The Protection of Cultural Heritage — Its Manner, Measures and Manifestations

The right of persons to live in a certain manner, with cultural freedom, would also take into consideration the rights of persons to identify with certain facets of civilisation which have taken physical form including monuments, architecture, art, traditions, customs, nature and the environment, and other manifestations of individual and group identity. Collectively, the same may be termed as “cultural heritage”. Cultural heritage, worldwide, has been sought to be identified and protected through Conventions of the United Nations, judicial pronouncements and finds mention in founding documents of various countries. Heritage has been interpreted as the essence of a person’s cultural identity linked with the preservation of the past. United Nations Educational, Scientific and Cultural Organisation’s (UNESCO’s) definition of “intangible heritage” is instructive and includes, “oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe or the knowledge and skills to produce traditional crafts”.¹ The concept of intangible heritage would include the protection of the environment and systems connected deeply with nature.

“Cultural heritage” as distinct from the concept of cultural rights within the international framework of the law of the nations, has emerged independently as a legal concept, and has been recognised as distinctly identifiable with persons, societies, areas, regions, nations and as an integral part of humankind.

“Culture”, specifically, has been defined as:

“(1) the arts and other manifestations of human intellectual achievement regarded collectively; or

(2) the ideas, customs and social behaviour of a particular people or society.”²

“Heritage” has been defined as:

“(1) denoting or relating to things of special architectural, historical, or natural value that are preserved for the nation;³ or

(2) anything that has been transmitted from the past or handed-down by tradition; or

(3) the evidence of the past, such as historical sites, buildings, and the unspoilt natural environment considered collectively as the inheritance of present-day society.”⁴

This paper examines how the right of humankind to diverse cultural manifestations such as monuments, architecture and art are preserved through the framework of international conventions and certain judicial pronouncements, as extant in India. There is a clear distinction between physical manifestations, such as architecture, monuments, arts, dress, language, script, etc. on one hand, and on distinct beliefs, oral traditions, societal formations, inheritances, etc. on the other. Both categories would be interlinked and dependent, and part of the identity of humankind.

The international conventions have a wide canvas, covering heritage, property, tangible and intangible manifestation, both natural and human made, and its preservation in war/conflict, as an embodiment of humankind and the safeguarding of cultural heritage and its non-dissemination generally. The conventions are dependent on ratifications worldwide, together with specific policies adopted by nations.

World Conventions: Cultural heritage, concept, nature and scope; its protection during conflicts and peace

The Universal Declaration of Human Rights⁵, proclaimed by the United Nations General Assembly in Paris, states as follows in Article 27:

27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.⁶

The definition of cultural life has been discussed in the Report of the Independent Expert in the Field of Cultural Rights⁷, relying upon the observations of the Committee on Economic, Social and Cultural Rights in General Comment No. 21 (2009), wherein cultural life is defined as, “an explicit reference to culture as a living process, historical, dynamic and evolving”, and also, “the concept of culture must be seen not as a series of isolated manifestations or hermetic compartments, but as an interactive process whereby individuals and communities, while preserving their specifics and purposes, give expression to the culture of humanity”.⁸

The independent expert also states that there is no official definition of cultural rights and nor are their official definitions of “civil”, “political”, “economic” or “social” rights.⁹

Through the UNESCO, there was promulgated the Convention Concerning the Protection of the World Cultural and Natural Heritage, adopted by the General Conference in Paris, on 16-11-1972.¹⁰ This Convention is instrumental in constituting the World Heritage Committee and thereby, the declaration of World Heritage Sites, worldwide. Ratified by several countries, including India (1977), it creates a unique affirmation of collective rights, which travels beyond States, nationhood and embraces humankind. The opening text in the document highlights the necessity of preservation of both cultural and natural heritage extant throughout the world:

Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world,

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Recalling that the constitution of the organisation provides that it will maintain, increase, and diffuse knowledge, by assuring the conservation and protection of the world’s heritage, and recommending to the nations concerned the necessary international conventions,

Considering that the existing international conventions, recommendations, and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong,

Considering that parts of the cultural or natural heritage are of outstanding interest and therefore needs to be preserved as part of the world heritage of mankind as a whole….

Article 1 thereof defines “cultural heritage”:

Article 1

For the purpose of this Convention, the following shall be considered as “cultural heritage”:

monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science.

groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity, or their place in the landscape, are of outstanding universal value from the point of view of history, art, or science.

sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.

Article 4 of the Convention enjoins each State party to identify and administer effectively cultural and natural heritage with a view to secure the same for future generations, as follows:

Article 4

Each State party to this Convention recognises that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and cooperation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

The Convention thereupon established an Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, within UNESCO, which was to overlook the process of the “World Heritage List”, a list of properties constituting cultural and natural heritage worldwide.¹¹ Organisations like the International Council on Monuments and Sites (ICOMOS)¹² and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) were given advisory status, at the meetings of the Committee. The International Union for Conservation of Nature and Natural Resources (IUCN) was also designated as an advisor for the purposes of natural heritage sites.

Article 12 of the Convention importantly states that:

The fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in Paras 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists.

