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At 1:45 am, as India slept, SC heard case on who would form Karnataka govt—Congress or BJP

In ‘From the Trenches’, lawyer Abhishek Singhvi writes about his dramatic legal battles — from Sabarimala to Cyrus Mistry v Tata, and late-night government formations.

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It was May 2018. That day, I happened to be arguing a case in Chandigarh. Even before my matter was taken up, I got a call from Randeep Surjewala, the Congress spokesperson. There was a crisis brewing in Karnataka.

The state elections had just taken place and there was a hung assembly with the BJP getting the most seats (104 out of 224) but not attaining majority. The Congress had taken eighty and the Janata Dal (Secular) had taken thirty-seven, and immediately formed an alliance.

As no one party had a clear majority, the rule was that the single largest ‘proven combination’ of parties would form the government, and then prove its majority on the floor of the house. Only upon such proven combination failing would the single largest party be invited to form the government.

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At eleven that very morning, the BJP MLAs of Karnataka had gone to give their papers to the Governor to form the government despite the fact that a post-election alliance of the Congress and JD(S) was in existence, and had already made their intention clear to him.

The Governor had turned the Congress–JD(S) coalition away and invited the BJP to form the government. The BJP’s B.S. Yediyurappa was to be sworn in as chief minister the very next day, that is, on Thursday. The party would then have a full fifteen days before the trust vote, by which time it was expected that they would form the needed numbers through defections or alliances.

As luck would have it, Chandigarh airport was shut for repairs that day. If I took the train, I would have reached Delhi only at night. But then I remembered that there was an airstrip at Pinjore, and asked Randeep to send a jet to pick me up. In the meantime, as I scrambled to get back to Delhi, Devdutt Kamat, who knew this type of case well and had worked with me in Uttarakhand, was, under my telephonic instructions, already drafting our petition to the Supreme Court.

My matter at Chandigarh finished at one o’clock, and I drove straight to Pinjore and reached there around three o’clock. My plane was waiting with the engines on. By the time I landed in Delhi it was already 5 p.m., well after the usual closing time of four for the Supreme Court.

By about 7 p.m., Devdutt Kamat was before the Registrar seeking an urgent listing, which was incredibly unlikely. However good and urgent our case may have been, the Court does not sit at night. It looked like we had missed our chance to be heard before the swearing- in on Thursday morning.

I landed and the Congress party convened an emergency meeting at our power centre. I was already tired after my hectic day. It was hot, the peak of summer. But from wherever they were in the country, the top leaders of the Congress had assembled: P. Chidambaram, Kapil Sibal, Ahmed Patel, Anand Sharma and Randeep Surjewala were ready to strategize in a matter of hours. I remember wondering to myself, why do people think the Congress machinery is slow?

It was decided that Chidambaram and Sibal would take the press conferences, and I would prepare the case with Devdutt. Devdutt and I spoke over the phone as I went home. He had hit a dead end with the Registrar of the Supreme Court. Very understandably, the Registrar was of the view that the matter could wait till morning.

On my advice, Devdutt kept at it heroically, explaining the consequences and the reasons for why the matter must be taken up at night. Finally, the Registrar agreed to take the case to the Chief Justice to ask if he would consider a night hearing in such unusual circumstances.

I take my hat off to Justice Dipak Misra, who could easily have said we should come in the morning – this would have been reasonable. But he began to think seriously about whether our case could be heard immediately and a bench assembled at night.

I had an inkling that it could happen by about 9 p.m., and told Devdutt and all my juniors to stay at the Court. Although there was no confirmation, I decided around 10 p.m. that I should be close to the Supreme Court premises, because there was the sliver of a chance. So at 11 p.m. I put on my court clothes, gathered my band and gown, and headed to the Taj Man Singh for a cup of coffee, and some more waiting.

Somehow, the media had got wind of the developments; they were outside my house waiting for me to leave. It was a surreal moment, to be dressed for court shortly before midnight. At midnight, as I was having my second cup of coffee, I got a call saying the bench would sit after all. Leaving my coffee, I rushed to court.

At 1.45 a.m., as most of India slept, we began this extraordinary hearing.The bench was Justice A.K.Sikri, Justice S.A. Bobde and Justice Ashok Bhushan, a bench of wise and balanced judges. There was a crowd in the Court as large as the ones in the day.The press was there in force as well. I found out later that my wife had been up all night watching the case live on TV. I opened my arguments.

From 1.45 to 4 a.m., roughly for two hours, the bench was largely against me, in an intellectual and legal sense, taking the view that even if I had a case, there were too many technicalities in the way. But I persisted, showing them the case law, as it had developed, and the facts. Always the facts.

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The fact was the Congress and JD(S) had gone to the Governor first and submitted their papers on 15 May.The fact was that there was a clear majority of the Congress–JD(S) combination. The fact was that the Governor denied their claim for no valid reason, and kept them pending. The fact was that the next day, on 16 May, the Governor immediately assented to the BJP, even though they had obviously and admittedly fewer seats, and invited them to form the government.

The fact was that the Congress–JD(S) list of names and signatures of the MLAs in support was before the Governor, showing a majority of 116 out of 224 seats, and the Governor still issued a letter to the BJP to form government, even though the BJP claim was made later. The bias was evident from even the narration of facts. Attorney General Venugopal raised a number of technical arguments and went deep into the rulebook, but ultimately the unfairness of the facts would go against him.

I finally turned the bench at four o’clock in the morning. They had physically put the file down and were ready to dismiss the case. Justice Bhushan turned first, when it became clear there was really no other way to read the facts. Justice Sikri turned second. And then they convinced Justice Bobde.

They did not give me everything I had prayed for. No stay on the swearing-in was forthcoming, but they said three very important things. First, that the outcome of the election and the Governor’s decision would be subject to the petition, which meant that there would be no permanence to the swearing-in.

Second, I had insisted that, ultimately in all these questions, we must fall back on the gold standard of the parliamentary floor test. I submitted that the only right thing was that the Court order the floor test the very next day, to prevent horse-trading. If I had asked for any more time, the Court would have doubted the alliance’s majority. When we ourselves were willing to have it at that moment, even on a Saturday, they realized that the numbers in favour of the Congress–JD(S) combination were clear.

Rohatgi, appearing for the BJP, kept insisting on the two weeks that the Governor had given the BJP, and then made the fatal mistake of reducing the days they needed from fifteen to ten to seven, each time demonstrating that their side did not have the numbers at hand. It is always likely that where you do not have a majority, and you are claiming it, you intend to buy that majority.

The third thing the Court decided, which was critical, was to hear the case finally as soon as possible. The judges said the matter would be decided on Friday morning. Very hopefully, I asked them to list it on Thursday morning, and the judges laughed. Justice Bobde, I think, said, ‘Dr Singhvi, it is already Thursday morning.’ And indeed, it was 5 a.m. when we left the Court.

B.S. Yediyurappa was sworn in at 9 a.m. on Thursday. It was to be a very short tenure.

This extract from ‘From the Trenches’ written by Abhishek Singhvi along with Satyajit Sarna has been published with permission from Juggernaut Publications. 

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