Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015, pp.
75–85
India’s antiquities laws: an antiquated relic?
Cyril Shroff* and Rishabh Shroff**
Abstract
The global demand for Indian antiquities is grow-
ing rapidly, but the legal framework governing
Indian antiquities is ill-equipped to deal with
these pressures and is largely underwhelming.
The primary legislation governing antiquities in
India is the Antiquities and Art Treasures Act,
1972. This article explores the various facets of
how the Antiquities Act, which originally sought
to regulate the business of dealing in antiquities,
has allegedly negatively impacted the growth of
the Indian antiquities industry by creating an
onerous regime of registration and compliance
for stakeholders, while empowering the
Archaeological Survey of India with several draco-
nian powers.
India’s antiquities
With over 3000 years of cultural diversity, India has
cultivated a rich repository of arts and antiques over
the centuries. The reign of the Mauryan Dynasty, the
Chola Dynasty, and subsequently the Mughals was
vital towards the cultural development of the Indian
subcontinent. The Chola Dynasty was particularly
famous for its intricate sculptures and bronzes. The
best example of this can be seen in the form of
‘Nataraja’, the Divine Dancer, one of India’s most
famous sculptures. The Mughal rule, which came
from Central Asia in the 16th century, went on to
cover most of the northern parts of India, and their
artisans were eclectic, borrowing from the European
* Cyril Shroff, Managing Partner, Amarchand & Mangaldas & Suresh A. Shroff & Co., Mumbai, India. Tel: (þ91-22) 2496 4455/(þ91-22) 6660 4455;
Email: Cyril.shroff@amarchand.com.
** Rishabh Shroff, Principal Associate, Amarchand & Mangaldas & Suresh A. Shroff & Co. Mumbai, India. Tel: (þ91-22) 2496 4455/(þ91-22) 6660 4455;
Email: Rishabh.shroff@amarchand.com
The authors would like to acknowledge Tanmay Patnaik, Kunal Savani, and Saloni Shroff.
ß The Author (2014). Published by Oxford University Press. All rights reserved.
75
Renaissance as well as from Persian and Indian
sources.
Modern and contemporary Indian art (and antiqui-
ties) has captured the imagination of the international
market, with Indian antiques being sought after by
private collectors and institutions alike.
International auction houses, such as Christie’s and
Sotheby’s, have frequently held successful auctions for
Indian-origin objects under the Indian and Southeast
Asian category in the past. In December 2013,
Christie’s first auction in India was hailed as a
grand success, as the modernist painter the late
artist Mr VS Gaitonde set a world record for
modern Indian art when his abstract landscape
fetched USD 3.7 million. Further, the Victoria and
Albert (V&A) Museum in London is often regarded
as the largest cache of valuable Indian antiques in the
world. Some of the famous artwork housed here in-
cludes the famous ‘Tipu’s Tiger’, the Crown of
Bahadur Shah II, and the bronze figure of the
Buddha Shakyamuni. While this debut Indian auction
by Christie’s did not feature any Indian antiquities,
Christie’s is reportedly planning to broaden its Indian
canvas by including these objects in their next auc-
tion. The cause for such ‘delay’ is interesting to note.
In a recent interview dated 10 January 2014 to a na-
tional newspaper, the Hindu, the Marketing Head of
Christie’s India indicated that there was a ‘sense of
ambiguity’ concerning the law governing antiquities,
and hence they had decided to refrain from entering
the antiquities market until they had a better under-
standing of the applicable regulations.
doi:10.1093/tandt/ttu221
Advance Access publication 28 November 2014
76 Articles
The demand for such objects has also risen in India.
Private institutions have taken the initiative of reviv-
ing artefacts and works by artisans. The new terminal
at Chattrapati Shivaji International Airport in
Mumbai, T2, inaugurated in January 2014, houses
the largest art collection in India. It has nearly 7000
artefacts and works of over 1500 artists in the airport.
The international demand for such antiquities has
fuelled the global movement of these objects. Rare
Indian antiquities can frequently be found in the
houses and offices of Indian businessmen and their
families abroad. With both global and Indian collec-
tors on an acquisition spree, it was expected that a
comprehensive legal regime would support the grow-
ing market and regulate the trade of such objects.
However, as will be explored in this article, the pre-
sent legal architecture is not fully equipped to deal
with these pressures and is largely underwhelming.
For example, Indian law does not permit the export
of Indian antiquities, but the increasing demand for
such objects has fostered the growth of a large inter-
national black market for Indian antiquities. This art-
icle aims to offer a brief understanding of the key
issues that have hindered the growth of India’s nas-
cent antiquities market, and accordingly, puts for-
ward some ideas that may help ameliorate the
present situation.
The Antiquities Actçwhat is an
‘antiquity’?
