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 underlines the same. The world witnessed a testament to a similar
endeavour when the Glasgow Museums agreed to return 7 stolen artefacts to
India. 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, along with countries like Singapore, Australia, and Canada,
which have also returned Indian antiquities.
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.
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, 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, mentioning the British Museum Act
of 1963, which prohibits the British Museum from permanently removing items from
This poses the need to analyse the strength of the Indian and international
repatriation law and the possibility of retrieving the artefacts and the
Indian Law Towards Repatriation
In the Indian legal sphere, the Antiquities and Art Treasures Act, 1972
(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".
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.
However, domestic laws are read in compliance with ratified international laws.
International Law Towards RepatriationTo further the cause of preserving cultural heritage, certain international laws
were brought into existence.
UNESCO Convention on the Means of Prohibition and Prevention of Illegal
Import-Export of Cultural Property and Illegal Transfer of Ownership: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.
Convention Concerning the Protection of the World Cultural and
Natural Heritage: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.
UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: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.
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. 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
Efficacy of International Laws Towards Retrieval of Ancient Artefacts and
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. 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. 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. 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.
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.
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
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- Chad De Guzman, After Queen Elizabeth II's Death, Many Indians Are Demanding
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