The emphasis is, therefore, on the preservation of the cultural and natural heritage of humankind, which is deemed to be an integral part, and aligned with, a person’s identity, individually and in society, in the nation and in the world. For example, recently, UNESCO has added to its “Memory of the World Register”, 74 new documentary heritage collections which now includes the Bhagavad Gita. Documentary collections like The Lawcode (Datastanagirk’) of Mkhitar Gosh of Armenia, have also been included.¹³

Currently, there are 1223 properties on the World Heritage List, with 168 States who have properties out of 196 signatories.¹⁴ India has 43 properties which are inscribed on the World Heritage List, out of which 35 are cultural, 7 are natural and 1 is in the mixed categories (the sole mixed category inscribed area is the famous Khangchendzonga National Park, which has been the subject-matter of a notable and prescient judgment of the Sikkim High Court, citing therein ancient and enduring Buddhist belief in the innate sacredness of the region with the divine Khangchendzonga being accorded the greatest sanctity. The tradition of the monarchy of Sikkim originates in the belief of the divine being manifested in the entire area¹⁵). In addition, there are 62 sites on the Tentative List.¹⁶

Nicholas Roerich (1874-1947) the world-famous painter, anthropologist and humanist who resided in India for a significant period of his life, was instrumental in bringing about the Roerich Pact (Washington, USA, dated 15-4-1935), otherwise known as the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, which had a Pan American span, and concerned the preservation of cultural heritage, as popularly known.

Article 1 of this treaty provided as under:

The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war.¹⁷

The following Convention and protocols therein were entered into as a result of the widespread destruction and dilution of culture and cultural heritage occasioned worldwide, particularly in the last world war. The Einsatzstab Reichsleiter Rosenberg of the Nazis, was given the task of removing cultural property from German occupied territory, which it carried out efficiently. Rosenberg, progenitor of the Einsatzstab was tried at Nuremberg and hanged.¹⁸ Cultural devastation during times of conflict is fairly common, as has been seen from historical times and lately in Cambodia, Iraq, Afghanistan, Syria and Libya.

The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention (the Hague)¹⁹, convened by the UNESCO, provided in its opening recitals as under:

Considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection;

Guided by the principles concerning the protection of cultural property during armed conflict, as established in the Conventions of the Hague of 1899 and of 1907 and in the Washington Pact of 15-4-1935.²⁰

Article 1 defines “cultural property”, as under:

Article 1

Definition of cultural property

For the purposes of the present Convention, the term “cultural property” shall cover, irrespective of origin or ownership:

(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books, and other objects of artistic, historical, or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-para (a) such as museums, large libraries, and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-para (a); and

(c) centres containing a large amount of cultural property as defined in sub-paras (a) and (b), to be known as “centers containing monuments.

The Convention is clear in its intention of preservation of the identity of humankind, which was at the time of promulgation still in the process of recovering from the catastrophic effect of the Second World War, and which as we shall examine below, led to a stricter, more defined Protocol of 1999, dealing with the preservation of cultural manifestations and the punishment for infringement of the same.

The Convention brought into consideration the term “respect”, gleaned from the Roerich Pact, and expanded it further:

Article 4

Respect for cultural property

(1) The high contracting parties undertake to respect cultural property situated within their own territory as well as within the territory of other high contracting parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property.

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(3) The high contracting parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage, or misappropriation of, any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory of another high contracting party.

Article 5 provides for safeguarding cultural property by occupying forces; Article 8 deals with “granting of special protection”:

8. (1) There may be placed under special protection a limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centres containing monuments and other immovable cultural property of very great importance.…

Article 15 deals with the providing protection to those tasked with protecting cultural property:

As far as is consistent with the interests of security, personnel engaged in the protection of cultural property shall, in the interests of such property, be respected and, if they fall into the hands of the opposing party, shall be allowed to continue to carry out their duties whenever the cultural property for which they are responsible has also fallen into the hands of the opposing party.

Article 23 provides for the assistance of UNESCO:

(1) The high contracting parties may call upon the UNESCO for technical assistance in organising the protection of their cultural property, or in connexion with any problem arising out of the application of the present Convention or the Regulations for its execution. The organisation shall accord within the limits fixed by its programme and by its resources.

(2) The Organisation is authorised to make, on its own initiative, proposals on this matter to the High Contracting Parties.

And, provides for sanctions and other measures in criminal jurisdictions, in the event that the provisions of the Convention are not followed:

Article 28

The high contracting parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and to impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention.

The Second Protocol (1999) of the Hague Convention of 1954

The loss of cultural property in the ensuing period and with it, cultural heritage of persons in war conditions, prompted UNESCO to strengthen the mechanics in relation to the conservation during armed conflict of culture. There was a concerted effort in the wording of the protocol for stringent enforcement of the terms of the 1954 Convention. This resulted in the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the event of Armed Conflict with Regulations for the Execution of the Convention, promulgated on 26-3-1999.²¹

A category of “enhanced protection” for cultural property was introduced in the hope that the same would survive the vicissitudes of modern warfare. Per Article 10 of the Protocol, a property would be placed under the enhanced status, if it met the following three conditions:

(a) it is cultural heritage of the greatest importance for humanity;

(b) it is protected by adequate domestic legal and administrative measures recognising its exceptional cultural and historic value and ensuring the highest level of protection; and

(c) it is not used for military purposes or to shield military sites and a declaration has been made by the party which has control over the cultural property, confirming that it will not be so used.

The Protocol provides in its opening recitals as under:

Reaffirming, the importance of the provisions of the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, done at the Hague, on 14-5-1954 and emphasising the necessity to supplement these provisions through measures to reinforce their implementation.

Considering, that the rules governing the protection of cultural property in the event of armed conflict should reflect developments in international law.

Article 5 deals with the safeguarding of cultural property in peacetime with an eye on possible future upheaval, with measures such as preparation of inventories; emergency measures for protection against fire or structural collapse; the preparation for removal of movable cultural property or in situ protection, and the designation of competent authorities to ensure the safekeeping of cultural heritage.