The primary legislation that regulates arts and anti-
quities is the Antiquities and Art Treasures Act, 1972
(‘Antiquities Act’ or the ‘Act’), and pertains to the
registration of antiquities and art treasures in India,
as well as the regulation of their trade. It would be
helpful to look at the history of the Antiquities Act
and the social context in which it came into force, to
better understand the problems concerning the defin-
ition of an antiquity. There primarily exist two
schools of thought concerning the motive behind
1. 5http://indiatoday.intoday.in/story/precious-collection-of-nizam-jewels-lies-buried-in-a-bank-vault/1/329242.html4 accessed 11 April 2014; http://kafila.
org/2013/02/14/illegal-antiquities-vishes-kothari/, accessed 11 April 2014.
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
the enactment of the Antiquities Act. A fairly large
section of commentators believe that this law was
hastily put into place after the ‘privy purses’ of the
Indian royal estates/Indian royalty were abolished.
This resulted in the rulers of the erstwhile princely
states shipping out art treasures abroad to the highest
bidder, to help sustain themselves. It is believed that
in a bid to stem this drain, the government enacted
the Antiquities Act.1
Another set of commentators are of the view that
the enactment of the Antiquities Act can be linked to
the political and social unrest that existed in the
country at the time. With a general state of unease
across the country, the then ruling party, the Indian
National Congress, was voted back into power in
1971 under the leadership of Mrs Indira Gandhi.
Soon after the elections in 1972, armed conflict
broke out between India and Pakistan, and India
was at war. The government feared that given the
general atmosphere of unrest and fear, the Indian
wealthy would leave the country, and carry with
them valuable Indian artefacts, paintings, jewellery,
and so on, and that they would soon pass into foreign
hands.
While its legislative history can be debated, there is
little doubt that the Antiquities Act was hastily en-
acted with little or no parliamentary debate prior to
its enactment. Its intent was to cover as broad a spec-
trum as possible and bring as many objects as possible
under its ambit. The Act introduced a very broad
definition of ‘antiquity’. Among other things, the
Antiquities Act prescribed a tedious registration
process for these antiquities, and also empowered
the Archaeological Survey of India (ASI) to be the
‘enforcement wing’ under the Antiquities Act. It
also sought to regulate the business of dealing in
antiquities, and created an onerous regime of
registration and compliance. It also empowered the
ASI and the government to compulsorily acquire or
seize antiquities and art treasures in certain
circumstances.
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
In light of the context in which the Antiquities Act
was introduced, and the overall intent of the Act, one
of the most fundamental questions under the Act is
the seemingly innocuous question of ‘what is an an-
tiquity?’ Section 2(1)(a) of the Antiquities Act, by way
of an inclusive definition, defines the term ‘antiquity’
to include:
i. any coin, sculpture, painting epigraph or other work
of art or craftsmanship;
ii. any article, object or thing detached from a building or
cave;
iii. any article, object or thing illustrative of science, art,
crafts, literature, religion, customs, morals or politics
in bygone ages;
iv. any article, object or thing of historical interest;
v. 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 hun-
dred years; and any manuscript, record or other docu-
ment which is of scientific, historical, literary or
aesthetic value and which has been in existence for
not less than seventy-five years.
Hence, under this definition, any article or object
that is over 100 years old is considered to be an ‘an-
tiquity’, regardless of it having any real historic value
or relevance. For example, a simple photograph taken
100 years ago is an antiquity. Even a shawl or an item
of clothing owned by a family that was over a 100
years old and was passed down within the family for
generations would fall into the above definition of
antiquity. And indeed, many ‘old’ objects that a
family would never assume to be an antiquity are
now brought under the onerous Antiquities Act re-
gime—simply by the passage of time. This definition
has left enough room for interpretation, leading the
ASI to make some uninformed decisions on what they
consider as antiquities.
2. Atul Sethi, ‘Sell, Don’t Smuggle’ (The Times of India, 26 August 2012) 5http://timesofindia.indiatimes.com/home/stoi/deep-focus/Sell-dont-smuggle/
articleshow/15725033.cms4 accessed 11 April 2014
3. Chapter 2 of the Ministry of Culture Annual Report (2007–12) 5http://asi.nic.in/asi_mission.asp4 accessed 11 April 2014
Articles 77
Implications of an object being treated as an
‘antiquity’
There are many implications for an object to be trea-
ted as an antiquity, the most important of them being
the requirement to register such objects with the ASI,
with the Act prescribing an onerous licensing regime
for the same.
Individuals who possess antiquities but are not
engaged in the business of trading them are required
to register these objects with the ASI. Individuals do
not require a license to purchase or acquire such
items, but the Act requires every person who owns,
controls, or is in possession of any antiquity to have
the same registered. Every applicant is required to
submit a detailed registration form, including details
concerning the material and size of the antiquity, its
approximate age, source of acquisition, price paid (if
any), present location, and condition of the antiquity.
