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Indian Government wins stolen Nataraja idol case in British court

https://www.indiatoday.in/magazine/international/story/19880315-indian-government-wins-stolen-nataraja-idol-case-in-british-court-797028-1988-03-15

There was considerable jubilation among Indians in London last fortnight following a landmark judgement in which a British high court ordered the repatriation of a fabled Nataraja valued at close to a million pounds (Rs 2.3 crore) to India. The verdict rung down the curtain on a controversial court battle which began in August 1982 after Scotland Yard seized the Dancing Shiva following a tip-off from the British Museum.

The idol had been sent to the museum by a Calgary-based Canadian firm, Bumper Development Corporation (BDC), for restoration. Company Chairman Robert Borden, a noted art collector had bought the idol for 250,000 (Rs 57.5 lakh) from a London antique dealer, Julian Sherrier who claimed the idol had been in his family's possession for some years.

The Indian Government professed that the Nataraja had been stolen in the autumn of 1976 from the Aril Thiru Viswanatha Swamy Temple in Pathur village, Thanjavur district, Tamil Nadu. Investigations by Tamil Nadu CID under Inspector General of Police Rajasekharan Nair revealed that the idol - buried along with others close to the temple, to protect them from Muslim invaders - had been dug out by thieves and sold to a Madras dealer. The latter sold them to a dealer in Bombay. Then the trail runs cold.

Michael Dollard, art adviser to BDC, said the company had checked out the idol's provenance from the dealer who gave them a clean record. "If we'd found that this was an object stolen from India, we would have returned it," he insisted.

But the Indian Government was not listening. Shiva Natarajas are prized objects and the finest date from the Chola period in the 11th century. This Nataraja - the panchaloha idol - is 100-cm tall and weighs 65 kg. The Government proceeded to sue both BDC and the metropolitan police as co-defendants. It employed well-known lawyers, flew in witnesses, forensic experts and experts in bronzes from Tamil

A British high court judgement in favour of repatriation of a stolen Nataraja idol to India has set a precedent for regaining other priceless treasures.

Nadu. The case was fought by a queen's counsel, Adrian Hamilton, assisted by the persuasive Bhaskar Ghorpade, barrister-at-law. Acting as solicitors for the Indian Government was the London firm. Zaiwalla and Co.

The case marked many firsts. Tamil interpreters were needed as witnesses like Ramamoorthi - who stole the statue from Pathur - and others like Maqbool Hussein, Balraj Nadar and Meivel, receivers of the stolen idol, gave evidence. The plaintiffs also referred to over 40 decisions of Indian courts to plead their case. And, it set a record for an Indian casein the UK - 44 working days. Hamilton and Ghorpade's arguments evoked much legal curiosity. They maintained that "once a deity, always a deity. An idol remains a juristic person however long buried or damaged, since the deity and its juristic entity survive the total destruction of its earthly form." They argued that the temple's rights were not affected by the mere fact of the idol's clandestine removal and export.

If the arguments sounded offbeat, Justice Kennedy's judgement was fascinating. He said he was entirely "persuaded" that the London Nataraja was the Pathur Nataraja. The judge concluded: "A juristic entity. which has a title to the Nataraja, is superior to that of the defendant."

Kennedy's verdict has set alarm bells ringing .in British institutions that hold millions of pounds worth of Indian art treasures. The Victoria and Albert Museum has a collection of 33,000 Indian paintings, sculptures and textiles and the British Museum owns countless Indian religious objects.

The Victoria and Albert Museum has, in fact, stored away some priceless Indian objects and none are available for public viewing. By ruling for the recovery of the Nataraja. the British court could have shown the way for regaining other priceless treasures that have found their way abroad.



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The Nataraja Idol Case Illustrates Padma Bhushan Dr Nagaswamy’s Contribution To Indian Heritage

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Ramachandran Nagaswamy (Piorajasekar/Wikimedia Commons)Ramachandran Nagaswamy (Piorajasekar/Wikimedia Commons)
Snapshot
  • Indian historian and archaeologist Ramachandran Nagaswamy was recently awarded the Padma Bhushan.

    He is at the heart of that landmark case from back in the day, which involved the return of the Nagaraja idol back to India.

    We revisit the case and Dr Nagaswamy’s contribution to its resolution.

 https://swarajyamag.com/culture/the-nataraja-idol-case-illustrates-padma-bhushan-dr-nagaswamys-contribution-to-indian-heritage

History buffs across South India were ecstatic earlier this week – Dr Nagaswamy, the doyen of South Indian archaeology and history, was honoured with a Padma Bhushan, India’s third-highest civilian honour. The 87-year-old historian and scholar has had an illustrious history, including spending many decades with the Archaeological Survey of India. Nagaswamy founded the Tamil Nadu Archaeology Department and served as its director for 22 years.

The recent Padma award to this history icon is a good excuse to revisit a historical case involving a large, exquisitely cast bronze Nataraja belonging to the Chola era, a Canada-based art collector and British courts. Nagaswamy was a key participant in the case, as you will see.

Sometime in 1976, Ramamoorthy, a labourer, was digging out the soil in Pathur, a village in the Kaveri delta district of Thiruvarur. As luck would have it, he discovered a stash of nine Chola bronzes buried on the site he was digging. Instead of reporting the case to the authorities, poor Ramamoorthy got in touch with some people and sold the largest among the idols, the Nataraja, to one Chandran for a measly sum of Rs 200. From there, the bronze appears to have found its way through the smuggling network to London, where it was handed to a London museum renovator to be readied for display in a Canadian museum.

The eventual buyer of the Pathur Nataraja was Bumper Development Corporation from Alberta, Canada. They had paid a princely sum of 250,000 British pounds to acquire the Nataraja from a London dealer called Sherrier, who had produced a false provenance paper for the idol. While the bronze idol was undergoing work, the British police impounded the idol on complaints of theft. It is believed that one of the smugglers who got a raw deal might have tipped off the police.

The British police were then issued a writ by Bumper Development Corporation, who claimed that they had legally acquired the idol. Indian authorities soon got involved and became plaintiffs in the case, saying the bronze was indeed smuggled illegally from India. Indian authorities too appeared to have been tipped off or acquired information as to the origins of Pathur Nataraja and had by now recovered the remaining idols from the stash that Ramamoorthy had discovered.

Among the Indian government’s arguments was to compare the sculptural styles and use the remaining eight bronzes to demonstrate the apparent similarity. All the eight recovered bronzes had been sent to London for the case hearings and along with them went one art historian well-versed in the field. The historian that Indian authorities had sent, was the Tamil Nadu state archaeology department director, and under whom some 25,000 metal images had been registered and studied. As you would have guessed by now, the historian was none other than Dr Nagaswamy.

Against Nagaswamy, Bumper Development Corporation fielded an art historian by the name of Gary Schwindler, then associate professor of art at Ohio University. He was well-known for his PhD dissertation on ‘The Dating Of South Indian Metal Sculptures’. Schwindler’s argument was that while the bronze in contention was indeed a Chola bronze, it was certainly not part of the Pathur group as they were quite different in style.

The judge in the case, Justice Ian Kennedy, now had the duty to study and decide the case on the basis of, among other things, the findings and opinions of the two art historians Nagaswamy and Schwindler.

Schwindler suggested dating the bronzes by comparing the styles with stone sculptures found in temples. The temple sculptures were more accurately dated and if the styles in the Nataraja bronze matched certain temple sculptural styles, then one could reasonably assume the bronze belonged approximately to the same period as the temple.

