The Union government is planning to liberalise construction activity in the vicinity of protected monuments and which are regulated under the Ancient Monuments and Archaeological Sites and Remains (AMASR) Act. The Act provides for the preservation of ancient and historical monuments, archaeological sites and remains of national importance; regulation of archaeological excavations and protection of sculptures, carvings and other like objects.

At present, the Act imposes a ban on construction of any kind within a 100-metre periphery of centrally protected monuments and allows only certain types of regulated construction within the 100-200-metre perimeter. India has 3,695 centrally protected monuments under the Archaeological Survey of India (ASI). No construction work or related activity is generally permitted in prohibited and regulated areas around protected monuments unless a specific approval is taken from the National Monuments Authority.

Union Culture Minister G Kishan Reddy recently said in the Rajya Sabha: “The government has taken a decision to examine the legal issues affecting construction-related activities around centrally protected monuments and sites in order to allow for infrastructure (related work), and, at the same time, preserve the rich heritage of the country.”

According to officials, there is a feeling that the Act restricts a lot of areas which could be put to good use, specifically in the case of developmental and infrastructure-related work. It is expected that the amendments would bring some relaxation in these zones, specifically in the case of smaller monuments such as statues, cemeteries and cannons. This is to allow for infrastructure (related work), and at the same time preserve the rich heritage of the country.

Even as the government can bring about liberalisation in the case of most monuments, for UNESCO World Heritage Sites (India has 40 of them), these restrictions may stay as construction will impact them.

According to the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010, an “ancient monument” is any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith which is of historical, archaeological or artistic interest and which has been in existence for not less than 100 years.

The Director-General (DG) of ASI may, with the sanction of the government, purchase, or take a lease of, or accept a gift or bequest of, any protected monument. Where a protected monument is without an owner, the DG may by notification in the Official Gazette assume its guardianship. The owner of any protected monument may, by written instrument, constitute the DG as the guardian of the monument, and he may, with the sanction of the government, accept such guardianship. If the owner is unable, by reason of infancy or other disability, to act for himself, a person legally competent to act on his behalf may exercise the powers conferred on him.

If any owner or other person competent to enter into an agreement under Section 6 for the maintenance of a protected monument refuses or fails to do so, and if any endowment, has been created for the purpose of keeping such monument in repair, the government may institute a suit in the court of the district judge. Or if the estimated cost of repairing the monument does not exceed Rs 1,000, he may make an application to the district judge for the proper application of such endowment.

If the DG apprehends that the owner or occupier of a protected monument intends to destroy, remove, alter, deface, imperil or misuse it or build in contravention of the terms of an agreement under Section 6, he may make an order prohibiting any such contravention of the agreement.

Any person aggrieved by an order under this Section may appeal to the central government within such time and in such manner as may be prescribed and the decision of the government shall be final.

If an owner or other person who is bound by an agreement for the maintenance of a monument under Section 6 refuses or fails to do any act which the DG considers necessary for the maintenance of the monument, he shall be liable to pay the expenses. If the government apprehends that a protected monument is in danger of being destroyed, injured, misused, or allowed to fall into decay, it may acquire the protected monument under provisions of the Land Acquisition Act, 1894.

A protected monument maintained by the government under this Act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character. Subject to any rules made under this Act, the public shall have a right of access to any protected monument.

No person, including the owner or occupier of a protected area, shall construct any building within it or carry on any mining, quarrying, excavating or blasting or utilise the area without the permission of the government.

Further, the government may direct that any building constructed by any person within a protected area in contravention of the provisions of sub-section shall be removed within a specified period. If the person refuses or fails to comply with the order, the collector may cause the building to be removed and the person shall be liable to pay the cost of such removal.

If the government feels that any protected area contains an ancient monument or antiquities of national interest and value, it may acquire such an area. Any person who moves any antiquity in contravention of a notification issued under sub-section (1) of Section 25 shall be punishable with imprisonment which may extend to two years or with fine which may extend to Rs one lakh or with both, and the court can convict him.

Any amount due to the government from any person under this Act may on a certificate issued by the DG or an archaeological officer authorised by him, be recovered in the same manner as an arrear of land revenue. If the government is of opinion that any ancient and historical monument or archaeological site has ceased to be of national importance, it may, by notification in the Official Gazette, declare it so. The DG shall, within such time as may be specified by the government, conduct a survey of all prohibited areas and regulated areas for the purpose of detailed site plans. 

—By Adarsh Kumar and India Legal Bureau

The arrest of a journalist en route to Hathras has unveiled the draconian features of the Act, under which anyone can be arrested for a period of six months without any proof of anti-national activities. It raises serious questions about violation of human rights.

By Neeraj Mishra

THE tragedy in Hathras exposed numerous infringements of the law by those who are actually meant to uphold it. Uttar Pradesh always had a reputation for being the one state where such incidents are fairly routine but the horrific incident and its aftermath has put the Yogi Adityanath government on the mat and exposed another serious issue highlighted by the arbitrary arrest of a journalist who was on his way to Hathras.

