Legal Aspects of Heritage In India

India is one of the countries possessing rich cultural and natural heritage. In this regard, the
preservation of historical structures has to have an objective of safeguarding national cultural
identity various policies and laws are framed for preservation, protection and proper
management of the cultural heritage at the state and central level in India. It is pertinent to note
that many of us are not aware of the legislation and legal framework States are obliged under
Article 49 of the Indian Constitution to protect monuments and places and objects of national
importance. It shall be the obligation of the State to protect every monument or place or object of
artistic or historic interests, 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. But the state is failing to abide by the provision. On the other, we as the responsible
citizen of the nation unable to attach any sense of belongingness toward our cultural heritage. It
is the duty of every citizen of India under Article 51A(f) of Indian Constitution to value and
preserve the rich heritage of our composite culture. It is essential to be aware of the international
conventions and the national and with the respective state laws significant to the security and
protection and conservation of the art and the cultural heritage of a nation

UNESCO adopted convention concerning the Protection of the World Cultural and National
Heritage on November 16, 1972. It is also called World Heritage Convention. India is also party
to the convention. India had its first law way back two centuries ago in form of Bengal
Regulation XIX of 1810 and this was followed by legislation Madras Regulation VII of 1817.
However, both the Acts were silent on the buildings under the private ownership. The Act XX of
1863, was therefore enacted to empower the Government to prevent injury to and preserve
buildings remarkable for their antiquity or for their historical or architectural value.The Indian
Treasure Trove Act, 1878 was promulgated to protect and preserve treasure found accidentally
but had the archaeological and historical value. This Act was enacted to protect and preserve
such treasures and their lawful disposal.The Cultural heritage ushered in a new era when The
Ancient Monuments Preservation Act, 1904 was promulgated. This Act provided effective
preservation and authority over the monument particularly those, which were under the custody
of individual or private ownership. As this Act has not been repealed, it is deemed to be in force.
Next Act was The Antiquities Export Control Act, 1947 and Rules thereto which provided a
regulation over the export of antiquities under a licence issued by the Director General and
empowering him to decide whether any article, object or thing is or is not an antiquity for the
purpose of the act and his decision was final.
In 1951, The Ancient and Historical Monuments and Archaeological Sites and Remains
(Declaration of National Importance) Act, 1951 was enacted. Consequently, all the ancient and
historical monuments and archaeological sites and remains protected earlier under ‘The Ancient
Monuments Preservation Act, 1904 were re-declared as monuments and archaeological sites of
national importance under this Act. Another four hundred and fifty monuments and sites of Part
‘B’ States were also added. Some more monuments and archaeological sites were also declared
as of national importance under Section 126 of the States Reorganization Act, 1956.

In order to bring the Act on par with constitutional provisions and providing better and effective
preservation to the archaeological wealth of the country, The Ancient Monuments and
Archaeological Sites and Remains Act 1958 was enacted on 28th August 1958. This Act
provides for the preservation of ancient and historical monuments and archaeological sites and
remains of national importance, for the regulation of archaeological excavations and for the
protection of sculptures, carvings and other like objects. Subsequently, This Act repealed 1951
Act. In year 2010 amendment was passed to insert few new provisions, one of them was
constitution of National Monument Authority. It will make recommendations to the central
government for grading and classifying protected monuments and protected areas, oversee the
working of the competent authorities, to suggest measures for implementation of the act etc. The
Antiquities and Art Treasures Act 1972 was enacted for effective control over the moveable
cultural property consisting of antiquities and art treasures. This act repealed 1947 act. Various
states are having and proposed laws for their respective states i.e. Tamil Nadu Ancient
Monuments and Archaeological Sites and Remains Act, 1966, The Hampi World Heritage Area
Management Authority Act, 2002, Orissa Ancient Monuments and Preservation Act, 1956,
Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961, The Madhya Pradesh
Ancient Monuments and Archaeological Sites and Remains Act, 1964, Victoria Memorial Act,
1903, Salar Jung Museum Act, 1961 etc. Central Government proposed National Commission
for Heritage Sites Bill in 2009 to comply with the World Heritage Convention. This commission
will recommend short term, long term policies to the state and central government, conduct
research and studies, publish periodically heritage maps, make list of heritage sited for
nominations, make periodical reports etc. Present bill was withdrawn in 2015 after having
recommendations of various committees and stakeholders. Judicial Intervention As we seen
above that it is duty of state to protect the heritage but when it fails to perform his duty judicial
intervention becomes utmost important. Public Interest Litigation (PIL) becomes important tool
in this regard. One can approach Supreme Court of India & High Court by filing writ petition
under Article 32 and 226 of Indian Constitution respectively. In the Taj Mahal Trapezium Case,
M C Mehta filed PIL in SC to protect Taj Mahal from surrounding industries in the year 1984
and judgement delivered in year 1996. In year 2007, in another case M C Mehta filed PIL against
Taj Heritage Corridor Project approved by Government of Uttar Pradesh. Project was put on halt
because of this PIL. In the case of Subhas Datta v/s. Union of India & Ors (SC, Writ Petition No
252 of 2004 decided on February 3, 2015), petitioner filed PIL in SC on the issue of protection of
historical objects preserved at different places in the country particularly in various museums. He
pleaded direction from SC for adequate security arrangements and for proper investigation into
the incidents of theft and damage to several historical objects and also for making an inventory
of available articles for future. Recently Ajay Jagga, lawyer practising in Punjab & Haryana
High Court filed PIL in HC for preservation of heritage property of Chandigarh in terms of its
original form and design material. HC issued notice to Chandigarh Administration. Petitioner
also emphasised on preparation of inventory of antiquities, furniture artifactsetc collected by the
Chandigarh Administration. Heritage Bengal filed PIL seeking a directive to the centre to try and
bring back the Kohinoor diamond from the UK. SC will hear the matter alongwith other pending
petition filed by the All India Human Rights and Social Justice Front. The front has also pleaded
that the government should be directed to bring back other treasures of Bahadur Shah Zafar, Rani
of Jhansi, Nawab Mir Ahmad Ali Banda and other rulers.