GOVERNMENTAL regulation, control and ownership of tangible heritage in post-independent India remains an unsuccessful experiment. The laws are now dated, the concerned institutions plagued by a familiar rot, as our intergenerational equity steadily diminishes. With concerned citizens repeatedly sounding the alarm, there have been some recent legislative changes, and further change is on the anvil. I propose to focus here on the 2010 amendments to the Ancient Monuments and Archaeological Sites and Remains Act of 1958 (‘the Ancient Monuments Act’).

The Indian Constitution, in Article 49, appears to cast an obligation on the state to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from ‘spoliation, disfigurement, destruction, removal, disposal or export.’ Of course, this apparent obligation, being a directive principle of state policy comprised in part IV of the Constitution, is not directly enforceable by any Indian court. Fortunately, subsequently enacted legislation has cast an enforceable duty on the state to discharge at least part of this obligation.

The Ancient Monuments Act is one such central legislation occupying this field. Enacted in 1958, with the object of providing 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, the Ancient Monuments Act provides the legal framework within which the Archaeological Survey of India (‘the ASI’), an institution which predates our independence, now operates. The ASI continues to suffer from bureaucratic lethargy, except when resisting any possible encroachment into its domain. The vision of Alexander Cunningham, a Second Lieutenant of the Bengal Engineers who formulated a plan in 1848 for an Indian Archaeological Survey, and the leadership of Sir John Marshall, who headed the ASI as its Director General between 1902 and 1928, are all but lost.

In this somewhat gloomy backdrop, significant changes brought about by the 2010 amendments to the Ancient Monuments Act may briefly be described as under:

i) The constitution of a National Monuments Authority;

ii) Categorization and classification of ancient monuments and archaeological sites and remains having regard to historical, archeological, architectural and other values;

iii) Declaration of a prohibited area within one hundred metres of a protected monument or area;

iv) Declaration of a regulated area within two hundred metres of a prohibited area;

v) Application procedure for repair or renovation in a prohibited area or construction or reconstruction or repair or renovation in a regulated area;

vi) Preparation of heritage by-laws in respect of each protected monument and protected area;

vii) Raising construction in a prohibited area or without the requisite permission in a regulated area made punishable with imprisonment of up to two years.

 

The above amendments, long overdue, are nevertheless encouraging. Of particular significance is the requirement of preparing heritage by-laws in respect of each protected monument and protected area. The heritage by-laws are to be prepared by the competent authority under the Ancient Monuments Act – an officer not below the rank of Director of Archaeology or Commissioner of Archaeology of the central or state government or equivalent rank – in consultation with the Indian National Trust for Art and Cultural Heritage (INTACH), or such other expert heritage bodies as may be notified by the central government.

While the 2010 amendments prescribe the involvement of non-governmental expert bodies in the preparation of heritage by-laws, it remains to be seen how robust the consultation process ends up being in practice. It is likely that an existing institutional reluctance to cede space to any outsider will pose a threat to the process, and quite possible that the expert bodies whose consultation is invited, will be those who are willing to toe the government line. The rules framed under the act in 2011 heighten this concern, inasmuch as the competent authority is given complete freedom to ‘evolve his own mechanism to engage heritage bodies, experts and consultants for preparation of by-laws in the respective regions.’ Still, this is a step in the right direction.

 

The first step in the process will be the preparation of a detailed site plan. The rules framed under the act provide that the ASI will endeavour to, within a period of five years, with the help of experts and consultants, cause a survey to be conducted in respect of all prohibited areas, regulated areas of each protected monument and protected area, for the purpose of preparing detailed site plans. It is only thereafter that the heritage by-laws in respect of each protected monument and protected area are to be framed. A time frame of sixty days from the date of preparation of the site plans is prescribed for framing of the heritage by-laws.

Although the Ancient Monuments Act empowered the central government, through rules, to specify the time within which heritage by-laws are to be prepared, the time frame of sixty days provided in the rules is pegged to the prior preparation of site plans, for which the competent authority is given five years on a ‘best effort’ basis. As such, only a broad time frame is provided, to which the competent authority need not strictly adhere. This is simply an invitation to delay the process. It would have been far more prudent, and lent greater certainty and accountability, if a fixed time frame had been prescribed. The heritage by-laws prepared by the competent authority are to be placed before the National Monuments Authority for its approval, and thereafter laid before each House of Parliament.

The new National Monuments Authority (‘the Authority’) is to play a significant, if not decisive, role under the recent amendments. The Authority shall be headed by a Chairperson appointed by the President, having proven experience and expertise in the fields of archaeology, country and town planning, architecture, heritage, conservation architecture or law. The argument in favour of such a broad qualification is that it provides sufficient flexibility to choose the right person for the job, who is both qualified and possesses the requisite leadership skills and vision to head the Authority.

 

The argument against it is that such a widely cast, non-specific qualification is virtually meaningless, and essentially confers complete discretion on the appointing authority in the selection. I am more inclined to accept the argument against providing such broad, subjective parameters of qualification. There is considerable danger that political considerations will creep into the process of selection, and the best available, independent professional will be overlooked. In theory though, the selection has been left to the President so as to insulate it from governmental interference. We can only hope that the President acts with the independence that his high office affords.

