The apex court, which commenced the hearing at 2:11 AM and ended at 5:28 AM, however, made it clear that the swearing-in and the government formation in the state would be subject to the final outcome of the case before it.
Justices AK Sikri, SA Bobde and Ashok Bhushan
Facts of the case
Singhvi, while contending that “humongous things are happening in terms of money”, expressed gratitude that three judges of the apex court were hearing the matter at 2 AM. “If a Governor passes an order (inviting Yeddyurappa to form the government) at 9:30 PM and the oath-taking ceremony is at 9:30 AM, I have no option but to make your night black. I am extremely grateful that three judges of the Supreme Court are sitting on the court at 2 AM to hear the matter. It is a victory of democracy irrespective of what is the outcome. The democracy has won,” he told the bench.
- While senior advocate Abhishek Manu Singhvi, appearing for Congress-JD (S) combine, persisted with his arguments that the swearing-in ceremony should be stayed or deferred. But the Bench said, “we are not staying the oath taking ceremony”.
- With Singhvi arguing that the Constitution gave immunity to the Governor only for a discharge of duties, the Bench asked whether he wanted the court to scrutinize discretion of the Governor when it did not have the letter given to Governor Vala that was the basis for inviting the BJP to form the government.
- Singhvi told the Bench, constituted by CJI Dipak Misra to hear the matter, that the Governor had negated democracy by not calling the alliance commanding majority in Karnataka. “It is the biggest licence to poaching if the Governor gives 15 days to BJP to prove majority as in earlier such cases 48 hours were given by the SC,” Singhvi said.
- General KK Venugopal, appearing for the Centre, and senior advocate Mukul Rohatgi, representing three BJP MLAs Govind M Karjol, C M Udasi and Basavaraj Bommai, opposed the arguments to defer or stay the swearing-in ceremony. “We do not know what transpired in the meeting between the BJP leader (Yeddyurappa) and the Governor. I do not think BS Yeddyurappa is served or represented here. The whole thing is in a grey area and in a realm of speculation,” Venugopal said.
Rohatgi also questioned the manner in which the petition was filed in the midnight and said, “Heavens will not fall if somebody is sworn-in. This is not a matter of life or death or as if someone is going to be hanged.”
He said that constitutional obligation of the Governor was to invite a party to form a new government and his action could always be judicially reviewed and the court may order for restoration of status-quo ante also as was done in the case of Arunachal Pradesh. “Courts should not stop a constitutional functionary (Governor) from discharging his constitutional duty. In this country, action will be amenable but the office of the Governor cannot be injuncted,” Rohatgi said.
- At the outset, Singhvi referred to the number of seats won by the BJP, Congress and JD (S) and said the Congress-JD (S) combine has the majority in the house with 117 MLAs while the BJP had only 104 seats which were below the majority mark of 112 at present. He also questioned the Governor’s decision to give 15 days time to Yeddyurappa to prove majority in the house and claimed that this might lead to “horse trading” and “poaching” of MLAs.
Pleadings of the parties
Senior advocate Abhishek Manu Singhvi urged the court to defer the swearing-in, scheduled to be held at 9:30 AM today, till 4:30 PM and said the Centre or BJP should be asked to place before the bench the letters sent by Yeddyurappa to the Governor.
However, the Attorney General told the bench, “We really do not know what was the basis of which the Governor invited him (Yeddyurappa)”. He said that swearing-in should not be deferred or stayed as it was for a constitutional office and no purpose would be served by stopping it since it was “purely a reversible situation”. “Let this matter be heard. Let floor test take place. No irreversible damage will be done,” Venugopal said.
Instructions by the Apex court
In the evening when reports surfaced that the Karnataka Governor had invited the BJP to form a government in the state, a belligerent Congress moved the SC seeking an urgent hearing on the matter against what it called was an “illegality and unconstitutionality”.
With the Karnataka power tussle turning into a midnight courtroom battle, the Supreme Court said the general trend of its past judgments was not to restrain the Governor. The apex court also asked could it restrain the Governor from inviting a party to form the government, to which senior lawyer and Congress leader Abhishek Singhvi said the Supreme Court had done so in the past.
“Here, there are three major parties. BJP is the single largest party, Congress is second and JD (S) is third. Now, the Congress-JD (S) combine to outweigh the BJP. Then, in this situation, on what basis he (Yeddyurappa) has staked claim to form the government? We do not have those letters. It’s only on surmises. The arithmetic is such that defies on what basis it was done,” the bench observed.
The court said was it not a convention that the single largest party got invited by the Governor to form the government and prove majority. The three-judge Bench said they were wondering whether the Supreme Court could restrain the Governor, which might lead to the constitutional vacuum in the state.
Senior advocate Mukul Rohatgi, representing the BJP and Yeddyurappa, said no injunction could be issued to the Governor. This is the second time that the Supreme Court is holding an oversight hearing. The first was in July 2015 when the top court held a 90-minute hearing in the middle of the night to hear a last-minute petition against the execution of Yakub Memon for his role in the 1993 Mumbai blasts case.
A special bench comprising Justices A K Sikri, S A Bobde and Ashok Bhushan directed the Centre to place before it two communications, sent by Yeddyurappa to Governor Vajubhai Vala in which he had staked claim to form the government, saying their perusal was necessary to decide the case.
The top court also issued notices to Karnataka government and Yeddyurappa seeking their replies on the plea filed by Congress-JD (S) combine and posted the matter for hearing tomorrow. “This Court is not passing any order staying the oath-taking ceremony of BS Yeddyurappa. In case, he is given the oath in the meantime, that shall be subject to further orders of this court and final outcome of the writ petition,” the bench said.