Art Theft, Economic Offences and the Law

Bhakti Parekh

Art theft is the criminal activity which involves the theft of art or cultural property and includes the various kinds of objects such as paintings, sculptures, ceramics, idols and other art and antique objects.

For years, countries like India, Italy and Egypt have been tagged as the ‘source nations’ (from where cultural property is stolen). There has been a rampant looting of their cultural resources and treasures. According to certain resources, there are more than 50,000 pieces of artwork that are stolen each year globally and many cases of art crimes are facilitated by lax security measures at museums. The black market of antiquities and cultural objects constitutes one of the most persistent illegal thefts in the world. In an effort to protect world heritage property, the UNESCO 1970 convention was created. This is an international treaty to prohibit and prevent the illicit trafficking of cultural property.

India is known to have a rich cultural heritage. However, India has struggled since the beginning to safeguard that rich heritage. It loses thousands of antiques each year to art thieves and the illicit business of smuggling Indian antiques has survived and is thriving despite the strict law in place. Data from the National Crime Records Bureau is alarming. Between the years of 2008 and 2012, it recorded a total of 4,408 items were stolen from 3,676 ASI­-protected monuments across the country, but only 1,493 could be intercepted by police. It recorded over 4,000 cases of stolen cultural property between 2010 and 2014. According to the records of the Ministry of Culture, 101 antiques were stolen between 2000 and 2016 from 3,650 protected historical monuments around the country.

This topic of art theft and the law governing it makes way into the news ever so often when it is discovered that a stolen piece of antiquities is found abroad. Famous examples of this are the Standing Buddha which was reported missing and then later found displayed at a museum in New York, the Sridevi sculpture (a Chola bronze image of Sridevi in a tribhanga pose) which was smuggled out by antiquity dealer Subhash Kapoor and seized by US Homeland security, and the Brahma-Brahmani marble sculpture which was stolen from an open air museum in Gujarat and the discovery of the theft came to light only when an image strikingly similar to that of the sculpture appeared in an advertisement placed by an antique dealer.

The cultural heritage or cultural property of a nation is important for various reasons.

• Educational value: The art and objects of the past give us an insight into the history of the nation. Every piece of antique, has had at one point in time some significance in the life that was led by the people living in that era and age. These objects from paintings to sculptures give us an insight into the life and the rate of development. These show us how far we have come as a people and how far we can go. The point of education is to transmit culture and preserving culture is not distinct from transmitting it through education.
• Socio-cultural value: This art when exhibited in museums serves the purpose of cultural enrichment of the country. Museums function as the custodians of the natural, cultural, scientific and technological heritage of a people or community. Collection of information is done through the study of these cultural properties and it helps in understanding the nuances of why our society is the way it is and how it can be improved.
• Entertainment value: Some may say that cultural property and objects also have a certain entertainment value. These properties and objects draw people to the nation and increase tourism as well.

As can be seen, art and antiquities not only have a monetary value but also an intrinsic and intangible value. A price cannot be put to these aspects of the cultural artifacts or cultural properties. Part of the reason why antiquities have such a high market value or such a high monetary value, is because it considers these intangible aspects of the objects and art. There are quite a few items which collectors wish they had in their private collections to enhance the value of those collections.

Now, it is pertinent to know that economic offences form a separate category of crimes under criminal offences. These are often referred to as White/Blue Collar crimes since people belonging to upper economic status are usually found involved in these crimes. Economic offences inflict pecuniary losses on individuals but at the same time also damage the national economy. The number of cultural properties stolen and the estimated value of such stolen properties has steadily increased over the years. According to the National Crime Records Bureau, the value of stolen cultural property in 2007 was a whopping Rs. 3,904.2 Lakhs which was a significant increase from Rs. 775.7 Lakhs in the year 2006. What should be kept in mind while reading these statistics is that quite a few stolen properties are not reported missing or that the fact that these properties were stolen comes to light years later. This means that these statistics do not showcase the whole picture but only a part of it. The theft of art and cultural property is thus an economic offence on the nation. The country is not only being deprived of the monetary value of the properties but is simultaneously being robbed of its cultural heritage.

It should also be kept in mind that the theft of cultural properties and antiquities also gives rise to other related crimes like money laundering, smuggling or trafficking of the stolen properties and at times also entails defrauding customers or people by selling them stolen cultural property with forged documents of authenticity and false trail of ownership. The Prevention of Money Laundering Act, 2002 in defines scheduled offences in Section 2 (y) and the offence under Sections 25 read with section 3 (contravention of export trade in antiquities and art treasures) and section 28 (offences by companies) of the Antiquities and Art Treasures Act falls under the purview of it as it is an offence which is specified in Part A of the Schedule in Paragraph 10.

