Updated: April 21, 2016 7:31:47 am
The controversy over the Kohinoor started after a Supreme Court bench presided over by Chief Justice T S Thakur sought the government’s stand on the retrieval of the 105-carat diamond. The court was hearing a PIL filed by Delhi-based NGO All India Human Rights and Social Justice Front. After seeking a week’s time, Solicitor General Ranjit Kumar came back to the court and conveyed the views of the Culture Ministry. He said the diamond was a “gift” to the East India Company by the then ruler of Punjab. The views of the External Affairs Ministry were yet to be communicated, the SG said.
The CJI asked the SG to formulate the concrete views of the government, saying a dismissal of the PIL may be construed as India giving up its right to seek the Kohinoor’s return. The case will now come up in the last week of June, and the government will file an affidavit putting across its stand.
As questions swirl around the legality of the demand that Britain return the diamond, The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by UNESCO in 1970, may suggest some answers. The Convention is seen as a key instrument to protect and safeguard world cultural properties, as well as provide a mechanism to repatriate cultural properties to their countries of origin.
In 1995, UNESCO defined the objective of the 1970 Convention: “to render more effective the protection of the cultural heritage which constitutes one of the basic elements of civilisation and national culture by fostering close collaboration among Member States to prevent the illicit international movement of cultural property”.
The Convention, which has been ratified by more than 120 countries, provided a framework for cooperation to clarify the procedure for the removal of archaeological and ethnological material from one country to another.
The PIL in the Supreme Court, being argued by advocate Nafis A Siddiqui, has cited the UNESCO Convention, to which both India and Britain are signatories. It has argued that India has a right to ask for return of the diamond which was shipped out when it was a colony of the British Empire. To say there is no legal framework under which India can ask for the Kohinoor may not, therefore, be correct.
However, there are two issues concerning the applicability of the 1970 Convention. One, the draft of the Convention does not make it explicit that it can be applied retrospectively; two, the definition of ‘cultural heritage’.
Article 1 of the Convention deemed cultural heritage to be “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”. In effect, this gave the right of identification to the state of origin of the cultural heritage concerned.
However, the object may have come from a state or nation that no longer exists; and often the initial country — the country of origin — is not where the object resides. This is typically true of previously colonised states. Repatriation becomes more complicated in cases where the influence of a cultural heritage does not stop at the country of origin, and influences the new society as well. The length of time a piece of cultural heritage spends ‘abroad’ then becomes important.
The Kohinoor’s identification as a ‘cultural heritage’, and India’s right to seek its retrieval would have to face this test under Article 1 of the Convention. The diamond is believed to have been handed over in 1849 by the Sikh ruler to the British East India Company in Lahore, which is now in Pakistan. The question of ‘originating state’ is relevant here.
Javed Iqbal Jaffery, a UK-trained lawyer, has in fact, filed a petition in Lahore High Court, claiming Pakistan to be the diamond’s originating country. Jaffery contended that the diamond would belong to the territory which became part of Pakistan after Partition. The High Court is yet to deliver its verdict. Iran and Afghanistan too have claimed ownership rights, citing historical instances when the gem was within their territories.
Another question is about the procedural validity of the Kohinoor’s transfer to Britain. Duleep Singh, successor of Ranjit Singh, was a minor when the purported agreement was entered into — and according to both English Law and the Indian Contract Act, which came into force in India a few years later, based on common English law principles, he was not competent to sign a valid contract at that age. The PIL has raised this question.
Countries like France and Australia have amicably returned the ‘cultural heritage’ of some countries. For India, this would be the first occasion to decide whether to invoke the UNESCO Convention to seek the diamond’s return. For the government, drafting the final reply to the apex court would be walking a tightrope — seeking a balance between legality and diplomacy on the one hand, and public sentiment on the other. In international law, repatriation is about the legitimacy of possession; however, much of the success of the UNESCO Convention relies on mutual respect between nations.
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