BS Yeddyurappa wins CM battle in Karnataka, for now: SC says go ahead with swearing-in but will hear case again tomorrow

Supreme Court, in a midnight-marathon hearing on Wednesday, refused to stay Karnataka BJP leader BS Yeddyurappa's swearing-in ceremony on Thursday at 9 am but will hear the case again on Friday. The Supreme Court has asked that the letter given by Yeddyurappa and senior BJP leaders to the Governor in which it was stated that the party has the requisite number of MLAs to form the government be produced before the court.

During the overnight hearing by the three-judge bench, comprising Justice A K Sikri, Justice SA Bobde and Justice Ashok Bhushan, the letter of support from majority of MLAs submitted to the governor for forming the government had become a major sticking point. The Supreme Court said that it can't overturn the decision of the Governor without seeing on what basis the BJP had claimed to have the numbers. The apex court made it clear that it won't stay the swearing-in but it would be subject to outcome of the petition in the court on Friday. The Congress-JDS had moved the court late on Wednesday night, seeking a stay on the swearing-in, calling it unconstitutional. It argued that the Governor should have invited the majority post-poll coalition of JDS-Congress first. The 15-day window given to BJP to prove its majority was also deliberated upon, but the court refused to modify it, for now.

BS Yeddyurappa. Courtesy: News18

BS Yeddyurappa. Courtesy: News18

Yeddyurappa would take the oath as the Chief Minister of Karnataka on Thursday at 9.00 am at Raj Bhavan. The court said that the swearing-in is subject to the final outcome of the matter before it. The bench headed by Justice AK Sikri, while seeking Yeddyurappa's response on the petition by Congress and Janata Dal-Secular (JD-S) seeking to stall his swearing-in, has directed further hearing of the matter at 10.30 am on Friday.

The Karnataka BJP leader, who was chosen as the legislature head of the party tweeted and said, "I will be sworn in as chief minister of the state at 9 am on Thursday. Honorable Governor Vajubhai Vala will be sworn in in Raj Bhavan. I appeal to all the people of the country to be happy. Your blessing is our salvation."

During the hearing, that commenced at 2.20 am and concluded with the court passing order at 5.30 in the morning, Attorney General K.K. Venugopal was asked to produce the letters which the court was told are with the Karnataka Governor. The top court heard a joint petition by the Congress and JD-S challenging Governor Vajubhai Vala's decision inviting Yeddyurappa to form a new government in the state despite having 104 MLAs — eight short of simple majority.

The court also issued a notice to Yeddyurappa, asking them file a reply even former Attorney General Mukul Rohatgi, who appeared for the BJP said how long Yeddyurappa should be given to prove majority could be debated after two days. The petition was filed late on Wednesday night after Governor Vala invited Yeddyurappa for an oath taking ceremony on Thursday at 9 a.m. and gave him days to prove his majority in the legislative assembly.

"When the other side has given a letter of support signed by the members from Congress and JD(S), on what basis the BJP can say it has the majority? Arithmetic defies how this can happen," Supreme Court asks Attorney General KK Venugopal. The apex court also questioned why 15 days was needed for the same. Court adds it is examining the actions of the Governor and not the Governor himself. AG, representing the Central government, opposes any stay of oath taking ceremony. Says floor test will prove everything.

The Congress and the JD-S, who formed a hurriedly stitched post-poll alliance after a hung assembly verdict to claim a majority of 116 members in the new assembly, called the Governor's decision "unconstitutional". "The BJP has only 104 MLAs, the Governor invited Yeddyurappa to form government in an unconstitutional manner," senior counsel Abhishek Manu Singhvi, who appeared for the Congress, told the three-member bench of Justices A.K. Sikri, S.A. Bobde and Ashok Bhushan.

Chief Justice Dipak Misra constituted the bench shortly after midnight on Wednesday to hear the matter in court number six of the Supreme Court. Singhvi argued in the full pack court room and talked about occasions when post-poll alliances have been called despite single largest party. He cited the instances of Goa and Manipur where the Congress had emerged as the single largest party sans majority but post-alliances were invited to form governments.

He said in the case of Karnataka, it was unheard of a Chief Minister who does not have a majority was given 15 days to conduct floor test. "There is only one way a party which got 104 will get 113... I heard he asked for seven days, but the Governor gave 15 days. Elementary common sense and arithmetic against this kind of giving of time," Singhvi said.

He said in Jharkhand in 2005, Goa in 2017 and in the Jagadambika Pal case in Uttar Pradesh, the court advanced the date of floor test from seven days to 48 hours. "It is biggest license to poaching if Governor gives 15 days to the BJP to prove majority," he said. To this, the Justices Sikri, Bobde and Bhushan said they were wondering whether the Supreme Court can restrain a Governor that might lead to constitutional vacuum in a state. They said that the general trend of the past Supreme Court judgements was not to issue injunction to Governor or to restrain Governor.

Singhvi began his arguments by saying that the governor has completely dispensed with the constitutional norm. Former Attorney General Mukul Rohatgi countered by saying the Court can't issue an injunction against the Governor. Singhvi said that HD Kumaraswamy staked his claim on forming the government with support from Congress MLAs, taking the alliance's number to 116. "Calling upon the single largest party is at the end of the line when it comes to discretion of the governor," said Singhvi.

Singhvi responded: "It is not like restraining the Governor, who only acted in pursuance of the BJP letter. Act of swearing-in is less than they make it out to be. "If President's rule under Article 356 can be stayed by a court, why not this (decision to invite BJP and give 15 days for floor test) in which a Governor has exercised his discretion without the aid and advice of the Cabinet?"

"I am not asking for adjourning the petition by Congress & JD(S). I am saying dismiss the petition. Governor can't be restrained from performing his constitutional function by an interim order. SC may reverse the order and hold it bad but it can't be injuncted. You cannot call a Governor to court. You can't ask him to file an affidavit or appear in court. The Centre has to defend him because he cannot defend himself. In this country, there is no authority whose order can't be challenged. A Governor will be a Badshah if his actions can't be challenged. I am saying his actions are amenable but he can't be stopped," argues Mukul Rohatgi.

"We will issue notices to all the parties and say swearing in will be subject to the outcome of the petition," says SC. The case will be heard later and formation of government will depend on court's final decision. There has been no decision on the 15-day time given to the Yeddyurappa to muster up the numbers.

Attorney General KK Venugopal, appearing for the Centre, in his argument said everything was in the realm of "speculation" as the entire matter was still "a grey area". Former AG Mukul Rohatgi who appeared for the BJP questioned the urgency of the matter to hear it at midnight. "Will heavens fall if a person is sworn in in the morning?" he said.

Justice Sikri asked him to submit before the court how his side was claiming a majority in the House. Venugopal intervened and said, "Everything is reversible. What is the great loss by waiting for 15 days." Justice Bobde countered: "That is the other point. Why wait for 15 days?"

Venugopal said it was the Governor's decision and it was an area of darkness how Yeddyurappa was claiming to form the government. "But let the swearing-in go on. This is a purely reversible situation." The court observed that it was "preposterous" to argue that before MLAs take oath they were not amenable to anti-defection law. "It means open invitation to horse-trading."

"In a case like this where the opposite side is showing 117 MLAs support, how will you have 112?," Justice Sikri asked Venugopal. The case was still being heard till early morning on Thursday.

With inputs from agencies


Updated Date: May 17, 2018 07:17 AM

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