Case Law Details
B K S R Ayyangr Vs. Archaeological Survey of India (CIC, Delhi)
The efforts, if any, will involve external affairs or international transactions or diplomacy at higher level of the Prime Minister or Minister for External Affairs or High Commissioners of India and other concerned nations to get back historic possessions that were taken out of India. One can understand Ministry of Culture transferring it to MEA. As per International Law, i.e, Treaty cited above, India has every right to secure these artifacts from British, which acceded to that treaty. Especially when Prime Minister could bring back so many artifacts from foreign countries, hopeful people legitimately expect them back. The official statements assuring their continued efforts and that they were committed bring them back besides agitation in Parliament and reports of PM’s meetings increased expectations. When Parliament cannot be denied this information the citizens too cannot be denied as per proviso under Section 8(1) of RTI Act.
The PILs and different reports give rise to various questions like: Whether Union of India believe that Koh-i-Noor was gifted to British Queen? Whether PM agree with Pandit Nehru’s stand that India had no ground to claim it back and such a claim would lead to difficulties? After England became a signatory in 1977, why not India utilize its right under Article 15 of UNESCO convention 1970? As per the commitment given to the Supreme Court, what efforts were continued by Government of India or its Ministry of External Affairs? Is there any positive outcome of meetings reportedly held by PM in this regard? As the ASI cannot furnish any answers to these questions, the people would look to the PM, for action and information.
The information sought in this case is about securing India’s cultural heritage and hence surely in larger public interest and it was not hit by any of exceptions under Section 8 or 9 of RTI Act.
The matter is now posted for June 30 2018.
FULL TEXT OF THE CIC JUDGMENT
1. The appellant sought information regarding efforts made by the Government of India along with the related documents and correspondence for bringing into India (i) Koh-i-Noor diamond, (ii) Sultanganj Buddha, (iii) Nassak Diamond (iv) The Sword and ring of Tipu Sultan, (v) The golden throne of Maharaja Ranjit Singh (vi) Royal Jade wine cup of Shahjahan, (vii)Amaravathi railings and Buddhapade (viii) Saraswathi Marble idol- Vagdevi (ix) Mechanical Tiger of Tipu etc.,& jewels. The CPIO of PMO Mr. Ambuj Sharma transferred it to ASI on 7.9.2017 and CPIO of the Ministry of Culture Mr. Pappunjay Kumar also sent his First Appeal on 31.10.2017 to ASI only. Mr. N R Minj, CPIO of Ministry of Culture on 13.9.2017, transferred the RTI application to the CPIO, ASI. Mr. Arun Raj T, Superintending Archaeologist & Nodal Officer also transferred it on 13 November 2017 to ASI. Same officer has again transferred same application on 7thDecember 2017. Mr. Sarvesh Kumar Arya Director and FAA of Ministry of Culture also transferred the First Appeal to ASI.
2. The CPIO, Mrs. Archana Asthana, from ASI replied on 22.12.17 stating that under the Antiquities and Art Treasure Act, 1972, the ASI can take up the issue of retrieval of only those antiquities, which have been illegally exported out of the country in violation of the above Act which became operational in 1976. So far 25 antiquities have been retrieved from various other Countries during the years 2014 to 2017. As no information was given and all his first appeals were also transferred to ASI without any purpose, the appellant filed second appeal before this Commission.
Contentions:
3. Appellant says that our finest jewels like Koh-i-Noor, precious treasures, artifacts were looted by the invaders especially the British, and he wants to know wonderful efforts of our government to bring them back to India, but did not receive any thing. He filed RTI request with the PMO, Ministry of External Affairs and Ministry of Culture, as he knew that it is difficult to expect such information from the ASI officers. Mrs. Archana Asthana CPIO (antiquity) on 22.12.2017 stated that she had received the RTI application from Nodal officer of ASI on 07.12.2017, the ASI could take up the issue of the retrieval of antiquities from the foreign country only in case of illegally exported article as per Antiquities and Art Treasures Act 1972 which came in to force in April 1976. The objects/Antiquities referred by the applicant were taken away prior to Independence, therefore ASI has no authority to process the case of retrieval of “Koh-I-Noor diamond” and otherobjects under reference.The reply was given by CPIO of Antiquity Section within stipulated time under the provision of RTI Act. 2005.