The Protocol enjoins belligerents vide Article 7 to feasibly verify that the objectives to be attacked are not cultural property as defined in Article 4 of the Convention; for avoiding and minimising incidental damage to cultural property; specifically:

(c) refraining from deciding to launch any attack which may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated; and

(d) cancel or suspend an attack if it becomes apparent:

(i) that the objective is cultural property protected under Article 4 of the Convention; and

(ii) that the attack may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated.

Cultural property and, by implication, heritage of an occupied territory is sought to be protected vide Article 9:

(1) Without prejudice to the provisions of Articles 4 and 5 of the Convention, a party in occupation of the whole or part of the territory of another party shall prohibit and prevent in relation to the occupied territory:

(a) any illicit export, other removal, or transfer of ownership of cultural property;

(b) any archaeological excavation, save where this is strictly required to safeguard, record or preserve cultural property; and

(c) any alteration to, or change of use of, cultural property which is intended to conceal or destroy, cultural, historical or scientific evidence.

(2) Any archaeological excavation of, alteration to, or change of use of, cultural property in occupied territory shall, unless circumstances do not permit, be carried out in close cooperation with the competent national authorities of the occupied territory.

To ensure that violators of the Convention are proceeded against, provision is made for serious violations of the Protocol, which is a more emboldened effort to bring detractors to justice, by discussing what constitutes a “serious” violation, in Article 15 thereof. Provision is further made for prosecution of individuals based on criminal responsibility and for the exercise of jurisdiction under both national and international law. Extradition under Article 18 of the Protocol provides for such process if there is an extant treaty between the two previously warring parties and even for scenarios where no such treaty exists.

The Protocol extends to the protection of cultural property in armed conflicts which may be localised and not of international character:

Article 22 specifically provides:

This Protocol shall apply in the event of an armed conflict not of an international character, occurring within the territory of one of the parties.

Article 24 of the Protocol sets up the Committee for the Protection of Cultural Property in the Event of Armed Conflict and Article 29 provides for the Fund for the Protection of Cultural Property in the Event of Armed Conflict.

There has also been published the “Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention.”²² (This was pursuant to a meeting of the contracting parties to the Second Protocol at Paris, 2023)

The aforesaid Guidelines have adopted exhaustive criteria for determining “enhanced protection” of cultural property, preceded therein by:

Greatest importance for humanity

(32) While considering whether cultural property is of greatest importance for humanity, the Committee will evaluate, case by case, its exceptional cultural significance, and/or its uniqueness, and/or if its destruction would lead to irretrievable loss for humanity.

(33) Cultural property of national, regional, or universal value may have exceptional cultural significance. The significance may be deduced from the following indicative criteria:

(i) it is an exceptional cultural property bearing testimony to one or more periods of the development of humankind at the national, regional or global level;

(ii) it represents a masterpiece of human creativity;

(iii) it bears an exceptional testimony to a cultural tradition or to a civilisation which is living or which has disappeared;

(iv) it exhibits an important interchange of human achievements, over a span of time or within a cultural area of the world on developments in arts and sciences; and

(v) it has a central significance to the cultural identity of societies concerned.

(emphasis supplied)

There is meticulous detail in including facets of what may be essential to the development or identity of humankind through material both physical and in individual and collective consciousness (“exceptional testimony”/”an important interchange”/”central significance to the cultural identity”). This detail captures the importance of letting the cultural accoutrements of humankind to be preserved throughout:

(34) Cultural property is considered to be unique if there is no other comparable cultural property that is of the same cultural significance. The unique character may be deduced from a variety of indicative criteria including:

(a) age;

(b) history;

(c) community;

(d) representativity;

(e) location;

(f) size and dimension;

(g) shape and design;

(h) purity and authenticity in style;

(i) integrity;

(j) context;

(k) artistic craftsmanship;

(l) aesthetic value; and

(m) scientific value.

(35) The criterion of irretrievable loss for humanity is met if the damage or destruction of the cultural property in question would result in the impoverishment of the cultural diversity or cultural heritage of humankind.

(emphasis supplied)

There is provision in the guidelines for restoration of those objects which constitute cultural heritage via international assistance in “recovery measures” which is detailed as under:

154. Recovery measures are, in principle, taken after a conflict. Their essential purpose is to ensure the preservation and conservation of cultural property damaged in connection with the conflict as well as the return of the cultural property which has been removed….

UNESCO, has firstly, in the wake of the destruction of the two towering Buddha statues situated in Afghanistan, known as the Bamiyan Buddhas, designated and inscribed in 2003, the “Cultural Landscape and Archaeological Remains of the Bamiyan Valley”, as a World Heritage site.²³ There was also a UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, with specific reference to the Bamiyan Buddhas (Paris, 32nd Session 2003).²⁴ The recital in the Declaration categorically stated that the tragic destruction of the Bamiyan Buddhas had affected the international community as a whole, and that intentional destruction of cultural heritage may have adverse consequences on human dignity and human rights. The Declaration defined “intentional destruction” as:

2. … an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case insofar as such acts are not already governed by fundamental principles of international law.

The Declaration enjoined upon the States to take measures to combat intentional destruction of cultural heritage, protection of cultural heritage when conducting peacetime activities, protection of cultural heritage in armed conflict, including the case of occupation, State responsibility, viz.

“A State that intentionally destroys or intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity, whether or not it is inscribed on a list maintained by UNESCO or another international organisation, bears the responsibility for such destruction, to the extent provided for by international law.” And, thereupon, provided for individual criminal responsibility, cooperation for the protection of cultural heritage, human rights, and public awareness.

