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  • Priyam Indurkhya

The Bumper Development Case: Madras HC goes a long way in reinforcing the International........

This article has been authored by Priyam Indurkhya, a second-year student at National Law Institute University, Bhopal, currently pursuing B.A.LL.B. (Hons.) course.


The Bumper Development Case: Madras HC goes a long way in reinforcing the International Law on Cultural Heritage


A Division Bench of the Madras High Court comprising Justice R. Mahadevan and Justice P.D. Audikesavalu has delivered a judgment on 7th June 2021, issuing a set of 75 directions for the preservation of historical monuments and temples in Tamil Nadu. Experts have hailed this judgment as a milestone in heritage management and even compared it to the landmark judgment of the English Court of Appeals in Bumper Development Corporation v. Commissioner of Police of the Metropolis (1991). Seen in this context, this piece attempts to analyse the judgment of the court in light of the international law on cultural heritage as well as the international best practices in the field of heritage management.

Brief Background


The state of Tamil Nadu homes more than 42,000 temples, several of them being more than two thousand years old. These temples are not only places of worship, but are also repositories of knowledge and treasure houses of arts & architecture. Of these temples, around 38,000 are under the control of the Hindu Religious and Charitable Endowments (HRCE) Department of the government of Tamil Nadu. The management of temple lands, funds, properties, the upkeep of temples, and their renovation is the responsibility of the HRCE department. However, the past few years saw numerous cases reporting the mismanagement of temple funds, theft of temple jewels, idols and valuables, smuggling of antique artefacts, and deterioration of temple structures due to unplanned renovation. Finally, the Madras High Court took suo motu cognisance of the issue based on a report published in ‘The Hindu’ titled ‘The silent burial’, which pointed out the inaction of the government in establishing the Heritage Commission. While around 47,000 acres of temple land were in the hands of encroachers, the HRCE department which is the custodian and administrator of temple properties was indifferent to the prevailing circumstances. Expressing its disappointment over such dormancy, the court noted, “The custodians of magnificent and antique temples and historic monuments are indifferent, and the preservation of our treasured heritage is deteriorating not as a result of natural disasters or catastrophes, but as a result of careless administration and upkeep.” (para 1.1)


Given the grim state of affairs, the court, acting in the capacity of parens patriae, took upon itself the protection of the historic monuments including temples, antiques, idols, manuscripts, murals, among others and issued a set of 75 directions to concerned authorities for strict compliance.

Directions of the Court


After a thorough analysis of the report submitted by the amicus curiae and the suggestions of the UNESCO fact finding mission on heritage management in Tamil Nadu, the Bench issued a set of detailed guidelines. It directed the Tamil Nadu government and the Archaeological Survey of India (ASI) to constitute a 17 membered Heritage Commission comprising the representatives of the HRCE department and ASI, renowned historians, anthropologists, chemical analysts, and experts of Agama and Shilpa Shastras. Besides advising the state government on heritage issues, the Commission is also tasked with identifying the monuments, structures, temples and antiques of historical and archaeological importance, and categorising them according to their age and preservation needs. It is additionally entrusted with supervising their repair, restoration and maintenance works.


The judgment also requires the constitution of State Level Expert Committee and District Level Committees comprising qualified Staptathi (traditional temple architect), experts from history, iconography, epigraphy, Fine Arts, Agama experts, and mural experts alongside the representatives from archaeology and HRCE department. These Committees shall be required to ­ensure the systematic repair and renovation of temples; lodge complaints against the illegal sale of temple lands; take action to retrieve them; evict encroachers, and prepare an inventory of idols, jewels, valuables, artefacts, paintings and other valuable possessions of the temples. The HRCE department is directed to construct strong rooms with video surveillance and alarms in the temple premises. Other significant directions include regular appointment of temple trustees; regular salary to temple staff as per Minimum Wages Act; launching courses on heritage management; regular and independent audit of temple funds, and establishing a special tribunal for settling disputes relating to heritage, tradition, recovery of temple lands and other issues relevant to heritage management.


The judgment also noted that it would be incommensurate just to protect the monuments and heritage sites as the history, traditions, knowledge and practices associated with that monument should also be preserved and passed on to the next generation. It observed that the practices such as performing daily temple rituals, chanting Vedic hymns, performing traditional music, dance and drama, and organising festivals are intricately interwoven with the existence of the temple ecosystem. Therefore, the court directed the state to appoint trained Archakas (temple priests), Oduvars (hymn chanters), folklore and drama artists, and musicians in temples to ensure that these traditional practices do not go into oblivion.

Reinforcing the principles of international law on cultural heritage


The judgement palpably reinforces the principles of international law on cultural heritage. Cultural rights are an indispensable part of human rights recognised in international instruments. The right to participate in cultural life is recognized in human rights instruments, particularly in article 27 of the Universal Declaration of Human Rights and article 15, paragraph 1 (a), of the International Covenant on Economic, Social and Cultural Rights. The scope of these rights includes the “access to and enjoyment of heritage in its tangible, intangible, natural and mixed manifestations”. Thus, preservation of cultural heritage is significant from the perspective of international law. A significant corpus of international law on cultural heritage comes from the multilateral treaties and conventions adopted under the auspices of UNESCO.