All the above reasons, lead me to believe that theft of cultural properties or antiquities is not only an economic offence but also an offence which harms the nation and the public at large. This is because the nation is robbed of its heritage and properties while the society is robbed of the knowledge that can be gained through the study of those properties. The theft also leads to subsequent economic offences which in turn makes the society a little less safe. That the answer to the first question would be that art theft is an economic offence and has far reaching consequences and should be considered much more than just an economic offence.

To combat this issue of art and antiquities theft, India has certain laws in place. The laws of importance here is the Antiquities and Art Treasures Act, 1972 along with the Indian Penal Code. It is pertinent to critically analyze the Antiquities and Art Treasures Act to gain insight into the law and to understand why the relevant authorities are incapable of dealing with the economic offence of art and antiquities theft. It would further answer the question as to why there has been no reduction in the theft of such antiquities especially idols and sculptures.

The law which governs the antiquities and art objects is the Antiquities and Art Treasures Act, 1972. The act defines what an ‘antiquity’ is. As per the Act, ‘antiquity’ is an article of object that is at least 100 years old. The tern includes coins; sculptures; paintings; any article or object that has detached from a building or cave; or any article or object that is illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages; or any article or object of historical interest. An art treasure is a human work of art other than an antiquity which has been declared by the Centre to be a treasure for its artistic value after the artist’s death. It should be noted that the act mandates the registration of an antiquity by a person who owns, controls or is in possession of the antiquity. Further, the act aims to regulate the sale and export of antiquities. Antiquities can only be sold in the domestic market by a licensed person and export is prohibited for everyone except the Centre or its agencies. The law prescribes for penalties as well. The possession of an unregistered antiquity is punishable. The sale of antiquities done without a license is an offence and so is the failure to declare all antiquities in one’s possession at the time of expiry of the license. The Archaeological Survey of India is the recognised and authorised authority for registrations as well as implementation of other provisions of the Act.

Now, on to the drawbacks of the provisions of the Act. The act is old and, in many ways, has become irrelevant in the present times. The act was made before the liberalisation of the economy and when there existed the license raj. The registration process provided for under the Act is cumbersome and time consuming. Further there is a lack of awareness about the provisions and the need to register among the common people. A lack of resources and bureaucratic apathy has led to the poor implementation of the act. This leads to there being a flourishing illicit trade which loots and smuggles antiquities and sells them in the international market. The next issue with that the act provides for penalties and for various avenues where a private collector could be prosecuted on the basis of inadequate maintenance of the object which in turn deters private collectors to register their antiquities. The next issue is that the penal provisions provided for under the act are mild and not severe and thus do not deter individuals from committing the crime. The Archaeological Survey of India is understaffed and lacks resources and due to this it is unable to regulate and monitor the antiquity market properly. Further, the act does not provide for a specialised investigation agency and thus the investigation agencies that handle crime related to antiquity do not have the necessary expertise.

Further problems that are faced by the Archaeological Survey of India are put forth and highlighted in the Comptroller and Auditor General’s (CAG) ‘Performance Audit’ of the Archaeological Survey of India. This was conducted in 2013. Some of the highlights were that there has been no comprehensive survey or review to identify monuments of national importance and include them in the list of centrally protected monuments. There is no database of the monuments protected by it. During physical inspection of the monuments, 92 could not be traced. Excavation work lacks proper documentation. Registers of Accession were not properly maintained by the museums and there were significant discrepancies in the number of antiquities reportedly available and those available as per their data-base. ASI did not have a data-base of the total number of antiquities in its possession and the audit team found that 131 antiquities were stolen from various monuments or sites and that 37 antiquities were stolen from site museums. It was further found that the Ministry of Culture has lax governance and was found wanting on all aspects of adequacy of policy and legislation, financial management, monitoring of conservation projects and the provision of human resources to these organisations.

It can be seen clearly from the above paragraphs that though the law exists, the law is outdated. Implementation is also lacking due to the lack of resources and lackadaisical approach taken by the authorities and the Government. The ASI is understaffed and has no proper databases to document everything that needs to be documented. Further, regular inspections need to be done to avoid a situation like that of the Brahma-Brahmani marble sculpture.

