Debarati Pal*

Legal Framework on Heritage Protection

in India

1. Introduction

Heritage shows the essence of the past that has been influenced by cultural, social,
and political factors, demonstrated through events and spaces. The collective cul-
tural inheritance of a community allows it to preserve its history and identity by
conserving the built environment and representative and valued landscapes. This
article discusses the legal framework that governs heritage protection and highlights
the critical role of the central government in preservation. The Ancient Monuments
Preservation Act of 1904 and the Ancient and Historical Monuments and Archaeo-
logical Sites and Remains Act of 1958 are the primary laws safeguarding heritage in
India. The Treasure Trove Act of 1874 was later revised as the Antiquities and Art
Treasures Act of 1972, which regulates movable heritage such as museum collec-
tions, artefacts, and manuscripts. Preserving heritage is essential, as it allows future
generations to understand and appreciate their cultural roots and helps build a sense
of pride and identity.
The article is divided into four parts. The first part deals with the statutory
framework of built heritage, the second part focusses on the statutory protection
of antiquities and art treasures, and the third part addresses the national framework
on Intangible Cultural Heritage.

2. Statutory framework of built heritage

The Archaeological Survey of India (ASI) was established in 1861 during the Brit-
ish colonial era to document and make an inventory of India’s ancient architecture.
This was the first step towards creating a protection mechanism. Its creation was

*
Assistant Professor of law at the University of Petroleum and Energy Studies, India; PhD can-
didate at NALSAR, India, ORCID: 0000-0001-8986-9797
DOI: 10.4467/23538724GS.24.012.19871

CULTURAL HERITAGE LAW IN ASIA 157

supported by James Fergusson, and Sir Alexander Cunningham became its First
Director General.1 Although Cunningham intended to document ancient struc-
tures, he excavated and removed several of them from their original site and took
them to British museums.2 Nevertheless, the surveys conducted under his supervi-
sion uncovered many ancient sites spread over a vast area.
Additionally, the Treasure Trove Act of 1878 authorised collectors to acquire
treasures on behalf of the Government. Consequently, any property so acquired is
deemed to be owned by the Government. The Collector is required to pay the treas-
ure’s value to the treasure’s owner.3 Architectural and archaeological heritage were
not formally distinguished, and their conservation was initially integrated. Later,
heritage conservation developed as a separate discipline with growing consensus
and awareness after independence.
British writer Samuel Johnson corresponded with Governor General Warren
Hastings in 1774 about formally surveying the remains of ancient towers and ruined
cities.4 Some decades later, in 1861, Cunningham wrote to Lord Canning, urging
measures to preserve ancient Indian monuments. The goal was to introduce a West-
ern scholarly understanding of Indian culture to civilise the country. As a result, the
Asiatic Society was founded in Calcutta to study Indian arts, architecture, history,
language, and literature with the help of European scholars. Though England had
a decentralised process in the domain of heritage conservation, the British did not,
as colonisers, encourage a similar approach in India.5
Two regulations were introduced in Bengal and Madras provinces during the rule
of the East India Company. These regulations granted the government the power to
penalise individuals for damaging public buildings. They were called Bengal Regula-
tion XIX of 1810 and Madras Regulation VII of 1817, respectively. However, both
regulations were later repealed by Act XX of 1863.6 The new legislation authorised
the Government to safeguard and maintain structures recognised for their historic
and architectural significance.
1 See the historical backdrop of ASI at https://asi.nic.in/HQ/history-view (accessed: 2.04.2024).
2 I. Sengupta, “Monument preservation and the vexing question of religious structures in
colonial India” [in:] From Plunder to Preservation. Britain and the Heritage of Empire: C.1800–1940,
eds. A. Swenson, P. Mandle, Oxford University Press, Oxford 2013, pp. 171–186; see also: I. Sen-
gupta, “Culture-keeping as state action: Bureaucrats, administrators, and monuments in colonial
India”, Past & Present 2015, vol. 226 (suppl 10), pp. 153–177.
3 A. Mann, “The Endangered Inheritance: Conservation through Legislation”, Indian Historical

Re­view   2020, vol. 47, issue 1, https://journals.sagepub.com/doi/full/10.1177/0376983620922408

(accessed: 20.04.2024).
4 F.R. Allchin, G. Erdosy, The archaeology of early historic South Asia: the emergence of cities and states,

Cambridge University Press, Cambridge 1995.

5 F.R. Allchin, “Monument Conservation and Policy in India”, Journal of the Royal Society of Arts

1978, vol. 126, issue 5268, pp. 746–765.

