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Legal framework for protecting cultural heritage throughout the centuries

Sneha Mahawar

September 8, 2022

2029

This article is written by Devasmitha Dinesh. This article has been edited by Sonali (Associate, Lawsikho).

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

India never fails to amaze the world with the rich cultural heritage it has in store. Cultural heritage is an umbrella term that refers to the legacy passed onto generations and is a cocktail of both tangible and intangible expressions. Tangible forms like monuments, scriptures, coins, etc., and intangible forms like art, music, and language, are all part of our cultural heritage. This article briefly explains ancient monuments, language, and art as elements of our cultural heritage and the legal framework in place to protect them. It also discusses how the present times have seen rationality making its appearance in the definition of culture, and consequently led to the erasal of discriminatory and unjust traditions.

Ancient monuments

The Archaeological Survey of India (ASI) describes an ancient monument as any structure, erection or monument, or any tumulus or place of interment, or any cave, rock sculpture, inscription or monolith which is of historical, archaeological, or artistic interest and which has been in existence for not less than 100 years. UNESCO recognizes 46 World Heritage Sites, of which 32 are in India. Ancient monuments are not just pieces of artistic creation but also a doorway to the culture of ancient society. They are among the most sought tourist spots. They are important elements that ensure our culture and pride receive a global reach.

Language and scriptures

Language is a means of communication, which originally evolved from symbols and gestures to oral and writing forms. It strongly entails the culture of a place. The study of a language inevitably leads to the culture and history of a nation and its people. It is quite dynamic too that it evolves over time and in the process, some rare species of language are even lost. Losing out on a language implies that we are losing precious insights into the history of a country.

According to the 2011 Language census, India has 22 scheduled languages and 99 non-scheduled languages. Presently, there are over 300 languages and dialects spoken here. Even Hindi, spoken by around 41% of the total population, has several dialects and subsidiaries, which are on the verge of extinction. So do other languages, whose native speakers are declining.

Art, music, dance

Indian music and dance are enjoyed by millions all around the world. Indian artists have taken inspiration from ancient scriptures, and every such artwork narrated a story. Watercolors, charcoal, and vegetable dyes were used to create paintings that survive even to this day. Such artists were commissioned in the courts of the kings to paint aesthetic artworks appealing to the eyes. Stone and marble were used to carve out beautiful sculptures, which adorn the walls of several temples and palaces. Terracotta and clay crafts also survive to this day, along with coins and metallic artifacts.

Constitutional framework

The Government of India has laid down several statutes and other legal provisions to protect the cultural heritage of our country.

Article 51 A(F) states that it shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture. Article 49 states that it shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
Article 29(1) provides that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. Article 29(2) states that no citizen shall be denied admission into an educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30(1) provides that minority communities can establish and administer educational institutions of their choice, and Article 30(2) provides that the State, while granting aid, shall not be discriminatory, based on whether such institutes are run by religious or cultural minorities. These articles are included under the head of Fundamental Rights. They ensure that the minority communities receive the recognition they deserve and so that their cultural values are not compromised.
The SC in cases like T.M.A Pai Foundation & Ors vs. State of Karnataka & Ors (2012) and The Ahmedabad St. Xaviers College vs State of Gujarat & Anr (1974) had reiterated on the importance of these articles and their crucial role in protecting the rights of minorities and their upliftment, thus keeping the torch of cultural tolerance high. Article 344 talks about a Committee and Commission of the Parliament for Official language. Article 344(4) talks about a Committee that is responsible to look into the recommendations of the Commission and report their opinion to the President.

