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squareWHERE LAWS AND ETHICS DON'T ALWAYS MEET:
RESTITUTION OF INDIAN ART

Frederick M. Asher

 

The 1970-1971 Annual Report of the Boston Museum of Fine Arts carried an image of a new acquisition, one described as a large bronze image of Vishnu from eastern India, the most important acquisition of the Department of Asiatic Art that year [1] [Fig. 1]. When the report came across my desk, I knew the piece looked familiar, although I couldn’t place it. I did, however, know enough to write the curator and tell him that the piece surely came from Bengal, a somewhat more specific provenience than eastern India. He thanked me. I continued to think about the sculpture, and then remembered seeing a report that it had been discovered early in the twentieth century at Sagardighi, in what came to be the Indian state of West Bengal [2]. I shared that with the curator. He thanked me. And then, some months later, I remembered that I had seen the sculpture in the museum of the Bangiya Sahitya Parishad in Calcutta. I checked the small catalogue of the museum, and sure enough it was there [3]. So I wrote the curator yet again. This time he didn’t thank me but assured me that the museum must have de-accessioned the sculpture and further that he’d checked with both ICOM and Interpol to ensure that it wasn’t listed as stolen. At the time, no museum in India had ever heard of de-accessioning, and no small museum such as the Bangiya Sahitya Parishad had heard of ICOM or Interpol. I wrote that to the curator as well as a few more coercive comments. This time he didn’t reply at all. Nor did he reply when I sent him the article from «The Statesman», one of Calcutta’s leading newspapers, describing how thieves had broken through a skylight of the Bangiya Sahitya Parishad and stolen three bronze sculptures. But several months later I received in the mail a manila envelope with newspaper clippings, including one headed A Stolen Statue At Boston Museum Returning to India [4]. I should add one other comment the curator made: he told me that he had twice written the Director General of the Archaeological Survey of India, «the authority whom we considered to be the most appropriate to approach in writing». He said that each of the letters, dated after I initially wrote the curator and so I assume stimulated by my letter, «have remained without any response». And then he added, «having failed to elicit a response from the Director General of the Archaeological Survey of India, I do not consider it practical to approach in writing the museum which you claim to be the legal owner of the piece. By a direct, verbal approach, the possibility of all kinds of other complications, which anyone only vaguely familiar with the Indian scene can easily imagine [is raised]...». I am not entirely sure what he meant by that, but it feels rather like a colonialist response. That is, the Indian scene is chaotic, unresponsive and, above all, untrustworthy.

The second story is better known because it was played out in both courts of law and the press. Some time between 1953 and 1961, a magnificent bronze image of Siva Nataraja, found buried on the grounds of a south Indian temple in the village of Sivapuram, departed 
[5] [Fig. 2]. In time and with the help of a well-known dealer as well as about $1 million, it found its way to new sanctuary in the US collection of Norton Simon. The Government of India filed suit in US civil court seeking restitution of the sculpture. The suit never reached trial because an out of court settlement was achieved in which Norton Simon was permitted to keep and publicly display the sculpture for ten years before returning it to India, where it now resides not in the temple at Sivapuram but rather in a locked vault within a temple compound in Chennai.


In the first case, that is, the case of the stolen bronze Vishnu image, Indian law was clearly violated. Breaking and entering is illegal in India as it is just about everywhere else. But to what extent could India, rather than the museum from which the bronze sculptures were stolen, have a claim on the works of art? The Ancient Monuments Preservation Act of 1904 [6], amended in 1958, defines antiquity as «any moveable objects which the Central Government, by reason of their historical or archaeological associations, may think it necessary to protect against injury, removal or dispersion». Article 17 of this act continues, «If the Central Government apprehends that antiquities are being sold or removed to the detriment of India [...], It may, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land of any antiquities [...] described in the notification into or out of the provinces or any specified part of the provinces». So for India to take action beyond the issue of theft from a museum, the government would have to demonstrate by notification in the «Official Gazette» that the removal of the bronze Vishnu was in some way detrimental to India. And then US law would have to recognize Indian legislation regarding stolen objects and at the same time would have to accept the Indian claim, which in this case was never made, that the international transport of the sculpture was in some way detrimental to India, something which US law didn’t at the time much care about. I should add that the legislation then in effect only referred to the removal of the object by sea or land. Air transport was not imagined in 1904.