6 F.R. Allchin, G. Erdosy, The archaeology of early historic…

158 GDAŃSKIE STUDIA AZJI WSCHODNIEJ 2024/25

 Incidentally, Governor General Dalhousie founded the Public Works Depart-
ment in 1855 to construct government buildings, roads, railway communications,
and postal networks. In the European Quarter, the Department introduced street
axes, building regulations, and traffic rules.7 Mughal edifices and havelis were refur-
bished to welcome international corporations’ reinvestment. The technical staff
built neo-gothic buildings, museums, libraries, and public squares.8
In the late 1930s, Improvement Trusts were created by legislation to zone the
new colonial capital and build community housing, sanitary cordons, and chawls.9
After that, in 1904, the Ancient Monuments Preservation Act was enacted to
preserve ancient monuments, exercise control over the trafficking of antiquities,
and protect and acquire ancient monuments.10 It differentiates between ancient
monuments that are protected and those that are not protected. After inviting and
receiving objections, the central government declares a monument protected under
the Act. The Central Government, the Collector, the Commissioner and the private
owners of buildings or monuments were the recognised stakeholders in the Act. It
formalised the earlier intention of acquiring antiquities and architectural heritage.
The Act gave the British Indian state the power to acquire physical custody of
listed monuments, giving the Archaeological Department control. This went against
the Anti-Scrape Movement in Britain and resulted in monuments being turned into
tourist destinations. Even Hindu temples and Islamic mosques were transformed
into European-style gardens.
The 1904 Act did not repeal the Bengal Charitable Endowments, Public Build-
ings and Escheats Regulation, 1810, and the Religious Endowments Act, 1863.11
Therefore, conflicts between Public Works and temple/mosque committees were
resolved by hiring Indian staff in the Archaeological Department. Negotiations
with shebaits, temple managers, and donors allowed for the coexistence of archae-
ologists and priests.12

7 M. Desai, M. Desai, The Bungalow in Twentieth-Century India: The Cultural Expression of Changing

ways of life and aspirations in the domestic architecture of colonial and post-colonial society, Routledge, Lon-
don – New York 2016.
8 S. Banerjee et al., “Asansol: Unfinished biography of a Raj Era railway town: Explorations

in heritage practice in post-India” [in:] Geographies of Post-Industrial Place, Memory, and Heritage, eds.
M.A. Rhodes (II), W.R. Price, A. Walker, Routledge, London – New York 2020, pp. 37–51.
9 D.E. Haynes, N. Rao, “Beyond the colonial city: Re-evaluating the urban history of India,

ca. 1920–1970”, South Asia: Journal of South Asian Studies 2013, vol. 36, no. 3, pp. 317–335.
10 See the preamble to the Ancient Monuments Preservation Act, 1904 https://www.india-

code.nic.in/handle/123456789/2339? (accessed: 3.04.2024).

11 D. Sutton, “Devotion, Antiquity, and Colonial Custody of the Hindu Temple in British

India”, Modern Asian Studies 2013, vol. 47, no. 1, pp. 135–166.
12 D. Sutton, “Inhabited pasts: monuments, authority, and people in Delhi, 1912–1970s”, The

Journal of Asian Studies 2018, vol. 77, no. 4, pp. 1013–1035.

CULTURAL HERITAGE LAW IN ASIA 159

 The 1951, the Ancient and Historical Monuments and Archaeological Sites and
Remains Act declared the listed and graded monuments of national importance
under the 1904 Act. It added 450 resources from the princely states of Rajasthan,
Gujarat, Hyderabad, and Mysore and empowered new states to create their heritage
laws for regionally essential monuments.13
After independence, the Constitution of India incorporated the provisions of
art. 4914 and art. 51(f)15 of the Indian Constitution to protect cultural heritage. The
right to conserve, protect, and manage cultural heritage is not included in the Funda-
mental Rights of the Indian Constitution; instead, it is accorded a non-enforceable
status. Apart from that, Entry 67 of List I of the Seventh Schedule16 endorses the
jurisdiction of the Ancient and Historical Monuments and records of archaeological
sites and remains of national importance, and Entry 12 of List II17 incorporates the
protection of Libraries, Museums, and similar institutions controlled and financed
by the State, including historical monuments and records explicitly excluded from
List I. Entry 40 of List III18 incorporates archaeological sites and remains that are
not on List I. After the 74th Amendment to the Constitution, Municipal Corpora-
tions are empowered to participate in conserving urban heritage.
Subsequently, the 1958 Act repealed the 1951 Act. The Ancient Monuments and
Archaeological Sites and Remains Act (AMASR) of 1958 preserves ancient and his-
torical monuments, archaeological sites, and remains of national significance.19 The
Act regulates excavations and protects sculptures and carvings. Ancient monuments
are classified as national, state, corporate, or under private ownership.20 The Act
defines reconstruction, repair, and renovation aspects. Regulated areas are defined
for the conservation of sites.21 The Central Government, the Archaeological ­Survey
13 G.K. Rao, “Legislation on Conservation of Ancient Monuments and Archaeological Sites
and Ruins: A Critical Appraisal”, Journal of the Indian Law Institute 1980, vol. 22, no. 1, pp. ­108–133.
14 Part IV (Directive Principles of State Policy) of the Indian Constitution.
15 Part IV-A (Fundamental Duties) of the Indian Constitution.
16 It is a part of the Union List. Parliament and the Central Government are the sole authority

to legislate and execute such matters.