Further, UNESCO has recently, in 2025, completed its seven-year restoration of the city of Mosul, in Iraq. Mosul is an ancient city of the world, is multicultural and an outstanding example of Islamic and Nestorian influences. Mosul was occupied in 2014 and its vestiges of history and culture almost destroyed. UNESCO has since 2018 rebuilt the Artificial Intelligence (Al)-Nouri Mosque and its Al-Hadba Minaret, the Convent of our Lady of the Hour and Al-Tahera Church, 124 heritage houses, the Al-Aghawat Mosque and the Al-Ekhlass school in the ancient city.²⁵

Moving on from the ambit of safeguarding cultural heritage during war and conflict it would be apposite to touch upon a Convention and a Declaration which deal with the right to cultural ways of life of indigenous peoples (deprived of their existence by dispossession of territories and resources owing to colonisation coupled with extant racial discrimination). Such determination is very much a part of humankind’s cultural heritage and must be accorded due credence.

Indigenous and Tribal Peoples Convention, 1989 (No. 169)

(Adopted by the General Conference of the International Labour Organisation on 27-6-1989²⁶ and revising the Indigenous and Tribal Populations Convention, 1957²⁷)

Dealing with the setting of new international standards and with a view to remove the “assimilationist” orientation earlier promulgated in the situation of indigenous and tribal studies worldwide, this Convention brings into focus the rights of such peoples to primarily develop their own identities, languages and religions, which have severely eroded. Significantly:

“Calling attention to the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind and to international cooperation and understanding…”

Article 2(2)(b) provides for:

promoting the full realisation of the social, economic and cultural rights of these people with respect for their social and cultural identity, their customs and traditions and their institutions;

The preservation of the land, which is the soul of such societies, is given special importance in Article 13, with emphasis on the innate spiritual and cultural aspects of the peoples and the land and territories they inhabit. [It should be noted that worldwide indigenous peoples are known to have a highly deep connection on the land and with the environment. See, for example, the Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017 (New Zealand)²⁸, which protects the physical and metaphysical elements of the Whanganui River system and its indigenous inhabitants. This forms the overall culture and heritage and common property of all persons worldwide and has been recognised by our courts in various decisions such as the judgment of the Uttarakhand High Court²⁹ in the matter relating to the river Ganga, having great mythological and religious significance for the people of India.]

United Nations Declaration on the Rights of Indigenous Peoples³⁰

(Adopted by the General Assembly on 13-9-2007)

The recitals therein are instructive:

“Affirming also that peoples contribute to the diversity and richness of civilisations and cultures, which constitute the common heritage of humankind….

Recognising, the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic, and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their lands, territories, and resources….

Recognising, that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment….”

Article 8 provides as follows:

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture….

Article 11 extrapolates the importance of cultural heritage:

(1) Indigenous peoples have the right to practise and revitalise their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

(emphasis supplied)

(2) States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior, and informed consent or in violation of their laws, traditions, and customs.

Article 12 expands the scope of the identity of a person with special emphasis on cultural milieu, religious belief, and the sanctity of areas:

(1) Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.

Article 25 includes the land and territory of indigenous peoples as synonymous with culture and heritage:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources to uphold their responsibilities to future generations in this regard.

Article 31 details the rights of indigenous peoples to the development and preservation of their exclusive cultural heritage:

(1) Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

The above articles bring the inscription of World Heritage Sites into play, in accordance with the Heritage Convention, 1972. The encompassing of an individuals and societies attributional cultural dimensions is what is sought to be protected as an adjunct and manifestation of humankind. These attributions cannot be defaced, altered or destroyed, being a vital adjunct of individual and societal identity.

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property³¹ (1970)

This Convention addresses the serious malaise of illicit trade in cultural property with a fairly comprehensive definition denoting the same. As is well-known, explorers and later, conquerors, of the New World and Asia and Africa regularly sent home “loot”, for private purposes and for public display. In fact, the word, “loot” is etymologically situated in Hindustani, and in India, where by virtue of private enterprise or as war trophies, vast sums and cultural properties were exported. This sometimes led to an outcry in the home country,³² with two Governors General of the East India Company facing trial before the House of Lords for corruption and disproportionate use of force. Both Robert Clive and Warren Hastings, were, however, exonerated.

In the Convention, cultural property is defined as follows:

Article 1

“… cultural property” means property which on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories:

(a) rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;

(b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;

(c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;

(d) elements of artistic or historical monuments or archaeological sites which have been dismembered;

(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;

(f) objects of ethnological interest;

(g) property of artistic interest, such as:

(i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);

(ii) original works of statuary art and sculpture in any material;

(iii) original engravings, prints and lithographs; and

(iv) original artistic assemblages and montages in any material.

(h) rare manuscripts and incunabula, old books, documents, and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections;

(i) postage, revenue and similar stamps, singly or in collections;

(j) archives, including sound, photographic and cinematographic archives; and

(k) articles of furniture more than one hundred years old and old musical instruments.

The Convention recognises that the illicit trade in cultural property of a country leads to the impoverishment of the cultural heritage and must be prevented, through the contracting State parties acting in concert. The parties thereafter resolve to set up an administration for drafting laws and regulations designed to secure the protection of cultural heritage and the prevention of illicit import, export and transfer of ownership, an inventory of the cultural property in the State, and the setting up of institutions to preserve, house and enhance the cultural property. Provision is also made for future archaeological excavations and educational measures. Further, important measures such as the prevention of trade in stolen cultural property, by a State’s own museums and similar institutions; for recovery and return of cultural property to the State concerned of origin. There is also the aspect of inculcation of cultural knowledge made through the medium of education:

Article 10

(b) To endeavour by educational means to create and develop in the public mind a realisation of the value of cultural property and the threat to the cultural heritage created by theft, clandestine excavations, and illicit exports.