Statutory framework

The Ancient Monuments Preservation Act, 1904 was enacted under Lord Curzon in British India to provide for the preservation, protection and acquisition of Ancient Monuments and of objects of archaeological, historical, or artistic interest and also to prevent over-excavation in certain places.
The Ancient Monuments and Archaeological Sites and Remains Act (AMASR Act) was enacted in 1958 to preserve ancient and historical monuments and archaeological sites and remains of national importance, to regulate archaeological excavations and to protect sculptures, carvings and other like objects.
The AMASR (Amendment and Validation) Act, was enacted in March, 2010, under which the National Monuments Authority (NMA) has been constituted to protect the ancient monuments and the surrounding restricted areas. Under AMASR Act, the Archaeological Survey of India (ASI) gives a two-month notice to look into any objections and proceed to take over and protect monuments, sites and remains of national importance, through various Circles of the ASI spread all over the country. Currently, more than 3650 ancient monuments and archaeological sites and remains of national importance.
The Prevention of Damage of Public Property Act was enacted in 1984 to protect such monuments and remains from mischief causing damage to them. To regulate export trade in antiquities and art treasures and prevent smuggling and fraudulent dealings in antiquities and ancient monuments the Antiquities and Art Treasures Act was enacted in 1972.
The 1961 census recorded 1652 mother tongue languages, which dropped to 808 by 1971. Since Independence, about 300 languages are not even traceable anymore. The People’s Linguistic Survey of India, in 2013, identified around 860 Indian languages and categorized 97 of them as Endangered. A lack of recognition, bias against native speakers and the influx of the English language, which began from the time the British established strong roots in India, has led to the death of several languages here.
The Ministry of Human Resource Development, in 2013 initiated the Scheme for Protection and Preservation of Endangered Languages (SPPEL) to document and archive the country’s languages that have become endangered or are likely to be endangered in the near future. In 1969, the Ministry established the Central Institute of Indian Languages (CIIL), to coordinate the development of Indian languages and to protect and document minor, minority and tribal languages. In 2003, the Ministry of Tourism and Culture set up the National Mission for Manuscripts (NMM) to document, preserve and digitize the vast wealth of manuscripts of India.
The Antiquities and Art Treasures Act 1972 was enacted to protect the artworks of the country as well. It was meant to give the government effective control over the movable cultural property consisting of antiquities, which refers to coins, sculptures, painting epigraphs or other work of art or craftsmanship that has been in existence for 100 years or more, or refers to any manuscript, record or other documents which has been in existence for over 75 years. This act seems insufficient in the background of India becoming a ground for idol theft and smuggling. The Draft Antiquities and Art Treasures Regulation, Export and Import Bill, 2017 suggests changes to the government mandate to acquire license to trade in antiquities. This is a risky step and requires greater alert and care on the part of the Government to make up for the adverse acts degrading the antiquity tradition.
In recent years, various artworks are protected under the Indian Copyright Act, 1957. Copyright is a form of intellectual property law that protects artistic works consisting of a painting, sculpture, drawing, engraving, photograph, a work of architecture or artistic craftsmanship, dramatic work, literary work, musical work, sound recording and cinematographic film. Any artistic expression is protected by copyright so that the creator of the artwork has rights and discretion over the work.

Landmark judgments to protect our cultural heritage

M.C Mehta vs. Union of India (1986) popularly known as the Taj Trapezium Case, is where the Judiciary issued orders to protect the Taj, from the adverse effects of the air pollution caused due to the innumerable industries in the area of 10,400 sq km surrounding the Taj. The white marble had turned yellow due to the acid rain combined with heavy air pollution. The SC had also ordered that a separate cell needs to be formulated under the Central government to protect and preserve the Taj, the Agra city and other heritage monuments in the TTZ. This case led to the declaration of Agra as a Heritage City.

India has also fought for her culture and pride outside the country. Her Majesty vs. Lord Shiva (1982) was a British High Court case that led to the return of the Nataraja idol of Lord Shiva, which was seized by the British. Such idols forming the antique collection of our country were won back after a legal battle, reflecting how India values its cultural heritage.

Recent precedents reveal that it is time to rethink if culture stands prior to rights and rationality. Culture is a dynamic concept because its constituents too tend to change with time. India is a multicultural country that inculcates inspiration from foreign elements as well, though it is debatable whether all of them suit everyone’s lives.

Conclusion

The Cultural heritage of India is one of the richest in the world. It is essential to know the culture of our country to dive deep into the history and also pass on pride and legacy to the world. The Government has taken several steps to ensure that our heritage survives the wear and tear of time. The practical impossibility in determining laws for every element of our diverse culture also has to be considered before we mourn the loss of our heritage. However, proper planning and implementation can definitely help recover the dissipating elements of our cultural heritage. There needs to be awareness spread about the valuable cultural heritage. Innovative modes to aid its protection and preservation need to be devised.

References

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