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Repatriation Law: Analyzing its Strength and the Possibility of India Retrieving the Artefacts and Kohinoor

The Government of India has been actively endeavouring to repatriate the antiques of Indian origin from different countries. The recent success of the formal handover of over 307 antiquities of approximately $4 million by the U.S. authorities[1] underlines the same. The world witnessed a testament to a similar endeavour when the Glasgow Museums agreed to return 7 stolen artefacts to India[2]. The Indian Government's repatriation efforts have borne fruit in the past as well. For instance, the U.S. Government returned 248 stolen antiquities to India in 2021[3], along with countries like Singapore, Australia, and Canada, which have also returned Indian antiquities[4].

This cooperation towards restoration and repatriation can be attributed to two factors. The primary factor is the global effort towards recognising the individual histories of countries like India that underwent colonisation and therefore endeavouring to return the material objects that were part of their rich history. The second factor that can be attributed to the successful repatriation efforts is the efficacy of dialogue between the nations and the positive diplomatic relationships that have been fostered over the years. All these developments have ignited the discussion on the return of Kohinoor, especially after the demise of Queen Elizabeth II[5].

The Kohinoor Diamond (hereinafter referred to as "Diamond") is an invaluable part of India's history. It was handed over to the British colonial Government in 1849 by Sikh ruler Duleep Singh[6], as per the Lahore Treaty between Lord Dalhousie and Ruler Duleep Singh. The Diamond has remained in the British Museum ever since. Many Indian citizens have fostered and expressed their desire for the return of the Diamond. However, the British Government has categorically denied returning the Diamond in the past[7], mentioning the British Museum Act of 1963, which prohibits the British Museum from permanently removing items from its collection[8].

This poses the need to analyse the strength of the Indian and international repatriation law and the possibility of retrieving the artefacts and the Diamond.

Indian Law Towards Repatriation

In the Indian legal sphere, the Antiquities and Art Treasures Act, 1972[9] (hereinafter referred to as "the Act") has governed all aspects of antiques and artefacts for over 50 years. The objective of the Act is to provide a regulation mechanism for the trade and export of antiquities in India while also providing a mechanism for the preservation of said antiquities. Pertinently, the Act is under the purview of the Archaeological Survey of India.

Section 3 of the Act specifically outlines the regulation of export trade in antiquities and art treasures. Section 3(1) of the Act states that "On and from the commencement of this Act, it shall not be lawful for any person, other than the Central Government or any authority or agency authorized by the Central Government in this behalf, to export any antiquity or art treasure"[10].

Further, Section 25 of the Act lays down the penalty in case a person commits any contravention of Section 3 of the Act. The provision expresses that such a person will be punishable with a fine and imprisonment for a period of at least 6 months, extendable up to 3 years[11].

However, domestic laws are read in compliance with ratified international laws.

International Law Towards Repatriation

To further the cause of preserving cultural heritage, certain international laws were brought into existence.
  1. UNESCO Convention on the Means of Prohibition and Prevention of Illegal Import-Export of Cultural Property and Illegal Transfer of Ownership[12]:

    This Convention was promulgated in 1970, and as its name suggests, the primary aim of this Convention is to further proposals on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of cultural property. Article 13 of the Convention pronounces that the State Parties to the Convention must endeavour to return any illegally procured cultural property to the rightful owner, provided that the proof of ownership is submitted. 142 States have ratified this Convention, including India[13].
     
  2. Convention Concerning the Protection of the World Cultural and Natural Heritage[14]:

    This Convention was adopted in 1972, and it prioritises the establishment of a system that would ensure the collective protection of natural and cultural heritage, which would be organised on a permanent basis and aligned with scientific methods. As per Article 4 of this Convention, the State Parties are duty-bound to ensure the "identification, protection, conservation, presentation and transmission" of cultural and natural heritage to future generations. Along with India, there are about 194 member States in this Convention[15].
     
  3. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects[16]:

    Popularly referred to as the 1995 Convention, this Convention emphasises its intent to facilitate the restitution and return of cultural objects while also acknowledging the necessity for ancillary measures to protect cultural objects. These measures include ensuring the physical protection of archaeological sites, developing and using registers, ensuring technical cooperation, etc. As per Article 3 of the Convention, the possessor of a cultural object that had been stolen is required to return it. In the same vein, as per Article 5 of the Convention, a Contracting State may "request the court or other competent authority of another Contracting State to order the return of a cultural object illegally exported from the territory of the requesting State". This Convention has only 54 Contracting States, and notably, India is not a signatory[17].
     
