While one part of India wonders whether it will get back its once treasured Kohinoor diamond, the other part of India is slowly looted away of its remaining cultural wealth, which came into limelight with the infamous case of Subash Kapoor, who was arrested for his smuggling and illegal dealings of antiquities.

However, efforts are being made for the retrieval of what was India's cultural wealth. This is evident from the recent news of the Indian government retrieving 16 stolen artefacts from the USA via the Cultural Property Agreement.

In this context, it becomes essential to review the existing legislations, which serve to protect cultural heritage and prevent illegal trafficking and smuggling of artifacts. The legislation working for the said purpose in the present is the Antiquities and Art Treasures Act (AATA)[1] of 1972.

The paper, at its base, discusses the backdrop of the AATA, its salient features and important provisions. It proceeds to analyse the Act via comparison with its predecessor, discussion of judgements and its advantages and impediments; and the paper is concluded by providing suggestions.

Introduction
To quote the distinguished intellectual Mr. Shashi Tharoor,

India is not, as people keep calling it, an underdeveloped country, but rather, in the context of its history and cultural heritage, a highly developed one in an advanced state of decay.

India is a country that is widely recognised for its rich culture and historical heritage. It is so much so that, in international politics, it provides a supportive backing for India's position as a soft power. It also promotes the growth of the economy in the form of tourism.

The entrance of colonisation in the pre-independence era and the undealt smuggling and trafficking in the post-independence era led the cultural heritage to the brink of extinction. Apart from these, India also lost her wealth to the above-mentioned criminal activities, which made big profits through sales to foreign museums and private individuals.

However, India has been taking considerable efforts to retrieve these stolen artefacts, which is evident from the recent G20 Summit, which was India's first summit as a host and was conducted in New Delhi in 2023. The opening day witnessed an important event, wherein the world leaders emphasised the importance of preserving cultural heritage and facilitating the return of cultural artefacts to their countries of origin.

To further emphasise the importance of protecting culture, the G20 New Delhi Leaders' Declaration[2] recognises it as a transformative driver of Sustainable Development Goals, under paragraph 31. The essential points of the paragraph are summarised below:

• Reiterating commitment to strengthening the fight against illicit trafficking of cultural property at national, regional or international levels to enable its return and restitution to their countries and communities of origin and calling for sustained dialogue and action in that endeavour.
   
• Encouraging the international community to protect the living cultural heritage, including intellectual property, through strengthening cultural diplomacy and intercultural exchanges, consistent with national law and relevant UNESCO Conventions.

To further reap the benefits made above, it becomes necessary to assess the existing domestic legislations and make the necessary changes. The AATA 1972, strictly regulates the export of antiquities and art treasures, provides for the prevention of smuggling and fraudulent dealings in antiquities, and for the compulsory acquisition of antiquities and art treasures for preservation in public places in India.

Understanding AATA
Background
The first law enacted for legal and illegal trade activities of antiquities and arts of historical significance was the Antiquities (Export Control) Act of 1947[3], whose main object was to control the export of antiquities.

However, as time progressed, this legislation was deemed insufficient as it lacked provisions to preserve the arts and antiques. Thus, a need emerged for a broader scope, which would include prevention of smuggling, illegal dealing and fraudulent activities in antiquities.

To achieve this objective, the Parliament introduced the Antiquities and Art Treasures Bill, which received approval and was enacted as the Antiquities and Art Treasures Act in 1972.

Objectives:

• Regulate export trade
• Prevent smuggling and fraudulent dealings
• Compulsory acquisition of antiquities and art treasures for preservation in public places

Salient Features:

• Broader and exhaustive definition of the protected items i.e., antiquity and art treasure
• Regulating the sale antiquities via grant of license and appointment of licensing officers
• Legal protection for antiques via its registration
• Certain powers given to Central Government in regard with antique sale, compulsory acquisition
• Provisions for Appeal against decisions of the licensing and registration authorities and arbitral awards
• Recognition of certain acts as offenses and prescription of penalties

Important Provisions:
The important provisions of the Act are briefed as follows:

Definitions
The Act provides the interpretation for important relevant terms. The definitions discussed here are of two terms: "antiquity" and "art treasure".

