S S Indus, India's Claims over "Cultural Property" and UN Conventions

A look at the world of politics, statecraft, diplomacy and books

The Departure of the Prince

The Steam Ship Indus set sail from Calcatta Port with a priceless treasure of Indian Sculptures from the Buddhist site of Bharut, near Nagod in today's Madhya Pradesh in India. Sir Alexander Cunningham had chosen the finest pieces for the Exhibition in London. Since the [lace of origin was India and the ship registered in the Capital of the Indian Empire, London, India has certainly rights over the ship. From the point of view of Cultural Property Conventions too India has definitie claims.

There is sharp difference between scholars on Heritage whether Successor States have rights over the "Cultural Property" removed from its terrotory, legally, illegally or by any other means. The 1954 UNESCO Convention reognised movable and immovable property of great importance to the cultural heritage of every people". The terms used herein are extrmely vague and are open to different interpretation. For example what constitutes the "people". The 1954 Convention recognized the role of the State in protecting the heritage. However, this Convention remined silent over legal claims over Cultural Property and its restitution to the "people" who could legitimately claim such property as being vital to their identity as a people or culture, The legal lacunae in this instrument of 1954 was sought to be addressed in 3 subsequent conventions: 1970 Convention on the illegal Import, Export and Ownership of Cultural Property, 1972 World Heritage Convention which embodied the idea or concept of cultural or natural sites possessing outstanding universal value and finally the 2001 Convention on Protection of Underwater Cultural Heritage. Indian authorities, if they choose to stake a claim to the Sculptures in S S Indus must make their claims under the four corners of these conventions. And how?

The 1970 deadline is important as it freezes claims of theft or illegal transfer prior to that date. This date also recognises the participation of the newly independent countries in the proptection of their cultural property and also to set aside the niggling and contentious claims made by Greece for  the return of the Parthenon Marbles. Changes in Sovereignty impinge in the manner in which all these Conventions are invoked to claim restitution of Cultural Property. In the case of India Culture/ Cultural Property/ Protection/ Conservation is in the hands of two Constitutionally defined agencies: Central Government with the Archaeological Survey of India as its primary arm and State Departments of Archaeology and Culture. This dual responibility is due to Archaeology being on the concurrent List of the Indian Constitution. Obviously this confusion over roles has to be removed. The UN Convention defines sites of Cultural value and importance as res sacre which include (a) monuments of art (b) sites of architectural and archaeological significane representing both the tangible and intangible heritage of Mankind (c) sites, structures objects, artifacts, that are important for national or a group's identity and memory. These conditions make a realistic case under existing Conventions difficult and hence India must stree certain unique features about the particular site of Bharut.

Firstly, the sculptures were removed from the Stupa and most of the sculptures that were detached were from the railings that went right round the stupa and were votiv gifts from donors who wanted their gifts to be remembered in perpetuity. Culture ans the European Courts have repeatedly argued is too important to be understood only in terms of "legal technicalities". Buddha has a living presence in India as he is a divine entity for a large number of indegenous people and therefore dismantling or tearing down a structure deeply wounds the feeling s of the indegenous people and now International Law is beginning to define "indigenous people" as those who live on the land before Invasions or  colonial settlement. Thus a specific claim on behalf of Heritage of a Living People has to be made in order to make a case for the repatriation as per existing Conventions. Secondly, there is also the question of counter claims. Sri Lanka is a practising Buddhist Country and there is no doubt that Sri Lanka will not treat the Sculptures the way Muslim Afghanistan treated the Banyam Buddhas. And Sri Lanka can make an equally strong case for the retention of the sculpture on the grounds that Buddha is part of their Cultural Tradition and the wreck of S S Indus lies within the territorial limits of Sri Lanka, close to Mullaithivu, where the last battles of the Sri Lnakan Civil War were faught. 

India has not yet made any formal claim and this is disturbing as the more it ignores the less pursuvasive its claims become. First, the Government must formally recognise that a part of its Cultural Property has been removed and lost in the sea. A bi lateral agreement with Sri Lanka on an equitable distribution of the sculptures must be worked out and this agreement will further enhance the International Jurisprudence of historic wrecks.

A large number of Bharut Scultures are found in Museums all across the world. If these pieces were acquired by the Museuls prior to 1970 as perhaps is the case with the Freeer Gallery and the Metropolitan Museum of Art New York the Government must set in motion the process of restitution of such pieces as were smuggled out illegally after 1970. In the present scenario the documentation maynnot be too difficult as Captain Waterhouse has photographed the monuments in sit situ.

The unfortunate wreck must be reclaimed and the incredible treasure brought back to India where they belong.