Culture has been further provided protection through the Rome Statute of the International Criminal Court, 1988,³³ which criminalises the destruction of cultural property, categorises the same as a war crime and a violation of international humanitarian law.

Article 8, vesting the International Criminal Court with jurisdiction for war crimes, also provides for a category of war crime, as under:

Article 8(2)(b)(ix):

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.

[The above provision is in respect of international conflicts and is replicated also in case of conflicts which are not international, see Article 8(2)(e)(iv)]

In 2005, the International Criminal Tribunal for the former Yugoslavia, affirmed in appeal, the sentence of 7 years imprisonment of Miodrag Jokić, for wantonly shelling the old city of Dubrovnik and causing death of civilians and destruction and wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science.³⁴

The Constitution and the right to cultural heritage

Cultural heritage, with special emphasis on the preservation of monuments, is given protection through the Directive Principles of State Policy, vide Article 49³⁵:

49. Protection of 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 historical interest,³⁶ (declared by or under law made by the Parliament) to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

Article 51-A enjoins every citizen to:

51-A. Fundamental duties.—It shall be the duty of every citizen of India:

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(f) to value and preserve the rich heritage of our composite culture;

Thus, monuments, as an adjunct of cultural heritage are specifically protected, however, though not uniformly as a part of cultural heritage melding into a person’s right to life and/or religious denomination. Cultural heritage is an extremely wide term, and has been defined by UNESCO to include both tangible and intangible heritage, for individuals as well as societal formations. It would be open for judicial interpretation to extend the same to be part of a person’s right to life, together with environment, and the right to freedom of religion. Indeed, the Supreme Court has in a catena of judgments taken into consideration humankind’s heritage, see for instance, M.C. Mehta (Taj Trapezium Matter) v. Union of India³⁷ and M. Siddiq (Ram Janmabhumi Temple-5J.) v. Suresh Das(Ram Janmabhumi)³⁸ matters.

Article 246³⁹ of the Constitution⁴⁰, which provides for the power of the Parliament and the Legislatures of States, has in the Seventh Schedule, List I Entry 67 recorded as follows:

67. Ancient and historical monuments and records, and archaeological sites and remains,⁴¹ [declared by or under law made by the Parliament] to be of national importance.⁴²

Similarly, in List ll Entry 12, it is provided as under:

12. Libraries, museums, and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those⁴³ [declared by or under law made by the Parliament] to be of national importance.⁴⁴

In List lll Entry 40, it is provided thus:

40. Archaeological sites and remains other than those⁴⁵ [declared by or under law made by the Parliament] to be of national importance.⁴⁶

All the three entries on the separate lists have been introduced by the 1956 Amendment. The emphasis is on monuments, records and archival depositories, viz. the tangible cultural record, and the need to protect the same, India-wide through the provisions of the Constitution.

Pursuant thereto, there has been promulgated, the Ancient Monuments and Archaeological Sites and Remains Act, 1958⁴⁷, which seeks to preserve all ancient and historical monuments and all archaeological sites of national importance.

An “ancient monument” is defined as:

2. Definitions.— (a) … 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 and includes —

(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 (sic) ancient monument.

(b) “antiquity” 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, arts, 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;

The Act provides mechanisms for declarations by the Central Government of ancient monuments, sites, and remains as being of national importance; acquisition of rights in a protected monument; preservation of a protected monument by agreement; endowments; constitution of the National Monuments Authority; archaeological excavations and protection of antiquities. It may be noted that there are approximately 143 monuments (and areas) currently listed under the Central Act and that given the country’s massive historical output it would be incumbent upon the administration to designate more monuments and areas or risk losing the same permanently.

It is germane to note that the Antiquities and Art Treasures Act, 1972⁴⁸, has its objects as under:

An Act 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 therewith or ancillary thereto.

The Government has sought and obtained repatriation from the United Kingdom and the United States of precious objects of our cultural heritage and has even purchased the Nizam of Hyderabad’s jewels at an auction. (There are ongoing efforts questioning a proposed auction, by a prominent auction house, of precious Buddhist relics, namely, “The Piprahwa Gems of the Historical Buddha, Mauryan Empire, Ashokan Era, circa 240-200 BCE”.). Presently, the said auction has not gone ahead.

Judicial pronouncements in India

The various judgments which come into prominence with the preservation of cultural heritage are varied and encompass not only monuments, per se, but other manifestations of humankind’s cultural fingerprints. For example, the State has been enjoined to achieve the preservation of ancient petroglyphs or geoglyphs.⁴⁹ (In this matter suo motu intervention by the Goa Bench of the Bombay High Court was undertaken, under the provisions of the Goa, Daman and Diu Ancient Monuments and Archaeological Sites and Remains Act, 1978.⁵⁰). The Supreme Court directed the State to ensure the preservation of the historic Viceregal Lodge in Shimla, in Rajeev Mankotia v. Secretary to the President of India⁵¹. The Supreme Court stopped the mining operations in the vicinity of the Jambunatheshwar Temple of 1540 CE⁵² and also gave directions for the preservation of the lingam in Shri Mahakaleshwar Temple in Ujjain⁵³.