A second act, The Ancient Monuments and Archaeological Sites and Remains Act 1958 [7], was in effect in 1971, when the Boston Museum acquired the bronze Vishnu, and it defined an antiquity as any object that has been in existence for not less than 100 years. But this act is concerned largely with the protection of archaeological sites and the antiquities that reside in them, not with the removal of works from a museum or the international export of such works. So Indian legislation didn’t then offer a great deal of basis to support a claim for restitution. And in this case, it wasn’t especially important, since no one in India seemed aware that the Boston Museum had this piece. The only recourse available was ethical persuasion. I assume the museum didn’t want to be the repository of demonstrably stolen goods, and the curator at the time, an aspirant for the position of Acting Director, didn’t want to appear to resist strong, even threatening, ethical persuasion.

Norton Simon’s acquisition of the bronze Nataraja represents a somewhat different case, in part because of the date of its acquisition. Despite its theft sometime between 1953 and 1961, Simon acquired the piece in 1973, just a year after India enacted The Antiquities and Art Treasures Act, 1972 and three years after UNESCO adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property [8]. It took some thirteen years before the US ratified the convention, but our government did so before any of the other major art-market countries, for example, Britain, which didn’t ratify it until 2002. India, however, was the 27th country to ratify the convention, at the very beginning of 1977, well before either the US or Britain, though Italy ratified the convention just a year later, in 1978. The US administers the implementation of this convention through the Cultural Heritage Center of the State Department, rather than a governmental agency specifically concerned with imports or cultural properties. And the US specifically declined to implement Article 10a, on the grounds that regulation of antiquities dealers is best left to state and local governments, a frequent conservative refrain in US legislative proceedings. This article requires antique dealers to maintain a register «recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject».

In other words, the US doesn’t require dealers to do this.

Taking all this into consideration, things get a bit murky with the case of Norton Simon. The bronze wasn’t exactly stolen. Rather, the bronze was discovered under ground at Sivapuram, where it apparently had been buried for protection in the distant past. It was sent to a nearby bronze sculptor for restoration, and he, in turn, made a replica of the image, which he returned to the temple while sending the original through a series of art dealers until it reached New York. It was not the temple, however, that filed suit but rather the Government of India, claiming ownership under the terms of Treasure Trove Act of 1878 [9], which gave the government ownership of any antiquity found in the soil. For such a claim to succeed in US court, the US would have to recognize the validity of this law, or India would have to demonstrate that some other US law had been violated. The US has bilateral cultural property agreements with several countries, China and Cambodia among them, but not India. So no US legislation would provide for the restitution of this bronze or, for that matter, the one stolen from the museum in Calcutta.

In the case of the Norton Simon bronze, ethical persuasion was not likely to have a great deal of impact. Simon is alleged by a report in «The Times» to have said, «Hell, yes, I knew it was smuggled» [10]. It’s probably a good thing, then, that the issue was settled out of court, for it’s not at all clear how a US court could have weighed India’s claim to ownership. The legal system is in almost every case a “national” system charged with resolving disputes on the basis of domestic laws, and in the end, I’m not persuaded that a court of law is the best place to resolve issues of ownership of cultural properties. As Paul Bator has argued in a 1982 article in the «Stanford Law Review», «The fact that an art object has been illegally exported does not in itself bar it from lawful importation into the United States. Illegal export does not itself render the importer [...] in any way actionable in a US court; the possession of an art object cannot be lawfully disturbed in the United States solely because it was illegally exported from another country» [11].

That’s not what I want to hear. It’s not the ethical response. But it is the legal one.

The two cases I cite both rely on external pressure for restitution. In one case it was an art historian, me, who saw the acquisition of a clearly stolen work as an ethical issue. In another case, it was pending action in a court of law and the prospect of public embarrassment. Museums in the US – and I assume elsewhere – however have become wary of acquiring works whose past is murky. And almost invariably meticulous due diligence with regard to a work’s provenance is now part of the curator’s responsibility when recommending an acquisition. That’s new, but it doesn’t really address works long held in public collections.

My final example is the Koh-i-noor diamond. I raise the issue of this gem because it presents an entirely different sort of legal issue than any work in the US and, for that matter, different from a great many other objects in Britain. The history of this diamond, now part of the Queen of England’s crown and resident in the Tower of London, is complex, but suffice it to say, the Koh-i-noor was mined in southern India and spent most of its life thereafter in India, passing through the hands of various rulers until finally – more or less finally - it landed in the possession of the Mughals. It continued to pass through various royal hands until about 1830, when it came into the possession of Ranjit Singh, ruler of the Punjab. When in 1849 the British took Lahore, then capital of the Punjab, the Governor General, Lord Dalhousie, directed Ranjit Singh’s successor to present the diamond to Queen Victoria. Even then, there was dissent, both British and Indian, but today there is even more [12]. Under the leadership of Kuldip Nayar, a member of India’s upper house and former High Commissioner to the United Kingdom, some fifty MPs from both houses have signed on to a demand for the return of the Koh-i-noor diamond [13].