Reports indicate the ASI had only managed to
register about 300,000 artefacts across the country
in the past 25–30 years.2 This number has reportedly
doubled in the past five years, according to latest
annual report of the Ministry of Culture. The
Ministry of Culture had launched the National
Mission on Monuments and Antiquities (NMMA) on
19 March 2007 to address registration and database
issues.3 The aim of the NMMA was to create a com-
prehensive record in the form of a database where
India’s archaeological resources in terms of built heri-
tage, sites, and antiquities could be referred to in a
centralized database. The mission proposed to launch
this initiative throughout India, with an independent
functional strategy in each state and union territory,
and envisaged that this mandate would be achieved
within five years, that is, 2007–12. However, millions
of artefacts still remain unregistered, and there have
been no further reports on the activities or progress
(if any) of this mission.
In relation to those carrying on the business of
dealing in antiquities, such as auction houses and
similar organizations, the Act prescribes a separate
78 Articles
licensing regime, with the intention of preventing the
illegal trafficking of antiquities. The Act requires per-
sons desirous of carrying on, by themselves or by any
other person on their behalf, the business of selling or
offering to sell antiquities to hold a license from the
ASI to undertake such activities, and typically these
licenses are rarely granted. However, while the Act
provides that the licensing requirement is specifically
applicable only for persons engaged in the ‘business’
of trading antiquities, the word ‘business’ has not
been specifically defined. By way of reference, under
the Indian Income Tax Act, 1961, ‘Business’ simply
means any economic activity carried on for earning
profits, defined as:
any trade, commerce, manufacturing activity or any
adventure or concern in the nature of trade, com-
merce and manufacture.
In this connection, it is not necessary that there
should be a series of transactions in a business, or
that it should be carried on permanently. Neither
repetition nor continuity of similar transactions is
necessary. However, in most cases, this is a fine line,
with many collectors who allegedly acquire antiquities
for their own consumption frequently selling the
same in quick succession, similar to a trading busi-
ness. Hence, many dealers of antiquities in India, who
would otherwise fall under the purview of this provi-
sion, argue that they are acquiring these objects for
their personal consumption and happen to sell them
as part of their personal estate. Most times, given the
limited adherence by the owners of these objects with
the registration requirements under the Act, these
trades go undetected and hence the government
does not have any record or information regarding
these trades or the ownership of valuable antiquities.
What happens when the owner of an antiquity
does not comply with the Act?
The final determination of whether an individual is in
compliance with provisions of the Antiquities Act is
left to the discretion of the ASI. If any individual is
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
found to be in contravention of the provisions of the
Act, such as the requirement to register such objects
with the ASI, the ASI is empowered to acquire the
antiquities from the individual on the grounds of im-
proper maintenance under Section 19.
The power of the ASI to acquire an antiquity from a
private individual/collector does not, however, re-
strict itself to cases of improper maintenance alone.
The ASI is also empowered, under Section 19, to ac-
quire an antiquity simply for ‘preservation purposes’,
with no guidance or objective threshold on what is
meant by this term. Should the owner of the antiquity
object to the forced acquisition, the owner is entitled,
under Section 19(3), to file a representation with the
central government within 30 days of the acquisition.
If the government decides to rescind the order to ac-
quire the antiquity, the object is to be returned to its
owner immediately. Should the central government
approve the acquisition despite an objection being
filed, the owner of the property is paid compensation
for the same. However, this compensation is at a price
established by government-appointed valuers, who
are often ill-equipped for this function and not know-
ledgeable of the true value of the works. These valuers
often grossly undervalue the object, perhaps at a little
more than the original acquisition price or even less,
indicating the huge conflict of interest in the same
person who is required to pay compensation for for-
cibly acquiring the object being allowed to appoint a
valuer to determine the price at which such acquisi-
tion occurs. The process raises doubts on whether
such assessment is always carried out in a fair and
just manner. Hence, owners of such antiquities
prefer to stay hidden and not register their anti-
quities—in the fear that the ASI might come after
them and forcibly acquire the same.
Further, the ASI is also empowered to prosecute
and even raid the concerned person’s premises. This
raid can be conducted by the ASI on grounds of
ensuring compliance (registration or maintenance of
antiquities) with the Antiquities Act or on the
grounds of mere suspicion that the provisions of
the Antiquities Act have been or are currently being
violated by an individual. It further empowers the ASI
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
to raid and seize the antiquity, even if it suspects
that the individual is about to contravene the
Antiquities Act.
