Abogado Fabricio Alfredo Valencia Gibaja
valencia.fa@pucp.edu.pe


Las normas (constitución, ley, decretos, resoluciones, etc.) son instrumentos utilizados por el ser humano para regular su conducta en sociedad; son las reglas que regulan en el tiempo (lapso que la norma está vigente) y en el espacio (lugar de aplicación de la norma) una determinada conducta. Pero la conducta humana es muy dinámica, por ejemplo, durante un lapso de nuestra historia la mujer no tenía derecho al voto, sin embargo esta concepción cambio, es decir la sociedad cambio su apreciación sobre este tema, lo que genero que la norma que regulaba esta conducta sea modificada.

Considerando lo anterior afirmamos que las normas, estarán “un paso atrás” en comparación con la conducta que regulan, es por ello que los legisladores deben estar vigilantes para ir actualizando las normas periódicamente.

En la India fueron promulgadas nuevas normas referentes a su Patrimonio Cultural, gracias a la cortesía del Dr. Alejandro Camino D.C., Director del Programa Perú de la Global Heritage Fund, a continuación colocamos una breve referencia sobre el tema, así como las normas en formato PDF.

Great news from India

New Amendment to the Ancient Monuments and Archaeological Sites and Remains Act to Bring Critically Needed Legal Enforcement to Protect Archaeological and Heritage Sites in India.

New 2010 Law Passes- First in 50 Years to the original AMASR Act was passed in 1958 Establishes new National Monument Authority (NMA). This Central Act supersedes local laws

Background

Heritage conservation and development haven't exactly been on good terms with each other, especially in the context of city life. Growing demand of the urban population for a comfortable life, coupled with the apathy and nonchalance of the city-dwellers, have often come into conflict with this sphere of our cultural heritage.

But Jawahar Sircar, Secretary, Ministry of Culture, is hopeful of changing the troubled equation with the “momentous” Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act (AMASR) 2010.

According to Sircar, the new amendment tilts the balance in favour of heritage and urban planning. “I call the new Act momentous because it is very serious about the implementation part: through enhanced punishment for violators (up to two years' imprisonment); punishment for Government officials who connive (up to three years' imprisonment); setting up of National Monuments Authority; setting up of local level Competent Authorities; framing monument-specific Heritage bye laws, and so on. The incessant urban encroachments upon the heritage spaces of the nation have to stop, somewhere,” declares Sircar.

Analytical debates on its working and content can happen later but at least the effort of bringing in such revolutionary changes after a gap of 52 years needs to be applauded. The original AMASR Act was passed in 1958 and has been amended after five decades. “The first Monument Act was introduced in 1904 and, therefore, we are basically going in for a major ramp-up and tightening of our laws for the protection of heritage monuments, after 105 years of experience. This could be possible because of positive guidance from our highest authorities and the Moily Committee that helped us in framing the new amendments.”

Providing for a National Monuments Authority (NMA), which will have a full-time chairperson, five full-time and five part-time members, having experience in the fields of archaeology, town and country planning, architecture, heritage and conservation, is one of the highlights of the amended Act. A set of competent authorities by the Central Government for each protected monument and prohibited area will also be formed which shall prepare heritage bye-laws on the basis of detailed site plans prepared by ASI.

“Grading and classifying of monuments would follow thereafter, when the National Monuments Authority decides to take up this issue,” informs Sircar.

Unauthorised structures

Besides the stress on ‘regulated area' and ‘prohibited area' defined clearly in the Act, AMASR 2010 also boasts of a way by which all the unauthorised structures — that have come up in the prohibited and regulated areas since June 1992 — will be identified. “This (illegal structures) was a major problem and this continues to be a major problem. Now, the new law gives strength to the ASI, to act decisively against unauthorised structures,” says Sircar.

The new Act also turns out to be more stringent. Not only the quantum of punishment to the violators has been increased but it has also brought in public servants under its purview.

It states, “If any officer of the Central Government enters into or acquiesces in any agreement to do so, abstain from doing, permits, conceals or connives at any act or thing whereby any construction or reconstruction takes place in a prohibited or a regulated area, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both (Section 30C

http://www.thehindu.com/arts/history-and-culture/article413837.ece

Panaji, August 14- (Courtesy Herald)

The soon-to-be constituted National Monument Authority (NMA) will scrutinise all applications seeking permissions for construction and reconstruction in areas marked as ‘prohibited’ and ‘regulated’ in Old Goa that houses world heritage sites.

The NMA is a provision in the Ancient Monuments and Archaeological Sites and Remains (Amendment & Validation Act) Act 2010 that was passed in Parliament. The Government of India has issued a Gazette Notification dated March 30, 2010, of the said amendment. This Act amends The Ancient Monuments and Archaeological Sites and Remains Act 1958.

Superintending Archaeologist, Dr Shivananda V Rao, who took over the reigns of ASI Goa a little over a year ago, observed, “This Act is very strict having a provision for stronger penalisation than before. Before the amendment to the AMASR Act, any person carrying out illegal construction in the prohibited areas would get away with Rs 5,000 penalty or imprisonment upto three months, but with the new law the punishment has been enhanced to Rs 1 lakh and jail term of upto two years.”
Dr Rao said, “The purpose of the new Act is to preserve and protect heritage and reflects the Government’s determination to ensure that no constructions, including public projects, come up within the ‘prohibited area’ around the monuments.”
He informed that the President of India will appoint the Chairman of NMA, which is a very high-level panel. The Chairperson will be assisted by five members who will be appointed on the recommendation of a selection committee, he mentioned, and added, “Deliberations pertaining to the constitution of this authority are presently on at the Centre.”
The Act defines ‘prohibited area’ as the one that begins from the boundary wall protecting the monument and extending upto 100 metres. The area extending upto 200 metres from where the 100 metre prohibited stretch ends is defined as the regulated area. The total area (prohibited and regulated) totals upto 300 metres.

The amended Act further makes very clear no constructions, whatsoever, including any public projects, will be allowed in the prohibited areas of the protected monuments and the permission for construction or reconstruction activities in regulated areas shall be governed by heritage bye-laws.
Dr Rao informed that ASI has constituted a monitoring cell in April this year to keep a close watch on illegal activities in protected areas in an effort to strictly implement the provisions of the Act, a copy of which has been sent to the District Collector, Village Panchayat and authorities concerned.

He said the Central Act supersedes local laws. The Old Goa Village Panchayat will have to forward applications seeking permissions for constructions to ASI Goa which in turn will send the same to NMA for scrutiny and final approval.
ASI which looks after four areas of heritage importance in Old Goa has marked the prohibited and regulated areas as per the recommendations of the new Act. Dr Rao has appealed to the authorities concerned and citizens to assist it in implementing the provisions of the Act.
Meanwhile, construction activities in the said areas will have to remain on hold till the NMA is constituted.

List of Protected Monuments by ASI by State
http://asi.nic.in/asi_monu_ticketed.aspnull[95clicks]

20101111-IndiaHeritageAMASR_Act2010_Summary-1.pdf[103clicks]

20101111-IndiaHeritageAMASR_Act2010_Notice.pdf[103clicks]

20101111-IndiaHeritageAMASR_Act2010_Gazette_Notification.pdf[83clicks]

20101111-IndiaHeritageAMASR_Act2010_Act.pdf[95clicks]