17 It is a part of the State List. The State Legislature and Government have the sole authority

to legislate on such matters.

18 It is part of the Concurrent List. By virtue of the quasi-federal nature of legislative and

executive relations, Parliament and the Central Government are the sole authorities to legislate
and execute on such matters.
19 See the preamble of the 1958 Act, https://www.indiaculture.nic.in/sites/default/files/

acts_rules/TheAncientMonumentsandArchaeologicalSitesandRemainsAct1958_12.03.2018.pdf
(accessed: 2.04.2024).
20 D.L. Stein, “To curate in the field: archaeological privatisation and the aesthetic ‘legislation’

of antiquity in India”, Contemporary South Asia 2011, vol. 19, no. 1, pp. 25–47.
21 N. Thakur, “The Critical Role of New Theory, Old Knowledge Systems and Jurisprudence for

Responsible Protection and Management for the living heritage of historic places, cities and cultural
regions of India” [in:] Shared Global Experiences: For Protection of Built Heritage, ed. V. Kawathekar,

160 GDAŃSKIE STUDIA AZJI WSCHODNIEJ 2024/25

of India, and the National Monuments Authority are the executive organs of the
Act. Additionally, the 1959 rules allow public-private partnerships to manage graded
and listed properties.
The National Commission for Heritage Sites Bill 2009 aimed to incorporate
UNESCO World Heritage Convention principles.22 The Commission recommended
policies for managing heritage sites by creating a roster. However, this Bill never
came into force. Later, the AMASR Act of 2010 was amended in 2017, introducing
regulations for buffer zones around monuments, including prohibited and regulated
zones for mining and other development activities. Moreover, the 2014 National
Policy for Conservation of Ancient Monuments23 focuses on creating a manage-
ment framework that uses public-private partnerships to sustain limited resources
in conserving heritage buildings. Furthermore, it encourages local community par-
ticipation in preserving heritage and regenerating traditional knowledge. The policy
details conservation techniques and mitigation strategies for threats and risks, which
ASI and NMA will adopt through impact assessment initiatives and collaboration
with central and state agencies. The Indian Heritage Cities Network, established in
2006, collaborates with the Ministry of Urban Development, the Government of
India, and UNESCO. It aims to establish Heritage Cells within local authorities to
safeguard and use heritage resources for sustainable development. It provides pol-
icy advice, capacity building, exchange of good practices, awareness raising, techni-
cal assistance, and facilitates partnerships. 24

2.1. Institutions involved in heritage protection

The ASI is responsible for safeguarding India’s ancient monuments and archaeo-
logical sites of national importance. It operates under the Ministry of Culture, Gov-
ernment of India, through 24 Circles at the State Level. It is also the custodian of
India’s World Heritage Sites and protects around 5,000 monuments, while the State
Department of Archaeology protects an additional 4,000 monuments.25

SPA Press, Bhopal, p. 87, https://iclafi.icomos.org/wp-content/uploads/2020/12/India-2015.

pdf (accessed: 3.04.2024).
22 K. Sanyal, “The National Commission for Heritage Sites Bill, Journal of Indian Law and Society

2009, vol. 1, p. 167.

23 The National Conservation Policy available at: https://cag.gov.in/uploads/download_au-

dit_report/2022/Chapter%203-062f0de369640f7.65867174.pdf (accessed: 3.04.2024); https://

pib.gov.in/newsite/PrintRelease.aspx?relid=108032 (accessed: 3.04.2024).
24 See the detailed programme of the Indian Heritage Cities Network: http://ihcn.in/about-

ihcnf/ (accessed: 3.04.2024); see also: Support for the creation of the Indian Heritage Cities
Network (IHCN), https://whc.unesco.org/en/indian-cities/ (accessed: 3.04.2024).
25 See the role of the Central Government in protecting monuments at: https://asi.nic.in/

monuments/ (accessed: 5.04.2024).

