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#Kohinoor: bottle the indignation, Britain has no legal obligation to return it

Saurav Datta | Updated on: 10 February 2017, 1:51 IST

"Colonialism" and "imperialism" are dirty words - no one denies that. No one denies either that the colonialists plundered cultural artefacts from the nations they dominated.

However, making cogent, legitimate and legally-sound claims for reparations for atrocities the imperial powers inflicted upon the native populations is one thing. Clamouring for repatriation of artefacts - a famous jewel, say - by riding high only on the hollow rhetoric of cultural nationalism, is another thing altogether. It's nothing but a nosiy circus.

Yet, this is the gist of the "bring back the Kohinoor" courtroom battle being fought in the Supreme Court. The court has said the case must be adjudicated so that "Britain does not get the temerity to refuse India's legitimate claim" to the diamond.

This is a symptom of the cultural arrogance and ignorance of history that has beset this case, and the noise it has generated.

The Narendra Modi regime told the Supreme Court that the Kohinoor was a "gift" to the British East India Company, which ruled India for two centuries. The claim is inaccurate: the British took the diamond as a spoil of war.

After the second Anglo-Sikh war of 1848-49 led to the decimation of the Sikh empire founded by Ranjit Singh, the British deposed the 12-year-old Maharaja Duleep Singh through the Treaty of Lahore and annexed Punjab. The Marquess of Dalhousie-James Brown Ramsay- who went on to become Lord Dalhousie, who executed the treaty, made sure that the dethroned boy-king went to Britain and handed over the Kohinoor to Queen Victoria. This was all as per a clause in the treaty. It's thus fallacious to say the British "looted" the diamond.

The British didn't loot the Kohinoor, they took as a spoil of war. Can they be compelled to return it?

Beyond reach

As for the legal case, the apex court has overstepped its jurisdiction by entertaining the petition of the NGO All India Human Rights and Social Justice Forum on the return of the Kohinoor.

It's a purely diplomatic issue between New Delhi and London, one in which courts should not intervene. There is, in fact, no provision in international or domestic law that would apply to this case. There is a 1970 UN treaty called the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, but it does not apply to spoils of war.

This treaty could possibly cover the Parthenon Marbles, the statues which Thomas Bruce, Earl of Elgin, took from Turkey in the 18th century after the British had vanquished the Ottoman Empire. Bruce took the mendacious plea that he had the statues yanked off their pedestals and shipped to the British Museum - where they remain housed to this day - because the Turks were neglecting them.

Ankara and London have been enaged in a protracted legal battle over the fate of the Parthenon Marbles. In 2014, lawyers representing Turkey, Amal Clooney and Geoffrey Robertson, declared they would even approach the International Court of Justice if Britain continued to refuse to return the exquisite statues. However, there has been no action on that front yet.

The treaty could also possibly apply to the pillage of Baghdad Museum by American soldiers, who took away priceless artefacts of the Mesopotemian civilization and sold them on the black market.

The Nazis looted an enormous stock of art from the countries they occupied. This could also be covered by the UN treaty although Germany has a special legislation for this purpise, the Holocaust (Return of Cultural Objects) Act, 2009.

Slippery slope

It's noteworthy that not one prevalent law terms the plunder of cultural riches by the colonial powers as "illicit".

India's Antiquities and Art Treasure Act, 1972 empowers the Archeological Survey of India to work for bringing back cultural artefacts from abroad. It only applies to cases of smuggling, however.

So, the Indian demand for the return of Kohinoor is grounded in little more than jingoist rhetoric. With the RSS having jumping on the bandwagon, and demanding that the Modi government pull out all stops to get the diamond, the issue has taken on the hue of a full-blown cultural nationalism fracas.

In this scenario, the words of James Cuno are quite insightful. In a Foreign Affairs article in 2014, the president of J Paul Getty Trust, which owns and runs the Los Angeles' Getty Museum, wrote, "Promotion of cultural purity, borne of uncertainty, can produce dangerous, often violent, xenophobia."

"Kohinoor Wapas Lao" is simply a chrous of misplaced postcolonial angst, apart from being a publicity stunt by the NGO that knocked on the Supreme Court's doors. It is indeed vexing that despite this being the case and given the prevailing legal circumstances, the court got involved.

'Kohinoor Wapas Lao' is simply a chrous of misplaced postcolonial angst, argues @SauravDatta29

Edited by Mehraj D. Lone

First published: 18 April 2016, 11:25 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.