Cultural renaissance of early nineteenth century witnessed enactment of the first ever antiquarian legislation in India known as Bengal Regulation XIX of 1810. This was soon followed by another legislation called as Madras Regulation VII of 1817. Both these regulations vested the Government with a power to intervene whenever the public buildings were under threat of misuse. 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 (Act No. VI of 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. In a landmark development in 1886, James Burgess, the then Director General succeeded in prevailing upon the Government for issuing directions: forbidding any person or agency to undertake excavation without prior consent of the Archaeological Survey and debarring officers from disposing of antiquities found or acquired without the permission of the Government.
Ancient Monuments Act, 1904:
A new era was ushered in when The Ancient Monuments Preservation Act, 1904 (Act No. VII of 1904) was promulgated. This Act of 1904 was passed on 18 March 1904 by British India during the times of Lord Curzon.
It was a major step in the preservation of monuments in India. 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 As this Act has not been repealed, it is deemed to be still in force.
However the provisions of this act applied only to those monuments which were brought under government control by proper notification.
In the case of privately owned buildings, the government could enter into an agreement with their owners for the proper maintenance of these buildings.
And if the owner refused to enter into such agreements, the district collectors could, if necessary, take suitable measures including their acquisition by government for their upkeep.
However the greatest lacuna of this act was that the buildings used for religious purposes were specifically left out of the provisions of this clause.
The act also prohibited the traffic in antiquities which were moveable, both from & to British India.
This applied also on princely states outside the British administration.
There was also a provision to keep the moveable antiquities in situ for preserving them in local museums. Compulsory purchase from their owners was also ordained if they had no objection on religious grounds.
The act of 1904 also empowered the government to regulate or prohibit the ancient sites by irresponsible persons.
Next Act was The Antiquities Export Control Act, 1947 (Act No. XXXI of 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.
Act of 1951:
In 1951, The Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (No LXXI of 1951) was enacted. Consequently, all the ancient and historical monuments and archaeological sites and remains protected earlier under ‘The Ancient Monuments Preservation Act, 1904’ (Act No. VII of 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.
Ancient Monuments Act of 1958:
In order to bring the Act on par with constitutional provisions and provide better and effective preservation to the archaeological wealth of the country, The Ancient Monuments and Archaeological Sites and Remains Act 1958 ( No 24 of 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. This Act was first amended in 2010, Subsequently the Ancient Monuments and Archaeological Sites and Remains (Amendment) Bill, 2017 was introduced in Lok Sabha on July 18, 2017 by the Minister of Tourism and Culture, Dr. Mahesh Sharma which further amended the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
This was an Act which provided 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.
This Act ensures that no person or agency could conduct archaeological excavations without the permission of the Government. This measure saved wilful destruction of archaeological sites by untrained persons or clandestine digging. As a result of these measures it has been possible to protect and preserve ancientmonuments and archaeological sites which have been declared to be of national importance.
Preservation of heritage, however, does not end, by declaring a particular monument or archaeological site as protected. These have to be preserved in a manner so that these do not get damaged any further. Another important point to be borne in mind is that conservation of a monument is not one time affair. Since building is old and is in a state of decay, its condition has to be regularly monitored and remedial measures taken.
While taking up conservation of a monument, the uppermost fact that is to be kept in mind is that the building is repaired in a manner so that it retains its original look and condition. The central and the state governments carry out the work of conservation of monuments and sites.
In this Act, unless the context otherwise requires,—
(a) “ancient monument” meant 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 one hundred years.
The term included (i) the remains of an ancient monument, (ii) the site of an ancient monument, (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument, and (iv) the means of access to, and convenient inspection of, and ancient monument.
(b) The term “antiquity” used in this act includes (i) any coin, sculpture, manuscript, 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, and (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.
Similarly the term“Archaeological site and remains” means any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than one hundred years, and includes (i) such portion of land adjoining the area as may be required for fencing or covering in or other wise preserving it, and (ii) the means of access to, and convenient inspection of, the area.
According to this act ancient monuments, etc., deemed to be of national importance included all ancient and historical monuments and all archaeological Sites and remains which have been declared by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (71 of 1951), or by Section 126 of the States Reorganisation Act, 1956 (37 of 1956), to be national importance shall be deemed to be ancient and historical monuments or archaeological sites and remains declared to be of national importance for the purposes of this Act.
As per this act, if the Director-General apprehends that the owner or occupier of a protected monument intends to destroy, remove, alter, deface, imperil or misuse the monument or to build on or near the site thereof in contravention of the terms of an agreement under Section 6, the Director-General may, after giving the owner or occupier an opportunity of making a representation in writing, make an order prohibiting any such contravention of the agreement:
Provided that no such opportunity may be given in any case where the Director-General, for reasons to be recorded, is satisfied that it is not expedient or practicable to do so.