Nagaswamy, it has been reported, suggested a “more comprehensive approach, using bronzes dated by inscription, bronzes dated by association with temples, comparisons between bronze and stone sculpture, and paleography to build an overall sense of stylistic sequence among Chola bronzes images”.

Three types of scientific fact were considered by the judge as ‘subsidiary evidence’. The first was metallurgical analysis. The plaintiffs wanted to show that both the Pathur Nataraja and the other eight recovered idols had the same metallurgical composition. But the analysis did not help as there was no “established chronological standard” of composition for bronzes.

Entomologists got into the act next, comparing termite runts on the bronzes. Indian authorities wanted to show that both the Nataraja and the other group of idols had similar black marks from termites running across the idols. Soil analysis of fragments still stuck to the bronzes was also tried and compared with the soil at the Pathur site, but this alone couldn’t help arrive at a conclusion as the burial process might have involved soil brought from outside, for example, from river sand.

The judge found Nagaswamy’s arguments persuasive and granted that the Nataraja bronze being contested over was originally from the Pathur temple. The case is even today cited as a great example of a cultural icon being returned to its original owners. The defendants went on to appealwhere they were dismissed; in fact, the Court of Appeal awarded the Pathur temple damages of some 1,000 British pounds. The plaintiffs were also awarded costs totalling around 300,000 pounds.

 

The Nataraja (Photo: Webster-Smalley)The Nataraja (Photo: Webster-Smalley)

 

The Pathur Nataraja idol case remains a landmark even today for a number of legal precedents it set. It recognised the temple and the deity, Shiva, as a jurist entity which could sue or be sued. It caused quite a stir in the antiquities market – with the Pathur Nataraja case settled in the temple’s favour, any antique item stolen from a temple could now be claimed back citing this precedent.

The exquisite Pathur Nataraja, which had probably been buried during the Mohammedan invasions of South India, finally returned with much pomp to its former state of glory after many centuries. On 9 August 1991, the idol was handed over to then chief minister of Tamil Nadu Jayalalithaa. The idol was decked with flowers and pujas were conducted. A plan for renovating the Pathur temple was announced. Among those who received mementos from the chief minister on the occasion of the idol’s return was Dr Nagaswamy. His contribution to the case was widely regarded as critical and has been acknowledged so by many directly involved in the case.

Adrian Hamilton, Queen’s Counsel, London, in his written submission to the courts said, “Dr. Nagaswamy has brought to bear unequalled learning and experience in the historical, cultural, and religious aspects of the Chola Empire and the Hindu religion which flourished and which still flourish in Tamilnad and on the understanding of the inscriptions in the temples and on statues.”

The trial court judge made the following remarks: “..Dr. Nagaswamy, who I am satisfied, is an unequalled expert in his subject...Now considering the matter of style, again I prefer the evidence of Dr. Nagaswamy to that of Dr. Schwindler… I am satisfied that Nagaswamy is right in his summary taking the broader feel and treatment of the main points... I am satisfied that stylistic judgements in relation to Medieval Chola bronzes can not be more precisely determined than when Nagaswamy expressed his conclusions in his evidence.”

In the years thereafter, Nagaswamy would go on to accomplish much in his field. The Tamil Nadu government honoured him with a Kalaimamani award for his work on Periyapuranam, a notable Tamil work from the twelfth century. He brought back art performances into temples by organising the first Chidambaram Natyanjali festivals. That the union government has taken this long to recognise this unparalleled scholar is in fact a matter of shame. The Narendra Modi-led government deserves credit and applause for identifying and honouring scholars such as Nagaswamy.

It would be apt to close with a compliment that the Pathur Nataraja case trial judge, Kennedy, paid Dr Nagaswamy.

In the course of his observations, Kennedy had noted that Nagaswamy’s views put in front of the court were passionately held, and that he was a devout Hindu, and that it was easy to sense that Dr Nagaswamy was “deeply offended at the thought that idols of his Gods should be subject of commerce”.

What a wonderful thing it would be if everyone who had the power to protect and preserve India’s heritage could feel as offended about the current state of affairs as Nagaswamy had about Pathur Nataraja’s theft.

Post-script

The ruined Pathur temple was rebuilt but in a most tragic manner:

“The Tamil Nadu Archaeological Department has lined up and marked all the stones of the old temple for restoration. They had also excavated and found the remains of the temple wall that clearly showed the treasure had indeed been buried in the temple precincts. Only the bronzes were awaited. But soon after they arrived with great fanfare, everything on the site of the temple was bulldozed and a brick and mortar temple raised to house the deities!”



-- Edited by Admin on Friday 17th of August 2018 11:41:04 AM

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When destroyers proved to be the saviours

Lord Nataraja of Pathur Viswanathaswamy Temple in Thanjavur district. Photo: Special Arrangement

Lord Nataraja of Pathur Viswanathaswamy Temple in Thanjavur district. Photo: Special Arrangement  

 

Forensic expert P. Chandrasekaran credits termites as unifiers of Pathur Nataraja with his consort

Their ever-hungry stomachs have devoured many an unknown ancient literary works and other knowledge preserved in palm-leaves for centuries. What great scholars such as U.V. Swaminatha Iyer could restore was only the remnants that escaped their drooling mouth.

Strangely, white ants or termites, the destroyers, proved to be saviours in the case of Tamil Nadu getting back the 1500-year old Pathur Nataraja idol from London.

‘Kazhavupona yen Kadavulum Kaanamalpona yen Kaathaliyum’, a book by noted forensic expert P. Chandrasekaran throws up interesting facts in explaining how the “exploratory termite galleries” became invaluable evidence in the case.

The work of fiction, based on facts, was released on Sunday.

“The Royal Court of Justice accepted traditional knowledge as evidence along with forensic findings in this case,” said Mr. Chandrasekaran, former director of Forensic Department, who made many breakthroughs including in the Rajiv Gandhi assassination case.

The Nataraja and some other idols belonging to Pathur Viswanathaswamy Temple in Thanjavur district were accidentally unearthed in 1976 and the person who found the idols buried them at another site. He later sold the Nataraja idol for Rs.500.

When an alert about the smuggling of the idol was issued, Scotland Yard Police responded, saying that an idol in the archaeology research department of Oxford University possessed all the features of the missing idol.

It had been bought by Canada-based Bumper Development Corporation which had sent the idol for restoration.

“Owner of the Corporation had paid 3,00,000 pounds for the idol. When I asked him why he would pay such a huge amount, he said there was no price too high for the effulgent bliss manifested by the idol,” recalled Mr. Chandrasekaran.

Mr. Chandrasekaran said when the idols were reburied, they were covered with haystack and termites targeted haystack and in the process left termite galleries on the idols.

“I came to the conclusion that the Nataraja idol also should bear the trace of these nest galleries. Though the idol was cleaned a couple of times, fortunately the lower part of the idol was left untouched and I spotted the traces of termite nest. Subsequently, I established my case based on that evidence and won,” Mr. Chandrasekaran said while acknowledging the good work done by J. Ramakrishnan who then worked as the Superintendent of Police of the Idol Wing.

The team involved in the case first used iconometric tests. There were idols of two consorts of Nataraja that had matching measurements in the iconometrics tests and it was a challenge to single out which was the primary idol.

