The recent exposé that Pakistan made a secret deal in 2004 to allow the CIA to conduct drone attacks on civilian targets provided Washington spared its nuclear facilities and mountain camps where Kashmiri militants were being trained for attacks in India, makes it imperative that New Delhi urgently revisit the Jammu & Kashmir Government’s contentious Surrender & Rehabilitation Policy under which Pakistan-trained terrorists are re-entering the State via Nepal.
This policy, also begun in 2004, ostensibly to help J&K-based terrorists who wished to renounce violence and return to the mainstream, was actually used to facilitate the return of persons who crossed over to Pakistan-occupied Kashmir during the National Conference rule in 1989-90, took Pakistani citizenship, married and had children. These militants with Pakistani nationality and Pakistani wives and children, have been entering India via illicit routes, with the open connivance of the State Government and tacit complicity of the Union Government.
The New York Times’ exposé now makes it imperative that the Government of India take a fresh look at the charges made by critics that hardcore militants are being infiltrated into the sensitive border State as part of some sinister design.
News reports that the National Investigative Agency may be on the verge of granting a clean chit to Pakistani national Liaquat Shah, who was arrested by the Delhi Police as a suspected terrorist on a mission to plant bombs in capital during the festival of Holi, to avenge the hanging of terror convict Afzal Guru, underline the urgency of the matter. The Centre is under great pressure from J&K Chief Minister Omar Abdullah to release Liaquat Shah, and in fact referred the arrest to the NIA on March 28, 2013, only at his demand. But NIA clearance will be suspect, given the totality of the situation.
The State Government adopted its new Surrender & Rehabilitation Policy for militants who voluntarily renounced arms and violence and surrendered before the authorities on January 31, 2004 (Order No. Home-55/H of 2004 dated 31.01.2004).
The policy was controversial from the start, and was seen by many as a ploy to bring back well trained terrorists from Pakistan-occupied Kashmir, and settle them into the Valley. In fact, even in 1982, the then regime had used its brute majority in the Assembly to enact a law to open the doors for the return of nearly 500,000 Pakistani nationals with their descendents, though they had adopted Pakistani nationality voluntarily after 1947. However, the Supreme Court stayed the operation of this Act (Writ Petition, Civil, No. 578/2001 dated February 1, 2002).
Thus checkmated, the State Government again formulated the Rehabilitation Policy of 2004 for terrorists who undergo a change of heart, eschew violence and accept the integrity of India and Indian Constitution. Section 2 specifies that it was meant for the residents of J&K and applied to (a) known militants who surrender with weapons and (b) hardcore militants who surrender even without weapons. Neither category was defined while framing this Law.
The Policy was challenged in Writ Petition (Crl.) No. 210/2004. On January 8, 2013, a Division Bench of the Supreme Court comprising Justices RM Lodha and Anil R Dave, directed the Central and State Governments to file affidavits explaining who, under the policy dated January 31, 2004, are treated as ‘terrorists’, ‘militants’ and ‘hardcore militants’ and also explain under which law they are declared as ‘terrorists’, ‘militants’ and ‘hardcore militants’.”
It is pertinent that on March 11, 2013, Omar Abdullah admitted on the floor of the Assembly that, “No ex-militant has returned through identified routes under aforesaid policy (return and rehabilitation) after fulfillment of conditions prescribed in the policy.” He further admitted that 241 ex-militants had returned ‘illegally’ to J&K via Nepal and other routes along with their family members, till February 15, 2013.
While details of this Policy are not available on any government website, media reports (Greater Kashmir, Srinagar, November 23, 2010) suggest that the Central Government – under what law is not clear – selected four entry points for militants wishing to return from Occupied Kashmir, viz., Poonch-Rawalakote (Poonch); Uri-Muzaffarabad (Uri); Wagah (Punjab); and Indira Gandhi International Airport, New Delhi.
Even by this dubious exercise, it is clear that the Policy did not recognize Nepal for re-entry into Indian Territory. Yet, as the arrest of Liaquat Ali Shah makes clear, the militants were issued fake I-cards by the State Government and allowed to enter Indian Territory and return to J&K.
Liaquat Shah was accompanied by six persons including another Pakistani national, Ashraf Mir, his second wife whom he married in Pakistan, and his children born in Pakistan. This raises several pertinent legal issues.
First and foremost, Pakistani nationals entering India with such ease pose a threat to the security of J&K and the peace and sovereignty of India. Then, under what law does the Government of India tacitly permit the J&K Government to facilitate entry of illegal aliens into the country and then into the State? How can a Pakistani national holding a Pakistani passport enter India from Nepal without valid entry documents issued by the Indian Mission in that country?
It is pertinent that those who left India and accepted Pakistani citizenship have lost their legal right to be considered as a permanent resident of J&K (State Subject). Hence, the Surrender & Rehabilitation Policy is in conflict with the Citizenship Act of India. For Article 9 of the Indian Constitution clearly states, “No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State.”
The Government of India must urgently collect information about the activities and whereabouts of all militants who entered the State since the inception of this Policy in 2004. The Indian Citizenship of militants holding Pakistani passports at the time of their entry into the country must be immediately cancelled, and all illegal ingress of Pakistani nationals into Indian Territory via Nepal must be curbed forthwith.
NitiCentral.com, 8 April 2013
http://www.niticentral.com/2013/04/08/dangers-of-jk-surrender-policy-63303.html