4. When asked why RTI request was not transferred to PMO or Ministry of Culture, Mrs. Archana Astha said “these applications were filed at first with them only. I didn’t understand why they sent to us”.
5. The CPIO submitted that two writ petitionsnumber 185 of 2016 and 367 of 2016 were filed for retrieval of Koh-i-Noor Diamondbefore Supreme Court by All India Human Rights & Social Justice Front Versus the High Commissioner of UK (Britain) &ors and Heritage Bengal. Supreme Court held on 21.04.2017 Governmentwas“mindful of the sentiments that have been expressed by the Indian public and the Parliament from time to time, about the return of the Koh-i-Noor and other items of India. The Ministry of External Affairs, Government of India continues to explore ways and means for obtaining a satisfactory resolution to the issue with the U.K. Government”.
Historic Koh-I-Noor:
6. Some people believe that history of Koh-I-Noor diamond goes back more than 5000 years and its original name wasSyamantaka Mani during the age of Lord Krishna, later it changed hands in 1304 from Rajas of Malwa to Emperor of Delhi, AllaudinKhilji, came to Samarkhand in 1339, where it stayed for 300 years, before it was mentioned in Baburnama in 1526, said to be gifted by Babur to Sultan Ibrahim Lodi, which came back to Mughal Sultans, passed on to Persian General Nadir Shah in 1739, who believed to have given the name Koh-I-Noor (=“mountain of light”), from whom it reached his General Ahmad Shah Durrani, who brought it back to India in 1813 to gift to Ranjit Singh in exchange of throne of Afghanistan. After conquest of East India Company forces in 1849, it went to their treasury in Lahore, finally shipped to Britain to adore the crown of Queen Victoria in 1850. Hence the people have high sentimental attachment with this Diamond. Similarly other artifacts also have checkered history.
7. Nassak Diamondis believed to be a unique blue diamond that graced the crown of Lord Shiva at Triambakeswar in Nasik during 15thcentury and disappeared during third Anglo-Maratha war in 1817. Also called ‘eye’ of Shiva, Nassak is a large diamond weighed 43.38 carats (8676 gram) when it was found in the Golconda mines of Kollur. The British East India Company captured the diamond and sold it to British jewellersRundell and Bridge in 1818. Rundell and Bridge recut the diamond in 1818, after which it made its way into the handle of the 1st Marquess of Westminster’s dress sword. It was imported into United States in 1927 and was considered one of the first 24 great diamonds of the world by 1930, and it was sold in auction in New York in 1970. Trustees of temple recently requested President and Prime Minister Modi to bring it back from private museum in Lebanon. http://www.thehindu.com/society/history-and-culture/bring-back-indias-nassak-diamond-from- lebanon/article23346247.ece
8. Sultanganj Buddha: When Railway Engineer EB Harris was excavating for building a Railway Station at Sultanganj, contractor Mr Samuel Thronton has discovered Buddha statute in 1862. He shifted it to Birmingham Museum in 1867. It is a splendid example of Gupta-Pala transitional sculpture, the largest substantially complete copper Buddha figure known from the time. The archaeologists dated it back to between 500 and 700 AD. The Buddha’s sangathi (monastic robe) clings so closely to the body that it is almost invisible, but for a series of string-like folds, giving the figure a wet-looking appearance.
