets entirely to the care of the temple administration and its supervisory department, as can be seen in the Madras High Court judgment. As seen in the case of Tamil Nadu, the HR&CE Policy Note 2016-17 lays out the methods identified by the department to secure temple icons and valuables, which are Burglar Alarm, Tell Tale Clocks, Inner Locking Systems, fixing Iron Gates, Closed Circuit Television, appointment of Night watchman and appointment of personnel from the Temple Protection Force. Justice R Mahadevan interpreted the policy further when he clearly defined the role that the HR&CE needs to play in securing the idols and valuables. The particular applicable parts of the order as stated by Justice R Mahadevan stand out in such a case:
(viii) The Commissioner of HR & CE department must submit a report of number of temples under the HR & CE department and the list of archakars employed under them and assigned to each temple to the Inspector General of Police. If an archakar/Executive Officer is assigned to more than one temple to maintain the Idols, the report must specifically state so.
(xv) The stock of Idols maintained in the manual books in the State, must be computerised within a period of four weeks, if not already computerised.
(xvi) Similarly, a list of stock of Idols in the temples must be computerized and the same must be reported to this court.
(xvii) All temples in the State must have a strong room, where the Idols are kept and appropriate security arrangement including 24×7 video surveillance with alarm, must be made in consultation with the team appointed by this court.
(xviii) The existing ICON Centres must be put under 24×7 video surveillance with alarm, to avoid theft and to keep track of the Idols taken for daily poojas and festivals.
(xix) The Commissioner of Archaeological department, Chennai must periodically depute a team of officials to verify the Idols at the ICON Centres and in temples to identify any replacement and theft.
Moreover, the exact procedure and timeline within which first information reports (FIRs) must be filed and duly investigated adds teeth to the process which has otherwise seen inaction in the particular case.

It is Not Just About Temples

While the judiciary in India has certainly been hearing cases that are related to antiquities, this judgment differs in the layout of this protection framework laid out to secure antiquities in their place of origin. While the specific case in question is about temples of Tamil Nadu, the case is not unique in any way. India has a major problem of antiquities being stolen and smuggled out through various illicit routes. Global Financial Integrity (GFI) has reported that illegal trade of artifacts and antiquities is one of the world’s most Profitable Criminal Enterprises, with the latest valuation being pegged at US$ 6 billion. The trial of the Manhattan based notorious antiquities smuggler, Subhash Kapoor, extradited from Germany to India in 2011, is one example of that. UNESCO has estimated that up to 1989, over 50,000 artifacts have been stolen and smuggled out of India. Gargi Gupta of the DNA in 2016 quoted National Crime Records data to state 4,115 cases of ‘cultural property’ being stolen between the years 2010-2014, of which, 1,130 cases saw resolutions and recovery, while 3,000 cases remained unresolved. These numbers may just be the tip of the iceberg. The India Pride Project, an investigative organization working for the rehabilitation of stolen artifacts in India, estimates that there are about 70,000 stolen artifacts from India going around in the world today, of which only 10,000 may be theoretically recoverable. Many more artifacts may not be on this estimate list as well, given the fact that registration of cases with the police just does not happen. The range of objects can be wide and far ranging – The Stolen Gods project, a website tracking antiquities smuggling interceptions across the world, including both recent as well as antiques, lists out hundreds of cases of thefts taking place in old and new temples. These items include valuables like jewelry, idols of deities and even objects such as the chariots used for festival processions. Subhash Kapoor, in fact, had started off his ‘career’ with Pahari paintings. Also, one should note that the stolen items are not just restricted to Hindu iconography – Buddhist, Jain and even Christian artifacts have been equally at the receiving end. The Archaeological Survey of India had been informed by the Singapore Asian Civilization Museum in 2015 that it was in possession of a whole list of antiquities, which included an idol of Uma Maheshwari from Tamil Nadu and a Christ Altar from Goa. From my own personal memory from 2011, I remember being told by security volunteers of the Jain temple complex in the Eastern part of Khajuraho of their inability to prevent the theft of at least two Tirthankara idols, both of which dated back to 10th century AD. Even in June this year, Delhi Police had recovered a 900 year old idol of Buddha, which had been stolen from Tawang in Arunachal Pradesh.