The use of such powers under Section 19 by the ASI
can be seen in the recent case of the Sree Padmanab-
haswamy temple. The Sree Padmanabhaswamy temple
is located in Thiruvananthapuram, the capital of
Kerala, and the shrine is run by a public trust
headed by the Maharaja of Travancore. A petition
was filed with the Kerala High Court by a devotee
who had a falling out with the Travancore Royal
family, and in the petition he alleged that the trust
property (which included a large number of antiqui-
ties) was being mismanaged. After considering the
evidence at hand, on 31 January 2011, the Kerala
High Court ordered the temple and its assets to be
managed by the state and the ASI. The Travancore
Royal family subsequently challenged the Kerala High
Court’s decision in the Supreme Court of India. In
June 2011, the Supreme Court directed the authorities
from the archaeology department and fire services to
open the secret chambers of the temple for inspection
of the items kept inside—these doors had been sealed
for hundreds of years. Upon doing so, the authorities
discovered that the temple cellars contained a massive
hidden cache of gold, jewellery, gold sculptures, dia-
monds, antiques, and many valuable objects—liter-
ally, a hidden treasure. The specific details and the
formal valuations of these objects inside the temple
have not been released to the public, but reports in-
dicate that the collective valuation of these objects
would cross several billion dollars (if not substantially
more). The Government of Kerala moved to acquire
some of the property for preservation purposes by
invoking Section 19 of the Antiquities Act, namely
the power of the central government to compulsorily
acquire any antiquity or art treasure if it is of the
opinion that it is desirable to preserve any antiquity
or art treasure in a public place.
However, the Act states this power to acquire under
Section 19 does not extend to antiquities used for
bonafide religious observances, indicating that the
ASI could not exercise this power to compulsorily
acquire antique statutes, idols, items used for religious
Articles 79
rituals, and other such objects from temples, mos-
ques, churches, and so on. Given the nature of the
objects found under the Sree Padmanabhaswamy
temple, this would most likely have been the type of
objects found there. Further, under the Act, catalo-
guing, registering, and protecting of treasures found
in the vaults could be done without the need to for-
cibly acquire them. Hence, it is alleged by many that
the actions of the government and the ASI, by invok-
ing Section 19, are heavy handed and uncalled for,
with these actions sparking a great deal of public
debate. While the matter is sub judice before the
Supreme Court, the determination of whether the ac-
tions of the Kerala government were bona fide and
taken on the basis of genuine concern for the preser-
vation of temple property, or for ulterior motives, is
still unresolved.
To help avoid such complications and confronta-
tions with the ASI, it is proposed that there needs to
be a clearer objective of an antiquity, firstly to sieve
out objects that would otherwise never be classified as
an antiquity apart from the current provisions of
Section 2(1)(a). There needs to be a more relevant
definition that focuses on cultural and historical
value of the antiquity in question, rather than
simply relying on the age of the object. Further, the
powers of the ASI under Section 19 need to be re-
visited, such that genuine collectors of antiquity in
India do not live with the constant fear of harassment
or a possible raid by the ASI. This theme is further
explored below.
The challenging role of the ASI
The ASI, housed under the Ministry of Culture in the
Indian government, is the authority appointed under
the Antiquities Act for archaeological research and
protection of Indian cultural heritage. Some of its
primary objectives include the maintenance and pres-
ervation of ancient monuments and archaeological
sites and remains of national importance. Further, it
also regulates all archaeological activities at identified
historical sites, including their restoration, conserva-
tion, and promotion. The ASI is also responsible for
80 Articles
creating and maintaining a national archive of anti-
quities in India. Other responsibilities include the
laying down of archaeological policy in the country,
issuing licenses for excavations, imparting profes-
sional training to other scholars in various disciplines
of archaeology, and bringing out archaeological
publications.
The fact that the ASI has been given such a broad
mandate, without the requisite maturity, funding, ex-
perience, and manpower, is actually harming the
growth and credibility of the ASI. Given that India
is a treasure trove of cultural monuments and arte-
facts, the ASI needs to be active on a number of
fronts, including having a physical presence in
almost every location with an ancient monument. It
is expected to play multiple roles—that of a conser-
vationist, an archivist, an administrator, a policy
maker, and ultimately, the role of a regulator/enforce-
ment authority. Many believe that the ASI cannot do
justice to all these multiple roles, and that this is
causing a strain on its resources.
The main issue with the function of the ASI is that
the officers of the ASI are not trained or qualified for
the specialist nature of their job. The lack of expertise
or experience in the subject matter of the Act has been
discovered to be a major systemic flaw with the ASI,
as there are no set qualifications or experience re-
quirements mandated for the position of Director
General. He or she only needs be an officer of the
Indian Administrative Services (IAS), the Indian
Civil Service. This lack of qualification or training
in dealing with antiquities affects how the ASI carries
out its functions.
For example, the Director General of the ASI, its
senior-most officer, is empowered to decide on
whether any article, object, thing, or manuscript or
record or other document is an antiquity or art treas-
ure for the purposes of the Act. However, in the past,
Indian courts have observed that these Director
Generals do not have the expertise nor adequate
training to perform some of their duties under the
Antiquities Act. In the case of Bowrings Fine Art
4. (2006) 88 DRJ 832.