In an interview (conducted in 2015) with the then ADG of Tamil Nadu police in charge of economic offences wing who led the only stolen idols wing in the country, Prateep V. Philip candidly answered questions and gave insight about different aspects of idol theft. According to him, international idol traffickers in the USA, Europe, UK, Singapore and Canada form the prospective market for all antiquities particularly antique idols of Hindu deities belonging to the Pallava and Chola period. In the experience of the Idol Wing, the bulk of the stolen idols are exported from Madras Sea Port and Mumbai Sea Port. The smugglers have become creative and innovative where they smuggle the stolen idols and other antiquities with handicrafts of similar types. There is no comprehensive database for all the antique idols anywhere in Tamil Nadu or India. He stated that the laws in place are inherently ineffective and that a holistic National Heritage Protection Policy and System should be put in place. The Idol Wing-CID had further initiated a proposal to the HR&CE departments suggesting ways and means of discouraging temple thefts. Suggestions such as laser marking at the base of antique idols as evidence of antique idols as evidence of ownership, along with metallic engraving at the base of antique idols with all relevant information would prove as evidence as to ownership in the event of theft. Further there is a need to photograph and document the physical dimensions of the antique idols including their identifying features.

From the above discussion, some of the things that can be done to reduce the theft of antiquities by addressing the relevant issues are as follows:

• Maintenance of national database: There is a need for a comprehensive database of antiquities. Further there needs to be collection of data and the regulation of the trade of antiquity by monitoring the trade. Documentation of the monuments and antiquities in the museums, to the cultural heritage sites should exist and be updated frequently.
• Increasing the Capacity of the Archaeological Survey of India: The ASI is mentioned as the authority for registration as well as regulation of antiquities. However, the ASI lacks resources and is understaffed. An effort needs to be made to allocate more funds and resources to the ASI so that it can do its functions more effectively.
• Prof Galla is of the opinion that sufficient staff and digitized documentation will help a great deal. A digital document would help in generating an ‘object id’ as soon as something is stolen and this could be sent immediately to all major authorities. If information of a missing object travels faster that the object itself, then there would be higher chances of recovering the object before it is too late.
• The investigative agencies need to be trained and should have specialized wings which deal with art and antiquities theft. The current agencies which investigate art theft do not have the capacity to deal with the stolen antiquities and where there are specialized wings dealing with art and antiquities theft, they are underqualified and understaffed.
• The definition of the term ‘antiquity’ is too broad. This needs to revised and certain criteria for what can classify as an antiquity should be applied. This would help in reducing the burden as well as help the authorities to make informed decisions.
• Italy and Cambodia with rich culture and heritage have proper art squads which actively monitor auctions and sales and have proven to be an effective deterrent. Inspiration from this can be taken and appropriate measures may be made in India as well.

References:

• https://en.unesco.org/courier/2020-4/india-heritage-theft-remains-challenge
• https://www.jatinverma.org/analysis-of-antiquities-and-art-treasures-act-in-india
• https://journalsofindia.com/antiquities-and-art-treasures-act/
• https://blog.forumias.com/antiquities-and-art-treasures-act-in-india-an-analysis/
• https://www.thehindu.com/news/national/andhra-pradesh/issue-of-art-trafficking-back-in-the-spotlight/article35734683.ece
• https://www.ibanet.org/MediaHandler?id=879e5aa5-144c-441d-a911-4d5609edf113
• https://www.firstpost.com/living/antiquities-and-art-treasures-act-1972-ails-indias-cultural-property-is-the-2017-draft-bill-constructive-7233531.html
• http://164.100.47.193/lsscommittee/Public%20Accounts/16_Public_Accounts_39.pdf
• https://www.academia.edu/8007419/CAG_Performance_Audit_of_the_ASI
• https://economiststalkart.org/2016/05/31/why-are-there-so-many-art-thefts-and-what-can-be-done-about-them/
• https://www.mondaq.com/india/music-and-the-arts/407126/law-relating-to-antiquities-in-india-be-aware-of-your-obligations
• https://thediplomat.com/2015/09/smuggling-indian-antiquities/
• https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/CHAP9_2007.pdf
• https://indianexpress.com/article/lifestyle/art-and-culture/the-secret-lives-of-antiquities-5983172/
• http://nmma.nic.in/nmma/legalFrame.do
• https://www.indiaculture.nic.in/antiquities
• https://timesofindia.indiatimes.com/india/india-losing-heritage-artefacts-in-their-thousands-and-not-just-due-to-theft/articleshow/78618210.cms
• https://www.wionews.com/south-asia/are-indias-ancient-artefacts-in-safe-hands-9489
• https://www.newindianexpress.com/opinions/2021/apr/22/will-india-learn-from-west-or-succumb-to-pressure-2293160.html
• https://www.thehindu.com/opinion/op-ed/time-to-hew-a-new-antiquities-law/article25280429.ece
• https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%209-15.11.16_2015.pdf
• https://www.indiatoday.in/india/story/tamil-nadu-stolen-antique-idols-wing-prateep-v-philip-258258-2015-06-18

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The author has contributed this write-up during her research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.