The journalist, Siddique Kappan, was picked up by the state police before he could reach Hathras and booked under the Unlawful Activities (Prevention) Act or UAPA. The police version is that Kappan, who was arrested with three other associates, was out to create caste disturbance in Hathras in conjunction with a Kerala-based organisation Popular Front of India.

Kappan hails from Kerala. The police report also claimed that Rs 100 crore had been sent from Gulf countries and it also produced a badly edited email purporting to be from the Black Lives Matter movement in the US.

While the conspiracy theory has as many holes in it as a sieve, Kappan was accused of being a member of or connected with the PFI, an organisation which is not banned, as of now. The central government has been trying desperately to put PFI on the list of banned organisations for indulging in anti-national activities but so far it has been unable to collect sufficient material or proof to back its theory. Whatever his connection, or not, the fact remains that Kappan can remain in jail for the next six months without getting any opportunity to disprove the charges slammed against him. The police, if they want to, can use numerous methods by which it can delay filing the charge sheet legally for at least 90 days. The Supreme Court has set a date for a hearing a month from now, ensuring that he stays in for that period at least.

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Sadly, courts have not followed a uniform policy when it comes to granting bail or anticipatory bail. UAPA provisions are perhaps worse than the infamous TADA and POTA that were opp­osed by all parties most vociferously by the BJP when the party was in opposition. TADA and POTA, both considered anti-terrorist laws, lapsed or were withdrawn and though UAPA came into existence in 1967 it is being used quite frequently and indiscriminately now. Originally enacted to ban “organisations” suspected of being involved in anti-national activities, the Act has been strengthened many times since 2004 when POTA was repealed. All the draconian provisions of POTA are now incorporated in UAPA.

As things stand today, law enforcement agencies can arrest any individual under UAPA and they are not even required to reveal why the individual has been arrested or provide proof even to the person himself. And this for a legally sanctified period of six months! Even mere suspicion can be a reason for arrest and being thrown in prison. In recent months, several activists, lawyers and professors have been arrested under UAPA, and now journalists have been added to the list. Many are branded as the all-embracing “Urban Naxals”.

A total of 3,005 cases were registered in the country under UAPA in 2016, 2017 and 2018 while 3,974 people were arrested under the Act, Minister of State for Home G Kishan Reddy informed the Rajya Sabha recently.

In a written reply to a question, Reddy said that the National Crime Records Bureau (NCRB) is the central agency that compiles the data on crimes as reported by states and Union Territories, and publishes the figures in its annual publication “Crime in India”. “The latest published report is of the year 2018. As per the report, a total of 922, 901 and 1,182 cases were registered, and 999, 1,554 and 1,421 persons were arrested under the anti-terror law, i.e., the Unlawful Activities (Prevention) Act, 1967, in the country during 2016, 2017 and 2018, respectively,” said Reddy.

The NCRB statistics show that 93 cases of sedition were filed in 2019, a 165 percent jump from 2016. In 2019, 1,226 UAPA cases were filed, a 33 percent increase from 2016.

Section 124A of the Indian Penal Code (IPC) defines sedition as any signs, visible representations, or words, spoken or written, that can cause “hatred or contempt, or excite or attempt to excite disaffection” towards the government. The definition of sedition dates back to colonial times and referred to critics of the British administration.

In independent India, it has become a convenient tool to curb freedom of speech and expression. UAPA is an anti-terror legislation, meant for exceptional circumstances. That it has been increasingly used can only suggest that it has become a weapon to be used against the government’s critics. Before Kappan, UAPA was used to arrest Jawaharlal Nehru University student leader Umar Khalid, in a case related to the communal violence in Northeast Delhi in February this year.

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Since UAPA permits detention without charge for up to 180 days, it has become a convenient tool to silence dissidents. Such long periods of pre-trial detention can easily get around the safeguards enshrined in the criminal justice system and allow the centre, or the states, to arrest those suspected of committing crimes without the onus to prove the allegations.

UAPA is just one deterrent for journalists, they are now being targeted by various state governments from something as simple as disturbing communal harmony under Sections 504 and 155 IPC to imaginative use of the new Information Technology Act.

The latter can be used against anyone active on social media. Social media provides the freedom of opportunity and expression which the institutions that journalists work for may not allow. So even a mere sub-divisional magistrate can act against any journalist for a social media post or video which in his/her estimation is either fake news or disturbs local peace.

The pressure against journalists like Kappan was revealed during the court proceedings in Lucknow over the Hathras case where the police refrained from mentioning any conspiracy probably because the Rs 100 crore theory and the alleged emails could not possibly have stood the test of evidence. Journalists are beginning to educate themselves on provisions of various laws and acts, from UAPA to defamation, to deal with the additional pressure. It is unlikely that the pressure will ease any time soon.

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