Legal

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This Blog is written by Palak Bhawsinka from National Law University, Odisha. Edited by Sonali Priyadarsini.

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INTRODUCTION

In India, the cultural heritage and antique monuments in the form of buildings and other archeological sites and remains are exceptional, vast, and diverse. Astonishing is the sheer number of these historical legacies. These historic sites, in the eyes of the Indians, reminiscent of the living witnesses of the golden historical age of more than a thousand years and the pre-independence wars. They are an embodiment of courage, bear witness to the growth and symbolize the expressions of community. A historical site or heritage site is an official place where, because of its cultural heritage significance, bits of political, military, cultural, or social history have been preserved. Historic sites are generally protected by statute and the official national historic site status has been accepted by many. Any structure, countryside, site, or design of local, regional or national importance may be a historic site. The tourist is regularly able to explore historical places and heritage sites. Visitors may come with nostalgia for past periods to learn about their history and culture or to know about the historical design of a building or site. A visitor center with the most modern architecture and amenities can also be situated at the site, which acts as an intermediary gate between the outside world and the historical site and enables tourists to learn about certain historical aspects of the site without showing overly sensitive sites.

Historic Sites can be classified into 3 broad categories:

• Documentary Sites: the main aim is to record a historical event or a particular person or community.

• Representative Sites: it is mostly based on the representation of a historical image or lifestyle.

• Aesthetic sites: it mainly concentrates on art history or beauty conceptions.

The country’s heritage is regulated by the law of the country. These are provided by constitutional provisions; legislation or acts established by the parliament or the State Assembly; and subordinate legislation established by Byelaws, Regulations, Rules of Procedure under particular legislation. The security of India’s heritage sites is managed by Indian Archaeological Survey, which works under Culture Department. The conservation of ancient monuments in India can be traced from the enactment of parliamentary bills which have encapsulated the guidelines to usher in the protection of historically important sites in the country.

A variety of factors are contributing to the degradation of the heritage sites. It is now conceivable that heritage sites must exist on a permanent basis, and therefore the decision to protect such sites from harm is a task that should be pursued diligently.

LAWS ON PROTECTION OF HERITAGE SITES IN INDIA

 In the pre-Independence of India, the first legacy legislation was enacted by means of Bengal Regulation XIX, 1810, and Madras Regulation VII, 1817. In 1863 Act XX allowed the government to ‘conserve historic or architectural value structures and sites.

Indian Treasure Trove Act, 1876: This act aimed to protect and preserve archaeological and historically important treasures found accidentally so as to oversee their appropriate disposal.

Indian Constitution providing provisions for the protection of Indian Heritage :

• Article 29: It states that “Any section of the population residing in the territory of India, or any part thereof having its own distinct language, script or culture, shall be entitled to retain the same.”[1]

• Article 51 A(F): Article 51(a)(f) of the Constitution provides that “It is the duty of all Indian citizens to value and preserve the rich heritage of our composite culture; and (g) to protect and improve the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.”[2]

• Article 49: Article 49 of the Indian Constitution shall preserve the country’s built heritage: “A State shall be obligated to guard against spoilage, disfigurement, destruction, removal, disposal or export any monument or place or object of artistic or historical interest, which shall, by or under Parliamentary law, be nationally important.”[3]

The Ancient Monuments and Archaeological Sites and Remains Act, 1958:

The Act of 1951 substituted the Ancient Monuments Prevention Act of 1904 with the Ancient and Historical Monuments and Archeological Sites and Remains (Declaration of National Importance) Act. It was later replaced by the Act of 1958[4] for the “preservation of ancient and historic monuments and archaeological sites as well as remains of national importance, regulating archeological excavations and protecting sculptures, carvings and other objects of the kind.” The Archaeological Survey of India works under the provisions of this act. The Act forbids construction in the ‘prohibited area’ around the protected monument, i.e. an area of 100 meters. The building in such forbidden areas, except under such provisions, shall not be permitted for public purposes. It can be expanded beyond 100 meters by the Central Government. An amendment bill has been proposed to this act of 1958 in 2017. The suggested amendment to the act would erase the safety net that exists around our sites that are federally protected. The government intends to dilute the 100-meter forbidden area surrounding monuments with national protection.The prohibition of new construction within a restricted place has a detrimental effect on numerous central government public works and growth projects. This proposed bill will pave the way for such structures that are specifically restricted to public works and programs that are vital to the public within the prohibited area and that support the general public.

State Laws for preserving the rich heritage:

Numerous Indian states with rich heritage have enacted legislation on the protection of their heritage sites and culture.

• Uttar Pradesh’s 1956 Ancient and Historical Monuments and Archaeological Sites and Remains Protection Act provides for the “preservation of ancient and historical monuments and archaeological sites and remains in (the state) other than those declared to be of national importance by law by Parliament.”

