New Delhi: After an unprecedented early morning hearing lasting more than three hours, the Supreme Court on Thursday refused the Congress party’s plea for a stay on the swearing-in ceremony of BJP leader B.S. Yeddyurappa as Karnataka chief minister. But it said it would issue notice to Yeddyurappa and the Bharatiya Janata Party and take a final call on the question of government formation in a few days time.
Expressing his unhappiness with the court’s unwillingness to stay or even defer the swearing in – which is set for 9 am on Thursday – Congress counsel Abhishek Singhvi said, “If Yeddyurappa comes with the records/letter [proving he has the support of a majority of MLAs] and the court finds there is no merit in my case, I am out. Else I am in. But once he is sworn in, then the whole thing will have to be reversed”.
The matter was heard by a three judge bench comprising Justices A.K. Sikri, Ashok Bhushan and S.M. Bobde, which commenced its hearings at 2 am.
The Congress petition stated that the decision of governor Vajubhai Vala on Wednesday night to ask the BJP to form the government is “completely tainted with arbitrariness, mala fide, partisan and has been taken in an extremely hasty manner to pre-empt the JD(S)-Congress coalition from forming the government. As such. it is a violation of Article 14 of the constitution which mandates equality before the law.
They have asked the government to produce that letter of 15th May, which Yeddyurappa had given to the Governor (Karnataka), at 10:30 am tomorrow: Counsel for petitioners Congress and JD(S) #KarnatakaElections2018 pic.twitter.com/tJlayeaZaI
— ANI (@ANI) May 17, 2018
“As far as swearing-in is concerned, we are not restraining it, but we are making it subject to the outcome of the case,” the three-judge bench said ordering the BJP to produce the letter of support from majority of MLAs submitted to the governor by Yeddyurappa for forming the government. The Supreme Court will resume hearing the case on May 18.
No stay on swearing-in. However, the same will be subject to outcome of case.
Notice issued to respondents. Matter to be taken up at 10.30 am on Friday.
— Bar & Bench (@barandbench) May 17, 2018
Congress leader A.M. Singhvi, who has been assigned the task of leading the party’s legal challenge against Vala’s decision, met the Supreme Court registrar earlier in the night to take forward the process of getting the urgent petition heard right away.
Irrespective of merits, sc finds sufficient urgency to list at 145 pm. Shows system works irrespective if merits in getting large wheels to move at v short notice wo regard to technicalities
— Abhishek Singhvi (@DrAMSinghvi) May 16, 2018
The registrar then consulted Chief Justice of India Dipak Misra, who as master of the roster, decides the allocation of cases.
The government was represented by attorney general K.K. Venugopal and additional solicitor general Tushar Mehta while the former attorney general, Mukul Rohatgi appeared for “some BJP MLAs but not Yeddyurappa”, he said.
Singhvi asks for quashing or stay or deferment
The Congress’s plea was for the court to declare the governor’s invitation to the BJP unconstitutional and for it to direct the governor to invite the JD(S)-Congress coalition. According to Bar and Bench, Rohatgi, arguing for the government, raised preliminary objections on jurisdictional grounds, saying a governor cannot be injuncted.
Mukul Rohatgi raises preliminary objection – "No injunction can lie against Governor", he says.
— Bar & Bench (@barandbench) May 16, 2018
Citing the Supreme Court’s 2006 verdict in Rameshwar Prasad – stemming from the dissolution of the Bihar assembly – Singhvi told the court that when there is no absolute majority, then the Sarkaria Commission guidelines come into play which says the “largest party or group of parties” should be first invited by the governor.
He said that a party which did not have majority had been given 15 days to prove its majority, and that this amounted to “the biggest license for poaching of MLAs”.
In response to questions from the bench about the Supreme Court’s ability to interfere with decisions taken by a governor, Singhvi said Article 361 of the constitution (on the protection enjoyed by the president and governors) is immunity from prosecution and not from judicial review. He said a governor’s exercise of discretionary power can be challenged in court.
Singhvi referred to a letter Yeddyurappa is said to have submitted to the governor claiming the support of 111 MLAs whereas he actually has the support of just 104. The court wanted to see a copy of the letter, but Singhvi said he did not have a copy. Pleading for a stay on the governor’s decision to swear Yeddyurappa in on Thursday morning, Singhvi said that if the imposition of president’s rule under Article 356 could be stayed by the Supreme Court then so could the swearing-in, especially since it was a decision taken by a governor in exercise of his own discretion and not on the advice of the cabinet.
Singhvi concluded his arguments with a plea that court stay or at least defer the swearing-in ceremony.
Bench concerned about ‘suitcases’
When the government’s side began its arguments, questions put to counsel suggested its over-riding concern was the possibility of horse-play. When the attorney general said the anti-defection law – which voids the membership of the assembly of any legislator who defects unless he or she is part of a group that constitutes two-thirds of the party’s legislative strength – kicks in only after the chief minister and all MLA had taken their oaths, the bench said this was “preposterous”, Bar and Bench reported.
AG: Anti-defection law would come into force only after the MLAs are sworn in.
Justice Sikri and Bhushan: does that mean all the suitcase exchange is possible before they are sworn in? That's impermissible.
— Apurva Vishwanath (@apurva_hv) May 16, 2018
Judges: why 15 days though to prove majority?
Attorney general: We do not know. That only the Governor can answer & the court cannot bring him here.
Justice Sikri: But his actions can be reviewed by this court.
— Apurva Vishwanath (@apurva_hv) May 16, 2018
Justice Sikri: We cannot look away because the figures don't say you have majority.
Attorney General: But your lordships don't know the full figures. You only know what's announced yesterday but not entirely.