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
Auctioneers Pvt. Ltd v. Archaeological Survey of India
and Ors,4 the Delhi High Court observed that:
. . . An IAS Officer may be fully competent to dis-
charge administrative functions. However, unless he
has attained specialisation in the field of determin-
ation of the age of a Painting, he would have to
depend only on the Experts’ opinions. The statute
should prescribe the qualifications for appointment
to the post of the Director General, Archaeological
Survey of India and this absence has become con-
spicuous in the present case since he/she has to dis-
charge not merely administrative but also highly
specialized functions . . .
In the Bowrings Case, the Director General of the
ASI was given the responsibility of determining
whether a painting, which was recently auctioned,
was an antiquity under Section 24 of the Antiquities
Act. As the Director General was only an IAS bureau-
crat, he had no knowledge, experience, or academic
and professional training to return a finding on a
technical question on the provenance and age of the
painting in question. Hence, two committees were
formed to determine the age of the painting, who
subsequently delivered contrary findings and valu-
ations in relation to the painting. The court further
observed that there had been unnecessary delay
caused by the Director General’s inability to make a
timely determination or undertake any decision on
his own merit. The auction of the painting in ques-
tion had taken place almost three and half years prior
to the judgment, and valuable consideration had al-
ready been paid by the party. The court was critical of
the Director General’s inaction and stated that the
delay was detrimental to the interests of the purchaser
and also exposed him to continued prosecution and
mental anguish. The court ultimately ordered the
Director General to pass orders concerning the final
determination within four weeks of the judgment.
One of the reasons the ASI has evolved as it has is
the fact that the ASI faces a severe lack of funding.
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
The area of ‘Art and Culture’ in India received a
meagre 0.16 per cent of the total funding allocation
by the central government in the 11th Five Year Plan
(2007–12). Despite the Report of the Working Group
on Art and Culture (2007–12) recommending that the
archaeology sector receive approximately INR 1500
million (USD 24 million)5 annually, reports indicate
that the disbursements actually made by the central
government were well below the recommended
amounts. Taking cognizance of the shortfall, the
recent Report of the Working Group on Art and
Culture (2012–17) stated that the cultural sector
was not accorded the attention and priority it de-
serves in India’s overall agenda for development and
fund allocation. It accordingly proposed that the
central government disburse a higher figure of ap-
proximately INR 2000 million (USD 32 million)6
each year during the term of the 12th Five Year
Plan. As the same was only a recommendation, the
actual disbursements by the central government may
vary, and it is again expected that the actual disbursed
figures at the end of the Plan would fall short. Even
so, with these limited resources, the ASI is expected to
protect, preserve, and maintain over 3677 monu-
ments, geographically spread out in some of the
remotest corners of India—a herculean task by any
standard. To its credit, as part of its other responsi-
bilities, it has successfully copied more than 74,000
inscriptions and restored numerous heritage sites,
including the famous Taj Mahal in Agra—but there
are still many more monuments to protect, and many
more inscriptions to be done, all of which require
substantial funding and resources.
Even the central government acknowledges that
there are problems with the framework of the ASI.
In Chapter 4 of the Draft Report of the Working
Group on Arts and Culture on the 12th Five Year
Plan (2012–17) released by the Ministry of Culture,7
the Working Group specifically highlighted the fact
that the ASI is inadequately staffed, lacks adequate
5. Assuming USD 1 ¼ INR 62.
6. Assuming USD 1 ¼ INR 62.
7. Draft Report of the Working Groups/Steering Committees for the 12th Five Year Plan (2012–17) dated January 2012. 5http://planningcommission.gov.
in/aboutus/committee/index.php?about¼12strindx.htm4 accessed 11 April 2014
Articles 81
logistics, and requires a structural overhaul to carry
out its responsibilities efficiently. In its report, the
committee observed that the ASI was:
in need of various measures for restructuring the or-
ganization, which includes setting up a Regional
Directorate which necessitates the creation of requisite
infrastructure, logistic supports and adequate staff
component.
In light of the above, it is not surprising that the
track record of the ASI has been questionable. While
the ASI has been doing adequate justice to its man-
date as a conservationist and archivist, its track record
as regulator with regard to antiquities leaves much to
be desired. To help ensure that Indian antiquities
market is better regulated, the government may con-
sider revising the Antiquities Act framework, thus
providing much needed training and exposure to
the ASI. It would also be hugely beneficial if the ASI
enlisted a dedicated body of experts who are well
versed in the nuances of antiquities as part of their
taskforce, if not directly into the authority itself. It
would also be helpful and advantageous for the ASI
to initiate training and awareness programmes relat-
ing to registration and other such requirements, both
for the general public and for the ASI officers
themselves.