Recognising the importance of cultural and natural heritage, the Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’) was adopted by the UNESCO in 1975. Having ratified the Convention in 1977, India is duty bound to protect, conserve, present and transmit the cultural and natural heritage of the nation for the benefit of its future generations (Article 4). Moreover, to effectuate the same, the Convention requires the state to counteract the dangers that threaten its cultural or natural heritage by taking appropriate legal, scientific, technical, administrative and financial measures (Article 5). Thus, the judgement ensures the compliance of articles 4 and 5 of the World Heritage Convention by identifying the threats to the cultural heritage of the state and directing the authorities to prioritise the repair and renovation of temples by taking technical and scientific expertise of the UNESCO.


Furthermore, one of the major highlights of the judgment besides the protection of tangible and visible aspects of heritage is the emphasis placed by the Bench on the preservation of traditional community practices passed on from generation to generation. Observing that an art can survive as long as it is being practiced, the Bench ordered the state to ensure the continuance and promotion of practices like the Vedic chanting in temples, performing traditional music, dance and drama, playing traditional instruments, among others. Interestingly, the Convention for the Safeguarding of the Intangible Cultural Heritage (‘Intangible Heritage Convention’) was adopted by the UNESCO in 2003 with the similar objective of safeguarding the intangible cultural heritage including oral traditions, performing arts, rituals, social practices, traditional skills and crafts. Being a party to this Convention, India is committed to safeguarding, developing and promoting the intangible heritage of the country (Part III of the Convention). The directions of the court in the judgment concur with the aims and objectives of the Convention and remind the state to fulfil its obligations not only under the national law (Article 49 of the Constitution of India), but also under international law.

Learning from the international best practices


The initiative of the World Heritage Committee (WHC) named ‘the Recognition of Best Practice in World Heritage Management’ encourages the state parties to learn from the best practice case studies of different nations in preserving their heritage sites. In that regard, the management of the Historic Town of Vigan in Philippines, which was chosen as the best practice model by the WHC can be a learning experience for India. The Vigan authorities engaged the local community as the primary stakeholders of the tangible and intangible cultural heritage of the historic city. They trained the locals as tourist guides and supported traditional artists and craftsmen, thus empowering the local community of the historic city. This instilled in the minds of the community a sense of belongingness and shared ownership of their heritage. As a result of the integration of community knowledge and governmental efforts, Vigan has not only sustained its cultural heritage, but also thrives as a primary destination for visitors from Northern Philippines.


Similarly, the case of Kazan Kremlin in Russia is a unique example of how the blend of conventional (tourist sightseeing, museum events, conferences etc.) and innovative (interactive screens and booths, QR codes, historical reconstruction events, conducting massive cultural fests such as the Kremlin Live) methods can effectuate the restoration, conservation and preservation of a heritage site.


The judgment of the Madras HC, directing the inclusion of the local community in protecting the tangible heritage (by engaging Stapathis trained in Agama & Shilpa Shastras) and intangible cultural practices (by engaging Archaks, Oduvars, temple musicians) is similar to the best practices adopted by the Vigan authorities. Moreover, the introduction of heritage management courses, digitalisation of records, creation of strong rooms in temple premises, promotion of scientific and technological framework in renovation activities, etc. resonates with the international best practices in heritage management.


Besides engaging the community, the Bench has also directed the state government to collaborate with the Archaeological Survey of India, non-governmental agencies and international bodies to benefit from their expertise in heritage management. In this regard, it is pertinent to mention the success story of the Cultural Heritage Administration (CHA) of the Republic of Korea. The CHA, with an active collaboration with UNESCO and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), has been not only able to preserve the Complex of Koguryo Tombs, but also create education, training and research opportunities in cultural heritage conservation in Asia-Pacific. Similarly, as directed by the Bench, India can benefit by engaging organisations like UNESCO, ICCROM, ICOMOS, which have been working for the cause of heritage preservation for years given that the preservation of heritage monuments requires specialised scientific and technical expertise. Their specialisation in preventive conservation technique can certainly come in handy in the Indian scenario.

Conclusion


Overall, the directions of the Madras High Court in the present judgment are indeed breakthroughs in heritage conservation. The judgment not only lays down a concrete framework of heritage management, but also reminds the state of its obligation under the World Heritage Convention and the Intangible Heritage Convention of the UNESCO. The way forward lies in adopting international best practices by engaging the local community and international bodies in heritage conservation process. Acknowledging the role of various stakeholders will certainly help in streamlining the process. As pointed out by the UNESCO report submitted before the court, the HRCE department has neither sufficient staff nor the required competence to singlehandedly manage the affairs of 38,000 temples of the state. It is time we acknowledged that conservation, renovation and upkeep of monuments with rich heritage is not simply ‘yet another maintenance activity’. It requires a blend of traditional knowledge of scriptures like Agama and Shilpa Shastras, as well as scientific and technical expertise of specialised bodies in the field of heritage management.


In essence, dedicated efforts towards heritage preservation and synergy between state authorities, central agencies, non-governmental organisations, local community and international bodies is the need of the hour and only such a method of conservation will ensure that the ‘things of beauty’ stand tall and strong and continue to give ‘joy forever’.

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