On January 2, 2017, the Lok Sabha committed what could be called a ‘monumental mistake’ by passing The Ancient Monuments and Archaeological Sites and Remains (Amendment) Bill, 2017 which substantially weakens the existing legal regime protecting our national heritage by allowing the government to approve construction near extremely weak and endangered buildings.
In 1955, Prime Minister Jawaharlal Nehru brought to the attention of his education minister the dangers facing historical sites in New Delhi due to construction near the structures. This eventually led to the passage of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 to protect and preserve historical sites and ancient monuments.
The Act was further strengthened through an amendment in 2010 whereby statutory buffer zones were created around ancient monuments. Section 20A of the Act declared 100 metres around a protected monument as a ‘prohibited area’. Section 20A (4) bans any form of construction within the prohibited area so as to protect the monument from any future activity which may endanger it. Section 20B established 200 metres around a monument as a ‘regulated area’, in addition to the prohibited area. Therefore, a total of 300 metres radius around the monument forms a protective buffer zone. If anyone owns any building or land within the regulated area and wishes to carry out any construction or re-construction or repair or renovation of such building or structure on such land, then that person needs to get a clearance from the competent authority, i.e., the officer not below the rank of director of archaeology or commissioner of archaeology of the central or state government. The Act empowered the central government to increase the prohibited areas around the monument beyond the statutorily prescribed minimum radius if certain historical sites require additional protection. The Act also created the National Monuments Authority (NMA) to oversee the protection of the monuments and to act as an oversight on the functioning of the competent authorities.
While replying to the debate in the Lok Sabha before the passage of the 2010 amendment, the then minister for culture Veerappa Moily made it very clear that the legislative intent of the law is to prohibit construction within the prohibited area and that future governments have to plan projects in a way that will not require any interference with the prohibited area.
The Ancient Monuments and Archaeological Sites and Remains (Amendment) Bill, 2017 creates an exception to the prohibition of construction within the prohibited zone. Clause 3 of the Bill states that ‘public works’ maybe carried within the prohibited area, after the approval from the competent authority. The term ‘public works’ has been defined under the Bill as ‘construction works related to infrastructure financed and carried out by any department or offices of the central government for public purposes which is necessary for the safety or security of the public at large and emergent necessity is based on specific instance of danger to the safety or security of the public at large and there is no reasonable possibility of any other viable alternative to such construction beyond the limits of the prohibited area.’ One may argue that, though ambiguously worded, a public works project is an exceptional type of project based on a specific threat perception.
However, the note submitted by the Ministry of Culture to the Union cabinet mentions how an elevated road could not be built near Akbar’s tomb in Agra or how a hospital could not be extended near the palace of Tipu Sultan in Bangalore and how a train project near the Rani-ki-vav in Gujarat was forced to undergo changes in design due to the existing legal regime; therefore, the note concludes that the existing Act should be amended. Even if one accepts the argument that public work constructions should be allowed within the prohibited area, the definition of ‘public works’ should be applied very narrowly and strictly and not liberally in order to cover routine infrastructure projects such as building of roads and railway lines. However, the examples cited in the note indicates that the government intends to apply the definition of ‘public works’ in a liberal manner.
If there is any dispute about whether a particular project qualifies as ‘public works’, the matter shall be referred to the NMA which can make recommendations to the central government, and the Centre shall have the final say on the matter. This places arbitrary powers in the hands of the Centre, especially since it may have an interest in seeing projects cleared due to political gains in the short run.
The government may argue that sufficient checks and balances are built within the proposed legislation because the NMA shall make an assessment on the impact of the public works on the monument concerned and make recommendations to the central government, and the Bill states that no construction may be allowed unless the NMA is satisfied that that there is no reasonable possibility of any other viable alternative for shifting such construction works beyond the limits of the prohibited area. The devil, however, lies in the details, because the Bill states that construction will be allowed only if the NMA is satisfied that there is no other alternative venue. It does not state that construction will not be allowed if the assessment of the NMA finds that irreparable damage will be inflicted on the monument, rather it can make only recommendations to the government. The NMA does not have the mechanism to determine the feasibility of projects and the ability to look at alternative areas for the proposed construction. Apart from its inability to undertake such exercises, the NMA’s mandate cannot be to determine the alternative routes for projects.
The NMA is understaffed and also lacks financial resources to undertake the mandate prescribed under the Bill. It also lacks institutional autonomy and is heavily dependent on the government. Some former members have also pointed out that the NMA is sometimes even subjected to pressure to clear projects. The CAG report, 2013 revealed that the competent authority used to submit projects for clearance by the NMA without even the enclosing the site-plans and that many of the applications were not made even in the prescribed form. Therefore, to place the onerous task of analysing projects near monuments on the NMA through the proposed legislation, without even reforming it to act as a robust efficient institution, shows the lack of foresight on the part of the government.
It must be kept in mind that decisions of committees, especially those controlled by the government, cannot be accepted as gospel truth. In 2009, the Archaeological Survey of India (ASI), through an expert committee, had given permission for construction near Humayun’s Tomb in Nizamuddin East. This was quashed by the Delhi high court, which upbraided the ASI. This is one such instance of bodies entrusted to protect monuments, acting in a manner contrary to their mandate.
Even under the present legal regime with a blanket prohibition on construction within prohibited areas, in an answer to a question in the Lok Sabha, on December 18, 2017, the minister of culture admitted that 321 monuments had been encroached upon. Now if exceptions are made to the blanket prohibition, what is the assurance that the number of encroachments won’t increase? The CAG report of 2013 had revealed that there was a severe shortage of staff in the ASI. The report revealed that out of the 1,655 monuments which were physically inspected, 546 of them were encroached. The ASI does not even have the resources to deploy a full time attendant for every monument in India.
Leading historians, including Irfan Habib, Romila Thapar and Mridula Mukherjee, have pointed out that ancient structures are highly susceptible to heavy vibrations, chemical changes or any other form of mechanical stress. One can only imagine what the fumes of automobiles and vibrations of heavy vehicles may do to a 400-year-old Mughal structure if a road is built within the prohibited zone. Thapar pointed out that “no historical argument is final and there is always the possibility of some new evidence being discovered even about a monument in the future. So that possibility has to be protected. If you do away with what might be new evidence by building right up to the site, then you are destroying the reading of history”.
Section 20E of the Act mandates the enactment of heritage bye-laws for all protected monuments. These bye-laws are needed to control the electricity, water, drainage, facades associated with the monuments as part of the efforts to preserve them. However, on April 10, 2017, the minister of culture, in a response to another Lok Sabha question, admitted that no bye-laws had been prepared under Section 20E.
Unfortunately, instead of strengthening the existing laws and institutions to protect our national heritage, as mandated by Article 49 of the constitution, the government seems to be more interested in clearing projects. Our historical sites and ancient monument are tangible reminders about our diverse and glorious past and heritage. They deserve to be protected so that they can remain living oracles of history for our future generations. A nation which does not respect history is a nation which lacks humanity.
Arvind Kurian Abraham is a lawyer based in Delhi.