Secondly, any person aggrieved by an order under this section may appeal to the Central Government which such time and in such manner as may be prescribed and the decision of the Central Government shall be final.
Unlike the Act of 1904, the monuments of religious character were also covered by this act.
Thus this act provides for Protection of place of worship from misuse, pollution or desecration.
A protected monument maintained by the Central Government under this Act which is a place of workship or shrine according to it, ‘shall not be used for any purpose inconsistent with its character’.
Where the Central Government had acquired a protected monument under Section 13, or where the Director-General had purchased, or taken lease or accepted a gift or bequest or assumed guardianship of, a protected monument under Section 5, and such monument or any part thereof was used for religious worship or observances by any community, the Collector ‘shall make due provision for the protection of such monument or part thereof, from pollution or desecration—
(a) by prohibiting the entry therein, except in accordance with the conditions prescribed with the concurrence of the persons, if any, in religious charge of the said monument or part thereof, of any person not entitled so to enter by the religious usages of the community by which the monument or part thereof is used, or
(b) by taking such other action as he may think necessary in this behalf.’
The act also provided rules for Archaeological excavations.
Thus according to a clause [Excavations in protected areas.] An archaeological officer or an officer authorized by him in this behalf or any person holding a licence granted in this behalf under this Act (hereinafter referred to as the licensee) may, after giving notice in writing to the Collector and the owner, enter, upon and make excavations in any protected area.
For Excavations in areas other than protected areas there were other provisions. Where an archaeological officer had reason to believe that any area not being a protected area contains ruins or relics of historical or archaeological importance, he or an officer authorized by him in this behalf may, after giving notice in writing to the Collector and the owner, enter upon and make excavations in the area.
The act also provided for compulsory purchase of antiquities, etc., discovered during excavation operations.— (1) Where, as a result of any excavations made in any area under Section 21 or Section 22, any antiquities are discovered, the archaeological officer or the licensee, as the case may be, shall,—
(a) as soon as practicable, examine such antiquities and submit a report to the Central Government in such manner and containing such particulars as may be prescribed;
(b) at the conclusion of the excavations, give notice in writing to the owner of the land from which such antiquities have been discovered, of the nature of such antiquities.
(2) Until an order for the[compulsory acquisition] of any such antiquities is made under sub-section (3), the archaeological officer or the licensee, as the case may be, shall keep them in such safe custody as he may deem fit.
(3) On receipt of a report under sub-section (1), the Central Government may make an order for the[compulsory acquisition of any such antiquities].
(4) When an order for the [compulsory acquisition] of any antiquities is made under sub-section (3), such antiquities shall rest in the Central Government with effect from the date of the order.
Further, no State Government was to undertake or authorise any person to undertake any excavation or other like operation for archaeological purposes in any area which was not a protected area except with the previous approval of the Central Government and in accordance with the such rules, or directions, if any, as the Central Government may make or give in this behalf.
PROTECTION OF ANTIQUITIES
Power of Central Government to control moving of antiquities.— (1) If the Central Government considers that any antiquities or class of antiquities ought not to be moved from the place where they are without the sanction of the Central Government, the Central Government may, by notification in the Official Gazette, direct that any such antiquity or any class of such antiquities shall not be moved except with the written permission of the Director-General.
(2) Every application for permission under sub-section (1) shall be in such form and contain such particulars as may be prescribed.
(3) Any person aggrieved by an order refusing permission may appeal to the Central Government whose decision shall be final.
Purchase of antiquities by Central Government.— (1) If the Central Government apprehends that any antiquity mentioned in a notification issued under sub-section (1) of Section 25 is in danger of being destroyed, removed, inured, misused or allowed to fall into decay or is of opinion that, by reason of its historical or archaeological importance, it is desirable to preserve such antiquity in a public place, the Central Government may make an order for the [compulsory acquisition of such antiquity] and the Collector shall thereupon give notice to the owner of the antiquity [to be acquired].
(2) Where a notice of[compulsory acquisition] is issued under sub-section (1) in respect of any antiquity, such antiquity shall vest in the Central Government with effect from the date of the notice.
(3) The power[compulsory acquisition] given by this section shall not extend to any image or symbol actually used for bona fide religious observances.
Compensation for loss or damage.— Any owner or occupier of land who has sustained any loss or damage or any diminution of profits from the land by reason of any entry on, or excavations in, such land or the exercise of any other power conferred by this Act shall be paid compensation by the Central Government for such loss, damage or diminution of profits.