The export regime for antiquities
Indian antiquities can be found in many museums
and collections abroad, such as the V&A Museum
mentioned hereinabove. However, the method by
which these antiquities have been exported outside
India is questionable. The export of Indian antiquities
by any person other than the Government of India is
strictly regulated. Section 3 of the Antiquities Act pro-
hibits any person (other than the central government
or any authority or agency authorized by the central
82 Articles
government) to export any antiquity outside India,
and hence imposes a blanket prohibition against
Indian antiquities being exported by private individ-
uals. The Antiquities Act does not provide for any
exception to individuals to carry antiquities abroad,
even for personal purposes to their personal homes
abroad, or even for temporary exhibition purposes.
Most private individuals or collectors are not aware
of this requirement, and have been carrying antiqui-
ties abroad without any hesitation. The penalties for
doing so are severe, and if known, would deter many
individuals from exporting these items. Under the
Antiquities Act, the penalty prescribed for illegally
trafficking antiquities is imprisonment for a term
that shall not be less than six months but that may
extend to three years and with fine. Further, under the
Indian Penal Code, 1860, (i) if two or more individ-
uals conspire to traffic the antiquities objects abroad
(in contravention of Section 3 of the Antiquities Act),
such individuals can be charged with criminal con-
spiracy under Section 120A and can be punishable
with an imprisonment for a term not exceeding six
months, or with fine, or both; (ii) in instances of
theft/stolen objects, the individual can face charges
under Section 378/Section 410, respectively, and be
punishable with imprisonment for a term that may
extend to three years, or with fine, or both. Further, if
the individual habitually deals in stolen objects, he
will be charged under Section 413 and be punishable
with imprisonment for life or with imprisonment for
a term that may extend to 10 years, and shall also be
liable to fine. It is, however, surprising to note that an
individual cannot be charged under this section if
he or she receives multiple stolen objects on the
same day. The Calcutta High Court in Baburam
Kansari8 observed that a person cannot be said to
be a habitual receiver of stolen goods if he or
she receives the proceeds of a number of different
robberies from a number of different thieves on the
same day. It must be shown that the property
was received on different occasions and on different
dates.
8. (1891) 19 Cal 190.
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
As mentioned above, the increasing demand for
Indian antiquities coupled with this strict ban on ex-
ports of antiquities by individuals has resulted in the
illegal trafficking of these items abroad. A prominent
example of how real and serious a concern the prob-
lem is can be seen in the very recent (and live) case of
Mr Subash Kapoor. Based in New York, Mr Kapoor
(a person of Indian origin) was, for over three dec-
ades, the proprietor of the ‘Art of the Past’ gallery
located in Manhattan’s moneyed Upper East Side.
Mr Kapoor was known as the ‘go-to’ guy for the
rarest of Indian objects, and was a prominent name
at openings and exhibitions in both New York and
other major art capitals. He had donated artwork to
the Smithsonian and frequently appeared in Arts of
Asia magazine. Kapoor’s sister concern, Nimbus
Import/Exports, handled the business of selling anti-
quities from across South and Southeast Asia to in-
stitutions like New York’s Metropolitan Museum of
Art, Los Angeles’ Getty Museum, Toronto’s Royal
Ontario Museum, and Canberra’s National Gallery
of Australia. What was not known was that he had,
over time, meticulously developed a deep local net-
work of art and antiquity smugglers in India and had
managed to illegally traffic these valuable antiquities
to foreign shores, and then sell them to museums with
their provenance falsified. He managed to stay under
of the radar of the ASI and the Indian authorities by
smuggling the objects by falsifying shipping consign-
ment records and routing them through Hong Kong
into the USA and Europe. The Tamil Nadu police
allege that once Mr Kapoor had identified the treas-
ure, he would tap into his local network of temple
raiders to procure the object. They would then secure
fake authenticity certificates or falsify shipping mani-
fests and export the idols to an individual named Mr
Law Shang, who ran a shipping company in Hong
Kong. Shang would in turn allegedly send them
over to Mr Neil Perry-Smith in London, who would
forward them on to Nimbus warehouses in New
York. By the time they reached his warehouses in
New York and were then sold to galleries or
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
millionaire collectors, Mr Kapoor had obscured their
real provenance.
