India is an ancient civilisation with astonishing beauty. It is enriched with remarkable culture and traditions or those physical artifacts and intangible legacies that are inherited from the past and which remain highly signi?cant to generations of the present and the future. Heritage of a country is of great signi?cance as it provides a sense of identity and continuity amongst the people in this era of rapid changes. Heritage of a country represents the past history and culture of a nation. It is the identity of that nation and has exceptional universal as well as individual value. Indeed, India’s heritage can be described as multi-millennial in age, oceanic in size, and rainbow-like in variety. After all, the ‘India’ as we know it today is a result of thousands of years of assimilating diverse cultures.

The cultural heritage of India is not only treasured and cherished by the people but is also preserved and protected by the Government. Keeping in mind the importance and signi?cance of a country’s valuable assets, even the British Government had felt the need to preserve our heritage and hence the Ancient Monument Preservation Act, 1904 was enacted to exercise control over exploration in certain places and for the protection and acquisition in certain cases of ancient monuments.

The Government of India Act, 1935 the subjects related to monuments, archaeological monuments, archaeological sites and the remaining fell within the ambit of Entry 15 of the Federal Act. However soon after independence when the Constitution of India was drafted it divided the jurisdiction over these monuments, cultural heritage, and archaeological sites as follows:

Union List Entry 67 : Ancient and Historical Monuments and Archaeological sites and remains, declared by Parliament, by law to be of national importance.

State List Entry 12: Ancient and Historical Monuments other than those declared by Parliament to be of national importance.

Concurrent List Entry 40: Besides the above, both the Union and States have concurrent jurisdiction over archaeological sites and remains other than those declared by law and Parliament to be of national importance.

Hence giving power to the state governments to enact laws for the protection and preservation of the heritage at their own individual levels.

The Constitution of India has also provided for the protection of monuments under Article 49 of the Constitution, Directive Principle of State Policy, wherein -

Protection of Monuments and Places and Objects of National Importance –

‘It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be’.[1]

Though Directive Principles of State Policy are not mandated provisions as they are not enforceable, they hold an equal status as Fundamental Rights guaranteed by the Constitution. Hence, this Article is given importance and is followed.

It is also a fundamental duty of a citizen under Article 51A of the Indian Constitution to conserve and preserve our monuments. It is national responsibility to safeguard these resources as scienti?c source material and as an enduring basis for the experience of present and future generations and for their self awareness, enjoyment and activities.

After the coming into force of the Constitution of India, the Parliament of India enacted a law namely Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 which was later modi?ed into The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASRA). However, there existed many lacunas which were yet to be brought into the ambit of this legislation. Therefore, to ?ll this void, Rules were framed under the act very recently in 2011. The rules are called Ancient Monuments and Archaeological Sites and Remains (Framing of Heritage Bye-laws and Other Functions of the Competent Authority) Rules, 2011. These rules are formed under Section 38 of AMASR Act, 1958. These Rules also provided a layout for similar other aspects to be taken into consideration. Rule 2(b) de?nes Competent Authority as the national monument authority constituted under Section 28 of the AMASR Act, 1958.

The functions of the Competent Authority are described in Rule 4 elaborately. An authority is prepared under the Rules of a statute only to protect our monuments, power of authority given under Rule 4 of the 2011 Rules. Power to which is vested on them under Rule 18 where competent authority based on material evidence in its possession is of the opinion. For instance in Delhi, Nizamuddin Dargah/Dome is under renovation. There is a need to take permission since if no permission is available , it will account to violation under the purview of law.

To govern and regulate the laws related to the ancient and historical monuments, two authorities have been established which are National Monuments Authority (NMA) and Archeological Survey of India (ASI).

National Monuments Authority (NMA) under the Ministry of Culture, Govt. of India has been set up as per provisions of The Ancient Monuments and Archaeological Sites and Remains AMASR (Amendment and Validation) Act, 2010 which was enacted in March, 2010. Several functions have been assigned to the NMA for the protection and preservation of monuments and sites through management of the prohibited and regulated area around the centrally protected monuments.[2]

Archaeological Survey of India regulates all archaeological activities in the country as per the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. It also regulates Antiquities and Art Treasure Act, 1972. It maintains and has a duty to ?nd out the ancient sites and heritage sites in India. It is the premier organization for the archaeological research and protection of the cultural heritage of the nation. Maintenance of ancient monuments and archaeological sites and remains of national importance is the prime concern of the ASI.[3]

A heritage lost once is lost forever. In years many historic monuments have been destroyed, invaluable works of art and manuscripts are discarded without documentation and records. Example of such an incident can be taken from the destruction of Nalanda University, Bihar wherein the whole university, home to an ancient library was destroyed by ?re when Mughals had invaded India. In the present times of changing shifts in world history there is a necessity that future generations be able to experience the richness and wonders of our Indian heritage. India’s heritage is the world's oldest, deep rooted and multifaceted culture. It has witnessed from the era of Ramayan, Mahabharat, Rajputana Regime, Mughals invasion, British Colonisation to Independent India. Along with the religious and social changes traced along with time. There is a responsibility to protect our environment and our heritage whether it is preserving the character, beauty and greenery of our locality or conserving the glory of those monuments which are of national importance. To attain all these goals legislation is the cheapest and most effective method of heritage protection. The ?rst step towards protection of our heritage is the development of heritage policies, regulations, and guidelines at national, state, regional and local level. India has a legislative framework to preserve its heritage as well as its past, remnants and ancient sites.

Even the indian judiciary has made several pronouncements such as in Sh. Noor Mohd. Ali vs Union of India[4], Guwahati High Court has given an interpretation of Rule 10 of AMASR Rules, 1959 and the restriction on the use of the property and enjoyment of property in the protected area. Similarly in another case Harsh Barua vs State of Madhya Pradesh[5], Madhya Pradesh High Court had given an interpretation of AMASR Rules 1959 following the Supreme Court judgement Wasim Ahmed Sahid vs Union of India[6] where the court has also seen the reasonable restriction can be implemented or imposed by the Archaeological Department for the protection of monuments and heritage sites. In the case of Hotel Jawahar International Pvt Ltd vs Archeological Survey of India[7] the courts have also interpreted for protection of heritage. Even the Kerala High Court[8] has intervened and made a distinction. Even in the capital of the country Delhi High Court in a case Maharana Pratap Residence Welfare Association C Block vs. Union of India[9] have also interfered to safeguard the damage or danger to the monuments in question. The Delhi HC in Heritage and Cultural Forum vs. Union of India[10] has intervened to protect the ?rst heritage of ancient monuments like Begumpuri Masjid built during the reign of Feroz Shah Tughlaq. The Begumpuri Masjid was built by Khan Jahan, the Prime Minister of Feroz Tughlaq. Therefore, all across the country different High Courts are quite active and prompt in protecting the heritage of the country.

From the above judicial pronouncements it will be evident that the legislature was active and as well as the judiciary also intervened as and when required for the protection of monuments, heritage buildings, archaeological sites and so like that.

By :

SHIV SHANKAR BANERJEE,

Former Standing Council, Department of Finance, Ministry of India

Former Standing Council, ESI

Advocate Supreme Court, Phone no: +91 98302 13870

Email Address- shivshankar_banerjee@yahoo.com,

Research Assistance – Parthvi Ahuja, Prapti Singh, Riya Bansal, 4th Year, Vivekananda Institute of Professional Studies, Guru Gobind Singh Indraprastha University.