While dealing with the issues, Mr. Chandrasekaran launched into story telling, using a fictional heroine to give guidelines in moving further in resolving the case.

Paru, the heroine of the book, tells him that one idol normally finds its place in the left side of Nataraja and other idol could be a separate deity, placed normally near Pitchandavar, an incarnation of Lord Siva.

“In fact the then High Commissioner of London P.C. Alexander filed a case on behalf of Sivakami, the consort of Nataraja in the court,” Mr. Chandrasekar said.

According to legend, Paravathi came dancing all the way from Himalayas to Chidambaram where the artisan had created the idol with a structure that suited a dancer.

“On the other hand, the other idol has a slightly portly waistline, proving beyond doubt who the real consort was. When I pointed this out to the Judge Ian Kennedy, he agreed and the defence counsel also concurred,” said Mr. Chandrasekaran, while stressing the need for indexing our ancient idols and jewels.

He reasoned that an inventory of idols and jewels would serve no purpose as one could always create fake ones and replace the ancient with the new; the original with the fake.

“Indexing through macro-photograph is the best method to save these idols from being smuggled,” he said.

Each bronze idol is unique as they always bear some mild imperfection and defects inadvertently left behind by the artisan. “But they are also a boon in saving the idols,” he said.

He proceeded to buttress his argument by exhibiting the flawed beauty in a collection of look-alike idols that could be differentiated only by a discerning eye.

https://www.thehindu.com/news/national/tamil-nadu/when-destroyers-proved-to-be-the-saviours/article3824957.ece



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The ‘London Nataraja’

R.Smalley, January 2010. Copyright.

Introduction

In August or September 1976 an Indian labourer who lived near the site of a ruined Hindu temple at Pathur (Arul Thiru Viswanatha Swamy Temple), in the state of Tamil Nadu, uncovered a metal object (the ‘Pathur Nataraja’) while excavating foundations for a new cow shed. This object was known locally as a Siva Nataraja and was shown to belong to a family of bronze Hindu idols called the Pathur Bronzes. It was subsequently dated to the Chola period (9th to 13th Century) and was probably buried to prevent discovery by invading Muslims. The farmer sold the idol to a dealer in religious artefacts and eventually it ended up with a Bombay dealer (who was untraceable at the time of court proceedings).

State officials in Tamil Nadu had learnt of the various sales associated with the idol and had begun their own investigations but by 1982 the whereabouts of the object was still unknown. In June of that year Robert Borden, of the Bumper Corporation of Canada, bought a Nataraja in good faith from a London dealer called Sherrier (who later produced what was found to be false provenance documents for the object). Bumper obtained a permit to export the bronze from England but did not do so as they were advised it required conservation. The ‘London Nataraja’ was taken to the British Museum for assessment and conservation but later seized by the Metropolitan Police as part of an operation to return stolen religious objects to their rightful owners. Bumper then brought a claim against the Police for the return of the object and damages.

The Trial

There were five claimants in the case: 1. Union of India 2. State of Tamil Nadu 3. Thiru R. Sadagopan, claiming as the fit representative of the Temple 4. Arul Thiru Viswanatha Swamy Temple 5. Sivalingam. This was another surviving object of religious worship from the Temple. It is a sculptured stone phallus and in a temple of its period would have been positioned in the sanctum to be the focus of worship. It was restored as an object of worship at the Temple after its rediscovery

There were two main issues: 1. Identity – that the ‘London Nataraja’ was the one and the same as the ‘Pathur Nataraja’ 2. Title – If they were the same, who of the claimants had the superior title to the object

Identity

The case stating that they were the same object was supported by expert evidence on stylistic grounds of similarity between the ‘London Nataraja’ and the Pathur Bronzes and expert evidence of a metallurgical, geological and entomological nature.

Bumper’s case was supported by Dr. Presencer (considered an honest witness) who stated that he’d seen the antique object (note that it was agreed that the item was antique and showed signs of having been buried for many centuries) in London in May 1976, before the other was unearthed, and therefore they could not be the same. Metallurgical evidence was also produced to show dissimilarities between the ‘London Nataraja’ and the Pathur Bronzes.

The English trial judge, Mr Ian Kennedy, found that the ‘London Nataraja’ was the same as the one uncovered in India in 1976. He believed Dr. Presencer to have been mistaken to the date on which he’d seen the antique Nataraja.

Title

The Judge concluded that the institution comprising the Temple (the 4th claimant) had title to the Nataraja. If it had not been the 4th than the 5th, then the 3rd had good claims for title and the 2nd would have also had title under provisions of the Treasure Trove Act and/or Tamil Nadu law (H.R. and C.E. Act).

The precedent for this was in a case from India in 1925 – Mallick v Mallick. The legal principle says “A Hindu idol is according to the long established authority founded upon the religious customs of the Hindus and the recognition thereof by the courts of law in India and the Privy Council, a juristic entity. It has judicial status with the power of suing and being sued.” This had been an English decision – that a Hindu deity is a personality of its own and can sue or be sued in a court of law. They applied the principle that once a deity always a deity and so the principle continued to be relevant in the 1980s.

The Judge concluded “the pious intention of the 12th century notable.. who built the temple…remains in being and is personified by the Temple itself, a juristic entity which had title to the Nataraja superior to that of the defendant.”

 
The 'London' Nataraja. Source: Ghandhi & James, 1992.

The Appeal

Bumper appealed against both findings and wanted the Court of Appeal to consider if Mr Justice Kennedy was entitled to make the assessments that he made. The Court of Appeal stated that the Judge “was fully entitled to come to the conclusion which he reached on each aspect of… the case.”

Identity

Further evidence was admitted by Bumper which had not been previously available. An American dealer, Robert Ellsworth, testified that an antique Nataraja was being offered for sale in London in Easter of 1974. He had examined it briefly and he identified it as the disputed object bought by Bumper. They also included evidence of soil analysis showing that the size and colour of soil particles on the object differed from samples taken at the excavation pit at the Temple. The Court upheld Kennedy’s findings on the issue of identification.

Title

The Court held that the Temple was acceptable as a party to proceedings and as such entitled to sue for the recovery of the Nataraja in the English courts through the 3rd claimant, although he himself was not a competent party.

It considered whether a foreign legal person who would not be recognised as a legal person by our own law, could sue in the English courts? Here we had what was essentially little more than a ‘pile of stones’ wishing to sue. The Courts used Salmond in Jurisprudence (12th ed, 1966) as a reference, where it was considered possible that a foreign Roman Catholic Cathedral could have a legal personality in its own country and maybe given the ability to sue for the protection and recovery of its contents. “The touchstone for determining whether access should be given or refused is the comity of nations… - the courteous and friendly understanding by which each nation respects the laws and usages of every other, so far as may be without prejudice to its own rights and interest”. It would only enhance public policy to allow a Hindu Temple to sue here for recovery of its property to which it was entitled to recover by the law of its own country.

Note that the Court accepted that the Sivalingam would be recognised in Tamil Nadu as a juristic entity which could also sue through its representative at the Temple. However as the Court had decided in favour of the Temple it was not necessary to decide if the Sivalingam would be considered a juristic entity in the eyes of English law.

It was considered that the public policy of promoting the return of stolen artefacts, and those exported in breach of regulations, at least where the country is a friendly state and a member of the Commonwealth, was to be applauded and helps ensure the courts make a contribution to the international protection of cultural property.