Only after the local Tamil Nadu police in India
apprehended members of his local network in India
on smuggling-related charges did they realize that Mr
Kapoor was the kingpin behind the operations. They
managed to gather enough evidence to charge him for
contravention of the provisions of the Antiquities Act
and pressed the Indian government to facilitate his
arrest, as Mr Kapoor was abroad when he was ar-
rested. He was finally arrested by the German autho-
rities in 2011, and then extradited to India to face
trial. While Mr Kapoor was still in German custody,
American authorities began a series of raids on his
properties. On 26 July 2012, a raid at a Manhattan
storage facility used by him netted an estimated USD
20 million in stolen works. They included ‘Chola
Dynasty’ era idols reported missing on the Tamil
Nadu Idol Wing’s website, thought to be stolen in
temple raids in the past. On 5 December 2012, at
the Port of Newark, the final raid netted another
five ‘Chola Dynasty’ era statues. By the end of 2012,
the American authorities estimated the value of the
seized artefacts at over USD 100 million.
His arrest was a rude shock for the art community
at large, and brought into focus the K.Y.C. and other
provenance verification procedures that were being
implemented by the defrauded institutions. As the
cases pile up against Mr Kapoor, victims of his
crime, being mostly reputed museums in the USA
and Australia, grapple with issues of restitution. A
lackadaisical attitude of the Indian authorities, espe-
cially the ASI, could be some of the reasons why Mr
Kapoor got away with his crimes for so long. If it was
not for the apprehension of the local smugglers by the
Tamil Nadu police, it is possible that the ASI would
not have been cognizant of Mr Kapoor’s illegal
activities.
Fortunately, the government has not remained to-
tally ignorant of the huge black market and the mis-
chief that exists. The Indian Ministry of Culture had,
9. 5http://www.indiaculture.nic.in/indiaculture/Sale%20and%20Auction.htm4 accessed 11 April 2014
10. ‘Amendment in Antiquities and Art Treasures Act, 1972’, Press Information Bureau English Releases, Ministry of Tourism, 1 March 2007.
Articles 83
in September 2010, released draft guidelines to try
and get more traction in their fight in preventing
the illicit trafficking of cultural properties. The
Guidelines of Ministry of Culture regarding Sale
and Auction of Important Memorabilia9 had sought
to further curb the sale/auction of art, antiquities,
and other objects of importance to the nation for
commercial profit. As per the draft guidelines, if
any items falling within the definition of an antiquity
or art treasure under the Antiquities Act were put to
auction without the requisite procedures being fol-
lowed, the government was mandated to ensure that
the persons responsible would face severe legal con-
sequences. It did not specify details as to what these
legal consequences would entail, but only stated that
violators would be prosecuted to the full extent of the
law. The guidelines, though well received, still remain
in draft form. Efforts were also made in 2007 when a
draft amendment was tabled in the lower house of the
Indian Parliament providing for changes covering as-
pects such as periodical verification of the registered
antiquities, higher punishments for commission of
certain offences under the Act, restrictions on transfer
of antiquities to foreign nationals, restrictions in
making unauthorized replicas of antiquities, terming
of certain offences under the Act as non-cognizable
and non-bailable, and so on.10 This too unfortunately
did not see the light of day.
These proposed amendments have been encoura-
ging. However, they still do not penetrate to the
root of the various issues highlighted above. There
are many recommendations that can be considered.
With smuggling of art loot being such a rampant
problem in India, the government can also consider
establishing a specialist art crime task force, perhaps
within the ASI itself, to deal with art and antiquities
crimes. It is noteworthy to mention the initiatives of
the Tamil Nadu government, which has already estab-
lished a dedicated ‘Idol Wing’ of the Tamil Nadu
Police. The Tamil Nadu Idol Wing has been playing
a proactive role in addressing the issue of illegal
84 Articles
trafficking of antiquities from the state of Tamil Nadu
and has recently proposed a state-level idol records
bureau to further curb this menace. In its proposal, it
stated that this system, when implemented, would
contain detailed inventory of idols and help keep
track of various theft cases. The Tamil Nadu Idol
Wing recommended the use of infrared marks
which would flare up in the Customs check points,
suggesting inscribing the details of the relevant temple
where the antiquity is housed on the idol for identi-
fication purposes. However, to effectively tackle the
menace, the central government may need to set up a
centralized art crime task force whose jurisdiction and
effectiveness will not be limited by state boundaries or
state budgets. The Federal Bureau of Investigations
(FBI) in the USA has successfully implemented a
model of a centralized specialist art crime task force,
to deal with the rise in art crimes over the years, now
also the subject matter of a popular TV show on art
crimes. The FBI task force comprises of specialists
who have the technical expertise to tackle art crime
not solely from the perspective of law enforcement
officers but also based on the art history and cultural
perspective.
Customs duty and issues
If the central government or any authority or agency
is desirous of exporting an antiquity, they need to
obtain the prior permission of the Director General
of the ASI, pursuant to Rule 3 of the Antiquities and
Art Treasure Rules 1973. As mentioned above, there is
no equivalent procedure whereby individuals can ap-
proach the government to allow them to export their
antiquities.