CULTURAL HERITAGE LAW IN ASIA 161

 The Central Government is responsible for protecting monuments. It declares
a monument of national importance, organises public exhibitions of inscriptions
and classifications, and identifies prohibited or regulated areas within the protected
monument’s perimeter. It specifies how a detailed site plan for each protected mon-
ument must be prepared and incorporated into the heritage byelaws. Likewise, the
Central Government can acquire a protected monument for public purposes if it
shows signs of decay, destruction, defacement, and misuse. The Collector will take
custody of the monument, and the owner’s rights will be restricted. The owner can-
not charge for access to the monument and must facilitate unrestricted access to the
public and Archaeological Officers. The owner will also pay for necessary expenses
related to the maintenance of the monument.
The Director General of the Department of Archaeology can lease, accept, or
inherit a protected monument, take ownership of an ownerless or a privately owned
monument, and negotiate with the owner for an agreed-upon amount. The Direc-
tor General can grant or deny permission for construction within the prohibited
area after assessing its impact on the monument’s preservation, safety, and security.
The Department can excavate inside protected areas containing ruins, relics, and
antiquities.
Another executive organ, the National Monuments Authority, advises the Cen-
tral Government on grading and classifying protected monuments. It also conducts
heritage impact assessments of large-scale public development projects in the regu-
lated area.26
The Indian Trust for Architectural and Cultural Heritage (INTACH) is a non-
governmental organisation that advises the Central Government on built heritage.
It was established in 1984 with financial grants from the UK’s Charles Wallace Fund
and the Indian Government.27 The organisation aims to identify unprotected built
heritage and list undocumented historic buildings and sites.28 It has over 31 chapters
nationwide and resurces of 1 crore rupees. After the Bhuj earthquake, INTACH
assessed the damage to historic buildings, conducted surveys, and developed plans
to restore and rehabilitate damaged buildings. INTACH helps conserve, restore,
renovate, and develop unregulated heritage properties. The organisation stream-
lines projects suggested by local chapters and forwards them to public or private
organisations for financial assistance. It also works with experts to improve the

26 See the role and functions of the National Monuments Authority at: https://www.nma.gov.

in/show_content.php?lang=1&level=1&ls_id=50&lid=44&nma_type=0 (accessed: 5.04.2024).

27 N. Piplani, “Training, Research and Capacity Building: INTACH Heritage Academy”, Con-

text 2015, vol. 11, p. 137.

28 D. Gupta, “The role of Indian National Trust for Art and Cultural Heritage in heritage

conservation in India” [in:] Heritage Conservation in Postcolonial India, eds. M. Chalana, A. Krishna,
Routledge, London – New York 2020, pp. 41–51; see also: B.K. Thapar, “Reflections: On the
Role of INTACH in India’s Conservation Movement”, Architecture+ Design, Nov.–Dec. 1989.

162 GDAŃSKIE STUDIA AZJI WSCHODNIEJ 2024/25

c­ onservation paradigm. INTACH received UN ECOSOC consultative status in
2007. It advises the Indian government on policy and implementation and receives
a corpus fund of 100 crores. The INTACH UK Trust was dissolved, and its funds
were transferred to INTACH.29
The 2004 INTACH Charter aims to conserve architectural heritage sites in
India.30 The Charter combines ideas from the Venice and Burra charters, empha-
sising the value of indigenous traditions and local craftsmen in conserving living
heritage. It also incorporates Shilpa Shastra and suggests creating a Register of
Craftspeople to promote local crafts and traditional livelihoods.31

2.2. Cultural heritage protection by the states

Apart from the national Acts, the states have also enacted their Ancient Monu-
ments, Archaeological Sites, and Remains Preservation Acts under the aegis of their
respective state governments, aiming to preserve the monuments declared of State
importance under List II of the Constitution.
In these cases, the owner or the occupier usually agrees with the state govern-
ment under comparable terms and conditions. The Delhi Ancient and Historical
Monuments and Archaeological Sites and Remains Act, 2004,32 provided for the
eviction of unauthorised occupants and modified the compensation principles in
the event of losses incurred during authorised excavation or entry into the site.
A Delhi Archaeological Advisory Council has been constituted to guide policy
implementation, similar to advisory boards in Gujarat and Maharashtra. Also, the
Gujarat Act and the Delhi Act provide for preserving reasonable amenities inside
the protected monument in the controlled area.
After Independence, states enacted Town and Country Planning Acts, which
empowered Development Authorities to draft plans for transportation, utilities,
housing, and historic properties.33 They collaborate with the Advisory Council
and the Town and Country Planning Board and enact building bylaws. They also
enforce building restrictions for Heritage Buildings before the Heritage Boards or
Heritage Commissions implement them.34
29 A.G.K. Menon, “Heritage conservation and urban development: Beyond the monu-
ment” [in:] Heritage Conservation and Urban Development, ed. R. Tandon, INTACH, New Delhi
2005, pp. 1–7.
30 See the functions of INTACH at: http://intach.org/about-charter.php (accessed: 5.04.2024).
31 See: ICOMOS Burra Charter and the 1994 Nara Document on Authenticity.
32 See the provisions of the 2004 Act at https://prsindia.org/files/bills_acts/acts_states/del-

hi/2005/2005Delhi9.pdf (accessed: 2.04.2024).

33 K. Banerjee, S. Mal, Role of Urban Development Authorities in Local Governance, Insta Publishing,

New Delhi 2022, pp. 13, 21–23.