Antique Smuggling Finances Terrorism and Extremism

The problem of antiquities smuggling is not only about unscrupulous elements making a quick buck anymore. There is increasing evidence now to suggest that terrorist organizations across the world are increasingly resorting to antique trafficking as one of the sources of finance for their nefarious activities. United Nations Educational, Scientific and Cultural Organization (UNESCO) has a 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, of which many countries, including India are a signatory. However, the seriousness about antique trafficking has attained new dimensions in recent times. Detailed investigations by several news organizations, including CNBC America revealed how the well-oiled antiquities smuggling machinery works, with items ranging from ancient necklaces to stone tablets being shuttled by middlemen through shadowy backchannels, ultimately wind up for sale at legitimate auction houses or on the display shelves of Americans. In 2015, the United Nations Security Council (UNSC) unanimously adopted Resolution 2199 formally recognising art and antiquities trafficking as a terrorist financing tool. This came about after UNSC recognized the role of antiquities smuggling in financing ISIS’ “…recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks”. Since then, significant movement has taken place globally, with several countries moving forward to amend laws and rules while also building capacity to tackle this menace. The Federal Bureau of Investigation of the United States of America has issued advisories to the same, while Germany is moving towards stricter regulations. People’s Republic of China has enacted several laws and has tightened its policing to intercept the antiques smuggling problem, working with other countries where these goods end up usually in a bilateral manner. It has also adopted the policy of buying back antiques wherever alternatives are not found. INTERPOL has a dedicated Art-Crimes Wing based in Lyon, France accessed by enforcement agencies from across the world to track and recover stolen heritage. Moreover, countries like Pakistan recently enacted KP Antiquities Act, 2016, increasing financial penalty on heritage-crimes by 40 times and establishing an Antiquities Trade Control Wing to regulate and monitor the illegal trafficking of antiquities. Closer home, the problematic link of terrorism with smuggling is only beginning to be unraveled. Hasan Ali Khan, the money launderer with ties to international arms dealer Adnan Khashoggi and other international terror organizations, had reportedly admitted to stealing antiques of the erstwhile Nizam of Hyderabad from the Salar Jung Museum in Hyderabad between the late 1990s and the early 2000s. Even before this, the state of Jammu and Kashmir had witnessed much loss of heritage, including idols, artifacts and even ancient manuscripts during the peak of terrorism in the 1980s and 1990s, with no investigation being undertaken to figure out the beneficiaries, and the potential links to terrorist organizations. In recent times, the famous 1000 year old Dantewada Ganesha was also found broken into pieces, and it has been postulated to have been an aborted attempt by smugglers linked to Maoists of stealing it away.

More action is needed

India is a signatory to the UNESCO Convention (which led to the 1972 Act) as well as a party to the UNSC Resolution 2199. Several state police forces like Tamil Nadu also have special departments and task forces set up to particularly investigate the cases of idol thefts. However, the track record and the success rate as provided by the government does not inspire much confidence, given the strain the overstrained investigation agencies already are under. Also, the lacuna in the legal systems also need to be addressed urgently to curb the ever-increasing menace. Since 2014, we have seen five cases of artefacts being restored to India from different countries when Prime Minister Narendra Modi went for a bilateral visit. However, that cannot and should not be the only resort for restoring idols, for it is essentially a failure on our part to prevent their theft and expatriation in the first place. Anuraag Saxena of the India Pride Project listed out a five-point collaborative-framework as follows:

  1. Creation of a dedicated multi-disciplinary enforcement wing with specific expertise in the area, given the fact that antique smuggling are sophisticated crimes that need sophisticated skills, since they tend to involve international players, multiple currencies, complex shipping routes and reams of documentary evidence.
  2. Updating Legal Frameworks on priority basis to address the major lacunae caused by the Antiquities Act at the Centre and the various endowment acts at the state level itself. The Madras High Court judgment provides guidance on what standard operating procedures to that end can be like, and must certainly be incorporated by states with endowment acts for their religious institutions. Also, changes as suggested by the Archaeological Survey of India to the 1972 Act must be seriously considered and acted upon, such as the empowerment of customs officers at airports and ports with the authority to check all art items and paintings that any traveler carries on his/her person
  3. Government of India must move fast towards the creation of a National Heritage Archive & Database. This can help to keep track of the various assets across the country. Such a database can help to build a disincentive for the heritage-mafia (knowing that they can’t dispose of a stolen artefact, as its record exists somewhere), and can help to incorporate interested citizens and enthusiasts for reference as well as support in random cases.
  4. Diplomatic efforts & International Partnerships are needed on war footing to give teeth to this fight. Numerous nations have built structures and shown a very serious intent of curbing heritage-crimes. India needs institutions and structures that build bridges with their international counterparts, and turn “ad-hoc restitutions” into a process. Much like China, India should also consider bilateral mechanisms, whereby antiques smuggled and stolen out of India and brought to America can be repatriated with efforts by appropriate law enforcement agencies.
  5. Governments must actively consider bridging the investigative and administrative gaps through Public Private Partnerships (PPP). Given the role being played by privately-run groups such as India Pride Project, the idea seems feasible and worth emulating on a much larger scale.

A ray of hope has emerged amidst the long dark night that antiquities and cultural property of India has undergone. Administration needs to move fast and act in this direction, and not miss this opportunity again. With the persistent looming threat of global and local jihadi terror, and the threats of left wing extremism within, all out preventive measures that can strangulate any potential source of financing for these organizations and their goals of chaos and mayhem should be adopted at the earliest. In the end, we are the only losers if we miss this bus.
Disclaimer: The opinions expressed within this article are the personal opinions of the author. IndiaFacts does not assume any responsibility or liability for the accuracy, completeness, suitability, or validity of any information in this article.