http://www.bbc.co.uk/birmingham/content/articles/2006/05/10/sultangan j_buddha_feature.shtml
9. Tipu’s mechanical Tiger: Tipu Sultan is most popular ruler of Mysore who died defending independence from British soldiers. Tipu’s Tiger is a mechanical tiger created for him. It is an 18th century automaton or mechanical toy. Mechanisms inside the tiger and man’s bodies make one hand of the man move, emit a wailing sound from his mouth and grunts from the tiger. In addition a flap on the side of the tiger folds down to reveal the keyboard of a small pipe organ with 18 notes. The carved and painted wood casing represents a tiger savaging a near life-size European man. It is on display in the Victoria and Albert Museum, London. https://www.ripleys.com/weird-news/tipus-tiger-ancient-mechanical-
wonder/
10. Tipu’s Sword:The last sword used by Tipu in his last battle, at Srirangapatnam, and the ring worn by him were taken by the British forces as war trophies. Until April 2004, the sword was kept on display at the British Museum London as gifts to the museum from Major General Augustus W.H. Meyrick and Nancy Dowager. When the legendary sword was auctioned in 2004, Rajyasabha MP and economic offender Vijay Mallya purchased it. This is considered to be one of the world’s rare artefact. The curved steel blade made of fine steel has inscribed with verses from the Holy Quran. It has wooden sheath covered with maroon velvet.
11. Tipu’s Ram ring is ‘an Indian antique gold ring’ with ‘Rama’ in raised Devenagri script surrounded by chased floral buds to the octagonal base and ornate shoulders and hoop, the inside of which is engraved Major General Lord FitzRoy Somerset KCB, late 18th century. It has been weighed to be of 41.2 gms.A catalogue dated 1908 of the Royal United Service Museum, Whitehall described as ‘3064. Ring was taken from Tipu’s finger by Colonel Honourable A. Wellesley (Duke of Wellington) in battle field of Seringapatam, 1799, and given by him to his niece, Lady FitzRoy Somerset.’
12. Marble Vagdevi: The most beautiful marble statute of Vagdevi- Goddess Saraswati was taken from Bhoj Sala of Madhra Pradesh. Raja Bhoj was king in 1034 reputed for have nine gems of literary personalities in his royal court. It is said Lord Curzon looted it and shifted it to England.
13. Singhasan of Maharaja Ranjit Singh made of wood and resin core with sheets of repousse, chased and engraved gold by goldsmith Hafez Muhammad Multani. It was made between 1820 and 1830, reflecting splendour of Ranjit Singh. When British annexed Punjab after second Anglo-Sikh war in 1849, the throne was taken over as one of the state property, displayed with other looted treasures at the Great Exhibition in 1851. It is kept in the V&A Museum with inventory number 2518(IS).
https://en.wikipedia.org/wiki/Maharaja_Ranjit_Singh%27s_throne#/medi a/File:Ranjit_Singh%27s_golden_throne.jpg
14. Wine cup of Shah Jahan is of white nephrite Jade, inscribed with his title, “Second Lord of the Conjunction” as per Persian titulature convention. It specially alludes to Timur, the central Asian ruler from whom the Mughals descended. It belongs to year 1657 CE. Colonel Charles Seton Guthrie of 19th Century acquired most probably after the Indian Rebellion of 1857. It changed several hands and finally acquired by the Victoria and Albert Museum in 1962. http://collections.vam.ac.uk/item/O73769/wine-cup-of-shah-jahan-wine-cup-unknown/
15. Thus these precious artifacts reflect India’s glorious culture and valiant history cannot be in the hands of looters, offenders or lying in foreign government and private museums. Deep sentiments are associated with these heritage objects as some of them are religiously considered sacred such as Marble Vagdevi of Bhoj Raj, Buddha’s statue from Sultanganj, Nassak Diamond called ‘eye’ of Shiva, and objects with high historic value like Koh-I-Noor, Tipu’s sword, ring and mechanical tiger etc. They legitimately belonged to India and people of past, present and future generations are interested in re-possessing them. The Government cannot ignore these sentiments which are reflected by representations, Public Interest Litigations and RTI requests.
