India: Law Relating To "Antiquities" In India – Be Aware Of Your Obligations!

Have you inherited, collected or are in possession of any books, statues, coins, manuscripts, sculptures etc.? Because if you have, then there are some compliance obligations upon you under law before you can 'lawfully' own the same and/or deal with them.

Antiquities (identified as 'antiques' in common parlance) in India are governed by The Antiquities and Art Treasures Act, 1972 (hereinafter referred to as the "Act") read with The Antiquities and Art Treasures Rules, 1973 (hereinafter referred to as the "Rules") which falls within the purview of the Archaeological Survey of India ("ASI"), Ministry of Culture.

The Act was brought into force with effect from 5th April, 1976 in order to regulate the export trade in antiquities and art treasures, and to provide for the prevention of smuggling of, and fraudulent dealings in, antiquities, to provide for the compulsory acquisition of antiquities and art treasures for preservation in public places and to provide for certain other matters connected therewith or incidental or ancillary thereto.

Is what you own, possess, or have inherited an Antiquity or not?

In order to ascertain whether any books, statues, coins, manuscripts, sculptures, painting, epigraph, manuscript, record, any article/ object/thing detached from a building/ cave, or of historical interest, or illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages, etc. collected/possessed/ inherited by you is an 'antiquity' under the Act, it is important to understand what exactly falls within the definition of an 'antiquity'. The term 'antiquity' has been defined under the Act as under:

2. (1) (a) "antiquity" includes

(I)(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 hundred years; and (II) any manuscript, record or other document which is of scientific, historical, literary or aesthetic value and which has been in existence for not less than seventy-five years;"

On perusal of the definition of the term 'antiquity' above, it is evident that in order to ascertain whether an article, object, thing, manuscript, record or other document etc. is an antiquity or not, the basic benchmark is to first see the age of such article, object etc.

I am certain that most of us would not be able to tell the age of an article unless we have any documentary proof. In most of the cases one would guess the age based on hearsay without being certain. However, we all know the general rule that hearsay evidence is not admissible under law (except to the extent permissible by the Indian Evidence Act, 1872).

So what can one do in a case where there is a confusion about the age of the article?

The solution to that is two-fold, first you can either refer the article for scrutiny by an expert in the field of antiquities and obtain a certificate from him regarding the same, or it can be referred to the Director-General, ASI, or to an officer not below the rank of a Director in ASI authorised by the Director General, ASI to ascertain if the article is actually an antique/ antiquity or not and the decision of the Director-General, ASI or such officer, as the case may be, on such question shall be final.1

So, once it is established that the article that you have is not an antiquity, there is really nothing to do or worry about. But just in case the article possessed by you is an 'antiquity' under the Act, then depending upon the age of the Article -i.e whether it is 75 years old or 100 years old you will need to comply with certain formalities like getting the said Article registered with the government authorities.

Registration- Why? With whom? How?

Not all articles, manuscripts, records, sculptures, coins etc. possessed/ collected/ inherited by you which fall within the definition of the term 'antiquity', are required to be registered under the Act.

Depending upon the necessity for conserving certain objects of art, need to preserve such objects within India for better appreciation of the cultural heritage of India etc., the Central Government, from time to time, in its notification in the Official Gazette specifies those antiquities which are mandatorily required to be registered under the Act.

Section 14 of the Act requires every person who owns, controls or is in possession of any antiquity specified by the Central Government in its notification, to register such antiquity before the registering officer and obtain a certificate in token of such registration within the following timelines:

a) in the case of a person who owns, controls or possesses such antiquity on the date of issue of such notification, within three months of such date; and

b) in the case of any other person, within fifteen days of the date on which he comes into ownership, control or possession of such antiquity.2

Therefore, you may not be owning an antiquity covered under section 14 of the Act; however even if such antiquity is under your control or even possession, you are required to register such antiquity under the Act.

In view of the above section 14, the Ministry of Education and Social Welfare vide Notification No. S.0. 448(E), dated 2.7.1976 as amended by S.0. 397(E), dated 15.5.1980, has specified the antiquities which are required to be registered under the Act.

As per the said notification, only the following antiquities which have been in existence for not less than one hundred years are required to be registered:

(i) Sculptures in stone, terracotta, metals, ivory and bone;

(ii) Paintings (including miniatures and tanks) in all media, that is to say, paper, wood, cloth, silk and the like;

(iii) Manuscripts, where such manuscripts contain paintings, illustrations or illuminations;

(iv) Sculptured figures in wood (both in relief and round).