Section 4 of the Antiquities Act states that the
Customs Act, 1962 (Customs Act) would be applic-
able where antiquities are sought to be exported by
the central government, or any authority or agency
authorized by the central government. Under the ap-
plicable customs regime in India, most forms of art,
collectors’ pieces, and antiquities including paintings,
drawings, and pastels are freely importable and ex-
portable and do not require specific permission
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015
from the Director General of Foreign Trade (DGFT)
for this purpose, thus making the permission of the
Director General of the ASI as a single window
clearance.
Customs duty is imposed on the import of goods
into and export of goods outside India. Customs duty
is levied in terms of the Customs Act and Customs
Tariff Act, 1975. Currently, the effective rate of cus-
toms duty for import of any artwork, paintings,
sculptures, and so on is currently 14.71 per cent.
However, the central government has the power to
exempt any goods from whole or part of the customs
duty and has accordingly exempted the import of the
following for display at specified events, fairs exhib-
itions, and so on from any customs duty:
a. Works of art created abroad by Indian artists and
sculptors, whether imported on the return of
such artists or sculptors to India or imported
by such artists or sculptors subsequent to their
return to India.
b. Works of art including statuary and pictures in-
tended for public exhibition in a museum or art
gallery.
c. Works of art namely memorials of a public char-
acter intended to be put up in a public place,
including materials used or to be used in their
construction, whether worked or not.
d. Antiques intended for public exhibition in a
public museum or national institution.
e. Books that are antiques of an age exceeding 100
years.
It is encouraging to note that the government has
made exemptions for importing the abovementioned
items in certain conditions. This move has been appre-
ciated by organizations involved in setting up exhib-
itions and fairs for the promotion of art in India.
Do these issues stem from the lack of a
‘National Art Policy’ in India?
In India, the Ministry of Culture is the apex body that
formulates and administers rules, regulations, and
Trusts & Trustees, Vol. 21, No. 1&2, February/March 2015 Articles 85

laws relating to art. The Ministry also has the respon-
sibility for international cooperation in culture and
art with its foreign counterparts on behalf of the
Government of India. However, there have been lim-
ited initiatives taken by the Indian government over
the years to promote an understanding of Indian anti-
quities, and some of the complexities that surround
them. As previously mentioned, the Ministry of
Culture had attempted to build up a national data-
base of antiquities by implementing the NMMA. The
Annual Report of the Ministry of Culture for 2012–13
stated that during the mission period, about 75,000
built heritage and sites (excluding state and centrally
protected monuments) and reportedly about 800,000
antiquities (including registered antiquities) were ver-
ified by collating data from various sources.
However, given the importance of Indian
antiquities, it may be relevant for the Ministry to
consider implementing a more concrete and effective
‘National Art Policy’ that could be applicable to
various stakeholders like artists, art galleries, auction
houses, collectors, the ASI, and so on. Despite
the growing interest in Indian antiquities, the
industry is still grappling with a plethora of regulatory
issues.
A large number of stakeholders in the industry are
of the belief that there is presently too much govern-
mental interference in the form of multiple permits
and clearances. The government should consider de-
veloping a National Art Policy keeping in mind the
need for procedural simplification and streamlining
the regulatory requirements. Presently, Indian artists
and collectors have to traverse through a maze of
regulators to ensure that they do not fall afoul of
the law. The policy should be designed in a simple,
transparent manner so as to encourage and sustain
the growth of the art and antiquities industry.
Conclusion
India occupies an important place on the global cul-
tural map, with its uniqueness and with its vibrant
culture that is deeply rooted and diverse. For decades,
India has been seen as a rich repository of valuable
antiquities and art treasures, with collectors and the
government alike attempting to acquire these objects.
It is, however, grappling with a multitude of issues
concerning the regulation of these objects. This article
has attempted to highlight some issues concerning the
legislation governing antiquities, the problems faced
by the government authority that regulates these ob-
jects, and the flaws in the overall policy framework
governing the market. For stakeholders, the world of
Indian antiquities is presently a labyrinth immersed in
ambiguities. If India is to establish itself as a nation
that truly values its culture and the various stake-
holders involved, it will need to chart a path that
gives due consideration to the extant policies and for-
mulate a more concrete, precise, transparent, and sys-
tematic regulatory environment to help facilitate
legitimate cultural exchange rather than breeding an
environment of mistrust and fear.

Cyril Shroff is the Managing Partner of Amarchand & Mangaldas & Suresh A. Shroff & Co., with over 32 years
of experience in a range of areas, including corporate laws, securities markets, banking, infrastructure, trust, and
estate laws, among many others. He is the head of the Private Client team.

Rishabh Shroff is a Principal Associate in Amarchand & Mangaldas & Suresh Shroff & Co. He is part of the
Private Client team, specializing in family constitutions and settlements, trusts, wills, and succession planning.
He provides succession, taxation, estate, and wealth planning advice for wealthy individuals and their families.