Assessment of market value or compensation.— (1) The market value of any property which the Central Government is empowered to purchase at such value under this Act or the compensation to be paid by the Central Government in respect of anything done under this Act shall, where any dispute arises in respect of such market value or compensation, be ascertained in the manner provided in Section 3, 5, 8 to 34, 45 to 47, 51 and 52 of the Land Acquisition Act, 1894 (1 of1894), so far as they can be made applicable:
Provided that when making an enquiry under the said Land Acquisition Act, the Collector shall be assisted by two assessor, one of whom shall be a competent person nominated by the Central Government and one person nominated by the owner, or in case the owner fails to nominate an assessor within such reasonable time as may be fixed by the Collector in this behalf, by the Collector.
For every antiquity in respect of which an order for compulsory acquisition has been made under sub-section (3) of Section 23 or under sub-section (1) of Section 26, there shall be paid compensation and the provisions of Section 20 and 22 of the Antiquities and Art Treasures Act, 1972 (52 of 1972) shall, so far as may be, apply in relation to the determination and payment of compensation for any antiquity or art treasure compulsorily acquired under Section 19 of that Act.]
Delegation of powers.— The Central Government may, by notification in the Official Gazette, direct that any powers conferred on it by or under this Act shall, subject to such conditions as may be specified in the direction, be exercisable also by—
(a) such officer or authority subordinate to the Central Government, or
(b) such State Government or such officer or authority subordinate to the State Government,
as may be specified in the direction.
Penalties.— (1) Whoever—
(i) destroys, removes, injures, alters, defaces, imperils or misuse a protected monument, or
(ii) being the owner or occupier of a protected monument, contravenes an order made under sub-section (1) of Section 9 or under sub-section (1) of Section 10, or
(iii) removes from a protected monument any sculpture, carving, image, bas relief, inscription, or other like object, or
(iv) does any act in contravention of sub-section (1) of Section 19
shall be punishable with imprisonment which may extend to three month, or with fine which may extend to five thousand rupees, or with both.
(2) Any person who moves any antiquity in contravention of a notification issued under sub-section (1) if Section 25 shall be punishable with fine which may extend to five thousand rupees; and the court convicting a person any such contravention may by order direct such person to restore the antiquity to the place from which it was moved.
Jurisdiction to try offences.— No court inferior to that of a presidency magistrate or a magistrate of the first class shall try any offence under this Act.
Certain offences to be cognizable.— Notwithstanding anything contained in[the Code of Criminal Procedure, 1898 (5 of 1898)] an offence under clause (i) or clause (iii) of sub-section (1) of Section 30, shall be deemed to be a cognizable offence within the meaning of that Code.
Special provision regarding fine.— Notwithstanding anything contained in[Section 32 of the Code of Criminal Procedure, 1898 (5 of 1898)] it shall be lawful for any magistrate of the first class specially empowered by the State Government in this behalf and for any presidency magistrate to pass a sentence of fine exceeding two thousand rupees on any person convicted of an offence which under this Act is punishable with fine exceeding two thousand rupees.
Recovery of amounts due to the Government.— Any amount due to the Government from any person under this Act may, on a Certificate issued by the Director-General or an archaeological officer authorized by him in this behalf be recovered in the same manner as an arrear of land revenue.
Ancient monuments, etc., which have ceased to be of national importance.— If the Central Government is of opinion that any ancient and historical monument or archaeological site and remains declared to be of national importance by or under this Act has ceased to be of national importance, it may, by notification in the Official Gazette, declare that the ancient and historical monument or archaeological site and remains, as the case may be, has ceased to be of national importance for the purposes of this Act.
Power to correct mistakes, etc.— Any clerical mistake, patent error or error arising from accidental slip or omission in the description of any ancient monument or archaeological site and remains declared to be of national importance by or under this Act may, at any time, be corrected by the Central Government by notification in the Official Gazette.
Protection of action taken under the act.— No suit for compensation and no criminal proceeding shall lie against any public servant in respect of any act done or in good faith intended to be done in the exercise of any power conferred by this Act.
