Doing away with the 15-day period that Karnataka Governor Vajubhai Vala granted to Chief Minister B S Yeddyurappa to prove his majority, the Supreme Court Friday directed that he take a floor test in the House at 4 pm Saturday.
The bench of Justices A K Sikri, S A Bobde and Ashok Bhushan asked the Chief Minister, who took charge Thursday, not to take any policy decision till he proved his majority on the floor of the House. The judges also put on hold any move to nominate a member of the Anglo-Indian community to the House.
Hearing a petition filed by Karnataka Congress chief G Parameshwara and JD(S) president H D Kumaraswamy against the Governor’s decision to invite Yeddyurappa to form the new government, the bench said hearing would consume a lot of time and it would be better to order a floor test. “We have to choose between the devil and the deep sea,” the bench said.
“In a matter like this, detailed hearing is required in order to decide as to whether action of the Governor in inviting respondent no. 3 (Yeddyurappa) to form the Government was valid in law or not. Since it may consume substantial time and the final decision cannot be given immediately, we deem it proper that Floor Test to ascertain the majority of one or the other group is conducted immediately and without any delay,” the bench said.
“Though the Governor in his letter dated 16.05.2018 inviting respondent no.3 to form the Government has given him 15 days time for proving the majority on the floor of the House, having regard to all the circumstances of this case, we are of the view that such a Floor Test be conducted tomorrow itself i.e. on 19.05.2018,” the bench directed.
The judges also laid down the procedure to be followed for the floor test since the new MLAs have not yet taken oath. It ordered that a pro tem Speaker be appointed and swearing-in of the members be completed by 4 pm.
“The pro tem Speaker shall conduct the Floor Test on 19.05.2018 at 04.00 PM in order to ascertain the majority,” the bench stated, instructing the Karnataka DGP to ensure security for the process.
On the floor test, Justice Sikri observed “ultimately it is a number game… Speaker has to decide” and this has to be proved in the House.
“The situation is: on one hand, there is a party which has given names and the other simply claims it has support. How do we decide? Sarkaria (Commission recommendations) say largest party (be invited to form party). After that, if there is a pre-poll alliance, it is highest — rationale being that voters knew they were projecting themselves. As far as post-poll alliances are concerned, it is kept below largest party because voters didn’t know they would come together… there would be question of the will of people… Majority has to be proved on the floor of the House,” Justice Sikri said.
During a pre-dawn hearing Thursday, the bench had said it wanted to see two letters dated May 15 and May 16 written by Yedyurappa to the Governor, staking claim to form the government. Appearing for Yedyurappa Friday, senior advocate Mukul Rohatgi produced the two letters. He read out the letters. The May 15 letter said he was “confident” of proving his majority on the floor of the House while the second letter said he had the BJP numbers plus “the support of others and requisite majority”.
Rohatgi said he did not want to disclose the names of the “others” who were supporting Yeddyurappa given the prevailing situation. “In a nutshell, the mandate is for the largest party. Mandate is for change… There is no requirement for us to declare names of those in these two parties who support us… there is an atmosphere of apprehension. MLAs have been taken to resorts… We fear they (MLAs) are not being allowed to vote according to their conscience,” he said.
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After perusing the letters, the bench said it had two options before it. “Either we hear it in detail… or we order a floor test tomorrow itself. We don’t give any time to anybody.”
Questioning the Governor’s decision, senior advocate Abhishek Manu Singhvi, who appeared for the petitioners, asked “is it fair to call someone with fewer numbers”.
Rohatgi said he had doubts regarding the Congress letter to the Governor and claimed that some documents were likely “withheld” from him. He said many of those who were said to have signed it had not actually signed. “They said Anand Singh signed. But he did not sign,” he said.
Countering him, senior advocate Kapil Sibal said: “We have the signatures”. Rohatgi protested: “I am disputing the signatures. Only a floor test can show the truth.”
Additional Solicitor General Tushar Mehta, appearing for the Karnataka government, backed Rohatgi, saying official records with him clearly showed that the letter received by the Governor from the Congress did not have the signatures of members in support. But the JD(S) list had them, he said, adding that the Congress list looked as if it had been downloaded, apparently from the Election Commission website.
Singhvi cited the numbers enjoyed by the BJP and the Congress-JD(S) combine and said Yeddyurappa could not win majority except by engineering defections. This, he said, was against “Constitutional morality” and the question was whether the court would encourage this.
“That is also in our mind,” Justice Sikri said.
With Singhvi persisting, Justice Sikri said “if we are going to hear and decide, it will lead to loss of precious time”.
The judge told Sibal “we understand that you have much to say… the other side also. Ultimately, we have to hear and decide… Maybe we will get to lay down the law, once and for all”.
He said “we are here to uphold the rule of law and the Constitution”.
Singhvi said the lists given by the JD(S) and Congress were exhaustive and the BJP letter should have had “more details”.
The petitioners then raised their plea seeking to restrain the Chief Minister from nominating any Anglo-Indian community member as MLA.
Justice Sikri said the government could not do that and ASG Mehta replied “there is no such move to nominate any member”.
When the bench indicated again that it will order a floor test Saturday, Rohatgi asked for more “reasonable” time, saying one day notice was too short. “Sarkaria says 30 days, Governor gave 15… I say both are more, but give some reasonable time. It should not be tomorrow… I have to also get my flock. Their people are locked up, not mine.”
In a lighter vein, Justice Sikri said he had come across a social media forward that the owner of the resort may stake claim to majority in the House since the MLAs were with him.
The court declined the request for more time: “We will not compromise on this.”
Appearing for the Centre, Attorney General K K Venugopal asked if the court would consider “secret ballot”, but the bench said it had never allowed such a procedure.
While dictating the order, Justice Sikri asked the CM not to take any major policy decisions till he had cleared the floor test. Rohatgi told the bench to record his assurance to this effect and not issue such a direction. The court agreed to this and recorded his assurance.
“We had read in the papers about it… Anyway, we think he will be busy with other things after this order,” Justice Sikri said, causing much merriment in the court room.