Antiquity[4] is defined as including the following items:

• any coin, sculpture, painting, epigraph or other work of art or craftsmanship;
• any article, object or thing detached from a building or cave;
• any article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages;
• any article, object or thing of historical interest;
• any article, object or thing declared by the Central Government, by notification in the Official Gazette, to be an antiquity for the purposes of this Act, which has been in existence for not less than one hundred years; and
• any manuscript, record or other document which is of scientific, historical, literary or aesthetic value and which has been in existence for not less than seventy-five years;

Art treasure[5] is defined as an item which is not an antiquity, but a work of art made by a human, which receives such recognition through its declaration by the Central Government on the ground of its artistic or aesthetic value.

Registration of Antiquities
The Act provides for the registration of antiquities, which provides them with legal protection and preservation. However, there are certain conditions for registration, which the Central Government notifies from time to time. The factors[6] specified for an antiquity to be registered are:

• Necessity for conservation
• Need for its preservation for better appreciation of India's cultural heritage
• Other factors which will or likely will contribute to safeguarding of India's cultural heritage

Every person who is in possession of such antiquity shall register it and obtain certificate of registration.

For the purpose of registration, an officer known as registering officer[7]. The Central Government appoints these officers and define their jurisdiction.

• Process of Registration [8]
  • Persons who are required to register are to make an application for the grant of certificate of registration to the registering officer.
  • The contents of application include; prescribed form and particulars, as well as photographs of antiquity (6 copies).
  • On receipt of application and its inquiry, if the registering officer deems appropriate, he may grant the certificate of registration.
     
• Rejection of Application: Without first providing the applicant with a fair chance to be heard on the matter, no application submitted under this section may be denied.

Regulation of Export
The Act ensures the regulation of export[9] of antiquities and art treasures, by restricting such trade to the agency or authority that is authorised by the Central Government or the latter itself, while deeming such activity by any other person as unlawful.

The conduct of export is governed by the terms and conditions which are provided in the permit issued by the prescribed authority.

Licensing of Exports:

• A business entity is said to carry out a lawful export activity only when it holds a license issued in accordance with the Act.
• The Act mandates[10] to procure license for the purposes of selling or offering to sell antiques, to persons who intend to carry or someone carries on their behalf such business.
• Any person who desires to carry the antiques business, or desires someone to carry it on their behalf, are to make an application for grant of license[11] to the licensing officer who has the respective jurisdiction.
• An approved license can be renewed[12] for the prescribed period, for which an application has to be made with payment of prescribed fee.
• For the purpose of issuing licenses, the Act created a new position called licensing officers who are designated with the said purpose as their primary duty.
• The Central Government[13] appoints the licensing officers, who are gazetted officers of the government and define their jurisdiction.

Process of Application [14]:

• Once an application for grant of license has been made to the licensing officer, the latter conducts an inquiry, and if he deems fit, grants the license after considering the following factors;
• Experience in Trade
• Location of business
• Number of existing persons in business
• Other prescribed factors
• The license is subjected to the following rules:
• License should be granted on payment of fees
• License should be in accordance and with prescribed form and particulars and subjected to prescribed period, terms and conditions
• Without first providing the applicant with a fair chance to be heard on the matter, no application submitted under this section may be denied.

Revocation, Suspension & Amendment [15]:

• A license can be revoked, suspended or amended, when the licensing officer, on a reference made to him or otherwise is satisfied on either of the following factors;

The license has been obtained from misrepresentation of an essential fact

The licensee has failed to comply with the following:

• Conditions subject to the license
• Contravened with provisions of the Act or Rules

In these cases, without prejudice to the penalty to which the licensee is liable, the licensing officer may revoke or suspend the license.

If a person is subjected to revocation of license and wishes to sell the antiquities[16] to other licensees (holding a valid license) that are in his ownership, possession or control, he may make a declaration to such effect to the licensing officer immediately before the revocation. If not immediately, the sale has to be executed within 6 months from the date of revocation.

In cases where the license is valid but needs changes, the licensing officer may vary or amend the license.

Adjudication of disputes on regulation and licensing [17]
If any person is aggrieved by the decisions delivered by the licensing officers and/or registering officers, the person may appeal against such decisions to the appellate authority within 30 days from the date of decision. However, the authority may also accept post the mentioned period, provided the person has sufficient cause for the delay.

On receipt of the appeal, the appellate authority provides an opportunity of being heard, after which he may pass orders as he deems fit.

Powers of Central Government
The Central Government is conferred with two powers under this Act: carry on the business of selling antiquities to the exclusion of others and compulsory acquisition of antiquities and art treasures.

1. Business of selling antiquities [18]:
   The Central Government or any authority/agency authorised by the government in this behalf is alone entitled to carry on the business of selling or offering to sell antiquities when the government is of the opinion that there is a need for conserving or in the public interest.
    