Power to make rules.— (1) The Central Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the forgoing power, such rules may provide for all or any of the following matters, namely:
(a) the prohibition or regulation by licensing or otherwise of mining, quarrying, excavating, blasting or any operation of a like nature near a protected monument or the construction of buildings on land adjoining such monument and the removal of unauthorized buildings;
(b) the grant of licences and permissions to make excavations for archaeological purposes in protected areas, the authorities by whom, and the restrictions and conditions subject to which, such licences may be granted, the taking of securities from licensees and the fees that may be charged for such licences;
(c) The right of access of the public to a protected monument and the fee, if any, to be charged therefore;
(d) The form and contents of the report of an archaeological officer or a licensee under clause (a) of sub-section (1) of Section 23;
(e) The form in which applications for permission under Section 19 or Section 25 may be made and the particulars which they should contain;
(f) The form and manner of preferring appeals under this Act and the time within which they may be preferred;
(g) The manner of service of any order or notice under this Act;
(h) The manner in which excavations and other like operations for archaeological purposes may be carried on;
(i) Any other matter which is to be or may be prescribed.
(3) Any rule made under this section may provide that a breach thereof shall be punishable,—
(i) In the case of a rule made with reference to clause (a) of sub-section (2), with imprisonment which may extend to three months, or with fine which may extend to five thousand rupees, or with both;
(ii) In the case of a rule made with reference to clause (b) of sub-section (2), with fine which may extend to five thousand rupees;
(iii) In the case of a rule made with reference to clause (c) of sub-section (2), with fine which may extend to five hundred rupees.
(4) All rules made under this section shall be laid for not less than thirty days before each House of Parliament as soon as possible after they are made, and shall be subject to such modifications as Parliament may make during the session in which they are so laid or the session immediately following.
The Act defines a ‘prohibited area’ as an area of 100 meters around a protected monument or area. The central government can extend the prohibited area beyond 100 meters. The Act does not permit construction in such prohibited areas, except under certain conditions. The Act also prohibits construction in ‘prohibited areas’ even if it is for public purposes.
The Bill introduced in 2017, referred above, amends this provision to permit construction of public works in ‘prohibited areas’ for public purposes.
Definition of ‘public works’: The Bill introduces a definition for ‘public works’, which includes the construction of any infrastructure that is financed and carried out by the central government for public purposes. This infrastructure must be necessary for public safety and security and must be based on a specific instance of danger to public safety. Also, there should be no reasonable alternative to carrying out construction in the prohibited area.
Procedure for seeking permission for public works: As per the Bill, the relevant central government department, that seeks to carry out construction for public purposes in a prohibited area, should make an application to the competent authority.
If there is any question related to whether a construction project qualifies as ‘public works’, it will be referred to the National Monuments Authority. This Authority, will make its recommendations, with written reasons, to the central government. The decision of the central government will be final.
If the decision of the central government differs from that of the Authority, it should record its reasons in writing.
This decision should be communicated by the competent authority, to the applicant, within 10 days of receiving it
Impact assessment of proposed public works: The Bill empowers the National Monuments Authority to consider an impact assessment of the proposed public works in a prohibited area, including its (i) archaeological impact; (ii) visual impact; and (iii) heritage impact.
The Authority will make a recommendation, for construction of public works to the central government, only if it is satisfied that there is no reasonable possibility of moving the construction outside the prohibited area.
Subsequently, The Ancient Monuments and Archaeological Sites and Remains Rules 1959were framed. The Act along with Rules came into force with effect from 15 October 1959. This Act repealed The Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951.
The Antiquities and Art Treasures Act 1972 (No. 52 of 1972) is the latest Act enacted on 9th September 1972 for effective control over the moveable cultural property consisting of antiquities and art treasures. The Act is to regulate the export trade in antiquities and art treasures, 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. This Act was also supplemented with The Antiquities and Art Treasure Rules 1973. The Act and Rules have been in force with effect from 5th April 1976. This legislation repealed The Antiquities Export Control Act, 1947 (Act No. XXXI of 1947).
Now once again the government is trying to tweak the AMASR Act of 1958, especially its provisions as amended in 2010 according to which 100 metre radius of an ASI protected monument is a “prohibited area” where no construction is allowed and next 300 metre area is regulated area where permissions are required before executing any structural change. This rule is something which the government wants to dilute. Henceforth, expert committees will decide on the extent of the prohibited and regulated areas around each monument and activities permitted herein.
Concerns which are thus raised due to these attempts:
- Archaeological Sites across India have become commons for human and animal communities.
- Altering land around ASI-protected monuments into industrial, commercial, or even residential plots will thus deprive human and animal communities of much-needed commons.
- Permitting construction work risks weakening the foundations of centuries-old edifices.
- Also construction machines may disturb the art facets near the site, thus making the task of undertaking new research more difficult
- Domestic waste and greywater regularly seep into ancient sites any changes in protection status now will aggravate this problems.
- In recent years, the Government has built new highways, metro-rail systems, and industrial parks without methodical archaeological impact assessments.
- These projects have led to the shattering of an untold number of historical artefacts and the casual collection of many others. We cannot afford to lose more of our tangible heritage.