Conflicting Reports
16. A news magazine reported on April 9, 2016 that “24 hours after it told the Supreme Court that the Kohinoor diamond cannot be brought back to India from UK as it was “gifted” to the British queen, the government has done a U-turn over the issue. Quoting government sources who said that they will do whatever they can to bring the Kohinoor back to the country, a senior government functionary said that the government has resolved to make all possible efforts to bring back the legendary gem in an amicable manner. The official also said that the government wishes to put on record that certain news items appearing in the media regarding the Kohinoor diamond are not based on facts. This report referred to Solicitor General’s representation to the Supreme Court saying: ‘The status report on which the preliminary submission was made by the Solicitor General have references to the stand taken by governments earlier that the Kohinoor was a gift and cannot be categorized as an object stolen. The material further has references to the views of India’s first Prime Minister Pandit Jawaharlal Nehru dating back to 1956. Pandit Nehru went on record saying that there is no ground to claim the treasured gem back. He also added that efforts to get the Kohinoor back would lead to difficulties’ ”. Pandit Nehru also said, “To exploit our good relations with some country to obtain free gifts does not seem to be desirable. On the other hand, it does seem to be desirable that foreign museums should have Indian objects of art.” (India Today)
Historic Pieces brought by Modi Government
17. This news report has further said: It may be added that ever since he has taken over as PM, Narendra Modi’s efforts led to three significant pieces of India’s history coming back home. In October 2015, German Chancellor Angela Merkel returned a 10th century Indian statue of Goddess Durga that was stolen in 1990 and found in 2012 at a museum in Germany. In April 2015, then Canadian PM Stephen Harper returned a sculpture known as the ‘Parrot Lady’, which dates back to almost 900 years. Then Australian PM Tony Abbott, on his India visit in 2014, had returned antique statues of Hindu deities that were in Australian art galleries. None of these gestures affected India’s relations with either Canada, Germany or Australia. Narendra Modi, who as the chief minister of Gujarat then, got back the ashes of Shyamji Krishna Varma almost 70 years after his death in 2003.
(https://www.indiatoday.in/india/story/will-do-everything-to-get-it-back-govts-u-turn-on-kohinoor-318853-2016-04-19)
18. A news report on April 10, 2016 quoted a reply of Ministry of Culture and Ministry of External Affairs to RTI filed by PTI: “Since the object referred by you [Kohinoor] has been taken out of the country prior to the Independence, the Archaeological Survey of India is not in a position to process the matter”. The application was filed with the External Affairs Ministry seeking details of steps being taken for return of Kohinoor along with a copy of a letter written to and response received from the United Kingdom in this regard. “It may be noted that Ministry of Culture deals with return of cultural artefacts. Therefore the RTI application has been forwarded to Ministry of Culture,” the MEA said. To a question seeking details of items which are in U.K.’s custody and India wants to claim them back, the Culture Ministry said: “There is no list available with the Archaeological Survey of India about the items in Britain’s custody.” (http://www.thehindu.com/news/india-may-not-get-back-kohinoor- diamond-centre/article8457811.ece)
19. A news-magazine reported that inJuly 2016, PM Narendra Modi had called a high-level meeting instructing his government to ensure the return of the medieval artefact, now set in a crown which is on display in the Tower of London. The government, however, reiterated its resolve to “make all possible efforts” to bring back the Koh-I-Noor diamond from the UK in an amicable manner. (https://www.indiatoday.in/india/story/kohinoor-diamond-supreme-court-diplomatic-affairs-london-united-kingdom-972708-2017-04-21) In another report, that magazine wrote “the Kohinoor diamond, kept under tight security at the Tower of London, is claimed by India, Afghanistan, Pakistan and also Iran”.
