After a dramatic overnight hearing that lasted over three hours between 1.45 am and 5 am, the Supreme Court said it would not interfere with the swearing-in.
New Delhi: The Supreme Court Thursday cleared the decks for the swearing in of B.S. Yeddyurappa as chief minister of Karnataka, barely hours before he was due to be administered the oath by governor Vajubhai Vala.
In a dramatic turn of events, the apex court opened its gates to hear a plea against the governor’s decision inviting the BJP to form the government in the state despite not having a majority.
Late Wednesday night, state Congress President G. Parameshwara and JD(S) leader and chief minister-designate of the post-poll coalition H.D. Kumaraswamy had moved the top court seeking to delay Yeddyurappa’s swearing-in.
The court’s registry took the urgent plea to chief justice Dipak Misra’s residence at 11.30 pm. CJI Misra constituted a three-judge bench headed by Justice A.K. Sikri.
“We will not interfere with the swearing in but will decide on the merits of the case. BJP’s formation of the government will be subject to our final decision,” the court said.
The dramatic overnight hearing lasted over three hours between 1:45 am and 5 am. While Congress leader and senior advocate Abhishek Manu Singhvi appeared for the petitioners, the government’s top law officer attorney general K.K. Venugopal defended governor Vala. Former A-G Mukul Rohatgi appeared for two BJP MLA’s who he did not name in the hearing.
Karnataka returned a hung Assembly on 15 May with the BJP winning 104 seats, Congress 78 and the JD(S) 37, of the 222 constituencies that went to the polls. In a dramatic turn of events, the Congress offered support to the JD(S), which was duly accepted by party leader H.D. Kumaraswamy.
Congress-JD(S) argument
Singhvi said that Yeddyurappa had submitted a “letter with false information” on which the governor had “erroneously” relied upon. He said that in his letter to the governor, staking claim to form the government, Yeddyurappa claims to have 111 MLAs while the BJP has 104.
The court issued a notice to Yeddyurappa, asking him to produce the letter before the next hearing on 18 May.
Singhvi also objected to Vala’s invitation to BJP to form the government, in spite of a post-poll alliance with a majority staking claim.
According to convention, Singhvi argued, the governor must first consider 1) whoever has an absolute majority, 2) declared a pre-poll alliance with largest numbers 3) post-poll alliance of a group of parties with largest members and then 4) the single largest party without the majority, in that order.
He cited three instances where a post-poll coalition was allowed even when a single party fell short of crossing the halfway mark. In 2013, a coalition of AAP & Congress was invited to form the government when BJP was the single largest party in Delhi. In 2015, PDP & BJP formed the government even when National Conference was the single largest party in Jammu and Kashmir and in 2017 the BJP and Goa Forward party formed the government in Goa even though the Congress was the single largest party.
However, both the A-G and Rohatgi argued that the governor’s decision cannot be stayed by the court. Rohatgi said that the court had powers under the constitution to “set the clock back” and nullify Yeddyurappa’s government if it failed to prove its majority on the floor of the house.
However, Singhvi said that any delay in holding the floor test will encourage BJP to “poach” MLAs from the Congress-JD(S) coalition. “Horse trading is a constitutional sin and the delay in floor test, will encourage this,” he said.
However, attorney general Venugopal responded by saying anti-defection laws kick in only after a candidate is sworn in as an MLA and not before.