All cases coming before the double bench of Justice Atul Sreedharan in the Jammu and Kashmir High Court regarding the National Investigation Agency (NIA) and Habeas Corpus have been transferred to a new double bench in Srinagar. This has come in the heels of various pioneering orders issued by the Judge Sreedharan in several such cases.
In order to have an open portal on a daily basis, in a rather surprising and unanticipated way, on August 31, 2024 there was issued a modification which changed a list that has been set till September 28, 2024 where the NIA and Habeas Corpus cases were before Justice Sreedharan, and Justice Muhammad Yousuf Wani. At least 14 cases related to NIA and Habeas Corpus were listed before the bench for this week.
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Habeas Corpus
The genesis of Right of Personal Liberty as a part of human rights can be traced to different human rights conventions and more specifically under Article 21 of the Indian Constitution. Habeas corpus which directly translate as ‘to produce the body’ is a protection against unlawful and unnecessary confinement of an individual. The habeas corpus petitions enable the court to establish whether the person has been arrested in compliance with the provisions of the law. Habeas Corpus is one of the five writs which can be availed by an individual to approach the Supreme Court or High Courts for enforcement of his fundamental rights.
The writ of habeas corpus is used as a legal tool which is aimed to protect an individual against unlawful actions of the state and as a procedural writ under which executive, judicial, or other governmental restrictions of personal freedom are controlled by the court.
About the recent order
All matters related to the NIA and Habeas Corpus, earlier brought before a double bench by Justice Atul Sreedharan of the High Court of Jammu & Kashmir and Ladakh, have been transferred to a new bench at Srinagar without any prior notice.
Thus through this order intended for anyone concerned it can be declared that: The new Division Bench of Honourable Mr. Justice Rajnesh Oswal and Honourable Mr. Justice Mohammad Akram Chowdhary shall hear all Division Bench cases related to all NIA matters (After Notice) for admission, orders and hearing and all Habeas Corpus petitions (After Notice) for admission, orders and hearing during 2nd half of 5th September, 2024.
Scholars in the legal field have observed that there is usually a rare move of cases from one bench to another mid way much less in such an extensive manner. The change of the roster has caused several people to question why the decision was made especially given that Justice Sreedharan immediately took an off duty after the changes were made.
Joining the High Court of Jammu & Kashmir and Ladakh in April 2023 as the new Justice Sreedharan did not take much time to introduce himself with remarkable observations and clear directions. They are usually expressed in form of verdicts that are most of the times negative on investigative procedures with adverse ramifications on the involved agencies. It is still more important to note that Justice Sreedharan himself has become the voice against the misuse of the term “fundamentalist” within legal premises in the past.
In one instance, the media reported that he objected to a detainee being referred to as a fundamentalist because the term does not necessarily indicate extremism or separatism. The judge also pointed out that a fundamentalist is merely someone who believes in the basics of Islam and offers a strict adherence to the principles of the religion; it cannot in any way harm the personality; being a fundamentalist Muslim cannot be equated to being an extremist or a separatist.
