Kohinoor Diamond: History, Government Stand & UNESCO’s convention

In April 2016, a Supreme Court bench headed by Chief Justice T S Thakur on hearing a PIL filed by Delhi-based NGO All India Human Rights and Social Justice Front sought the government’s stand on the retrieval of the 105-carat Kohinoor diamond from Britain. Ministry of Culture has stated that the diamond was a “gift” to the East India Company by the then ruler of Punjab. Supreme Court then asked the government to file an affidavit putting across its stand by saying a dismissal of the PIL may be interpreted as India giving up its right to claim the Kohinoor diamond.

Important Facts

Origin and History of Kohinoor

There are two versions of origin of this diamond. First version is that it was mined in 13^th century in Kakatiya Territories {near Guntur in modern Andhra Pradesh}.  It was under possessions of Kakatiya Rulers until Malik Kafur, the general of Alauddin Khilji raided Warangal and possibly acquired this gem. It remained with Khiljis and then passed on to several Delhi Sultanate dynasties until came into possession of Babur and successive Mughals. Another version says that it was discovered in 1650s in the diamond mines of Golkonda and was presented by Mir Jumla to Shah Jahan, who got it embedded into the peacock throne.

When Nadirshah attacked Delhi in the aftermath of battle of Karnal, the treasury of Delhi was looted and Kohinoor went into hands of Persians along with peacock throne. However, Nadir Shah was killed in 1747 and once his empire collapsed, Kohinoor came into hands of Ahamed Shah Abdali. From Ahamad Shah, the stone passed on to Shah Shuja Abdali. When Shah Shuja was overthrown, he fleed to Lahore where Maharaja Ranjit Singh gave him refuge. The diamond thus came into possession of Maharaja Ranjit Singh.

Maharaja Ranjit Singh died in 1839 and the stone went into possession of his son Duleep Singh. In 1848-49, the second Anglo-Afghan war led to annexation of Sikh Kingdom into territories of East India Company. The fate of Duleep Singh was sealed by 1849 Treaty of Lahore. This treaty had clauses regarding annexation of Pnjab and its all state property into the territories and assets of the East India Company. This treaty also had a clause regarding Kohinoor diamond as follows:

“The gem called the Koh-i-Noor, which was taken from Shah Sooja-ool-moolk by Maharajah Runjeet Singh, shall be surrendered by the Maharajah of Lahore to the Queen of England.”

Once reached to England, it was studded in the front cross of Queen Mary’s Crown.

Many studies have verified the origin of this diamond in India and documented its eventual placement in the British royal crown.

Stances of Governments of India and Pakistan

After the independence, the government of India had put a demand to British to return Kohinoor. Pakistan had also made such demand later when Julfikar Ali Bhutto was its president. Similarly, Afghanistan’s Taliban also considers Kohinoor a legtitimate property of Afghan people. However, such demands were turned down by the British because now there are variety of claims and it is impossible to establish the original owner of the gem.

The government of India’s stance has also changed with time. The government’s official stance has been that:

• Kohinoor was voluntarily gifted to British
• It is not covered under UNESCO’s Convention of 1972 which deals with restitution of cultural property”, so there is no question of its recovery. This convention does not cover smuggled or exported antiquities prior to 1970.

Questions to Analyze

• Whether there exists a legal framework under which India can claim Kohinoor diamond? On what basis the diamond can be claimed?
• What are the problems in seeking return under the UNESCO convention?
• What are the cultural, political and ethical dimensions of restitution?
• “India is archaeologically rich but a victim of illicit trading”. What is the present status of antiquities in India?
• What is the way forward?

Whether there exists a legal framework under which India can claim Kohinoor diamond? On what basis the diamond can be claimed?

The historical and cultural significance of the Kohinoor is what propels India’s claim on the diamond. However, the UK government has been consistently refusing to acknowledge this.

The legality of the demand can be traced to The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The convention was adopted by UNESCO in 1970 and has been presently ratified by more than 120 countries. Both India and Britain are signatories to this convention.

The convention lays down a framework for cooperation to clarify the procedure for the removal of archaeological and ethnological materials to repatriate cultural properties to their countries of origin. The objectives of the convention as defined by the UNESCO is to render more effective the protection of the cultural heritage which constitutes one of the basic elements of civilization and national culture by fostering close collaboration among Member States to prevent the illicit international movement of cultural property.

So with the help of this convention, India can ask for the return of the diamond which was shipped out of the country when it was a colony of the British Empire. So, there exists sufficient legal framework under which India can claim the Kohinoor diamond.

What are the problems in seeking return under the convention?

The UNESCO Convention does not cover any recovery claims of antiquities which were either smuggled or exported before 1970. This has made it difficult for the colonized countries to lay claim for a significant number of lost antiquities including the Kohinoor diamond.