The Supreme Court also reviewed the security measures in respect of the prevention of theft and pilferage from national collections, and issued notices to the National Museum, New Delhi, Archaeological Survey of India, National Gallery of Modern Art, New Delhi, Indian Museum, Kolkata, Victoria Memorial, Kolkata and Asiatic Society, Kolkata, Salar Jung Museum, Hyderabad, Allahabad Museum and the Nehru Memorial Museum and Library, New Delhi.⁵⁴

The Supreme Court in Taj Trapezium matter⁵⁵ directed the relocation of the polluting industries (foundries, engineering units, rubber production units, lime kilns) outside the area of the Taj Trapezium, and the change of fuel from coke to natural gas. There was emphasis on the environment norms and features of “precautionary principle”, “polluter pays” in sustainable development, coming to the aid of cultural heritage and the preservation of an individual’s right to life. The Supreme Court also directed the removal of shops within 300 meters of the Dargah of Shaikh Salim Chishti at Fatehpur Sikri (a World Heritage site)⁵⁶. The Supreme Court dwelt on a detailed analysis of the collections of the Victoria Memorial, Kolkata, [“A total of about 27,000 artefacts (e.g., paintings, watercolours, stamps, coins, arms and armour) exists in the (VHM)”] obvious historical and cultural relevance and directed that any new construction should be in consonance with the existing ambience and architecture of the monument.⁵⁷ The Court also directed that there should be no construction within 200 meters of Jantar Mantar Observatory (built by Raja Jai Singh ll, one of five unique observatories built for tracking the “astronomical universe”, between 1600 and 1743) in New Delhi, citing the necessity of conserving ancient monuments in consonance with Article 49 of the Constitution. It was observed that, a review of the Notification of the Central Government of 1992, prohibiting and regulating an area up to 200 meters of adjoining protected monuments, passed in exercise of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, was patently not sustainable, in view of the intrinsic value of the monument,⁵⁸ and its protected status as mandated by the statute.

Similarly, the Court ordered that there would be no further construction in the Tughlaqabad Fort and that measures would be undertaken by the Archaeological Survey, for removal of encroachments within with police protection. (In this matter, the Archaeological Survey appeared to have encountered difficulties in getting information on the encroachment within the fort).⁵⁹

The Delhi High Court has passed protection orders in respect of the Mughal Emperor Humayun’s Tomb (a World Heritage monument) and barred the Archaeological Survey from taking any application from private parties to construct in a prohibited area, as the said body had been hearing applications without constituting a notified Heritage Committee. The Court observed:

33. We are informed that the Committee has processed over 400 applications from all over the country and over 150 such applications from Delhi itself. We are constrained to note that this entire exercise is without the authority of law. We are, however, unable to pass consequential orders as all the affected parties would have to be given a hearing which is neither practicable nor feasible. We are also not a little concerned that the Archaeological Survey of India (ASI), which is entrusted with the constitutional and statutory responsibility of ensuring preservation of our ancient and protected monument, is facilitating the violation of the Notification dated 16-6-1992 by granting permissions for construction in prohibited areas all over the country.⁶⁰

The Delhi High Court has held that stamps and philatelic material are antiquities, as defined under the Antiquities and Art Treasures Act, 1972⁶¹ and an indelible part of cultural heritage.

The Supreme Court, stressing the need to protect India’s first planned city and the vision of Le Corbusier through the avowed “sun space and verdure” model, held that there could be no change to the heritage status of Chandigarh with a dilution of the norms, rules and regulations in the issue of redensification.⁶² The Central Government was directed to consider suggested amendments keeping in view the heritage status of the Le Corbusier zone.

The Bombay High Court, has passed pertinent directions for the preservation and declaration of monuments in the historic city of Chhatrapati Sambhaji Maharaj Nagar, while taking note of its ancient legacies, encompassing Buddhist and Jain traditions, Deccan Sultanate period architecture and the overall importance of the city, surpassing Daulatabad, in the time of the Mughals.⁶³ Similarly, the Bombay High Court maintained the status quo in respect of a temple which was submitted to be over 100 years old, in respect of which there had been no declarations of protection by the Central or State Government, citing the objectives of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and the regime under the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960⁶⁴, as an imperative.⁶⁵

The Rajasthan High Court, also issued directions for the protection of the city wall of old Jaipur city, known as the “Parkota”. Though a protected monument, the administration had taken very few measures to ensure the wall’s safety and hence, the court had to exercise jurisdiction and remedy matters.⁶⁶

The Bombay High Court has in the matter pertaining to the apprehended damage to three protected monuments in Pune, namely, Pateleshwar Temple at Jangli Maharaj Road, the Aga Khan Palace and the Shaniwar Wada, held that the requisite authorities are enjoined to take all measures to ensure the preservation of the same.⁶⁷

The Gujarat High Court held in a matter involving the construction of a new City Civil and Sessions Court complex in the Bhadra Fort complex (situated in the old historic walled city of Ahmedabad, a protected monument under the 1958 Act, and which has the Azam Khan Sarai of the 17th Century CE and clock towers therein) that there could be no new construction within 100 meters from the Ahmed Shah Masjid, but permitted construction in the compound of the City Civil and Sessions Court, though part of that compound was within a radius of 100 meters from the protected area.⁶⁸

The Karnataka High Court, set aside a notification issued by the authority under the Rules of the Karnataka Ancient and Historical Monuments and Archeological Sites and Remains Act, 1961⁶⁹, for declaring an area “protected”, without acquisition of the same, (an area of 74.6 acres) would lead to the anomaly of citizens being deprived of property without following the due process of law. Further, the criterion for declaring an area “protected” had not been followed, which prompted the Court to observe that there had been non-application of mind in the abjured notification.⁷⁰

The Orissa High Court, in a suo motu matter, concerning the preservation of antiquities involved in criminal trials, namely, stolen antiquities of Buddhist/Hindu dispensation and dating from the 8th Century CE, directed that the same should be housed in the Orissa State Museum⁷¹, instead of the prevailing court Malkhana.