Note that the Court found that the Treasure Trove Act did not apply – contrary to Kennedy’s decision – because it could only apply to items that were ‘ownerless’. As the Temple was determined to have remained in existence and that the bronzes had been hidden to prevent removal by invaders, it followed that the bronzes had never left the possession of the Temple and therefore had never been ownerless.

Post Appeal

The Court of Appeal and the House of Lords awarded the Temple damages of £1000 and awarded the plaintiffs, jointly, costs totalling £303,489.67. The Nataraja was entrusted to the Indian High Commission in London and later returned to India.

Bumper then appealed to the Canadian courts. Bumper resisted enforcement saying that the judgement was contrary to the public policy of Canada, as reflected by its accession to the UNESCO Convention. Bumper counterclaimed for compensation from India for the loss of the bronze and for the English costs.

Bumper had five defences to the registration of the English judgements in Alberta: 1. that the judgements of the English courts were obtained by fraud on the English courts 2. that India could not, as a co-signatory of the UNESCO Convention, pursue its claim for costs and damages 3. that the English judgements were contrary to public policy 4. that one of the named Indian plaintiffs (the Temple) had no status in Alberta 5. that the Indians are not entitled to interest on the English judgement debts

Fraud

The Alberta court felt there was no newly discovered facts which were not before the foreign court and from which it could be deduced that the foreign judgement has been obtained by fraud

Equity

The Alberta court rejected Bumper’s claims

Public Policy

This point is of interest to cultural property lawyers due to Canada’s status as a signatory to the UNESCO Convention. Although the UK was not a signatory the courts were able to justify the return of the object under common law principles – although at the cost of the innocent purchaser being left without the right to claim for compensation (it could have if the UK had been a signatory and had implemented the Convention).

Bumper argued that by bringing proceedings in England the Indian claimants should not be able to enforce their award in Alberta. The Court rejected this on the basis that there was good reason for the claimant to go to the English courts – not least the location of the item. The provisions of the UNESCO Convention don’t allow for a situation where property is returned by one state when its innocent purchaser resides in another.

Standing

Bumper argued that the Temple had no legal status in Alberta. The Court stated it was likely they would have dealt with the issue in the same way as the English courts did.

Interest

The Court dismissed this argument too. So long as the foreign judgement stipulated payment of interest, then interest was payable.

 
Siva Nataraja. Source: Wikipedia

Conclusion

The UK Courts decisions caused apprehension in the antiquities market because if a religious artefact found in the UK could be traced to a ‘living temple’ then that Temple could pursue a claim to ownership.

The novel question was whether a foreign legal person who would not be recognised as a legal person by our own law could sue in the English courts. This was a first in the UK – where a Hindu Temple could sue for stolen property in England.

Also of interest is that the Sivalingam (a phallic stone idol) was ruled as having greater title than the Bumper Corporation.

The results show that the English courts will do what they can to ensure the return of cultural property to its rightful owner. The arguments themselves, the principle of comity and the criterion of public policy will ensure a wider application of the decision. It was therefore a welcome development in the arena of the international protection of cultural property.

 

 

 


'Sources'

BENNETT, W. 1990 Statue of Siva in landmark case for religious artefacts. The Independent, 5 July

CASEBY, J. 1991 Hindu temple wins back stolen God. Press Association, 14 February

GHANDI, S. & JAMES, J. 1992 The God That Won. International Journal of Cultural Property, Vol.1, Issue 2, pp.369-382

HERBERT, S. 1991 Law report: Hindu temple can sue for return of stolen property. The Guardian, 5 March

HUTCHESSON, P.(ed.) 1991 The all England law reports 1991. Volume 4. London: Butterworths

PATERSON, R.K. ? The 'curse of the London Nataraja'. Case notes from unknown publication - International Journal of Cultural Property?

RAKESH, M. 1991 British courts free Siva icon. Press release from unknown publication



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How countries are successfully using the law to get looted cultural treasures back

 
image

Photo of one of the Kneeling Attendants courtesy of Flickr Creative Commons.

For two decades, a pair of monumental statues guarded the entrance to the Southeast Asian galleries of the Metropolitan Museum of Art in New York City. These days, all that remains of them are two faint patches on the floor where they stood until a year ago.

On May 20, 2013, the millennium-old statues, known as the Kneeling Attendants, disappeared. They were gently wrapped, crated and moved to a backroom so they could be returned to Cambodia, their country of origin.

 

The Kneeling Attendants date back to the 10th century, the heyday of Cambodia’s Khmer empire. They were part of a temple complex called Koh Ker. In the early 1970s, when Cambodia became engulfed in a turbulent civil war, looting was rampant, and Cambodia’s rich collection of temples was robbed of statuary and other valuable examples of the Khmer empire’s cultural heritage.

The Kneeling Attendants were cleaved neatly along the feet to separate them from their base before disappearing into the murky shadow world of smuggled art. Eventually they surfaced at the Metropolitan Museum of Art, cut into four pieces.

When the statues arrived in the United States in the late 1980s and early 1990s, the question of provenance was an afterthought. Moreover, Cambodia—still struggling to recover from its civil war and political instability—was unlikely to press a case over the antiquities.

But Cambodia and other war-torn nations have come to recognize that large portions of their cultural heritage have been lost to looters and disreputable art dealers, and they have begun to publicize the losses in a concerted effort to get these antiquities—and their cultural heritage—back. Museums, facing a spate of bad publicity and recognizing their role in protecting cultural heritage, have begun to tighten up internal policies regarding provenance.

Over the past few years, the Cambodian government, with the aid of UNESCO and a range of researchers and archaeologists, has been on a mission to retrieve the looted statues of Koh Ker’s Praset Chen temple.

When officials from Cambodia approached the Met in June 2012 with reams of evidence in its favor, there was little argument to be had. The Cambodian government also secured the return or the promise of return of Koh Ker statues from the Christie’s and Sotheby’s auction houses and the Norton Simon Museum in Pasadena, California, while several other American museums are investigating the provenance of their own Koh Ker statues.

“What we went on was the evidence that there was the physical remains of these objects on the site of the bases from which they had been separated at some point,” says John Guy, the curator in charge of the Met’s Southeast Asian collection. “That in itself was disturbing for us. And that led us to research this more thoroughly and reach the decision we reached.”

image

During the brief period (928-944 A.D.) when Koh Ker was the capital of the Khmer empire in Cambodia, many exceptional carvings were produced, including the Kneeling Attendants, seen here at the Metropolitan Museum of Art in New York City. The carvings were repatriated last year. Photo courtesy of Flickr Creative Commons.

A WARM WELCOME HOME

On June 11, 2013, the Kneeling Attendants received an ecstatic greeting upon arrival in Phnom Penh, where they went on temporary display a few days later. In a dramatic scene, the statues were lowered to the tarmac as the tropical night was falling and the front of their crates opened for all to see. High-ranking government officials and Buddhist monks kneeled in front of the statues and offered a blessing. Days later, Prime Minister Hun Sen—Cambodia’s controversial strong-arm leader—was photographed placing a jasmine garland around the neck of one of the statues and kissing it.

Since then, Cambodia has succeeded in getting other Praset Chen pieces returned. Late last year Sotheby’s settled a case against it by promising to repatriate a $3 million statue of the fictional Hindu warrior Duryodhana. This year both the Norton Simon Museum and Christie’s announced within days of each other that each would return Koh Ker statues.