Definition of ‘cultural heritage’ as provided by Article 1 of the Convention: “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science”. So, Article 1 of the Convention has provided the right of identification to the state of origin of the cultural heritage concerned. However, it may happen that the originating country of the object no longer exists or the object no longer resides in its country of origin. These are typically true in case of previously colonized states. Also, the length of the time an object spends abroad is important as it might have influenced the new society as well. So all these have made repatriation more complicated. In India’s case  repatriation has become complicated because:

• The diamond is believed to have been handed over to the British East India Company in 1849 by the Sikh ruler Duleep Singh in Lahore, which is now in Pakistan. The question of ‘originating state’ made Pakistan to put forward its claim for the diamond. A PIL has been filed in Lahore High Court claiming Pakistan to be the diamond’s originating country as Lahore became part of Pakistan after Partition.
• Citing historical instances when the diamond was present in their territories, Iran and Afghanistan are also claiming the ownership rights of the diamond.

Another issue relates to the procedural validity of the Kohinoor’s transfer to Britain. When the agreement of transfer was made, Duleep Singh, successor of Ranjit Singh, was a minor. So, as per both English Law and the Indian Contract Act, which is based on common English law principles, Duleep Singh was not competent to sign a valid contract as he was a minor then.

What are the cultural, political and ethical dimensions of restitution?

According to the Historian Elazar Barakan, restitution is not a legal category but a cultural concept which defines international morality. In earlier times, plunder and loot was practiced. But in the year 1815, which is considered as a turning point, European powers accepted that the plundering of national art was “immoral and illegal”. However, the agreement was applied only to the European countries while the European powers happily plundered their colonies. After the independence, the colonized countries rightfully started to demand for the return of plundered artefacts from the colonial powers. Henceforth, the need for the restitution has transformed in to a major chunk of national politics and international diplomacy. It is seen as a way for correcting the historical injustices. Experts opine that the Indian government should take cues from these arguments and develop a mature understanding of restitution before hastily drafting short-sighted responses.

“India is archaeologically rich but a victim of illicit trading”. What is the present status of antiquities in India?

The antiquities in India are not adequately cared. Following are the main reasons for this sorry state:

• Absence of an integrated database of existing and stolen artefacts.
• Incompetency of investigative agencies: The investigative agencies are not well trained in matters related to art history, international law, and investigative techniques to effectively protect the antiquities. The CBI, which handles the cases related to antiquities at the national level does them as a part of its special crimes division. The division is not exclusively earmarked for the cases related to antiquities. The division also handles the cases related to dowry deaths, murders, economic offences etc. At the state level, special wings have been formed as part of the state police force, but these wings are found to be understaffed and unqualified.
• Outdated national laws: Compulsory registrations of antiquities have been provided in the Antiquities and Art Treasures Act, 1972 as a measure to deter thefts of antiquities. However, the process to register antiquities is so cumbersome to the extent that it discourages registration of antiquities. Also, a number of private collectors fear that registration would attract unnecessary government interference in the legitimate transfer of the objects. So, in 2011 Justice Mukul Mudgal committee recommended for effecting suitable changes to the law, but the government has not taken any action over the recommendation.
• State of India’s museum: In 2013, the CAG’s Performance Audit of Preservation and Conservation of Monuments and Antiquities was critical about India’s poor acquisition, documentation and conservation systems. It expressed its serious concerns over the existence of discrepancies in the number of antiquities available in the museums of the country including the National Museum in Delhi.
• To plug in the loopholes, National Mission on Monuments and Antiquities was launched in 2007 to complete documentation of about 70,00,000 antiquities, but it has also not progressed well as it has documented only 8,00,000 artefacts as on 2014.

What is the way forward?

The government’s short sighted stand that the UNESCO convention does not cover Kohinoor diamond may be legally correct, but its belief that the year 1970 cannot be altered and its refusal to explore other alternative channels is unfortunate. Instead, the government should develop mature understanding of the cultural, political and ethical dimensions of restitution. There are instances where France and Australia have amicably returned the ‘cultural heritage’ of other countries. Also countries like Italy have successfully pursued stolen artefacts abroad and also effectively protects them locally.

India has to make a decision by striking a balance between legality and diplomacy on one hand and public expectations and sentiments on the other hand. Legitimacy of possession will rule the international law and the ultimate success relies on the mutual respect between the nations. If India makes decision to invoke UNESCO Convention, then it might be the first occasion to do so.

Also, the government has to take the necessary steps to overhaul the inadequate institutions and untrained investigative agencies dealing with antiquities. It should make efforts to improve the legal measures and effect suitable amendments to the law as suggested by the Justice Mudgal committee.