34 E.F.N. Ribeiro, “The Existing and Emerging Framework for Heritage Conservation in India:

The Legal, Managerial and Training Aspects”, Third World Planning Review 1990, vol. 12, no. 4,

CULTURAL HERITAGE LAW IN ASIA 163

 The Municipal Corporations hold significant authority in heritage conserva-
tion, established under the Municipal Corporation Acts of respective districts.35
The Municipal and Development Authorities form the district executive author-
ity responsible for implementing development schemes. Some Municipal Corpora-
tions have a Heritage Conservation Committee, but functional overlaps and discre-
tionary lapses have arisen since the establishment of the Heritage Commissions.36
The Development Authority, Municipal Corporation, and Heritage Commission
coordinate with state archaeological departments to ensure meticulous Transfer-
able Development Rights implementation to reap the benefits of the protection
mechanism and conservation interface.37 Usually, Grade I and Grade II heritage
properties get tax concessions and exemptions, provided there are no modifications
to the physical fabric of the heritage property. Tax exemptions do not apply for
commercial heritage buildings or institutional or residential heritage buildings with
commercial activities. The state government bears the cost of building repairs if the
owner/occupier agrees with them.
Indian states have enacted statutes to conserve their cultural heritage sites. The
Arunachal Pradesh Heritage Act of 2015 established a Heritage Authority that reg-
ulates the conservation, protection, and management of heritage sites. The Jammu
and Kashmir Heritage Conservation and Preservation Act of 2010 established the
Heritage Conservation and Preservation Authority, while the Telangana Heritage
(Protection, Preservation, Conservation, and Maintenance) Act of 2017 established
the Telangana State Heritage Authority and various committees. Finally, the Pun-
jab Ancient, Historical Monuments, Archaeological Sites, and Cultural Heritage
Maintenance Board Act of 2013 introduced a cultural cess, which is collected from
Public-Private Partnerships in Development Projects and is divested into the Cul-
tural Heritage Maintenance and Development Fund to maintain heritage buildings
valued more than 50 crores.38
Various organisations have contributed to community building and heritage res-
toration. The Horniman Circle Association helped construct a Banking District in
Mumbai; CRUTA raised 50 lakhs for heritage protection in Ahmedabad; the Friends

p. 338; see also: R.P. Singh, R.S. Singh, “Urban heritage in India: Towards Orientation to plan-
ning” [in:] Strategies in Development Planning”, eds. A.K. Singh, V.K. Rai, A.P. Mishra, Deep & Deep
Publications, New Delhi 1997, pp. 289–304.
35 R.P. Singh, R.S. Singh, “Urban heritage in India…”
36 See the Policy of Urban Heritage Conservation by NITI Aayog: Working Group Report on

Improving Heritage Management in India, https://www.niti.gov.in/sites/default/files/2020-06/

Improving-HeritageManagement-in-India.pdf (accessed: 2.04.2024).
37 R.P. Singh, R.S. Singh, “Urban heritage in India…”
38 See the functions of the state heritage commissions: The Punjab Ancient, Historical Monu-

ments, Archaeological Sites and Cultural Heritage Maintenance Board Act, Act 29 of 2013, https://
prsindia.org/files/bills_acts/acts_states/punjab/2013/2013PB29.pdf (accessed: 2.04.2024).

164 GDAŃSKIE STUDIA AZJI WSCHODNIEJ 2024/25

of Pondicherry Heritage provided professional expertise and financial assistance
for the restoration of settlements in Pondicherry; and the Aga Khan Trust for
Culture, along with the Dorabji Tata Trust, restored Luytens’ Delhi. DRONAH
restored Jaipur’s urban façade, illuminations, and other physical infrastructure.39

2.3. Judicial decisions

The Supreme Court’s protection framework dichotomy can be traced through vari-
ous decisions. In the Central Vista project,40 the court allowed the construction of
a new Parliament building despite compromising the integrity of heritage structures.
However, in the Mahakal Temple41 and Taj Trapezium Case,42 the court proactively
removed encroachments and imposed an embargo on granting clearances to heavy
industries near the Taj Corridor. The court also mandated more accountability and
democracy in the clearance process. The Supreme Court ordered removing unlaw-
ful construction and occupation in the Fort Tughlaqabad area,43 a protected monu-
ment of national importance.