The PILs in Supreme Court
20. Two public interest litigations (PIL) were filed two NGOs each by the All India Human Rights and Social Justice Front WP No. 185/2016, and Heritage Bengal (represented by MP SukhenduShekhar Roy of Trinamul Congress WP No 367/2016 filed on 15.5.2016), which were tagged together, as they were seeking a writ of mandamus to the Union of India and also to ‘High Commissioner of United Kingdom’ for returning the world famous Koh-i-Noor diamond etc. The petitionersmade Union of India through Ministry of External Affairs and Ministry of Culture; High Commissioner of Islamic Republic of Pakistan in India and High Commissioner of the Peoples Republic of Bangladesh parties. Theyalso sought return of the Ring and Talwar of Tipu Sultan and other treasures of Tipu Sultan, Bahadur Shah Zafar, Rani of Jhansi, Nawab Mir Ahmad Ali Banda and other rulers of India, antiquities of art, craft and cultural pieces of historical importance and manuscript and books of historical importance which are contained in the basement of Victoria and Albert Museum. The Petitioners further sought the return of manuscript and books of historical importance kept in India Office Library.
21. Heritage Bengal in its PIL sought declaration of the Koh-I-Noor diamond as India’s cultural property and a direction to the government to initiate a diplomatic move at the highest level with the UK for repatriation of the famed gem. It disputed the claim of the centrewith a supporting evidence of a letter in which the then ruler of Punjab,Duleep Singhsaid his properties were ‘confiscated’ by the British. On April 18, 2016 the apex court had advised the Centre to take a “careful stand” on the Kohinoor diamond, instead of going by the Culture Ministry’s view that India had no right to claim it from the UK. The Culture Ministry had initially taken a stand that the diamond had been gifted to the British government by Maharaja Ranjit Singh’s heirs and as such India had lost its rights over it. It, however, retracted the statement following the Supreme Court’s remarks.(http://www.tribuneindia.com/news/nation/sc-agrees-to-hear- another-pil-on-kohinoor-diamond/259237.html)
22.The apex court in its order dated 21st April 2017 referred to an counter affidavit filed by the Government of India wherein inter alia it has stated as under:
10. It may be noted that the relevant instrument is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import, Export and Transfer of Ownership of Cultural Property, which deals with illicit import, export and transfer of ownership of cultural property. UK became a signatory since 1977. It would be seen that Article 15 of the Convention allows State Parties to seek the restitution of a removed cultural property by entering into a special agreement with the concerned State Party with respect to cultural property removed or transferred before its entry into force of the Convention, Article 15 would be relevant. It is reiterated that India’s credentials regarding ownership of the Koh-I-Noor based on historical evidence cannot be doubted.
11. Keeping in view of the above, the answering respondents state that the Koh-I-Noor, as also other Indian artefacts’, manuscripts and items of artistic and historical value that are precisely in the UK, are a significant expression of India’s historical heritage. Koh-I-Noor is an Indian artefact that was located for most of its history within the political and geographical boundaries of India. The answering respondents are mindful of the sentiments that have been expressed by the Indian public and that the Parliament from time to time, about the return of the Koh-I-Noor and other items of India. The Government of India continues to explore ways and means for obtaining a satisfactory resolution to the issue with the UK Government.
23.The Supreme Court disposed of two writ petitions saying: “In view of the stand adopted by the Union of India, we are satisfied, that nothing further survives in this petition.” The web-media reported: The Centre told the Supreme Court that Koh-i-noor was neither “forcibly taken”, nor “stolen” by British rulers but given to the East India Company by the rulers of Punjab. (https://www.firstpost.com/india/supreme-court-rejects-kohinoor-pil-states-cant-pass-order-on-reclaiming-diamond-from-britain-3396470.html)
The Confusion
24.With all kinds of such reports and multiple statements, the citizens are confused as to what exactly is the stand of the Union Government on securing back priceless cultural heritage of India. It is also not known whom should they approachfor information under RTI, why the Ministry of External Affairs asked the requester to approach the Ministry of Culture, who in turn transferred it to ASI, knowing that as per 1972 Act, the ASI has no role to play regarding the artefacts taken away from India prior to 1972. Earlier RTI request also ended up at ASI without any ‘information’.