— Apurva Vishwanath (@apurva_hv) May 16, 2018
In the just concluded elections in Karnataka, the BJP won 104 seats whereas 112 seats are needed for a simple majority in the 224-seat assembly as voting for two seats was countermanded. The Congress won 78 seats and the JD(S) won 38 while its pre-poll alliance partner, the Bahujan Samaj Party, has one seat. In terms of vote share, the coalition won 56.3% of the popular vote compared to 36.2% for the BJP.
Earlier on Wednesday, Kumaraswamy went to the governor in Bangalore along with the leader of the Congress in Karnataka to stake claim to forming the government on the basis of the three parties’ combined strength of 117 MLAs.
However, the governor rejected his claim and invited Yeddyurappa to form the government. If the Supreme Court does not stay the process, he will be sworn in as chief minister at 9 am on Thursday and then have 15 days to prove his majority on the floor of the Vidhan Soudha.
Goa and Manipur precedents
Before the hearings commenced, Mehta told reporters said the governor has the discretion to call largest party and had done so. “If the single largest party [is not] able to form the government, then the other party will be called.”
He claimed that the situation in Karnataka differed from that of Goa because in the latter case, the Congress – which was the largest party Congress – “had not presented its side”, he claimed.
The Congress, however, insists, the Goa and Manipur precedents fit the Karnataka situation perfectly.
In March 2017, the Congress won 17 out of 40 seats in the Goa assembly while the BJP, which was the incumbent, won only 12 seats. However, the BJP stitched together a post-poll coalition with smaller parties and was invited by governor Mridula Sinha to form the government.
In Manipur, the Congress won 28 out of 60 seats, falling short of a majority by 3 seats. However, the BJP, which won 21 and was 10 short, pulled together a coalition with smaller parties and independents and was sworn in by governor Najma Heptullah.
In the Kavlekar case, where the Congress went to the Supreme Court, a bench headed by the then chief justice J.S. Khehar upheld the validity of the governor’s invitation to the BJP-led post-poll coalition:
“If the single largest party has the majority, then no such question has to arise. But when no political party is in majority, then it is the bounden duty of the governor to see who can form the government. If nothing happens, then the governor is duty-bound to call the leader of the single largest party but if someone goes to the governor with a list of supporters, then it is a different issue altogether. Here, at no point of time, you have demonstrated that they don’t have the numbers but you do. Eventually, it is the question of healthy constitutional convention subject to the numbers.”
The Congress now argues that this precedent directly applies to the Karnataka situation.
Anti-defection law would be invoked
In the event that Yeddyrurappa is sworn in, the only way he can demonstrate a majority on the floor of the assembly is if a sufficient number of MLAs from the Congress and/or JD(S) either stay away or vote for the BJP. Were that to happen, however, the MLAs who do so would be in violation of whips that their party will have issued and – under the terms of the 10th schedule of the constitution – would immediately be disqualified.
Fresh elections would then have to be held for their seats in which, almost certainly, the Congress and JD(S) would likely field joint candidates against the BJP.
Details of Congress petition
(via Bar & Bench)
— the impugned action/decision of the governor in inviting B.S. Yeddyurappa of the Bharatiya Janata Party to be appointed as the chief minister of Karnataka and to form the government by proving his majority within 15 days is unconstitutional, arbitrary and illegal and violative of Article 14.
— the decision of the governor flies in the face of the well-established constitutional convention that the governor is constitutionally obliged to invite the party/alliance of parties which has ex-facie demonstrated to the governor that the said party/alliance of parties enjoys the support of the majority of the legislators.
— if such party/alliance of parties presents to the governor letters of support of the legislators which clearly show that the majority of the legislators are with the party/alliance of parties staking claim to form the government, then the governor has a constitutional duty to first invite such party and or alliance of party’s which prima facie enjoys the support of the majority of the legislators.
— the post-poll alliance between the INC and the JD(S) has 116 seats, and 2 independent MLA’s have also offered support to the coalition of the JD(s) and INC and therefore legislators supporting the alliance is 118… It was therefore incumbent upon the governor to invite the post-poll alliance of JD(s) and INC to form the government and direct them to prove the majority in the floor of the house.
— this issue is no longer res-Integra, as a matter of fact, a three-judge bench in Chandrakant Kavlekar v. Union of India (2017) 3 SCC 758 has upheld the action of the governor in the context of the elections of the Goa legislative assembly
— this Hon’ble Court upheld the decision of the governor by directing an expedited floor test. Therefore, it is submitted that the action of the governor in this particular case to take a detour from the well-settled constitutional convention as also the judgment of this court in Chandrakant Kavlekar is ex-facie unconstitutional, arbitrary, void-ab-initio and is violative of Article 14 of the constitution
— the governor, without affording an opportunity to the said coalition, has hastily proceeded to appoint B.S. Yeddyurappa as the chief minister of Karnataka to pre-empt the coalition parties from forming the government. It is submitted that the INC together with JD(S) etc. is in a position to form the government and will demonstrate its majority on the floor of the house if given an opportunity.
— despite the BJP being short of majority, in its hunger for power, by using the office of governor, has got itself invited from the governor.
— discretionary powers under the constitution conferred on the governor are not the ipse dixit of the governor but have to be exercised within the constitutional norms and conventions guiding the exercise of such discretion.
— law has been well settled by this court that constitutional convention is as binding as constitutional law. [Supreme Court Advocates on Record Association v. Union of India, (2016) 5 SCC 1 (para 767 and 768); Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441].
— for these reasons, the impugned decision is brazenly opposed to the spirit of the constitution as is reflected in constitutional convention and practice having the force of law.
Updated at 6:00 am