Declining to stay B S Yeddyurappa’s oath taking as Karnataka Chief Minister, the Supreme Court, after a dramatic pre-dawn hearing Thursday, said the BJP leader’s future in the CM office will be subject to the outcome of a writ petition moved by the Congress and Janata Dal (Secular). The court fixed Friday to look into two letters from Yeddyurappa to the Governor.
“This Court is not passing any order staying the oath taking ceremony of respondent No.3 (Yeddyurappa). In case, he is given oath in the meantime, that shall be subject to further orders of this Court and final outcome of the writ petition”, a bench of Justices A K Sikri, S A Bobde and Ashok Bhushan ordered after the rare hearing that commenced around 2.10 am and went on till about 5.40 am.
The bench, after hearing the contention of both sides, said: “We are of the opinion that it is necessary to peruse the letters dated May 15 and 16, 2018 submtted by respondent (Yedyurappa) to the Governor which is mentioned in the communication dated May 16 of the Goveror”. It asked Attorney General K K Venugopal to produce the letters when the court hears the matter again at 12.00 noon on Friday/
The petitoners questioned Karnataka Governor Vajubhai Vala’s decision inviting Yeddyurappa to form government saying it was “unconstitutional, arbitrary, illegal, void-ab-initio adn vioative of Article 14 of Constitution…”
The proceedings — the second time in history that the SC’s doors were opened for hearing during night hours — over the Karnataka government formation witnessed sharp exchanges with two BJP MLAs questioning the urgency for taking it up post midnight and petitioners hailing it as a victory for democracy.
“Irrespective of merit, the fact that three judges of the Supreme Court can sit at 2 in the night and hear the matter is a victory for democracy”, said senior advocate Abhishek Manu Singhvi who appeared for petitioners Karnataka Pradesh Congress Committee chief G Parameshwara and Janata Dal (Secular) president H D Kumaraswamy.
Senior Advocate Mukul Rohatgi who represented the two MLAs chose to differ. “I’m surprised that this is being heard now as if this is a case of case of hanging”, he said and referred to the first time the Supreme Court heard a case during the night hours — the plea against hanging of 1993 Mumbai blasts accused Yakub Memon on July 30, 2015.
Rohatgi recalled that he had argued in that matter too. “In Yakub Memon case, I argued from 2 to 5 am. But then at 6 am, he was going to be hanged”, he said and asked “what is the urgency here?”
Singhvi retorted that the reference to hanging was the “highest form of trivialisation”. His co-counsel Anoop George Choudhary was quick to add: “Here constitution is going to be hanged”.
Singhvi wondered why BJP leader B S Yeddyurappa had chosen not to be represented directly in the case. “Respondent 3 (Yeddyurappa) is heard in proxy through two MLAs who are not a party (to the petition),” he submitted.
“I will appear for whomsoever I want”, Rohatgi hit back.
The bench of Justices A K Sikri, S A Bobde and Ashok Bhushan assembled around 2.10 am in court number 6, the air heavy with speculation. Additional Solicitor General Tushar Mehta and Singhvi took seats and were joined in a short while by Rohatgi. Attorney General K K Venugopal waded in after the proceedings began. He had received a communication from the Registry.
There were only few lawyers, leaving the chairs which are usually occupied by the advocates in the day time, free for journalists.
Singhvi started with a narration of the sequence of events after results were declared. Rohatgi raised a preliminary objection that the Governor cannot be made a party to the proceedings and no injunction would lie against him.
Singhvi clarified that Governor had not been made party.
He contended that in a situation where one political party did not have the simple majority, the convention is that the post-poll coalition is invited to form government. Singhvi cited the cases of Meghalaya, Manipur, Goa, Delhi, Jharkhand and J&K where, he said, the Governor invited the post-poll alliance to form the government when the single largest party fell short of the majority mark.
As per convention recorded by the Sarkaria commission report and approbated by the Supreme Court in the Rameshwar Prasad vs Union of India case (2006) the sequence of approach is the call the largest group of parties — even if it’s a post-poll alliance — if the single largest party did not have majority, he said.
“The Governor, in inviting someone can’t be whimsical and capricious.The moment there is a group of parties in majority, it is negation of democracy not to call them”, Singhvi contended.