25. Appellant questioned why his RTI application was transferred to department of ASI when ASI has no legal authority to get these valuable artifacts back. As contended by appellant, it is unbelievable thatCPIO of PMO Mr. Ambuj Sharma, the CPIO of the Ministry of Culture Mr. Pappunjay Kumar and Superintending Archaeologist & Nodal Officer Mr.Arun Raj T, were not aware of theAct of 1972 and of lack of power in ASI to retrieve the Koh-I-Noor etc.
26. Mr Arun Raj T, Nodal Officer of Archaeological Survey of India stated that he received RTI application on 2.11.2017 on only on 13.11.2017 he transferred it to ASI.It has to be transferred within five days from receipt as per Section 6(3) of RTI Act, which says:
Where an application is made to a public authority requesting for an information,— which is held by another public authority; or the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer:
Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.
27. It is surprising that CPIOs of PMO and Ministry of Culture did not apply their mind, ignored the lack of authority in ASI and in a routine manner transferred RTI application without even verifying whether they have any information in their records. When their Ministry assured the Supreme Court that they would continue efforts, it was for them to inform measures or progress if any. Knowing that the ASI had no legal power to recover pre-Independence artifacts from British how could PMO and Ministry of Culture conclude that RTI application“is more closely connected with functions of ASI?”
28. The efforts, if any, will involve external affairs or international transactions or diplomacy at higher level of the Prime Minister or Minister for External Affairs or High Commissioners of India and other concerned nations to get back historic possessions that were taken out of India. One can understand Ministry of Culture transferring it to MEA. As per International Law, i.e, Treaty cited above, India has every right to secure these artifacts from British, which acceded to that treaty. Especially when Prime Minister could bring back so many artifacts from foreign countries, hopeful people legitimately expect them back. The official statements assuring their continued efforts and that they were committed bring them back besides agitation in Parliament and reports of PM’s meetings increased expectations. When Parliament cannot be denied this information the citizens too cannot be denied as per proviso under Section 8(1) of RTI Act. The PMO and Ministry of Culture have every duty to inform the appellant and transferring RTI requests to ASI would amount to breach of that duty.
29. The PILs and different reports give rise to various questions like: Whether Union of India believe that Koh-I-Noor was gifted to British Queen? Whether PM agree with Pandit Nehru’s stand that India had no ground to claim it back and such a claim would lead to difficulties? After England became signatory in 1977, why not India utilize its right under Article 15 of UNESCO convention 1970? As per the commitment given to Supreme Court, what efforts were continued by Government of India or its Ministry of External Affairs? Is there any positive outcome of meetings reportedly held by PM in this regard? As the ASI cannot furnish any answers to these questions, the people would look to the PM, for action and information.
Decision:
30. The information sought in this case is about securing India’s cultural heritage and hence surely in larger public interest and it was not hit by any of exceptions under Section 8 or 9 of RTI Act.
31. For the above reasons, the Commission directs the CPIO of PMO, the CPIO of Ministry of Culture and CPIO of Ministry for External Affairs to inform the appellant what efforts were initiated/continued or contemplated and their stand on the points mentioned in RTI application.
32. The Commission directs the CPIO of PMO Mr. Ambuj Sharma to explain why RTI request of the applicant was transferred to ASI, when the Act of 1972 clearly explain that subject matter of the request was not under their control. The Commission directs CPIO of the Ministry of Culture Mr. Pappunjay Kumar, Mr. N R Minjto show cause why maximum penalty should not be imposed against each of them for not furnishing information sought, besides wrongfully transferring RTI application to the ASI, and directs also Mr.Arun Raj T, Superintending Archaeologist & Nodal Officer to show cause why maximum penalty should not be imposed against him for taking ten days to transfer the RTI application to ASIi nstead of stipulated 5 days, without any purpose,within 21 days from the date of receipt of this order. The case is posted to 30thJune 2018 at 2.30 pm for hearing on show cause notices and compliance.
