 Hello and welcome to NewsClick. The year 2018 has brought more unrest to the state of Jammu and Kashmir. Recently an FIR was filed against the Indian army after three civilians died in Shopean district. These deaths were caused with clashes emerged between the army and civilians and the army opened fire. So now huge debates have emerged around this FIR and to discuss this, we have with us Maya Daruwala who is the senior advisor at Commonwealth Human Rights Initiative. Welcome Maya. Thank you. After this FIR was filed the Supreme Court has stayed any action against Major Aditya who was named in the FIR. This really reflects what again in the Indian context what the attitude of the Indian state has been towards the army which is somewhat shielding the army in such areas especially in an area like Kashmir which is a disturbed area. So now what is the perspective, what if we look at international law what does that have to say about the rights of soldiers in such areas? As far as shielding soldiers is concerned I think that because of the Armed Forces Special Powers Act, the Disturbed Areas Act and all of these special laws there is a myth that soldiers can do anything they like and they will get away with it. Now this may be true in practical terms but it is not true in terms of law. A soldier is expected as the court said in 2016 when Justice Lokur gave that judgment is that a soldier, a common man, the state, everybody is equal under the law. So if there is wrongdoing there will be action. You are not shielded from that action. You are not immune from prosecution because the international law applies to every country. Every country, especially India, any other country whether it's the UK or Zambia or anywhere else, once they have signed up to various things especially humanitarian law and human rights law, there is a sort of customary law which everybody has to obey. And in that people often ask me, but don't soldiers have human rights? Of course they do. Of course they do. But I think there is a deep misunderstanding about what human rights is. Human rights is a right of the individual against the state. Here is a state agent when you are talking about soldiers in general. Here is a state agent doing something wrong and then expecting that because he is in uniform or solely because he is in uniform that he will be given some higher treatment. I won't say protection but treatment and I think that that is a wrong notion. Indian law is supposed to be in consonance with in agreement with the international norms. If you look at what the UN has said, the UN Special Rapporteur for extrajudicial killings, the Secretary General of the High Commissioner for Human Rights, Mrs. Pillay, they have all said to India scrap these laws. These laws are not in consonance with democracy. And for a long time now, even the Supreme Court has been whittling away at the protections that have been assumed rather than they are in the law. Another question that comes, again if we go back to what's happened in Chopin and Kashmir in general, is there is this whole debate between, as you said, do soldiers have human rights, but also then when we are looking at the human rights of soldiers, are we equally considering the human rights of civilians in that area? You have to consider both on equal terms. But you also have to recognize that there is no writ to hurt or harm a civilian who is doing nothing to you. But everything will turn on the facts of the case. A soldier has a right to use proportionate force, necessary and proportionate force, to protect civilians, to protect himself, self-defense, etc., is definitely one of the reasons which is a defense. But before you can get into a defense, you have to have an investigation. And everything depends on the facts of the case. And that is what an FIR is supposed to do, is supposed to look into the facts of the case. So the FIR itself is justified, because right now the debate around the FIR itself is that, you know, you cannot have an FIR against the army because the army is there for a reason. So why are you investigating their actions? Something happened so they had to react. So the FIR itself cannot be called unjustified, is what I take away from what we just said. Yes, absolutely. I mean, the state has, what is an FIR? It's a first information report. Someone has reported that something took place. Now we have to work through the legal system, through a great legal system that we have, good laws that we have, whether there was a justified killing of whoever there was. It might be killing, it might be hurting, it might be loot, it might be arson, but was it justified? And how do you find that out? You find that out through an investigation. Whether it's in Chopian or whether it's in Manipur or whether it's in Chhattisgarh, these are areas where there is conflict, internal conflict. But what about the cases where the police, we hear about extrajudicial killings, we hear about what is the word they use, encounter for it, right? In every case of a killing, you are supposed to investigate what happened there. The fact that it was a policeman who did it, actually in my view, as soon as a person who has got the government's trust and the public's trust and is in uniform, he is doubly responsible to show that what he did was justified. Finally, when we look at the laws we have for the army in India, this Armed Forces Special Power Act and all these other laws that we have in place, what impact do these laws have on the lives of the civilians in these areas? The essential reason for having this law was that here is a disturbed area. Here is a population that is infested with terrorists or with militants or with insurgents, whatever you like to call them. And we need special powers to flush them out. But it was never meant to oppress a population. But when these laws go on and on and on for 30 years, 40 years, nobody reviews whether the matter has changed, whether it could have temporarily been lifted, but you just continue with it. I am telling you, no peace has been bought by these acts. So the situation remains the same and the population becomes more and more alienated because they see the rest of the world going on peacefully. And for every civilian you kill or hurt, you have five, six other people who see the injustice of it. People's moral compass, when it is damaged and hurt, by the sight of injustice for which they can't get redressed, then you get insurgencies, uprising, resentment, anger. But it has even a worse effect in my view. Impunity, shielding, wrongly shielding. I'm not saying when you're rightly shielding. When you're wrongly shielding and you're shielding again and again, I think has a terribly corrosive effect on the uniformed services because there is a loss of trust between them and the civilians. And after all, who are these armed forces and the police, etc.? They are Indians, they are my compatriots, they are my friends, they are my family. So why should they be in a position of being isolated and alienated because of the acts of a few rotten apples? Thank you Maya for joining us for this discussion and we will keep up with this case and we will come back to you again to hear your opinion once more. Thank you for watching this clip.