3. Antiquities and art treasures

The Antiquities and Art Treasures Act of 1972 (hereafter: the 1972 Act), along the
lines of the 1970 UNESCO Convention, significantly clarified the definition of an
antiquity, particularly concerning antiquities and art treasures, crystallising the pro-
visions laid down in the 1904 Ancient Monuments Preservation Act.44 Previously,
it was defined as a moveable object of historical or archaeological association, but
the 1972 Act introduced categories of antiquities and art treasures. The Act is to
be read along with the Customs Act of 1962 and the Export and Import Control
Act of 1947, which addresses concerns about exporting prohibited items.45 The
Central Government regulates the export and registration of antiquities and art

39 K. Bose, “Incentivizing Urban Conservation in Kolkata: The Role of Participation, Econo-

mics and Regulation in Planning for Historic Neighbourhoods in Indian Cities”, 27.01.2014, p. 24,
https://www.semanticscholar.org/paper/Incentivizing-Urban-Conservation-In-Kolkata%3A-
The-Of-Bose/54f4c9ae812f458472598fb89e70f521eefb21dc (accessed: 18.05.2024).
40 Rajeev Suri vs Union of India SC 2021.
41 Sarika vs. Administrator, Mahakaleshwar Mandir Committee, Ujjain MP SC 2020.
42 M.C. Mehta vs. Union of India (UOI) and Ors SC 2019.
43 S.N. Bhardwaj vs. Archaeological Survey of India and Ors SC 2016.
44 See the 1972 Act: https://www.indiaculture.gov.in/sites/default/files/acts_rules/TheAnti-

quitiesandArtTreasuresAct1972_12.03.2018.pdf (accessed: 23.04.2024).

45 V.K. Gupta, “Retrieval of Indian Antiquities: Issues and Challenges”, Art Antiquity & Law

2019, vol. 24, p. 101.

CULTURAL HERITAGE LAW IN ASIA 165

treasures.46 It appoints authorities to issue licenses and acts as a custodian for those
kept in government-managed institutions.47 It can acquire antiquities compulsorily
and appoint an arbitrator to resolve disputes. The Director General of the Archaeo-
logical Survey of India determines what is an antiquity or an art treasure. However,
with the advent of cyberspace and the illegal sale of antiquities over the Internet,
the 1972 Act ought to incorporate harmonious provisions enumerated in the Infor-
mation Technology Act of 2000.48
ASI issues temporary permits for the exhibition of antiquities outside India for
up to six months. Long-term loans are permitted for up to three years and are
extendable for two years. ASI inspects returned antiquities and issues a ‘No Objec-
tion Certificate.’ Suspected antiquities are referred to the ASI Director General for
confirmation. However, there is no mechanism to differentiate between legal and
illegal imports.49

4. Intangible cultural heritage

Though the earliest notion of built heritage developed as the architectural manifes-
tations of religion, the sub-textual connotation of traditions and cultures brought
intangible infusions into the cultural landscapes. It was also reinforced in the col-
lective perception of Janapada,50 where memory, information and imagination
harmoniously coexist, weaving a holistic metaphysical connotation through the
various lyrical and literary aspects of religious texts. Those ancient routes were
dotted with traditional practices and rituals of ancient doctrines, preservation of
ancient religious manuals, and associative memory, trickling down to knowledge,
pride, and identity. Cultural Heritage protection covers the conservation of intan-
gible values from spiritual belief systems to aesthetic principles. Defining this as

46 S.S. Biswas, “Protection of cultural property vis-à-vis Indian antiquarian legislation and

global concern” [in:] Estrategias relativas al patrimonio cultural mundial. La salvaguarda en un mundo
globalizado. Principios, practicas y perspectivas. 13th ICOMOS General Assembly and Scientific Symposium.
Actas, Comité Nacional Español del ICOMOS, Madrid 2002, pp. 1–4, https://openarchive.ico-
mos.org/id/eprint/541/ (accessed: 27.04.2024).
47 S.K. Pachauri, “Plunder of cultural and art treasures–the Indian experience” [in:] Illicit An-

tiquities. The Theft of Culture and the Extinction of Archaeology, eds. N. Brodie, K. Walker Tubb, Rout-
ledge, London – New York2003, pp. 280–291.
48 See: D. Pal, “Illicit trafficking of antiquities”, Chanakya National Law University Journal 2018–

2019, vol. 8, https://cnlu.ac.in/storage/2022/08/Volume-8-2019.pdf (accessed: 27.04.2024).

49 V.K. Gupta, “Retrieval of Indian Antiquities…”, p. 101.
50 R.P. Singh, “Appraising the Indian cultural landscape: Envisioning ecological cosmology in

the 21st Century”, North Eastern Geographer 2017, vol. 39, no. 1–2, pp. 3–28.