The Orissa High Court in another matter directed the relevant authorities to ensure the preservation of the ancient Barabati Fort, and to permit no construction and to remove all unauthorised structures. Directions were also issued to restore the moat around the fort, and to reassess the feasibility of whether a road was required on the side of the fort wall over the moat, impairing the structure and the physical continuity of⁷² the same.

The Madras High Court, alluded to the extensive importance of temples in Tamil Nadu, in all aspects of life.⁷³ In this matter, being suo motu, it directed the respondent authority to appoint a 17-member Heritage Commission and also set up the Mamallapuram World Heritage Area Management Authority. This order was the continuation of a process which had started in 2015, wherein the Court had called upon UNESCO to advise on the preservation of the temples, leading, inter alia, to a detailed conservation manual and the appointment of experts, to achieve the objectives. The Court highlighted the importance of temples being an integral part of cultural heritage and emblematic of history, in the absence of a written record. The temples were also instrumental in fostering art in the form of sculptures, paintings and dance forms. The perpetuation of temple specific art and cultural forms took place in the “mandapams”, with their many forms of pillars. The exclusive Tamil musical tradition was curated and sponsored by rulers over the centuries. Temples were also repositories of land records, literature and the recording of historical events. Temples functioning through charitable endowments of rulers and devout followers have been recorded as well. The Court observed that the temple, as extant, is a testimony to the knowledge, culture, traditions of a people. Various great temples of Tamil Nadu, such as the Mamallapuram, Meenakshi Temple, Madurai, Ramanathaswamy Temple, Rameswaram, Srirangam, Ranganathaswamy, Thiruvattaru, Adikesava Perumal, Kanyakumari District, amongst others, are the great examples of Tamil art, architecture, belief and culture. The Court noted the importance of the 42,000 temples and its manifest culture in Tamil Nadu, and the cultural advancement of the same to Indonesia, Cambodia and Sri Lanka.

The Court was of the view that the State statute which was entrusted with the task of perpetuating the temples, art, craft and culture was lagging in impetus (for e.g., no inventories of properties of temples/artefacts/sculptures/jewellery. There was also no digitisation of each temple’s properties, status or condition. This facilitated the loss of cultural objects).

The Court held that the Directive Principles of State Policy (Articles 49 and 51⁷⁴) be brought into the arena so as to thwart the damage which was ongoing. In Para 77, the Court highlighted the UNESCO report which clearly indicated that both the Centre and the State departments required to safeguard assiduously the ancient sites which were beset with illegal constructions. The UNESCO report also made clear that the State body personnel were ill-equipped for the purposes of conservation across the State and that the tasks had to be bifurcated. The Court noted that the process of conservation, preservation and restoration of temples is highly scientific and can be only successfully carried out by the domain experts. Hence, there was a direction given for the Hindu Religious and Charitable Endowments (HRCE) Department to be fully equipped and organised with personnel well versed in the Agama and Shilpa Shastras, (as suggested by UNESCO, in its recommendations to the Court). It was stressed that the need of the hour was to restore structures which had been hitherto damaged owing to faulty repair and renovation to their original condition. The Court noted that out of 5.25 lakh acres of land which were temple lands, only 4.78 lakh acres were actually available: the rest having been encroached.

Taking recourse to the parens patriae doctrine, the Court passed directions for the establishment of the World Heritage Area Management Authority, and a Heritage Commission of 17 members to assist the same. The Commission was directed to formulate a list of all structures, monuments, temples, antique and those of historical/archaeological importance within the State; establishment of a State Level Expert Committee; Conservation Manual to be created; survey carried out by the Archaeological Survey of India of all the temples; systematic usage of temple funds; audit of the temples and their assets; land revenues of temple lands and removal of encroachments; idols and strong rooms; appointment and qualifications of trustees; music, etc. There was to be no renovation without express approval of the constituted bodies.

The Madras High Court rejected the application of the petitioner, who claimed assignment of rights to 90 acres of land within the immediate vicinity of Udayagiri Fort, in Kanyakumari District, being a designated protected monument, and schemes had been undertaken for public welfare.⁷⁵

The Andhra Pradesh High Court protected the “Belum Caves” (“archaeologically known as subterranean passages characterised by enormous sediments comprising clays, stalagmites, stalactites and limestone forming breccia and huge boulders with ripple marks”, which hails from the middle palaeolithic), being the second largest such formation in Asia.⁷⁶

The Himachal Pradesh High Court held that as the Viceregal Lodge was a monument of historical importance, there could be no prayer congregation in a Church on the estate. The Places of Worship (Special Provisions) Act, 1991⁷⁷, vide Section 4(3)⁷⁸, is a proviso, and reads as under:

4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc.— (3) Nothing contained in sub-sections (1) and (2) shall apply to —

(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological sites or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958⁷⁹, or any other law for the time being in force;

However, the Court opined that though open to the public, the Church vested with the Central Government, and hence there was no inherent right of worship therein.⁸⁰

The Madhya Pradesh High Court in a public interest litigation (PIL), directed the Archaeological Survey⁸¹ of India to undertake measures for the upkeep and betterment of Gwalior Fort, in accordance with the relevant statute, and enjoined the Survey to undertake its statutory duty, to preserve and safeguard the monument.

The Allahabad High Court was pleased to dismiss a PIL which was seeking a direction of opening certain sealed rooms in the Taj Mahal, by holding that such prayers ostensible for research purposes, were beyond the provenance of a court⁸² (later the aforesaid judgment was impugned in the Supreme Court where the prayers were once again denied).

The Rajasthan High Court directed the removal of encroachments in and around the Jaisalmer Fort, a UNESCO World Heritage Site, regulate the⁸³ traffic thereof and authorised the Archaeological Survey of India to remove new constructions on the fort.