He also questioned the 15-day period given by the Governor to Yedyurappa to prove his majority saying the apex court had held that giving such a long time period “is to encourage the constitutional sin of poaching”.
The counsel said he did not have the letter of Yedyurappa to know the precise details of how he claimed majority and added that given the arithmetic, it was impossible for the BJP to have the numbers unless someone defected.
“But then wouldn’t the anti-defection law apply?” asked Justice Bobde.
Singhvi added that sometimes it may be argued that the anti-defection law will not apply unless the newly elected members are sworn in as they don’t become MLAs before such swearing in. The senior counsel said he had his doubts that Yeddyurappa had only asked for seven days but the Governor had given him 15.
He pointed out that there were some who argue that the Governor should also look at the ethicality of parties coming together after polls but the Supreme Court had held in the past that even in such cases, the “Governor cannot refuse formation of government” because of his “subjective assessment” that it is “unethical”.
Singhvi contended that as imposition of President’s Rule under Article 356 is subject to judicial review, why shouldn’t the Governor’s decision be subject to judicial review, too?
Touching on the aspect of horse-trading, he said “someone said we are giving horses a bad name by calling it horse-trading. We are trading humans and calling it horse-trading”. He said that the 15 days given to the BJP to prove a majority will encourage poaching.
Singhvi said that while “Yedyurappa staked claim to form the government as leader of only his own party BJP, Kumaraswamy has staked claim as leader of coalition of his party and the Congress”.
Justice Bobde said the court would need to look at Yedyurappa’s letters to the Governor. To which Singhvi said the court can’t proceed “on mere speculation,” so it could postpone the swearing-in by two days.” The Judge countered: “So can we postpone on basis of mere speculation?”
K K Venugopal, appearing for the Centre, said Yeddyurappa’s communication to the Governor is not known and was a “grey area”. “Whole thing is a grey area, in the realm of speculation”, he said.
“Why can’t you show us the letter?”, asked Justice Bobde. “I don’t have it,” replied the AG.
He pointed out the Singhvi, too, had expressed doubts on whether anti-defection law would apply before the newly elected have taken oath as MLA. Justice Sikri was quick to point out that the contention seemed “prepsoterous”. “In that case you mean to say they can do it till they swear in?”.
Added Justice Bhushan, “That will not be substantial justice. The spirit of the Tenth Schedule (provisions on disqualification due to defection) has to be followed”.
Justice Sikri said the issue was that the JD(S)-Congerss coalition had given letters with signatures of MLAs.
Venugopal expressed doubts if all the signatures were genuine and said this was the reason why every MLA is presented before the Governor so that the claim can be verified.
“Then could the Governor have not waited and carried out the exercise”, asked Justice Sikri.
The AG replied “we don’t know.that’s the grey area..to know that counter affidavit will have to be filed by the third respondent (Yedyurappa)”.
The court also questioned the AG on the 15 days. Venugopal said: “Only he (Governor) can explain this, if he can be called to explain”. Justice Bobde told the AG, “You can’t say he will not be subject to judicial review. We are not reviewing him, but only his action”.
The AG replied: “I’m not disputing that”.
Urging the court to hear the matter after the 15 days granted by the Governor, the top law officer said: “Heavens are not going to fall as far as parties on the other side are concerned”. By then a clearer picture would have emerged and if Yedyurappa would not be able to prove his majority by then, the opposition will have its path clearly laid out, he said adding the court could if necessary reverse the swearing-in then.
Senior Advocate Mukul Rohatgi appearing for two BJP MLAs sought dismissal of the petition saying it is “completely misconceived”. He alleged that the “the petitioners are trying to stultify a democratic process”.
Rohatgi countered that the effect of the relief sought by the petitioners will be interdicting the constitutional duty of the Governor under Article 164 which deals with power of Governor to appoint CM and council of ministers. He said the Goa case where SC upheld the Governor’s invite to BJP leader Manohar Parikkar who led the post-poll coalition is different from Karnataka situation. “In Goa, the single largest party Congress did not stake claim to form government.”
The court issued formal notices to Karnataka government and Yeddyurappa.