• The West Bengal Heritage Commission Act 2001 provides for the “establishment in the State of West Bengal of a Heritage Commission for the purpose of identifying heritage buildings, monuments, precincts and sites and for the restoration and preservation of them.”

• Some other examples include Tamil Nadu Ancient Monuments and Archaeological Sites and Remains Act, 1966; Salar Jung Museum Act, 1961; Victoria Memorial Act, 1903; Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961; Orissa Ancient Monuments and Preservation Act, 1956; Hampi World Heritage Area Management Authority Act, 2002; Jammu and Kashmir Heritage Conservation and Preservation Act, 2010; etc.

There are many cases where the union govt. and the states have prevailed in order to protect its heritage sites from being vandalized or to prevent any notorious activity going in the places which are of national importance. One of the case being Mass Holdings (p) ltd. v. Municipal Corporation Of Greater Mumbai & Another[5], was erecting a hoarding at the heritage site was challenged in Bombay High Court.

UNESCO WORLD HERITAGE SITES IN INDIA

A World Heritage Site is a location which, because of its special cultural or physical significance, is identified by The United Nations Educational, Scientific and Cultural Organization(UNESCO). The World Heritage List is managed by the UNESCO World Heritage Committee and is maintained under the International ‘World Heritage Programme.’ The UNESCO works to promote, conserve and recognize cultural and natural heritage worldwide, which is of great importance to humanity. The Convention on the Conservation of the World Cultural and Natural Heritage adopted by UNESCO in 1972 has been integrated into the International Treaty.

India currently has 38 World Heritage Sites, making India the 6th largest World Heritage Site in the world. Italy and China are home to the largest number of UNESCO world heritage sites in the world. There are Thirty cultural sites, seven natural sites, and one mixed as UNESCO recognized. India has managed to get seven of its sites registered on the UNESCO World Heritage List in the past five years. The Walled town of Jaipur was the last World Heritage site added to India. The decision was taken at the 43rd meeting of the Baku Committee on World Heritage (Capital city of Azerbaijan). On 6 July 2019, the walled town of Jaipur, a major hub for the craft industry, won its place on the list of the World Heritage Sites. In 2018, the Mumbai Victorian Art Deco Ensemble had previously been included in the list. UNESCO helps in preserving the heritage sites in India by listing them of great importance and promoting the protection of it.

Despite the measures taken by UNESCO in preserving the heritage sites all over the world, it has been scrutinized for many reasons one of them being the exclusion of the term living cultural heritage. In the absence of the definition of World Heritage to include living cultures and to include local communities, the policy of the World Heritage Authority of the States Parties often profits in an effort to eliminate or refute connections between local and indigenous communities.

SIGNIFICANCE OF THESE LAWS AND LISTING OF HERITAGE SITES

This listing of heritage sites and providing laws with respect to the protection of sites, improve domestic and foreign tourism leading to more jobs, the development of world-class infrastructure, and the increase in the selling of local handicrafts, handlooms, and heritage collectibles. The first step in projects for conservation is to know what buildings are failures and flaws. This helps to achieve a logistically stratified operation that can further result in conservation projects’ success. The list of protected monuments in the country should include the maximum number of heritage sites. For this reason, it is important to recognize possible heritage sites.

ANALYSIS

The way heritage laws define heritage has a bearing on what is to be protected. Most heritage laws define heritage keeping in mind only the material aspect of it. In the absence of the definition of World Heritage to include living cultures and to include local communities, the policy of the World Heritage Authority of the States Parties often profits in an effort to eliminate or refute connections between local and indigenous communities. The legislation comes from the security principle, which in turn, is clear about ownership, use, security, and rights in relation to other mechanisms of regulation. These laws do not answer the basic issue of why and for whose gain heritage is being protected. Awareness programs and drives are added to the Conservation of structural and chemical heritage sites.   The conservation initiatives are subject to serious efforts, money, and time, but the public position is important too.

REFERENCES

(1) Article 29, Constitution of India.

(2) Article 49, Constitution of India.

(3) Article 51 A (f), Constitution of India.

(4) The Ancient Monuments and Archaeological Sites and Remains Act, No. 24 of 1958, Acts of Parliament (India).

(5) Mass Holdings (p) ltd. v. Municipal Corporation Of Greater Mumbai & Another, 2005, No. 6434 (Bom).

[1] Article 29, Constitution of India.

[2] Article 49, Constitution of India.

[3] Article 51 A (f), Constitution of India.

[4] The Ancient Monuments and Archaeological Sites and Remains Act, No. 24 of 1958, Acts of Parliament (India).

[5] Mass Holdings (p) ltd. V. Municipal Corporation Of Greater Mumbai & Another, 2005, No. 6434  (Bom).