Surrender policy

JKCHR - Jammu and Kashmir Council for Human Rights

Would the generation sleeping in graveyards have an equal opportunity to express their desire to return to life and be with their families?

Dr Syed Nazir Gilani

Minister of State for Housing and Urban Development, Nasir Aslam Wani, has claimed that the 'surrender policy' approved by Government of India under which a safe passage would be granted to Kashmiri youth who had crossed the LoC was the "brain child" of Chief Minister Omar Abdullah, who had discussed it with Pakistan government in 2005. This disclosure creates a constituency of criminal and civil liability of all manners on both sides of LoC. The offer is people and period specific. It could not be availed by a generation which is sleeping deep in the graves and this "brain child" of Omar Abdullah does not sit well with his principle constitutional duties embedded in article 48 of the J & K Constitution, which enshrines the right of return of all since 1947. Many moral, political and legal questions remain embedded in the grant of amnesty by the Government and the acceptance of the 'surrender policy' by the militants.

Its spill over would be far reaching and on the increase, for the Government of Jammu and Kashmir, Government of India and the militants. From the early 15th century surrender has meant to declare to an opponent that he or she has won so that fighting or conflict can cease. In this case our leaders have to explain this metamorphosis in political character to a generation of nearly 100,000 (one lakh) martyred as militants and other civilians, who were clubbed with them as associates. Would this generation sleeping in our grave yards have an equal opportunity to express their desire to return to life and be with their families? And how would our leaders compensate the living who became the sitting collateral targets of the security forces on suspicion of their association with these militants and how would militant leaders console those civilians (men and women) who have been aggrieved by the actions of many militants and then by renegades.

It would have been in the best interests of people, habitat and cause of Kashmir if our leaders had taken up the 1996 offer of Prime Minister Narasimha Rao that 'sky is the limit'. This policy would have been less rigorous than the present 'surrender policy' which would entail identification, screening, travel, debriefing, rehabilitation and reintegration. Militants would be returning to a habitat and people harmed and hurt beyond repair.

Unfortunately our political and militant leaders were blinded by private interests and missed a historic opportunity where the Government of India was about to recognise Kashmiri militants as an independent army, if the June/July 2000 ceasefire declared by Hizb chief commander had succeeded and a few rounds of talks had been held across the table. The ceasefire was frustrated and Majid Dar was unceremoniously killed.

Vested interests of various kind as exposed in a diligent manner by Zahir ud Din in his article "Be bold like Kanna" stepped in and frustrated all the three ceasefire announcements including the two made by PM Vajpayee in Ramzan of November 2000 and the third ceasefire announced by Hurriyat chairman Prof. Ghani Bhat in November 2001.

One should not suspect the concern of the Government of Jammu and Kashmir expressed for the good of these militants stranded in Azad Kashmir for the last 20 years. These militants as State Subjects are also a moral and legal responsibility of the Government of Azad Kashmir and the Government of Pakistan. However, the Government of Jammu and Kashmir has to act in equity and in good faith towards all citizens of the State of Jammu and Kashmir. Just 800 militants who have crossed into Azad Kashmir cannot overshadow the interests of five generations of Kashmiri refugees displaced since 1947.

J & K Government has been avoiding discharging its Constitutional duty towards these people under article 48 of the Constitution for the last 54 years. Government of India which has approved the return of these militants under a 'surrender policy' has to discharge its duties towards all people of the State. It has been charged with a duty by the United Nations Security Council resolution of 21 April 1948 in para 14 (a) "All citizens of the State who have left it on account of disturbances are invited, and are free, to return to their homes and to exercise their rights as such citizens".

It would be unfair if one does not admit that the CPI (M) State Secretary, Muhammad Yousuf Tarigami was the first MLA who brought the resolution on September 28, 2005 in the Assembly, during its session in Srinagar and pressed for the return of youth who had crossed the LoC and wanted to return to their homes to live a peaceful life. Unfortunately it was rejected by the then Congress-PDP coalition government through voice vote. It is strange that when the minister of State for Housing and Urban Development, Nasir Aslam Wani, was asked whether the policy will also apply to the people who had migrated to 'PaK' in 1947, he has said that the policy is meant for the youth, who went to the other side of LoC in 1990s.

Government of Jammu and Kashmir can't make a period and person specific policy, if the same policy violates the rights of the people guaranteed under the Constitution. More so the Government of India has to explain its position if it decides to adopt a discriminatory policy at variance with the rights of the people guaranteed under the J & K Constitution and guaranteed in UN Security Council Resolutions.


Militants are more than welcome in their homes. If they return to normal life and satisfy the criterion laid down under the 'surrender policy', their acceptance back in the community would not be that simple. Rehabilitation and reintegration back in the much harmed habitat and disturbed people has its own moral restraints. They shall have to account for the high tide of militancy which has not only resulted in the death of a generation but the numerical deficit has caused the death of self determination as well.

Some militants and almost a majority of politicians on either side of LoC have made a profit of all manners during the last 20 years. This benefit has to account for itself in a transparent manner and every Kashmiri has to be satisfied that there were no mala fides embedded during the period when the gains were made. Our politicians and the returnee militants owe an explanation to the 100,000 (one lakh) youth sleeping in the graves and have to convince them as to why they can't exercise their desire to return and live with their families in the same manner. Surrender policy has its own moral conundrum.

Author is London based Secretary General of JKCHR - NGO in Special Consultative Status with the United Nations and cam be emailed at dr-nazirgilani@jkchr.com

Dr. Syed Nazir Gilani


Secretary General - JKCHR