But here the legal situation is even more murky than that of the two sculptures I discussed. It was given, not taken, even though given under duress. It was sent from a colony to the metropole and so, one could argue, remained within Britain, especially since at the time India did not exist as a sovereign country. Moreover, Lahore, Ranjit Singh’s capital, is today in Pakistan. The legal complexities of the case are considerable, even though ethical behavior might demand its return. But to where: India or Pakistan?

I think it’s fair to say that India might have a claim on virtually every Indian object in public and private collections in the US, at least under Indian law. In some other places, that may not be the case, for example, in Britain, where some Indian works were collected before the time of Lord Curzon, who served as Viceroy of India from 1898-1905 and took a serious personal interest in antiquities. Although he advocated the transport to England of some of India’s most important monuments, for example, the gateways of the Great Stupa at Sanchi, it was under his administration that the Ancient Monuments Preservation Act of 1904 was passed, an act that specifically sought to control trafficking in antiquities. The laws in India today, however, are even more restrictive than they were when India was under British rule, and they are administered in such a way that there is virtually no room for the legal export of antiquities. With the passage of the Antiquities and Art Treasures Act of 1972, it was not «lawful for any person, other than the Central Government or any authority or agency authorised by the Central Government in this behalf, to export any antiquity or art treasure». It further stipulated that a permit must be obtained for the export of an antiquity, and on the basis of this act, the Director General of Archaeology was authorized in 1973 to form a panel of experts to determine whether a work could be legally exported. I don’t have statistics regarding applications made to the Director General for legal export of works of art, but my experience suggests that bureaucrats, even experts, are loathe to reach decisions that could be politically charged, for example, ones transferring India’s patrimony to a foreign country or the transformation of a religious object capable of exchanging gaze with a worshiper to a work of art residing in a foreign museum stared at by some foreigner who at best sees it as an aesthetic, not sacred, object. What this means, in effect, is that there is no legal market for the trade in Indian antiquities, not even ordinary ones, certainly not museum-quality objects.

So what are the solutions? Currently, Indian law regarding the sale and transport of antiquities is largely enforceable in India, not in other countries. Only if it can be shown that the UNESCO convention was contravened might there be a legal case, and that doesn’t pertain to works in foreign collections prior to 1970. Nor does it address the clandestine market that exists and will keep antiquities away from the public gaze. In those cases, neither the law nor ethical pressure will result in the return of a work. So what are the solutions?
I generally believe in open markets. I believe that works of art and probably a great many other things would be far easier to control if their trade were less restrictive, essentially eliminating the need for an illicit market. I also think we need to recognize that the issues are complex. On one hand, we have the so-called Encyclopedic Art Museum, whose collections have been built over the course of a very long time, starting long before any of the relatively recent legislation, and on the other hand the national museums, whose collections are very much more focused. And despite the claim by James Cuno in his book, Who Owns Antiquity?, that even India could develop an Encyclopedic Art Museum, a great many constraints make that ludicrous assertion impossible [14].

But there are things India can do. In an article published May 18, 2010 year in the Calcutta newspaper «The Telegraph», India’s Director General of Archaeology, Gautam Sengupta, proposed identifying certain objects that would constitute national treasures, what he and others at a Cairo conference described as «unique objects» currently in museums abroad that must be restored to their country of origin. Among the works he identified are the Sultanganj Buddha, currently in the Birmingham Museum, and the sculptures from Amaravati, currently in a special gallery of the British Museum
[15]. But there is a counterpart step that can be taken, I believe, that is, identifying works that can be legally sold in an open marketplace. One example strikes me in particular: a very large and prestigious museum in India has in its reserve collection hundreds of sculptures of the ninth through twelfth centuries from eastern India. These works have, to my knowledge, never been on display. Many of them are essentially duplicates of one another, for example the dozens and dozens of images of the god Vishnu. Let some of them become commodities in international trade so they can be seen by audiences that would appreciate them. And, in this case, I do not mean just Euro-American audiences. I mean to include the growing population of citizens of Indian origin, Indians of the Diaspora, who have expressed a very strong wish to see in American museums more works that represent their religious and cultural heritage [16].