The return of the Cambodian antiquities mirrors an ongoing shift among American and European arts institutions. But it has hardly been a smooth transition, and repatriations are rarely settled as neatly as was the return of the Kneeling Attendants. In May, for instance, the Cleveland Museum of Art announced that an investigation by one of its curators concluded that an ancient statue in its collection did not come from a temple in the Koh Ker complex, as Cambodian officials had alleged. Cambodian officials did not immediately comment on the finding.

“The museum profession and the whole sort of attitude toward collecting shifted over time,” Guy says. “The same expectations and assumptions don’t operate in one generation that operated in the previous generation. All of these factors come into play in something like this.”

The Met’s move represents an about-face even for itself. For decades the museum resisted returning the Euphronios Krater, a 2,500-year-old Greek vase looted from a Roman tomb. In 2006, 25 years after the museum acquired the piece, it negotiated a deal to return it and other items to Italy in exchange for art loans and Italy’s waiving the right to pursue legal action.

Laws governing cultural heritage didn’t begin coming into existence until the second half of the 20th century. Instead, arts institutions quietly carried out dealings with the illicit art market, and curators were far more focused on making a name for themselves and their collection than the ethical and legal implications of such practices. If pressed—even to this day—some directors might argue that culture belongs to the entire world, or that host country institutions are in a far better position to care for works than those of their home countries.

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Cambodia’s rich complex of ancient temples held priceless examples of its cultural heritage. Left largely unguarded during a period of civil unrest, they were ransacked and the artifacts were sold to foreign collectors and arts institutions, some of which showed little concern about their provenance. AP Images/Aragami

SHIFTING PUBLIC OPINION

As countries of origin grew savvier about seeking the return of their looted artworks, public opinion began shifting from seeing arts institutions as protective to unduly possessive—unfairly holding on to works to which they had no right.

Tess Davis, an archaeology and heritage law expert at the Scottish Centre for Crime and Justice Research at the University of Glasgow who focuses on the illicit antiquities trade in Southeast Asia, says the recent repatriations represent a changing opinion. “There has been a shift in the way museums treat suspect antiquities, as we see in the behavior of the Metropolitan in New York,” she says. “In the 1980s, when presented with evidence that one of their prized acquisitions had been looted from Turkey, the Met strongly fought repatriation through the courts. But this year, to their credit, the museum voluntarily returned two looted statues to Cambodia without waiting for a lawsuit or court order. I do believe that some—most, I hope—museums have changed because it’s the right thing to do. But even the less moral institutions must realize that dealing with looted art—and especially war booty—is bad for business.”

Increasingly, museums are turning to a collaborative model, inking elaborate deals with countries of origin that ensure cross-cultural cooperation, special exhibitions and other perks to make the loss of an artwork worthwhile. Publicity has doubtless played a role.

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A detail of the Elgin Marbles—currently on display at the British Museum in London—which once adorned the Parthenon and other buildings on the Acropolis. They were acquired from the Ottoman Empire in the early 1800s by a British Ambassador. Photo courtesy Wikipedia Creative Commons.

Britain—which has a stringent law forbidding the removal of collections within the British Museum—has faced a barrage of bad press in recent decades over its refusal to repatriate the Elgin Marbles, a group of sculptures that were looted from the Parthenon in Athens in the early 19th century and later sold to the British government. Protests outside the British Museum by incensed Greeks and their supporters occur on occasion and today even the majority of the British population believes they should be returned.

The Met, on the other hand, has seen an unusual outpouring of positive press in response to its decision to repatriate.

“The media response has been very positive,” allows the Met’s Guy. “Often the good stories are not the ones that get picked up, so this has been a very positive experience.”

But it’s been a slow change, heritage experts note. After two decades battling Turkey, which claimed that a statue known as Weary Herakles had been illegally squirreled out of the country, Boston’s Museum of Fine Arts repatriated the statue in 2011 and admitted that it had never verified the statue’s provenance.

One of the few museums to employ a full-time provenance expert, the MFA these days puts a weighty emphasis on due diligence. “It is necessary for the MFA not to repeat the mistakes of our past,” wrote the curator of provenance, Victoria Reed, in an article in the spring 2013 DePaul Journal of Art, Technology and Intellectual Property Law.

Ricardo A. St. Hilaire, a sole practitioner in Lebanon, New Hampshire, who practices cultural property and museum law, says that recent moves by the Met and the MFA represent the best efforts made by arts institutions, but that some continue to avoid the greater trend.

“I think there’s been a shift in public attitude. In terms of museums, I’ve seen some move in a positive direction and some not at all,” says St. Hilaire, a past vice-chair of the Art and Cultural Heritage Law Committee of the ABA Section of International Law. “Museums are more alert now to probing where certain objects come from—antiquities, WWII art and the like—I think museums are looking at that,” he says. “There is movement, but there is more to do—across all levels.”

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Part ownership of the upper portion of the sculpture known as Weary Herakles was obtained by the Boston Museum of Fine Arts from a German dealer. It was later found to match the lower portion excavated in Turkey, which reclaimed it in 2011. Photo courtesy of Looting Matters.

A LEGAL EVOLUTION

International conventions, laws and enforcement have followed a similar evolution. A 1970 UNESCO convention on the “Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” gave signatories the ability to seek return of illicitly obtained cultural treasures and set guidelines for collectors. A number of countries began passing their own cultural patrimony laws, some of which verge on the draconian (such as Italy’s, which asserts patrimony rights onto every artwork more than 50 years old and claims the right not just to the antiquity but to any reproduction).

But legislation pertaining to the global pool of antiquities has been spottier. In 1983, the U.S. passed the Convention on Cultural Property Implementation Act, its own interpretation of how the UNESCO convention should be adhered to. The U.S. measure contains relatively broad powers of interpretation given to a committee of the U.S. Department of State that can decide to what degree other nations’ restrictions on exported cultural property will be followed.

The UNESCO convention and its complementary 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects remain the key frameworks for guiding how institutions and legal bodies around the world address illegal art and antiquities. Countries that are parties to the 1970 convention vow to put in place appropriate laws to combat looting and trafficking, while the later one aims to balance the complexities of the “good-faith buyer” by demanding a level of due diligence.

“Its effect on the art market, which has tended to be reluctant to reveal the origin of cultural objects and where buyers are not unduly curious, will be immediate,” the UNIDROIT Convention notes in its overview.

The implementing statute passed by the U.S. Congress set forth terms for import and export but also regulates how the country judges claims made by other convention signatories. The act established an 11-member cultural property advisory committee in the State Department that reviews requests made by other countries. If the committee determines, for instance, that “the cultural patrimony of the state party is in jeopardy from the pillage of archaeological or ethnological materials of the state party,” it can choose to deny the request.

A second law, the National Stolen Property Act of 1934, also became an important tool in combating illegal cultural heritage trade after the landmark 1974 case out of the 9th U.S. Circuit Court of Appeals at San Francisco, United States v. Hollinshead. After prosecutors successfully used the law to seek conviction of traffickers of pre-Columbian antiquities from Guatemala, the NSPA has been a popular complement in the fight against smugglers.

But while the U.S. legislation makes sense within our judiciary, the country has come under criticism for its role in and response to the UNESCO convention.

“U.S. input during the negotiation for the 1970 UNESCO convention and its subsequent ratification and implementation into domestic law significantly limited the operation of the instrument,” argued heritage law professor Ana Filipa Vrdoljak, in her 2006 book International Law, Museums and the Return of Cultural Objects. “Nonretroactivity was a primary U.S. concern during the 1970 UNESCO convention deliberations.”