Interestingly, the International Criminal Police Organization (hereinafter referred to as "INTERPOL"), which is an inter-governmental organisation with 195 member countries, including India, is also active in addressing crime against cultural heritage[18]. Therefore, it is evidenced that there is a catena of international laws to further repatriation. This raises the need to analyse the efficacy of these laws towards the Indian endeavour of retrieving the Kohinoor Diamond.

Efficacy of International Laws Towards Retrieval of Ancient Artefacts and Kohinoor

The UNESCO Convention is only applicable to goods that are illicitly acquired 3 months after a State signs the Convention. Further, it only provides a legal framework for the retrieval of goods illicitly obtained after 1970.

The UNIDROIT Convention provides for the retrieval of a stolen object, and notably, neither India nor Britain is a signatory to this Convention. In addition, Article 3(3) of the Convention states that "Any claim for restitution shall be brought within a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor, and in any case within a period of fifty years from the time of the theft."

Considering that Ruler Duleep Singh handed over the Diamond to the British colonial Government, it cannot be regarded as theft. Further, the time implications imposed by the Conventions render them nugatory towards the repatriation of the Diamond, as it has been close to 173 years since the Diamond departed from the Indian land.

This analysis of the international laws indicates that they are futile in India's endeavour to retrieve the ancient artefacts and the Diamond. Moreover, the Government of India and the Supreme Court of India took a similar stance in 2017 when the Apex Court heard a Public Interest Litigation (PIL) seeking the retrieval of the Diamond.

Supreme Court of India on Retrieval of Kohinoor

In April 2016, the Apex Court of India heard a PIL filed by the All India Human Rights and Social Justice Front, seeking that the Diamond is brought back to India[19]. In response, the Central Government submitted that the Diamond was "neither stolen nor forcibly taken" by the colonisers and was merely offered as a gift by the Ruler of Punjab. To that end, the Centre stressed that under the provisions of the Act, the Archaeological Survey of India could only take up the retrieval of antiques that had been illicitly removed from India.

The Supreme Court eventually disposed of the petitions and handed the baton to the executive machinery by opining that the judiciary cannot interfere in diplomatic processes. Hence, it is clear that international and domestic laws cannot facilitate the return of the Diamond to India. This raises the need for strengthening these laws, for which there is a necessity to appraise the holistic statutory position of repatriation law.

Critical Appraisal of the Current Statutory Position Towards Repatriation

The Antiquities and Art Treasure Act was passed 50 years ago and has not been amended since. Further, the Act has been implemented poorly and has proved to be ineffective towards safeguarding artefacts or ensuring the recovery of stolen artefacts[20]. Additionally, the penalty clause of the Act is extremely lenient, especially when compared to other heritage-rich countries like Egypt and China, which impose the death penalty for similar contraventions[21]. The international Conventions provide for an arbitrary limitation period, which does not serve the purposes of a country like India that has a long-standing cultural history. The problem of executing and enforcing international laws plagues international repatriation law as well, which ultimately makes the entire exercise dependent on diplomatic relations.

An analysis of the international and domestic laws concerning repatriation, it can be concluded that there exists a fallacy of inadequacy. Therefore, in order to strengthen repatriation laws, these fallacies must be removed.

Conclusion:
In order to foster stronger and more effective repatriation, there is a necessity to update the Indian laws, effectively enforce said laws, and further strengthen diplomatic relationships. Although there is a Draft Antiquities and Art Treasures Regulation, Export and Import Bill, 2017, which creates a more robust legal framework, its efficacy is heavily dependent on accountability mechanisms and implementation[22].

However, it is pertinent to note that the retrieval of the Kohinoor Diamond can only be facilitated through diplomatic dialogue, and the present laws do not account for it, and it is highly unlikely that any new law will be applicable retrospectively.