In July last year, 2012, a Manhattan art dealer’s shop was raided and a warrant issued for the dealer’s arrest because the federal investigators determined that he was importing to the US works stolen from Indian temples. He’s hardly the only Manhattan dealer – or dealer anywhere in the US or Europe – who has violated the 1972 Antiquities and Art Treasures Act, which stipulates that no art object over 100 years old may be removed from the country. But not all antiquities stolen from Indian temples and archaeological sites end up outside of India. India can boast a growing number of serious collectors, whose willingness to pay global market prices for antiquities does as much damage to the temple or site – and to the history of art, which requires a precise provenance for works of art – as the dealers and collectors abroad.

Advocating, as I do, making relatively common works available for sale reminds me that we might take a lesson from economics. By flooding the market, or at least making works much more readily available, collectors, who see the works as commodities, will find them less desirable, thus driving down the price and reducing the expectation that large amounts of money can be made from an illicit trade. The issue then would not be restitution but rather the reverse: India would be sending out works of art and in the process gaining tax revenues from a trade that it could control.

And, finally, let me echo the proposal of Irene Winter in her appropriately devastating «Art Bulletin» review of James Cuno’s book, namely that museums engage in much more extensive loans [17]. One might, for example, treat the Indian collection of a large Encyclopedic Art Museum as tantamount to a loan from India, perhaps even one jointly owned and curated, but with the expectation that in turn the museum would loan Indian museums works of comparable quality – I stress, “works of comparable quality”. In other words, there are, quite obviously, solutions short of massive full-scale restitution.

 

[Fig. 1] Bronze image of Vishnu from Sagardighi, West Bengal, Kolkata, Museum of the Bangiya Sahitya Parishad.

[Fig. 2] Bronze image of Shiva as Lord of the Dance (Nataraja), from Sivapuram, Tamil Nadu, formerly collection of Norton Simon, now in the Icon Centre at Tiruvarur.

 
NOTE

[1
]
Museum of Fine Arts, Boston, The Museum Year: 1970-71. The Ninety-Fifth Annual Report of the Museum of Fine Arts, Boston, 1971, p. 30.
[2] R.D. Banerji, Eastern Indian School of Medieval Sculpture, Delhi, 1933, pp. 95-96, plate LXVII(c).
[3] M. Ganguly, Handbook to the Sculptures in the Museum of the Bangiya Sahitya Parishad, Calcutta, 1922, plate XXIV.
[4] «New York Times», July 19, 1974.
[5] The case is very well discussed by R. Davis, Lives of Indian Images, Princeton, 1997. Ironically, as Davis notes, this image – and others returned from abroad – are now securely sequestered in the Icon Centre at Tiruvarur, not in the temples from which they were taken. For the legal implications of the case, see A. Chechi, A.L. Bandle, M.A. Renold, Case Nataraja Idol – India and the Norton Simon Foundation, in ArThemis, Art-Law Centre, University of Geneva, October, 2011, <https://plone2.unige.ch/art-adr/Affaires/>.

[6] See < http://asi.nic.in/pdf_data/5.pdf>.

[7] See <http://asi.nic.in/pdf_data/6.pdf>.

[8] For the full text of this act, see <asi.nic.in/pdf_data/8.pdf>. For the full text of the UNESCO convention, see <http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html>.

[9] See <http://asi.nic.in/pdf_data/9.pdf>.

[10] «The Times», May 14, 1973. «In an interview at the weekend, Mr. Simon admitted from his California home: “Hell yes, it was smuggled. I spent between $15m [£6m] and $16m over the last year on Asian art, and most of it was smuggled”.»
[11] P.M. Bator, An Essay on the International Trade in Art, in «Stanford Law Review», 34, 2, January 1982, pp. 275-384.
[12] S. Howarth, The Koh-i-noor Diamond: the History and the Legend, London-New York, 1980.
[13] R. Murthy, India Wants Its Crown Jewel, in «Asia Times», August 5, 2010, <http://www.atimes.com/atimes/South_Asia/LH05Df03.html>. Also see especially S. Ghoshray, Repatriation of the Kohinoor Diamond: Expanding the Legal Paradigm for Cultural Heritage, in «Fordham International Law Review», 31, 3, 2007, pp. 741-780.
[14] J. Cuno, Who Owns Antiquity? Museums and the Battle Over Our Ancient Heritage, Princeton, 2008.
[15] S. Sarkar, India in Global Bid to Get Back Treasures, in «The Telegraph», May 18, 2010.
[16] Hindus laud CMA for acquiring Lord Shiva statue, July 3, 2009, <http://www.merinews.com/article/hindus-laud-cma-for-acquiring-lord-shiva-statue/15774841.shtml>.
[17] I.J. Winter, review of Who Owns Antiquity? Museums and the Battle over Our Ancient Heritage, by James Cuno, in «Art Bulletin», 91, 4, December 2009, pp. 522–526.