The Punjab & Haryana High Court, held that the Khokra Kot (a site of about 225 acres, with pottery from the pre-Harrapan period, Painted Grey ware pottery from the Mauryan period, and coin mounds which were excavated in 1938), was encroached as a result of the State not taking the required action. Persons living in the protected area were protected till such time as the State drew up a plan for resettlement. All new construction was stopped, per the Court.⁸⁴

The Madhya Pradesh High Court, in a dispute relating to the dual existence, on the same site, of the Bhojshala Saraswati Temple-cum-Maulana Kamal Maula Mosque, enjoined upon the Archaeological Survey of India to undertake the relevant survey to determine the actual nature of a historical site, as mandated by the relevant statute. The Court relied upon the observations of the Supreme Court in Ram Janmabhumi case⁸⁵, on archaeology as a cross disciplinary science and directed the ASI to, inter alia, complete a scientific investigation of the site together with survey and excavation, and carbon dating; to unlock and open the locked/sealed rooms, halls of the entire complex and complete inventory of each and every artefact, idol, deity or any structure.⁸⁶

In a judgment of the Kerala High Court, it was held that the specific sacred stones/dolmens of the Maniyaras be protected notwithstanding the fact that the area on which the dolmens are standing are not statutorily protected, they are deemed to be protected. The illegal extraction of granite stones in the area was directed to be stopped immediately.⁸⁷ In another judgment of the said Court, it was directed that the precincts and the fort of Tipu Sultan be appropriately protected by the State Government,⁸⁸ as the same had a laterite cave and an ancient well which required safeguarding.

The Karnataka High Court questioned the complicity of the local corporation in sanctioning a plan without consent from the National Monuments Authority for a new construction in the area of the Haft Gumbaz at Gulbarga.⁸⁹

The Central Information Commission took note of certain ornaments which had allegedly been bestowed by the great King Krishnadevaraya of Vijayanagara, upon the Tirumala Tirupati Sri Venkateswara Swamy deity and which appear not to have been entered in the relevant records and the apparent contradiction in not having the temple declared a national monument and directed that the Government inform the Commission as to the action contemplated in this regard.⁹⁰

The Telangana High Court declined to interfere with the order of the Wakf Board which disallowed excavation in the area of the Qutub Shahi Tombs, in the Golconda Fort, based as the finding was, on evidence, and which monuments were protected under the provisions of the State Act.⁹¹

The said High Court also expressed in another matter the view that the State Government could not rescind the authority of the constituted body by repealing a zoning regulation, which protected a palace of 150 rooms (Irrum Manzil) in a 36-acre plot (built in 1870). The palace was a unique combination of Deccani, Rajasthani and European Baroque Architecture. The Court opined that what could not be done directly could not be done indirectly by the State and that if the Government wanted to vary, delete or modify the list of protected monuments, the constituted authority would have to invite objections or suggestions from the public and consider such views. The relevant process of law was not followed and hence, the impugned government order was set aside.⁹²

The Rajasthan High Court held⁹³ that there was damage to the Chittorgarh Fort (over a 1000-years old) as a result of blasting activity in the area around the protected monument. Cracks were observed in the Vijay Stambh, Kirti Stambh and the Kumbha Mahal monuments in the fort precincts. The Court relied on the judgments of the Supreme Court in Tarun Bharat Sangh v. Union of India (Sariska Mining case)⁹⁴ and Taj Trapezium case⁹⁵, holding that the “precautionary principle” is the lynchpin of sustainable development.⁹⁶ The Court also referred to Vellore Citizens’ Welfare Forum v. Union of India⁹⁷ and Indian Council for Enviro-Legal Action v. Union of India⁹⁸, for an elucidation of the “polluter pays” principle, and noted that the right to life and the environment would always supersede economic interest. These judgments in concert with the judgments in T.N. Godavarman Thirumalpad v. Union of India⁹⁹ and M.C. Mehta v. Union of India¹⁰⁰, set out cogently the duty of State and citizen to protect the environment. The premise of natural heritage and cultural heritage read conjointly are both relied upon by the Court. The Court held that there are also the overarching mandates enshrined in Articles 49 and 51–A(f) of the Constitution for preservation of monuments and places of national importance and the duty cast to value and preserve cultural heritage. The Court ordered the ceasing of mining and awarded costs against the polluting parties, directing the said costs to be employed for the preservation of the monument.

Similarly, the Central Information Commission in an interim order highlighted the illegal construction activity within 500 meters of the Taj Mahal, which had led to slowing down of the flow of the River Yamuna, resulting in bog and marshy conditions. This in turn had led to the swarming of a species of bug, which were infecting the marble of the Taj Mahal and leading to dark patches thereon.¹⁰¹

To conclude, tangible and intangible heritage are vital in preserving the cultural manifestations of society and are widely recognised as protected. The law relating to the same is enshrined in the various Conventions of UNESCO and the United Nations. Equally, we find that Central and State statutes in India have accorded recognition to the importance of preserving culture and heritage and the various judicial pronouncements of the courts have been instrumental in securing the identity of cultural manifestations. Importantly, judicial recognition of the influence of environmental factors and principles relating to the protection of the environment have indeed promoted the conservation of culture and identity.”

Slide 1: The Protection of Cultural Heritage âŽ¯ Its Manner, Measures and Manifestations

by

Udaybhanu Sinh

Slide 2: “Cultural heritage, worldwide, has been sought to be identified and protected through Conventions of the United Nations, judicial pronouncements and finds mention in founding documents of various countries. Heritage has been interpreted as the essence of a person’s cultural identity linked with the preservation of the past.”

Slide 3: Read more at SCC Times