Today, even though more than a dozen bilateral agreements prohibiting the import of illicit antiquities have been put into place by the U.S. State Department, they don’t apply retroactively. Anything that has slipped over the borders ahead of the date is fair game, says Todd Swain, an expert on national resource protection who works for the National Park Service.

“I go to a bunch of different countries around the world, and the issue comes up every time. If you go to Guatemala, the Guatemalans will say there’s a bunch of Guatemalan stuff in the U.S. and we want it back. But how can we definitively prove in court that these Mayan pieces are absolutely, positively from Guatemala? And even if we can, how can we show what year they were removed and what law was in effect when they were removed?”

Swain, who has spent more than 20 years as a special agent at the National Park Service investigating and teaching about antiquities and archaeology theft across the globe, says the laws in place in the U.S. make it extremely difficult for home nations to mount a legal battle.

The National Stolen Property Act requires the country seeking return of looted works to prove they had been stolen within its borders, or that they had been taken after the date of whatever relevant provenance law came into effect. The burdensome requirement makes it all but impossible to press a criminal case.

“With antiquities, I could have 10,000 Khmer artifacts in my house and it would be incumbent on someone to prove that they’re ill-gotten. That’s basically impossible to do. I’m sure it’s maddening for these source countries that have been victimized for years. Ethically and morally they should get back their cultural and historical heritage,” he says, “but historically the laws weren’t set up that way.”

“The onus is very much on the origin country; it’s very hard to prove patrimony,” says DePaul University law professor Patty Gerstenblith, a past co-chair of the ABA’s Art and Cultural Heritage Law Committee.

Until the Sotheby’s case was settled out of court in December, the U.S. government was battling it on Cambodia’s behalf. The case, which was extremely rare, highlighted the near impossibility of legally fighting patrimony claims.

“To establish that a cultural object is stolen property, the U.S. would have to show that the country had a national ownership law, that there is enforcement of this law internally within the country, and that the object left the country after the date that law went into effect,” Gerstenblith explains.

“It can look very unfair to a country in Cambodia’s situation. I can see many reasons for saying it should go back, but the U.S. law is what it is. Unless it is changed, I would say both governments would have a very difficult time” proving this case.

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A marble sculpture dating to the 4th century B.C. shows a fallen doe being attacked by winged griffins. It was purchased by the Getty Museum in 1985. Years later authorities discovered Polaroid photos at the warehouse of an antiquities middleman, who admitted the sculpture had been looted from Italian ruins. Photo courtesy of Chasing Aphrodite.

THE PRIVATE MARKET

While museums and auction houses remain the focus in disputes over looted antiquities, an even larger problem looms when it comes to the private market.

Every year, thousands of illegal antiquities are smuggled across America’s borders. They come via the postal service or commercial couriers like FedEx. They come hidden, like drugs, inside innocuous objects. They come in crates mislabeled by origin. They come in boxes accompanied by false manifestos.

But in nearly every case, the only thing that happens is an item is voluntarily surrendered and the smugglers walk away scot-free, St. Hilaire says. The customs officials seize the object and file a forfeiture complaint, and the importer chalks it up to the cost of business.

“I wouldn’t change the law. I would change the focus on enforcement. There needs to be an emphasis on true law enforcement,” he adds, “as opposed to just forfeiture cases.”

An increasing pursuit of civil forfeitures (the number approximately doubled from the 1990s to 2000) has been a boon for American diplomacy. The return of thousands of antiquities has earned it plaudits across the globe and served as a much-needed PR boost. But a photo op is hardly a deterrent for smugglers.

“Law enforcement currently focuses on seizing and repatriating looted antiquities, rather than prosecuting those who loot, traffic, sell and buy them,” explains Davis from the University of Glasgow. “This policy has created much goodwill toward the U.S. in countries like Cambodia, which has greatly benefited from the hard work of Immigration and Customs Enforcement and other federal agencies, but it is not adequately deterring the illicit antiquities trade. And thus many in the art market continue to act with impunity.”

“I think the only thing that’s a deterrent is criminal prosecution,” Gerstenblith says. The financial windfall that is the illicit antiquities trade means the occasional loss of an item can simply be considered an operating cost, much like in drug trafficking.

“Some stuff gets lost, but it’s just a bit of overhead given the markup,” Swain says. “On the dollar, the local person gets 50 cents, the runner gets 74 cents, the first importer gets $1.50, next gets $2.50, then it gets to the dealer in the U.S. and they sell for $100. There’s profit being made every stretch of the line and that’s what keeps people in the game.”

“In the U.S., [law enforcement officers] historically go after looters, but it’s the buyers that grow demand. As long as museums will buy antiquities for collections or private collectors will buy them, there will still be people taking the risk.” By Gerstenblith’s estimate, there have been approximately 30 to 40 civil forfeiture cases in the past decade—and perhaps three or four criminal cases.

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A Pakistani police officer inspects stolen antiques in Karachi. Reuters/Athar Hussain

A STAGGERING PROBLEM

The biggest cases, however, have been staggering and hint at just how widespread the trade is. New York art dealer Subhash Kapoor was arrested in Germany in 2011 and extradited to India in 2012, where he awaits trial for overseeing a global smuggling ring. Separately, the U.S. government issued a warrant for his arrest in July 2012.

ICE—which carried out a four-year investigation at the request of India—ultimately uncovered nearly $100 million worth of stolen antiquities at his Manhattan gallery and various storage units. A statement issued by ICE about the haul suggested Kapoor was “one of the most prolific commodities smugglers in the world today.” Kapoor’s arrest was followed by the October 2013 arrest of his sister, whom the Manhattan district attorney charged with four counts of criminal possession of stolen property. Sushma Sareen alone is accused of hiding $14.5 million worth of statues while federal authorities carried out their raids.

While the cases move forward, museums across the world have begun to carry out their own investigations into items they have purchased from Kapoor. By the count of Chasing Aphrodite—a website run by a pair of former Los Angeles Times investigative reporters who track looted antiquities—at least 240 objects can be traced to museums such as Australia’s National Gallery, the Los Angeles County Museum of Art and the Metropolitan Museum of Art. Kapoor faces trial in Chennai for the looting of temples there, but India is just one area on a list of exploited sites. He is believed to have used his network of smuggling rings to move illicitly procured items from Pakistan and Afghanistan—two countries whose instability have made them ripe for plunder.

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Iranian artifacts recovered from Syria are displayed in Baghdad. Reuters/Ceerwan Aziz

The reason Khmer antiquities flooded the market is that a decade of turmoil made them an easy target. Unrest coupled with attractive cultural heritage is a fairly simple key to predict the area from which the next influx of antiquities will emanate.

In addition to Khmer antiquities from war-ravaged Cambodia, collectors during the past few decades have been attracted to Mayan artifacts (from Guatemala), Egyptian artifacts, Iraqi artifacts and antique Balkan coins. Today, Syria, Afghanistan, Pakistan and Iraq are among the top contenders for looting.

Davis says that while “cultural heritage has always been a casualty of war,” the commodification of antiquities has made them even more vulnerable to armed conflict.