Apart from the Chairperson, the Authority is to comprise of the Director General, ASI as an ex officio member, a Member Secretary not below the rank of Joint Secretary to the Government of India, and up to five whole-time members and five part-time members to be appointed by the central government on the recommendation of a selection committee. The qualifications required for appointment of members are the same as for the Chairperson. Also, the members of the Authority, apart from the Director General, ASI cannot have held any post in the ASI or in the Ministry of Culture of the central government or state government – a salutary provision. The selection committee has three members who are secretaries – the Cabinet Secretary, the Secretary in the Ministry of Culture and the Secretary in the Ministry of Urban Development, all ex officio. Other than these, the committee is to comprise of three experts to be nominated by the central government, with similar qualifications as those for the Chairperson and members of the Authority. The Cabinet Secretary is to be the Chairperson of the selection committee.

Suffice it to say that the central government will thus exercise considerable, if not controlling influence over the selection committee, which in turn will appoint the majority of the members of the Authority. Combined with the generality of the qualifications prescribed by the act, we have a recipe for a non-independent National Monuments Authority, which is disappointing.

 

The primary functions of the National Monuments Authority under the act are to grade and classify protected monuments and protected areas; to oversee the working of the competent authorities; to approve heritage by-laws; and to make recommendations to the competent authority for grant of permission for construction/re-construction in prohibited and regulated areas.

The provisions of the act and rules framed thereunder are somewhat confused and impractical when it comes to the process of permissions for construction/reconstruction within the prohibited and regulated areas. The competent authority, for making its recommendations to the Authority for grant of permissions, is required to obtain archaeological assessment reports and survey or inspection reports in the context of major development projects and public projects. If the proposal involves a large-scale project, the competent authority may appoint an expert or consultant who is skilled and experienced in the field of archaeology, for the archaeological impact assessment.

 

Further, the competent authority may, depending upon the requirement in specific areas, appoint experts from the field of urban studies, urban conservation, heritage conservation, landscape studies, town planning, architecture or such other fields. The applications for permission are required to be examined in detail by the competent authority, which may determine the impact of proposed construction on the protected monument and protected area by adopting appropriate study or methods, including site inspection. The competent authority is thereafter to forward to the Authority the application with its observations/recommendations. So far so good.

The mismatch and confusion is between the considerable scrutiny required to be undertaken by the competent authority as above, and the time frame within which this examination is to be completed. In one place, the rules stipulate that the competent authority must record its observations within seven days of receiving an application for permission. Another rule provides for fifteen days time to forward the application with the observations of the competent authority to the National Monuments Authority. Since the act prescribes fifteen days, the stipulation in the act will likely prevail. Either way, whether seven or fifteen days, the time afforded to the competent authority to carry out a site inspection and other relevant impact assessment studies, with the assistance of appropriate experts where required, and to record its observations/recommendations in this regard, is entirely unreasonable. The Authority thereafter has two months within which to convey its recommendation to the competent authority.

Curiously, after receipt of the Authority’s recommendation, the competent authority has one month within which to convey the grant or refusal of permission to the applicant. Before refusing permission, the competent authority is required to give an opportunity in writing to the applicant to submit his comments and clarifications, and the competent authority ‘on being satisfied’ is to convey its refusal. Again, there is some inconsistency in the prescribed time frame. The competent authority is to initially forward the application to the Authority within fifteen days of receipt. The Authority then has two months to make its recommendation. The competent authority then has another one month to communicate grant or refusal of permission. So the overall time frame within which the process is to be completed is three and a half months. However, the act and rules also separately stipulate that the refusal of the application is to be communicated to the applicant by the competent authority within three months (as opposed to three and a half months) of the receipt thereof.

 

There is a more fundamental problem. The opportunity to the applicant to offer his comments and clarifications is provided after the recommendation of the Authority is received by the competent authority. Naturally, the competent authority cannot go against the recommendation of the Authority, which is a superior body. As such, the opportunity to the applicant is nothing but an empty formality. An appeal lies against the refusal of permission to the central government. It is unclear as to who within the central government would decide the appeal. For the central government to sit in appeal over a decision of the National Monuments Authority, such as it is, seems incongruous and problematic.

Thus far, the conservation activities of ASI have been far too ad hoc and shielded from public scrutiny and accountability in the absence of detailed conservation plans for each individual protected monument or area. In 2003, a public interest litigation in which I participated as a lawyer, was filed in the Supreme Court raising grievances in respect of the conservation work of the ASI at the Red Fort. Ultimately, the court directed the formation of an expert committee to oversee the preparation of a comprehensive conservation management plan for the Red Fort, which now forms the blueprint for all further conservation work at the protected site. Subsequent to the Supreme Court’s intervention, the Red Fort also achieved World Heritage Site status from Unesco, which reinforced the importance of preparing a conservation plan, and asked for it to be tabled before the World Heritage Centre and the advisory bodies for their scrutiny.

In providing for heritage by-laws specific to each protected monument and area, a legal structure for the preparation of similar blueprints has been created. The focus of the 2010 amendments is the effective regulation and control of the buffer zone surrounding the protected monument or area, a long neglected aspect of heritage conservation in India. It is equally important though to better regulate direct conservation measures required at the protected monument or site. It is a pity that the amendments stop short of providing for detailed conservation management plans for each protected monument and area, which would ensure timely intervention and accountability. Hopefully, that will be the next step.