End-Notes:
  1. R. Sivaraman, U.S. returns 307 antiquities, valued at nearly $4 million, to India, THE HINDU (Oct. 18, 2022, 16:17 IST), https://www.thehindu.com/news/national/tamil-nadu/united-states-returns-307-antiquities-valued-at-nearly-usd-4-million-to-india/article66026108.ece.
  2. Glasgow Museums to return seven stolen artefacts to India, BBC NEWS (Aug. 19, 2022), https://www.bbc.com/news/uk-scotland-glasgow-west-62604145.
  3. PTI, U.S. returns 248 antiquities valued at $15 million to India, THE HINDU (Oct. 29, 2021, 11:31 IST), https://www.thehindu.com/news/international/us-returns-248-antiquities-valued-at-15-million-to-india/article37225686.ece.
  4. Roshnek Dhalla et al, Repatriation of Antiquities to India: Is Your Collection Protected?, LEXOLOGY (Mar. 30, 2022), https://www.lexology.com/library/detail.aspx?g=2dc9e5e9-7f86-4f0e-9cd1-fb39a21fccb9.
  5. Chad De Guzman, After Queen Elizabeth II's Death, Many Indians Are Demanding the Return of the Kohinoor Diamond, TIME (Sept. 9, 2022, 7:31 AM EDT), https://time.com/6212113/queen-elizabeth-india-kohinoor-diamond/.
  6. Amit Ranjan et al, Kohinoor and Its Travelogy: The Dialectic Of Ownership And Reparations Of An Artefact, 6 COLDNOON: INTERNATIONAL JOURNAL OF TRAVEL WRITING & TRAVELLING CULTURES (2018), https://coldnoon.com/journal/dandelion-february-2018/kohinoor-and-its-travelogy-the-dialectic-of-ownership-andreparations-of-an-artefact/.
  7. Sachin Parashar, Kohinoor not coming back; Britain says no legal ground for restitution, THE TIMES OF INDIA (Jul. 26, 2016, 22:14 IST), https://timesofindia.indiatimes.com/india/kohinoor-not-coming-back-britain-says-no-legal-ground-for-restitution/articleshow/53402404.cms.
  8. PTI, Can't return Kohinoor diamond to India: Britain, THE HINDU (Nov. 28, 2021, 21:11 IST), https://www.thehindu.com/news/international//article59897561.ece
  9. The Antiquities and Art Treasures Act, 1972, No. 52, Acts of Parliament, 1972 (India).
  10. The Antiquities and Art Treasures Act, 1972, 3(1), No. 52, Acts of Parliament, 1972 (India).
  11. The Antiquities and Art Treasures Act, 1972, 25, No. 52, Acts of Parliament, 1972 (India).
  12. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, UNESCO (Nov. 14, 1970), https://en.unesco.org/about-us/legal-affairs/convention-means-prohibiting-and-preventing-illicit-import-export-and.
  13. About 1970 Convention, UNESCO, https://en.unesco.org/fighttrafficking/1970.
  14. Convention Concerning the Protection of the World Cultural and Natural Heritage, UNESCO (Nov. 23, 1972), https://whc.unesco.org/en/conventiontext/.
  15. States Parties, UNESCO, https://whc.unesco.org/en/statesparties/.
  16. 1995 Convention: UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, UNIDROIT (June 24, 1995), https://www.unidroit.org/instruments/cultural-property/1995-convention/.
  17. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995) - States Parties, UNIDROIT, https://www.unidroit.org/instruments/cultural-property/1995-convention/status/.
  18. INTERPOL, https://www.interpol.int/en (last visited Oct. 20, 2022).
  19. India Today Web Desk, Why India may never get its Kohinoor diamond back from the British, INDIA TODAY (Ap. 18, 2016, 18:08 IST), https://www.indiatoday.in/india/story/why-india-may-never-get-its-kohinoor-diamond-back-from-the-british-318525-2016-04-18.
  20. Ruth, How can the Kohinoor diamond be brought back to India from Britain?, INDIA POSTS (Oct. 05, 2022), https://india.postsen.com/world/303585/How-can-the-Kohinoor-diamond-be-brought-back-to-India-from-Britain.html.
  21. Id.
  22. Deepthi Sasidharan, Addressing Gaps in the Antiquities Act, 53 EPW, (Feb. 24, 2018).

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