2. compulsory acquisition of antiquities and art treasures[19]:
   The Central Government may issue an order mandating the compulsory acquisition of any antique or work of art if it believes that it is desirable to conserve it in a public setting.
   On an order, the District Collector having jurisdiction shall issue notice to the owner of the antique or art work intimating the contents of the order and may use necessary force to acquire the same.
   This power, however, shall not extend to antiques or art works used for bona fide religious observances.
   If the owner wishes to object to such acquisition, then he should make a representation, citing his objections within 30 days from the date of possession.
   On receipt of the objection, within a period of 90 days, the Central Government should conduct an inquiry and provide reasonable opportunity to the objector for being heard. It may either rescind or confirm the order.

Penalty
The acts constituting offences and the penalties prescribed are summarised in the table below:

Offence	Penalty
Section 25 - Person (by himself or in his behalf) exports/attempts to export in contravention of section 3	Imprisonment; 6 months - 3 years; with fine
Section 25 - Contravenes provisions of section 5 or section 12 or sub-section (2) or sub-section (3) of section 13 or section 14 or section 17	6 months imprisonment, with fine or both Antiquity for which said offence has been committed is confiscated
Section 25 - Person prevents licensing officer from inspecting any record, photograph or register maintained under section 10	6 months imprisonment, with fine or both
Section 25 - prevents any officer authorized by the Central Government under sub-section (1) of section 23 from entering into or searching any place	6 months imprisonment, with fine or both
Section 28 - Offence by companies	Proceeded against and punished accordingly

Amendments:

• The Act has not undergone any amendments. However, a Bill[20] was introduced in Lok Sabha in 2019, that aimed to amend certain provisions.
• The ground for amendment is to enable the lawful trade in antiquity while also guaranteeing the preservation of the country's cultural heritage.

For the said ground, the amendment sought the following:

• Establishment of National Authority for the purpose of protection of cultural heritage
• Preservation of tangible heritage objects within and outside India
• Establishment of Register of Antiquity and National Cultural Objects
• Setting out the responsibilities and conduct of antiquity and cultural objects traders
• Ensure the compliance of international conventions ratified
• Preventing the fragmentation of antiquity and national cultural objects

Analysis Of AAT ACT
The Act will be analysed under the following three headers:

• Comparison with AEC Act
• Judgement Analysis
• Advantages and Impediments

A. Comparison with the Repealed Predecessor
To understand how the Act is a step forth from the predecessor legislation i.e., the Antiquities (Export Control) Act 1947[21], it becomes essential for their comparison, which has been summarised in the table below:
 

Subject	Antiquities (Export Control)	Antiquities & Art Treasures
Purpose of Legislation	To control export of antiquities	to regulate the export trade in antiquities and art treasures; to provide for the prevention of smuggling and fraudulent dealing in antiquities; to provide for the compulsory acquisition of antiquities and art treasures for preservation in public places.
Cultural Properties dealt	Antiquity [defined under Section 2(a)]	Antiquity [defined under Section 2(a)] and Art Treasures [defined under Section 2(b)]
Definition of Export	Section 2(b) - export from India by sea, land or air	Section 2(c)- taking out of India to a place outside India
Regulation of Export	Under Section 3, the export is prohibited unless the authority of a license is granted by the Central Government	Under section 5, no person is to engage in business of sale or offer of sale of antiquities except in accordance with the terms and conditions of the license granted by the Central Government; otherwise, activity considered unlawful; provisions for licensing officer, application, grant and renewal of license and revocation, suspension or amendment of license.
Penalty for acts contravening to regulation of export	Under section 5, the person is liable to 1 month imprisonment, 5,000 rupees fine; or both imprisonment and fine	Under section 25, the person is liable to 6 months - 3 years imprisonment and with fine

Judgement Analysis:

Case Title	Rajesh v State of Kerala
Case Citation	2023/KER/49210
Date of Judgement	August 16, 2023
Jurisdiction	High Court of Kerala at Ernakulam
Coram	Bechu Kurian Thomas, J

Facts
The revision petitioner has spent the previous thirteen years battling a criminal case related to two idols he claimed to be the owner of. He was found guilty on the grounds of unaccounted possession. The Trial Court, Magistrate Court, Additional Sessions Court IV, Thrissur and Appellate Court, reached the conclusion that the seized idols were "incredible and precious archaeological properties" belonging to the 18th century and found the petitioner guilty of the offence.

