Professional Documents
Culture Documents
659 Naman P
659 Naman P
659 Naman P
htm
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.
1 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
2 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
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
3 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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…’
4 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
5 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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 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.
6 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
7 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
8 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
9 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
10 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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
11 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
12 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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
13 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
14 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
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
15 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
few years from now, their 100+ new museums will have a trained
cadre of professionals.
16 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
are replete with stories about how museums are unable to cope with
their present holdings, which are regularly pilfered.
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.
17 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
18 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
article.
Footnotes:
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
19 of 20 23/8/2014 8:48 PM
659 Naman P. Ahuja, Limits to official legalism http://www.india-seminar.com/2014/659/659_naman_p_ahuja.htm
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.
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
20 of 20 23/8/2014 8:48 PM