166 GDAŃSKIE STUDIA AZJI WSCHODNIEJ 2024/25

cultural heritage was challenging until the NARA Document on Authenticity and
the I­ COMOS Burra Charter.51
Bharatvarsha was defined as a part of the mesocosm where communities (a part
of the microcosm) communicate with space: Viswabhramanda (the macrocosm)
woven into a common thread of sacred sites from Varanasi to Prayagraj, from Chi-
trakoot to Kailash, blended into locations of symbolic coupling of the mesocosm
and microcosm, and immortalised through myths, practices, pilgrimages and tradi-
tions.52 We also witness this blend in Sabarmati53 and Shantiniketan. While Shan-
tiniketan envisioned intangible literary formalisms through folklore and graphic
art instead of urban functionalism, the Sabarmati Ashram combined swadeshi and
Sarvodaya ideals with radical elements of socialist architecture and sentimental aes-
theticism.54
The indigenous traditions of India suggest cyclical renovations and minimal
intervention in historic buildings, unlike Eurocentric practices. Binumol Tom high-
lights the significance of Vaastu Shashtra and Jirrnodharana in this regard.55
The Sangeet Natak Akademi coordinates India’s nominations for cultural herit-
age lists and maintains the National Inventory of Intangible Cultural Heritage.56
Founded in 1952, it preserves and promotes performing arts, including classical
dance, music, theatre, puppetry, crafts, and folk arts. It is an autonomous body with
acclaimed cultural and artistic personalities serving on its General Council.
The Akademi collaborates with Indian governments and art academies, provides
grants for performing arts research, maintains a reference library, advises the Indian
government on cultural heritage policies, and lists 46 elements (15 inscribed) in the
national inventory of India’s Intangible Cultural Heritage.

51 R.A. Engelhardt, P.R. Rogers, Hoi An protocols for best conservation practice in Asia. Professional

Guidelines for Assuring and Preserving the Authenticity of Heritage Sites in the Context of the Cultures of
Asia, UNESCO, Bangkok 2009, pp. 25–38.
52 R.P. Singh, “Appraising the Indian cultural landscape…”, pp. 3–28.
53 B.T. Diyora, History of Education and Gandhi: A Case Study of Ashram System in Gujarat, Docto-

ral dissertation, Maharaja Sayajirao University of Baroda, India, 2021.

54 N.P. Ahuja, “Creating the Sensibility of the Modern Indian Artist-Craftsman: Santiniketan

& the Arts and Crafts Movement” [in:] idem, The Making of a Modern Indian Artist-Craftsman Devi
Prasad, Routledge, New Delhi 2012, pp. 10–63.
55 T. Binumol, Traditional Conservation of timber architecture, INTACH UK Trust, New Delhi

2007.
56 See: Intangible Cultural Heritage of India, https://www.sangeetnatak.gov.in/sections/ICH

(accessed: 16.04.2024).

CULTURAL HERITAGE LAW IN ASIA 167

 5. Conclusions

Heritage conservation, a process that goes back centuries, has recently been rec-
ognised as a valuable cultural resource. While cultural resources have always held
economic, cultural, or societal value, there have been conscious efforts in the past
decades to value them objectively. However, sometimes, the intangible aspects of
heritage are so fleeting that they go unnoticed; thus, their origin is lost. Therefore,
traditional communities are crucial in preserving traditions and their intangible link-
ages.
Despite all efforts, legislation has not eliminated the imperial motive of compul-
sory acquisition of monuments and their custodianship. Lack of owner/stakeholder
consent causes conflicts in heritage conservation. Domestic laws explore participa-
tory paradigms but confirm the state’s importance as a dominant stakeholder.
In conclusion, while the central government is the sole authority responsible
for protecting antiquities and art treasures, the Sangeet Natak Akademi has docu-
mented and inventoried the events leading to conserving intangible cultural herit-
age. It has collated justifications and opinions from all community stakeholders
who played a role in conservation, whether active or passive. This documentation
helps to preserve the intangible cultural heritage that is often overlooked and can be
lost if not given the attention it deserves. The intangible cultural heritage is a vital
link to our past, and its preservation is crucial for future generations to understand
and appreciate their cultural roots.

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Legal acts
The Bengal Charitable Endowments, Public Buildings and Escheats Regulation, 1810
The Religious Endowments Act, 1863
The Treasure Trove Act, 1878
The Ancient Monuments Preservation Act, 1904
The Export and Import Control Act, 1947
The Constitution of India, 1950
The Ancient Monuments and Archaeological Sites and Remains Act, 1958
The Customs Act, 1962
Gujarat Ancient Monuments and Archaeological Sites and Remains Act, 1965
The Antiquities and Art Treasures Act, 1972
Delhi Urban Acts Commission Act 1973
The Information Technology Act, 2000
Delhi Ancient and Historical Monuments and Archaeological Sites and Remains Act, 2004
INTACH Charter for the Conservation of Unprotected Architectural Heritage and Sites in In-
dia, 2004
The National Commission for Heritage Sites Bill, 2009
Ancient Monuments and Archaeological Sites and Remains AMASR (Amendment and Valida-
tion) Act, 2010
The Jammu and Kashmir Heritage Conservation and Preservation Act, 2010
Punjab Ancient, Historical Monuments, Archaeological Sites, and Cultural Heritage Maintenance
Board Act, 2013
National Policy for Conservation of Ancient Monuments, 2014
The Arunachal Pradesh Heritage Act, 2015
The Telangana Heritage (Protection, Preservation, Conservation, and Maintenance) Act, 2017
The Ancient Monuments and Archaeological Sites and. Remains (Amendment) Act, 2017