The criminal revision appeal had been filed in an attempt to overturn his conviction for the offence under Section 53A of the Kerala Police Act, 1960.

Issue:

• The allowance of criminal revision petition.

Held
The petition was allowed by the Court

Analysis
The learned counsel for the petitioner argued that the provisions of the Antiquities and Art Treasures Act did not prohibit a person from possessing an idol, which is an antiquity.

On discussing the provisions of the Act, the Court observed that the Act does not restrict the right of a person to own or possess an antiquity.

There is a provision under the Act that states; "any antiquity which is over 75 years old must be registered." However, it does not provide for the consequences if such registration is not done. Furthermore, the Central Government will have to pay compensation to acquire any antiquities that they wish to own and hold. In this regard, the Court concluded that possession of an antique, regardless of age, is clearly entitled under the statutory provisions.

Case 2

Case Title	Ajay Kumar Mittal v Union of India and Ors
Case Citation	2022/DHC/004642
Date of Judgement	November 4, 2022
Jurisdiction	High Court of Delhi at New Delhi
Coram	C.Hari Shankar, J

Facts
The petitioner is a philatelist, whose collection includes postage and fiscal stamps, envelopes and stamp papers, which are more than a century old. The petitioner claims to hold various philatelic collections and has participated in various philatelic exhibitions abroad.

In order to participate in these exhibitions, the petitioner has claimed that he regularly sought clearance from the following chain of command; Department of Posts (DOP) - Department of Culture (DOC) [grant of no objection certificate] - Archaeological Survey of India (ASI) [grant of Temporary Exhibit Permit] to export the philatelic exhibits outside the country.

The DOC issued "Guidelines for organizing exhibitions abroad for lending art objects to private and public museums and receiving exhibitions from abroad". It envisaged a detailed procedure to be followed before antiquities or art treasures were exported abroad.

The petitioner desired to participate in the World Stamp Championship Israel 2008, which was held at Tel Aviv, and had followed the same procedure for clearance. However, the DOC did not grant the no objection certificate. Due to the lapse of time, the petitioner had inquired on the same, on which he had found that the DOC was applying the 1999 guidelines.

Aggrieved, the petitioner had approached the Court under Article 226 of the Constitution, on the ground that AAT Act and the 1999 Guidelines would not cover philatelic exhibits.

Issue:

• Are philatelic exhibits -" antiquities" within the meaning of the Antiquities and Art Treasures Act, 1972

Held:
Philatelic exhibits are "antiquities" within the meaning of the AAT Act, and the 1999 Guidelines would also apply to such exhibits.

Analysis
The Court observed that the issue is based on the interpretation of the definition of "antiquity" under Section 2(1)(a)(I) of the Act. The Court observed that, on the face, the clauses (i), (ii), (iii) and (v) do not apply.

On analysis of clause (iv), which categorises antiquity as any article, object or thing of historical interest, the Court observed that the provision does not refer either to "national importance" or even to "historical value". It requires the article, object or thing, covered by the clause, to be of "historical interest". The Court observed that philatelic exhibits are articles, objections or things of historical interest, thereby ex facie within the ambit of Section 2(1)(a)(I)(iv) of the Act.

The Court also observed that philatelic exhibits are antiquities even within the meaning of Section 2(1)(a)(II).

Advantages and Impediments
The Act was a progress of the intent of the government to protect and preserve the cultural heritage of India. However, this progress is insufficient due to the lack of its improvement to the present scenario of illegal activities and fraudulent dealings in the arts and antiques business.

With this observation, the below-discussed are the advantages and impediments of the AAT Act of 1972:
Advantages

• Regulates export trade
• Regulates internal trade via issuance of license
• Regulates and protects the antiquities in possession of private persons and individuals via registration
• Empowers government with compulsory acquisition in situations of expedient need
• Provides penalty for contravention of provisions of Act

Impediments:
The major impediment is the lack of provisions for the arising changes and crimes, making the Act outdated. The provisions that are lacking include:

• Particular acts of offences; such as illegal trafficking, smuggling, making and selling of replicas etc
• A centralised authority for licensing, registering and hearing appeals against such decisions
• Procedure of retrieval of stolen artifacts in the possession of foreign individuals and/or institutions

The other impediment is the lack of awareness about the legislation, which makes its applicability way less. Suggestions:
From the above-discussed, it is evident that the AATA is an outdated legislation, that needs additions and modifications. In this regard, the scope of the Act can be further broadened by inclusion of the following provisions:

• Administration of the return of antiquities by foreign governments
• Listing of particular offences such as trafficking and smuggling
• Auction of Antiques: manner of conduct, establishment of authority and relevant matters
• Maintenance of retrieved antiquities and its rightful owners
• Regulation of Museums and relevant public institutions
• Coordination of authorities i.e., ASI, Idol Wing, State Archaeology Department, Ministry of Culture etc

Conclusion
The Antiquities and Art Treasures Act of 1972 serves as an important legal framework aimed at regulating the trade and its practices, and preserving India's cultural heritage. However, it is evident from the analysis that the Act requires significant updates to address the current challenges of illegal trafficking, smuggling, and the protection of cultural artifacts.

Moreover, the Act lacks provisions for the above-said challenges. Thus, it becomes crucial to make necessary amendments to address its limitations and to raise its awareness in order to make it relevant to the current context. Such updates will not only strengthen the protection of cultural heritage but also ensure the effective regulation of trade and the preservation of India's historical artifacts.

References:
Published Papers / Articles

• Biswas, S.S. (2002) Protection of cultural property vis-�-vis Indian antiquarian legislation and global concern. In: Estrategias relativas al patrimonio cultural mundial. La salvaguarda en un mundo globalizado. Principios, practicas y perspectivas. 13th ICOMOS General Assembly and Scientific Symposium. Actas. Comit� Nacional Espa�ol del ICOMOS, Madrid, pp. 68-71. [Book Section] available at >
• Dr. V.N. Srinivas Desikan, Prevention of Illegal Traffic in Art and Cultural Heritage Objects, Our Role in the Protection of Cultural Heritage, Held (Virudhunagar, 2007) available at (last visited on 18.03.2024)
• Dr. V. Jeyaraj, A Survey of Global Legislative Measures on Art, Cultural and Natural Heritage, Our Role in the Protection of Cultural Heritage, Held (Virudhunagar, 2007) available at < https://museum.dealstvm.com/uploads/topics/16529647387020.pdf#page=72> (last visited on 18.03.2024)
• Vinay Kumar Gupta, "Retrieval of Indian Antiquities: Issues and Challenges" XXIV (2) Art Antiquity and Law 101-124 (2019) available at (last visited on 18.03.2024)

Newspaper Websites:

• DH Web Desk, "India and US set to simplify return of stolen antiquities: Report" Deccan Herald, 27 November 2023, available at (last visited on 18.03.2024)
• Our Bureau, "G20 leaders call for culture protection and artifact return" The Hindu Business Line, 10 September 2023, available at < https://www.thehindubusinessline.com/news/g20-leaders-call-for-culture-protection-and-artifact-return/article67289357.ece> (last visited on 18.03.2024)

Legislations:

• The Antiquities and Art Treasures Act, 1972 (Act No. 52 OF 1972) available at < https://indiaculture.gov.in/sites/default/files/acts_rules/TheAntiquitiesandArtTreasuresAct1972_12.03.2018.pdf>
• (Repealed) Antiquities (Export Control) Act, 1947 (Act No. 31 OF 1947) available at

Case Laws:

1. Case 1: Rajesh v State of Kerala, 2023/KER/49210; available at <https://www.livelaw.in/pdf_upload/2044000080520161-487733.pdf>
2. Case 2: Ajay Kumar Mittal v Union of India and Ors, 2022/DHC/004642; available at: < https://www.livelaw.in/pdf_upload/chs04112022cw30722008144453-442496.pdf>

End-Notes:

1. Henceforth abbreviated as AATA 1972
2. Source: https://www.consilium.europa.eu/media/66739/g20-new-delhi-leaders-declaration.pdf
3. Act No. 31 of 1947
4. AATA, S.2 clause (a); text as presented in the section
5. AATA, S.2 clause (b)
6. AATA, S.14
7. AATA, S.15
8. AATA, S.16
9. AATA, S.3
10. AATA, S.5
11. AATA, S.7
12. AATA, S.9
13. AATA, S.6
14. AATA, S.8
15. AATA, S.11
16. AATA, S.12
17. AATA, S.21
18. AATA, S.13
19. AATA, S.19
20. The Antiquities and Art Treasures (Amendment) Bill 2019 https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/
21. Repealed via Section 32 of AATA

Award Winning Article Is Written By: Ms.Ravani Ukti Nayudu

Authentication No: MR445564319672-29-0324