In other words, a sculpture/manuscript/ article/ object/ thing etc. may be an 'antiquity' under the Act; however mandatory registration is required only for those sculptures, paintings, manuscripts etc. which are mentioned in the aforesaid notification and have been in existence for one hundred years or more. In case the said antiquity has been in existence for less than one hundred years there is no requirement for registration. However, as soon as the said item becomes one hundred years old registration must be got done.

Therefore, in case the antiquity in your possession/control/ ownership requires compulsory registration under the Act, and has not been so registered by you, you may be liable for punishment with imprisonment for a term which may extend to six months or with fine or with both and the antiquity in respect of which the offence has been committed is liable to confiscation.3

In the case of S.R. Kiran vs. Central Bureau of Investigation, Bangalore [1999 Cri LJ 3079 (Kar)], the Hon'ble Court considered the applicability of the penal provisions under section 25(2) of the Act. In this case, the articles in possession of the petitioner were 100 years old and the petitioner had not obtained the registration certificate under the Antiquities and Art Treasures Act, 1972. The Hon'ble Court observed that the articles were antiquities requiring registration and non-registration thereof was an offence under the Act. However, in view of the fact that the petitioner was not aware of the fact that the articles were 100 years old and he had not misused the articles for any purpose, the Hon'ble Court gave the petitioner an opportunity to make the necessary application to the competent authority, and ordered the authorities to return his antiquities if the petitioner satisfied the requirements of law.

Although the Court in the above case granted the benefit of the doubt to the Petitioner, however one must remember that ignorance of law is no excuse and anyone in possession of antiquity falling under section 14 above must inform the authorities and get it registered.

So the next question that arises here is with whom the registration has to be done and the procedure to get the antiquity registered.

Application Procedure- Every application for a certificate of registration under the Act is required to be made in Form VII to the registering officer having jurisdiction over the area in which the applicant resides, and the following information is required to be submitted by the person owning/ controlling/ possessing the antiquities:

a) Name of applicant

b) Address of applicant

c) Identification and description of object with three copies of photographs in post card or quarter size

d) Material

e) Size

f) Approximate date and source of acquisition

g) Where the applicant has come into ownership, control or possession of any antiquity which is already registered under the Act, registration number of such antiquity and the name of the registering officer, who had registered it.

h) Date of acquisition

i) Mode of acquisition

j) Price paid, if any

k) Present location and condition of preservation and security

Although the registering authority is bound to register the antiques once they are convinced; however in case the registration is denied, the Act provides for filing an appeal under section 21 of the Act read with rule 14 of the Rules against the decision of the registering officer.

Transfer- Permissible but after registration formalities are completed

Having validly secured the ownership of your antiquities, you may transfer ownership of the same, provided the transfer formalities as provided under section 17 of the Act are complied with.

As per section 17 of the Act read with rule 13 of the Rules, whenever any person transfers the ownership, control or possession of any antiquity which is mandatorily required to be registered under the Act, the fact of such transfer shall be required to be intimated in Form IX by the transferor to the registering officer having jurisdiction over the area where the transferor resides and also to the registering officer having jurisdiction over the area where the transferee resides.

Can you export the "antiquity" that has been registered?

No, that is not possible. In this regard it is pertinent to note that no private person is allowed under the Act to export antiquities. It is only lawful for the Central Government or any authority or agency authorized by the Central Government in this behalf, to export antiquities.4 If any person exports or attempts to export any antiquity in contravention of the aforesaid provision of the Act, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with a fine.5

To conclude, if you possess articles that come within the ambit of the law as stated above, follow the law and enjoy your possessions.

Thus, it is better to BE AWARE!

Originally published on August 6, 2015

1 Section 24 of The Antiquities And Art Treasures Act,1972

2 Section 14 of the Antiquities and Art Treasures Act, 1972

3 Section 25(2) of The Antiquities And Art Treasures Act,1972

4 Section 3 of The Antiquities And Art Treasures Act,1972

5 Section 25(1) of The Antiquities And Art Treasures Act,1972

© 2015, Vaish Associates, Advocates,
All rights reserved with Vaish Associates, Advocates, 10, Hailey Road, Flat No. 5-7, New Delhi-110001, India.

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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Authors
Vinay Vaish, Partner, Vaish Associates Advocates
Sargam Marwaha, Associate, Vaish Associates
 
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