“War is an expensive business,” she says. “So as long as there is a market for these so-called blood antiquities, there will be a supply. At best, those who purchase such pieces are contributing to the destruction of the world’s cultural heritage. At worst, they may be prolonging conflict by funding, even indirectly, those who wage it.”

This article originally appeared in the July 2014 issue of the ABA Journal with this headline: “Looted Beauty: Bolstered by a growing body of international and domestic law, more countries are successfully gaining the return of looted cultural treasures.”


 

Abby Seiff is an American journalist based in Phnom Penh, Cambodia.



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Stolen Indian statue, Shiva Nataraja, to go home during Tony Abbott visit

The prime minister will hand back the $5.6m, 900-year-old statue to India at a formal reception on Friday

shiva nataraja

 Shiva Nataraja dances in the foreground of Asian art at the National Gallery of Australia in Canberra. It is going home to India. Photograph: Alan Porritt/AAPhttps://www.theguardian.com/world/2014/sep/05/stolen-indian-statue-shiva-nataraja-to-go-home-during-tony-abbott-visit

Tony Abbott will hand back the 900-year-old bronze Hindu “dancing shiva” – taken from India without permission by cultural traffickers – during his trip to close a deal providing Australian uranium to India.

The $5.6m Shiva Nataraja, which was bought by the National Gallery of Australia (NGA), was to be handed over at a formal reception at the presidential palace on Friday, after the Indian government requested its return in March.

A $300,000 stone Shiva with Nandi will also be returned.

The Shiva has been an irritant in the Australia-India relationship since the Indian government said the statue was taken from a temple in Tamil Nadu in contravention of its cultural property laws.

The statue was sold to the NGA through an Indian-born antiquities dealer, Subhash Kapoor, who is accused of organising a $100m smuggling ring. Kapoor was arrested in 2011 and extradited to India.

Although Australia is a signatory to the Unesco convention on prohibiting the illicit export of cultural property, it was unclear whether the government would return the statue.

As late as last November, NGA’s lawyers suggested no “conclusive evidence” had emerged to demonstrate the statue was stolen or illegally exported.

But in December, Kapoor’s office manager, Aaron Freedman, pleaded guilty in the New York supreme court to six counts of criminal possession of stolen property. The Shiva Nataraja was among the items listed as being illegally exported from India.

“This information represents a significant and concrete development in the available information regarding the Kapoor case,” the NGA statement said.

“The gallery has instructed its American attorneys to commence legal proceedings against Subhash Kapoor in accordance with the provisions of our acquisition agreement.”

 

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Bumper Development Corp., Ltd. v. Commissioner of Police of the Metropolis and Others


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Bumper Development Corp., Ltd. v. Commissioner of Police of the Metropolis and Others

(Union of India and Others, Claimants)

England, Court of Appeal, Civil Division, 1991.

In 1976, an Indian laborer named Ramamoorthi, who lived near the site of a ruined Hindu temple at Pathur in the Indian state of Tamil Nadu, was excavating sand when his spade struck a metal object. The object was part of a series of bronze Hindu idols from the Chola period (ninth to thirteenth century A.D.); among these was a major idol known as the Siva Nataraja (or Pathur Nataraja because of its place of discovery).[1] Ramamoorthi realized that he had discovered something of value and he eventually sold the Pathur Nataraja to a dealer in religious objects. The Pathur Nataraja was in turn sold several times, with the last identified buyer being a man named Valar Prakash, who could not be traced but was last seen in Madras.

About the time that these sales were occurring, state officials in Tamil Nadu learned of them and began criminal investigations. Statements were taken from Ramamoorthi and others about the discovery of the Pathur Nataraja and its subsequent history. As of 1982, however, the whereabouts of the idol was unknown.

Although the Pathur Nataraja was lost, several other artifacts found at the temple site in Pathur remained at that place. Among them was a stone object of religious worship known as a Sivalingam.[2] In the typical Chola-period Hindu temple, this stone would have been positioned in the sanctum and would have been the focus of religious worship. Following its discovery, the Sivalingam was reinstated as an object of worship at the site of the ruined temple in Pathur.

In June 1982, Bumper Development Corp., Ltd. (Bumper) purchased in good faith in London a Siva Nataraja (the London Nataraja) from a dealer named Sherrier, who had produced a false provenance[3] of the idol for the purpose of making the sale. Bumper then sent the idol to the British Museum for appraisal and conservation. While the London Nataraja was at the British Museum, it was seized by the London Metropolitan police in compliance with the British government’s policy of returning stolen religious artifacts to their owners. Bumper then brought this suit against the Commissioner of Police of the Metropolis of London and two of his officers seeking return of the London Nataraja.

At the trial, five claimants intervened in the case. They were the Union of India (the first claimant), the state of Tamil Nadu (the second claimant), and Thiru Sadagopan on his own behalf (as the third claimant) and on behalf of the temple itself (the fourth claimant). The Sivalingam, which had been reinstated as an object of worship at the temple site in Prathur after the trial had begun, was later added as an additional claimant (the fifth claimant). All of the claimants asserted that they were the rightful owners of the London Nataraja, which they claimed was one and the same as the Prathur Nataraja.

The trial court judge, Judge Ian Kennedy, held that the evidence of Ramamoorthi and others who had seen the Prathur Nataraja in 1976, as well as expert metallurgical, geological, and entomological evidence, proved that the Prathur Nataraja and the London Nataraja were one and the same. The judge also held that the temple at Prathur and the Sivalingam both had superior title to the Nataraja and that they were entitled to possession of the idol. Bumper appealed to the Court of Appeal.

The Court of Appeal first held that the evidence supported Judge Kennedy’s conclusion that the London and Prathur Natarajas were the same. It then held that the law of the state of Tamil Nadu regarded the temple at Prathur as a juridical entity that possessed the right to sue and be sued and to own and possess property. The Court of Appeal then considered whether or not English law would look upon the temple as a legal entity.

LORD JUSTICE PURCHAS:

* * *

Having held that the temple is a legal person under the law of Tamil Nadu acceptable in the courts of that state as a party which, with the third claimant acting as representative, could have sued for the recovery of the Nataraja, we must now decide whether, as the judge held, it is likewise acceptable in the courts of this country .

The question whether a foreigner can be a party to proceedings in the English courts is one to be determined by English law (as the lex fori).[4] In the case of an individual no difficulty usually arises. And the same can be said of foreign legal persons which would be recognized as such by our own law, the most obvious example being a foreign trading company. It could not be seriously suggested that such a company could not sue in the English courts to recover property of which it was the owner by the law of the country of its incorporation.

The novel question which arises is whether a foreign legal person which would not be recognized as a legal person by our own law can sue in the English courts. The particular difficulty arises out of [the] English law’s restriction of legal personality to corporations or the like, that is to say the personified groups or series of individuals. This insistence on an essentially animate content in a legal person leads to a formidable conceptual difficulty in recognizing as a party entitled to sue in our courts something which on one view is little more than a pile of stones.