170 GDAŃSKIE STUDIA AZJI WSCHODNIEJ 2024/25

 Cases
Rajeev Suri vs Union of India SC 2021
Sarika vs. Administrator, Mahakaleshwar Mandir Committee, Ujjain MP SC 2020
M.C. Mehta vs. Union of India (UOI) and Ors SC 2019
S.N. Bhardwaj vs. Archaeological Survey of India and Ors SC 2016

Summary
Debarati Pal
Legal Framework on Heritage Protection in India

The article describes the national and municipal legislations on built and living heritage,
antiquities and art treasures and explores the national framework for conserving Intangible
Cultural Heritage in India. It maps the transcendence from the pre-independence Acts to
the post-independence legislation and amendments. The roles and responsibilities of the
stakeholders, including the community were examined.
The text serves as a comprehensive guide to the constitutional background of the
Ancient Monuments and Archaeological Sites and Remains Act 1904, the Ancient Monu-
ments and Archaeological Sites and Remains Act 1958, and the National Policy for Conser-
vation of the Ancient Monuments, Archaeological Sites and Remains, 2014. The text also
examines the roles and responsibilities of various bodies, such as State Heritage Boards,
Heritage Development Authorities and Councils, in conserving ancient monuments, archae-
ological sites, and remains. It also highlights the functional interface of these bodies with
the Municipal Development Authority and Municipal Corporation under the Town and
Country Planning Acts, which play a crucial role in implementing these policies. Moreover,
the text delves into the impact of the Supreme Court’s judicial decisions on the legislative
framework, providing a real-world context and making the text more engaging by illustrating
how the law is applied in practice.
Alternatively, in the executive domain, the role of the Central Government, National
Monuments Authority, Archaeological Survey of India (ASI) and Indian Trust for Archi-
tectural and Cultural Heritage (INTACH) is discussed to calibrate the notions of inclusivity
and community participation. Under the tangible category, the movable heritage properties
posited under the Antiquities and Art Treasures Act of 1972 are also examined.
In the realm of Intangible cultural heritage, the article explores the role of the Sangeet
Natak Akademi in granting protection and inventorising the Intangible Cultural Heritage
of India.
Keywords: heritage protection, India, judicial decision
 Streszczenie
Debarati Pal
Ramy prawne ochrony dziedzictwa w Indiach

W artykule opisano krajowe i miejskie przepisy dotyczące dziedzictwa stworzonego przez

człowieka i naturalnego, zabytków i skarbów sztuki oraz zbadano krajowe ramy ochrony
niematerialnego dziedzictwa kultury w Indiach. Przedstawiono rozwój prawodawstwa,
począwszy od ustaw sprzed uzyskania niepodległości do ustawodawstwa i poprawek wpro-
wadzonych po uzyskaniu niepodległości. Przeanalizowano rolę i obowiązki interesariuszy,
w tym społeczności.
Artykuł zawiera kompleksowe omówienie konstytucyjnego tła ustawy z 1904 r. o staro-
żytnych zabytkach i stanowiskach archeologicznych oraz pozostałościach, ustawy z 1958 r.
o starożytnych zabytkach i stanowiskach archeologicznych oraz ustawy z 2014 r. o krajowej
polityce ochrony starożytnych zabytków, stanowisk archeologicznych i pozostałości. Pod-
dano analizie również obowiązki różnych organów, takich jak Państwowe Rady Dziedzictwa,
Organy Rozwoju Dziedzictwa i Rady, pod kątem ochrony starożytnych zabytków, stanowisk
archeologicznych i pozostałości. Podkreślono przy tym funkcjonalną współpracę tych orga-
nów z Urzędem Rozwoju Miejskiego i Korporacją Miejską na mocy ustaw o planowaniu
przestrzennym, które odgrywają kluczową rolę we wdrażaniu tych polityk. Ponadto zwró-
cono uwagę na wpływ orzecznictwa Sądu Najwyższego na ramy prawne, by zilustrować
zastosowanie prawa w praktyce.
Alternatywnie, w domenie wykonawczej omówiono rolę rządu centralnego, National
Monuments Authority, Archaeological Survey of India (ASI) oraz Indian Trust for Architec-
tural and Cultural Heritage (INTACH) w celu zobrazowania pojęć inkluzywności i uczest-
nictwa społeczności. W ramach kategorii materialnej badane są również ruchome obiekty
dziedzictwa kultury określone w ustawie z 1972 r. o zabytkach i skarbach sztuki.
W dziedzinie niematerialnego dziedzictwa kultury zbadano rolę Sangeet Natak Akademi
w ochronie niematerialnego dziedzictwa kultury Indii.
Słowa kluczowe: ochrona dziedzictwa, Indie, orzecznictwo sądowe