Milestone in heritage management

A June 7 landmark verdict by the Madras High Court provides many solutions for safeguarding idols and temple jewels from theft and smuggling

Published - July 18, 2021 12:08 am IST

A poor farmer at Pathur village in the erstwhile Thanjavur district of Tamil Nadu digs his agrarian land to put up a hay-woven cowshed. Clang! Sensing a buried metal object under his hoe, he digs carefully to unearth a beautiful Chola-era Nataraja bronze.

A wily local man purchases it from him for a “princely” sum of ₹200. Within days, the idol changes multiple hands and ultimately reaches London, where it is accorded an incredible $250,000 as it gets sold on false provenance to one Bumper Development Corporation. The Government of India moved a British court to reclaim the idol that is a living testimony to the country’s rich cultural, technological, and religious heritage.

‘God won’

The English Court of Appeals in Bumper Development Corporation vs Commissioner of Police of the Metropolis (1991) concurs with the principles held by Indian jurisprudence — that the temple is verily a “juristic person”, and therefore, the idol is a “legal entity” that should be returned to the owner, which is the temple where it was originally consecrated. This case drew global attention, and was dubbed by jurists and scholars as a “legal battle in which God won”.

A Division Bench of the Madras High Court, consisting of Justice R. Mahadevan and Justice P.D. Audikesavalu, delivered a landmark judgment in The Director, Archaeological Survey of India on June 7, 2021 that deserves a place near the 1991 decision of the English Court of Appeals, because in this courtroom battle also “God won”. The former judgment helps to bring back home stolen and smuggled idols, and the present judgment provides many solutions for safeguarding such precious idols and jewels from theft and smuggling.

The 225-page judgment covered a comprehensive set of guidelines that include aspects of spiritual and scientific upkeep of temples, idols, assets, and staff to ensure the dutiful conservation of the rich and bountiful temple heritage of India, the “abodes of human values”. It had issued 75 directions to the State and the Union governments. The pronouncement has now accelerated the process of setting up a heritage commission, finalise the conservation manual, framing of procedures for auditing and so on, which will guide the process to maintain, preserve and conserve the ancient temples, archaeological sites and heritage wealth of the nation.

What is the necessity for a High Court to entertain a public interest litigation (PIL) petition or to exercise its writ jurisdiction for the maintenance or safeguarding of the temples and their valuable assets, is a curious question. And those who have such a fundamental query can dispel the clouds of doubts on their own by reading this scholarly judgment, as the Bench has convincing answers for those questions and crystal-clear explanations for any doubts of every stakeholder. The Supreme Court, in the Mirnalini Padhi case (2018), bestowed a duty upon the higher courts in India, for examining on the judicial side the need of the devotees visiting shrines and practices followed for preservation of places of historic importance. In light of the Mirnalini Padhi decision, the pronouncement of the Division Bench has discharged the duties bestowed by the apex court.

The judgment requires district-level committees with qualified sthapathis (traditional Hindu architects) and experts in history, architecture, murals and conservation along with representatives from the Hindu Religious and Charitable Endowments Department. The committee shall digitally document all antique monuments and idols, wall paintings, ornaments, lands, buildings, details of lessees, tenants and everything legally owned by temples. They should also ensure the construction and maintenance of strong rooms, video surveillance, and complete trusteeship to best preserve the State’s rich architectural and sculptural heritage that is alive in its thousands of temples. At the Union government’s level, it entails the implementation of the Ancient Monuments Act in its entirety by declaring all temples and temple artefacts of a heritage of more than 100 years as national monuments with immediate effect.

The United Nations Educational, Scientific, and Cultural Organization (UNESCO) declares that culture and development are not separate entities, both in terms of economic growth as well as a means of access to a satisfied, moral, and spiritual existence for everyone in the world. That is why UNESCO places heritage conservation at the crossroads of economic, social, and environmental development. History is replete with heritage sites such as the shrines in Timbuktu, and the Buddhas of Bamiyan in Afghanistan that the world inconsolably lost to extremist destruction, eroding precious cultural identities, undermined beliefs and injured dignity, and wiping out the history of many peoples. The International Criminal Court (ICC) proactively responded to the heritage crime by issuing an arrest warrant against the destructor of the Timbuktu shrine. Finally in 2016, the ICC slapped imprisonment against the heritage offenders observing that historic monuments and religious buildings possess symbolic and emotional values of the inhabitants of the area, and any such attack not only affects direct victims but the international community itself.

Back home, the Supreme Court in Sakkubai case (2020) dealt with an iron hand the human danger to historic monument and directed for immediate removal of illegal encroachments in Viruppa Gadi, an oval islet formed by the Tungabadra river around Hampi, a UNESCO heritage site in Karnataka. In light of these precedents referred to and with the aid of many scholarly works on history, archaeology and literature, the judgment of the High Court comprehensively dealt with the administration of place of worships, sites of historic importance, monuments, cave temples and heritage sites, their finance management, staff, salary, inspection, audit, revenue augment and several other aspects. Therefore, it serves as a treatise and fits well with suitable adaptation and necessary modification for other States too.

The High Court also referred to many international heritage bodies such as the World Heritage Committee of UNESCO and similar bodies in the U.K., the U.S., Australia, Russia and Greece, and emphasised the need to work on to protect the cultural and heritage wealth. It also quoted hymns of Thirumoolar and Raja Rajechwaram , a masterpiece by archaeologist Kudavayil Balasubramanian, whose work now serves as guides for practitioners of law on temples and their paraphernalia. The verdict is a blend of law, binding precedents, international perspectives on culture, and quotes from classic literature, historical facts and expert opinion, and it creates awareness of Indian tradition and heritage studies.

In the seventh century CE, the Tamil Saiva saint Appar carried a holy hoe while he visited temples far and wide. Before singing golden paeans to the deity, the saint ensured that he cleared the thorny bushes around the temple, doing his part in safeguarding many temples from natural destruction, ensuring the present generation enjoyed their spiritual sojourns. The recent judgment by the “Heritage Bench” of the Madras High Court is a fitting inheritor to the spirit of Appar, with such soulful, empathetic, and enlightened spirit that ensures the protection of this great land’s temples and their rich cultural heritage to be preserved to posterity.

And this time, the pen has replaced the hoe. And in doing so, the court has awakened the consciousness of the whole society, to inspire every citizen to stand up and perform their duty of protecting the cultural assets of the nation — as individuals, and through the very many institutions at large.

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