There is an illuminating treatment of legal personality in Salmond on Jurisprudence,[5] from which we take two passages:

Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases. Those which are actually recognized by our own system, however, are of comparatively few types. Corporations are undoubtedly legal persons, and the better view is that registered trade unions and friendly societies are also legal persons though not verbally regarded as corporations…. No other legal persons are at present recognized by English law. If, however, we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application, and that there are several distinct varieties, of which three may be selected for special mention. They are distinguished by reference to the different kinds of things which the law selects for personification. 1. The first class of legal persons consists of corporations, as already defined, namely, those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus[6] of the legal person are termed its members…. 2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a church or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality, not to any group of persons connected with the institution, but to the institution itself. Our own law does not, indeed, so deal with the matter. The person known to the law of England as the University of London is not the institution that goes by that name, but a personified and incorporated aggregate of human beings, namely, the chancellor, vice-chancellor, fellows, and graduates. It is well to remember, however, that notwithstanding this tradition and practice of English law, legal personality is not limited by any logical necessity, or, indeed, by any obvious requirement of expediency, to the incorporation of bodies of individual persons.

Thus Salmond recognizes the possibilities which may not be farfetched, of (say) a foreign Roman Catholic cathedral having legal personality under the law of the country where it is situated; and, in order to make the concept more comprehensible, let it be assumed that it is given that personality by legislation specifically empowering it to sue by its proper officer for the protection and recovery of its contents. It would, we think, be a strong thing for the English court to refuse the cathedral access simply on the ground that our own law would not recognize a similarly constituted entity as a legal person. The touchstone for determining whether access should be given or refused is the comity of nations, defined by the Shorter Oxford English Dictionary[7] as:

The courteous and friendly understanding by which each nation respects the laws and usages of every other, so far as may be without prejudice to its own rights and interests.

Arguing from the example of a Roman Catholic cathedral and in the belief that no distinction between institutions of the Christian church and those of other major religions would now be generally acceptable, we cannot see that in the circumstances of this case there is any offense to English public policy in allowing a Hindu religious institution to sue in our courts for the recovery of property to which it is entitled by the law of its own country. Indeed we think that public policy would be advantaged….

* * *

We therefore hold that the temple is acceptable as a party to these proceedings and that it is as such entitled to sue for the recovery of the Nataraja.

* * *

For the reasons set out in this judgment we dismiss the appeal on the ground that Judge Ian Kennedy correctly decided that the temple had a title to the Nataraja superior to that enjoyed by Bumper.

Notes

[1] A Siva Nataraja is a representation of the Hindu god Siva (or Shiva), the destroyer, who is one of the three chief Hindu gods (Brahma, the creator, and Vishnu, the preserver, being the other two). As the Court of Appeal said: “The Siva Nataraja can be described in a thumb-nail sketch as the god standing with his right foot upon a dwarf and surrounded by a `halo’ which represents the flames issuing from the mouths of two crocodiles situated to the left and right of the dwarf. At the top of the halo in some Natarajas there is to be found a design either in the form of a mask or a rosette or similar adornment known as a ‘Kurti Muka.’ Round the halo there are a number of `flames’ issuing radially from the halo. Depending upon the period when and the area in which they were made the Siva Natarajas vary in many respects. The one with which this appeal is concerned is circular; but many others are oval in shape. The Nataraja with which this appeal is concerned had a lotus base mounted on a square-shaped peedam or pedestal.

“Returning to Siva, the design again varies according to date and place. The Chola Natarajas have a number of identifying features. . . . The god has two right and two left arms and hands but only two legs, right and left. He has on each side of his head horizontally flowing hair described as jettas. Various objects and representations are imposed upon or incorporated in the jettas, including a particular one called a `ganga.’ In one of his right hands and around the wrist there is coiled a snake-a cobra. In one of his left hands he holds another flame. . . .”

[2] The Court of Appeal described it as “a carefully fashioned stone object representing a phallus.”

[3] From French provenir: “to come forth with” or “to originate.” A provenance is the history of ownership of a valued object, work of art, or literature.

[4] Latin: “law of the forum.” The law of the state where the court hearing a case is located.]

[5] Pp. 306-308 (12th ed., 1966).

[6] Latin: “body.” ]

[7] 3rd ed., 1944.



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UK court orders return of priceless Nataraja to India

 
 

After 12 years in exile it is finally returning home. A priceless Nataraja bronze in the cosmic dance form - coveted by art collectors - is to be returned to the Viswanathaswami temple at Pathurin Tamil Nadu's Thanjavur district next month.

The rare 100-cm-tall, 65 kg 12th century Chola bronze is to be handed back by a Canadian oil firm, Bumper Development Corporation (BDC), which reportedly bought it for Euro 1,50,000 (Rs 37.23 lakh) - now worth $2.5 million (Rs 3.25 crore).  

 
P. Chandra Sekharan with laser analyse
The verdict proved the success of new scientific methods used by the Tamil Nadu Police to authenticate icons spirited from India 

After a six-year-long battle in the Royal Court of Justice, London, Judge Ian Kennedy passed a landmark verdict enabling the country to retrieve the stolen objet d'art. The judge noted that BDC couldn't retain the idol as it was obtained through clandestine channels.

For the Tamil Nadu Police, the verdict also proved the success of the new scientific methods they have developed to authenticate priceless icons spirited from India. They marshalled the evidence of archaeologists, entomologists, forensic experts and even flew the smugglers, through whose hands the Nataraja passed, to London to give evidence. "It was a test case.

 
 

Besides proving the idol's identity, we have been able to evolve methods for future identification," says K.K. Rajasekharan Nair, inspector-general of police who handles antique theft cases.

The method evolved by Indian investigating agencies is intricate but increasingly successful. The first test is to compare the idol with others of the same group for similarities in composition and ornamental work. The state Government presented eight idols of the Pathur temple in the London court. Professor P. Chandra Sekharan, head of the state's Forensic Department, produced cutouts of photographs of the Nataraja and other idols pasted on a sheet for comparison. They were found to fit perfectly in size and design.

 

But a close inspection of the idols showed equally irrefutable evidence of the presence of exploratory galleries (covered runways) of termites. Says Sekharan: "A termite gallery in a metal object is rare. What was striking in this case is the similarity in the galleries in the Nataraja and other bronzes."

Sekharan emphasises that detailed photo indexing and finger printing of idols is necessary to distinguish originals from fakes. Says he:' 'This is more laborious than the new scientific methods, but it's more reliable." Two idols of the same measurements made by the same sculptor may seem similar to the casual viewer.

But the chisel work, as on the crown (see picture), in both is totally different. "The chisel work is made by a special type of engraver called the keeruthinnam. The details are like fingerprints," explains Sekharan.

 

Identical looking idols with different chisel work on crowns: Minute differences
Scientists are now taking X-ray photographs for indexing antiques. The radiographs of idols, like fingerprints, have identifiable characteristics. Each casting will have unique features due to differences in foundry practices which cannot be seen in ordinary photographs. One advantage of radiography is that minute defects of forensic importance may be detected on the interior of the castings without marring the piece.

Emboldened by their success. the police has convinced the Government to employ a superior technique - laser holography - to record three dimensional images. Scientists at the Indira Gandhi Centre for Atomic Research in Kalpakkam near Madras say this identifies casting cracks in idols. This prevents the making of fakes as the inner cracks can't be reproduced.

The scientific classification of the idols giving features like dimensional characteristics, casting defects, chemical composition and physical parameters could prevent illegal sale. "This technique is the most authentic to identify ah idol," says a scientist of the centre.

The state has now decided to set up a special court to take up the long list of cases against idol-lifters and is buying a laser holography system by the year end to beef up its documentation facilities. Once all that is done, they are confident the idol smugglers will be just that - idle.

https://www.indiatoday.in/magazine/society-the-arts/story/19880915-uk-court-orders-return-of-priceless-nataraja-to-india-797665-1988-09-15



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