Opinion
The apex court refused to intervene in B S Yeddyurappa's oath-taking ceremony.

In a late-night hearing in which arguments started at 2.10am, the Supreme Court of India refused to intervene in the oath-taking ceremony of BS Yeddyurappa scheduled at 9am on Thursday but has asked Yeddyurappa to produce in court the letters he sent to the Governor, which are believed to state the number and names of MLAs who support him.

The court also said that while they are not intervening in the oath-taking ceremony, it shall be subject to the final outcome of the petition.

The petition was filed by the Congress and the JD(S) at the Supreme Court, challenging Governor Vajubhai Vala’s decision on Wednesday evening to invite the BJP and its chief ministerial candidate Yeddyurappa to form the government.

Following the petition filed by KPCC President G Parameshwara, the hearing that began around 2 am on Thursday and continued until after 5 am. A bench comprising of Justice AK Sikri, SA Bobde and Ashok Bhushan heard the case.

What happened in court

Abhishek Manu Singhvi, appearing for the Congress, said that post-poll alliances have been accepted in the past, and cited the example of Goa, and instances where the floor test had been advanced from seven days to 48 hours. In Goa, the Congress was the largest party but did not have the majority, and the post-poll alliance of the BJP was invited to form the government. He asked that the oath-taking ceremony be stayed and the floor test be advanced. 

“There is only one way a party which got 104 will get 113... I heard he asked for 7 days, but Governor gave 15 days. Elementary common sense and arithmetic against this kind of giving of time,” Singhvi said.

"It is biggest license to poaching if Governor gives 15 days to the BJP to prove majority," he said.

Singhvi argued that the BJP did not have the majority, and the letter submitted by Yeddyurappa to the Governor still remains to be seen.

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. Justice Sikri said that the court also had the power to review the Governor’s actions.

"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.

Finally, around 5.30 am, the court declined to stay Yeddyurappa’s swearing-in, and asked him to submit the letters of support in court by 10.30 am on Friday, which is when the matter will be taken up again. The court declined to schedule the floor test for Friday evening.

Can the SC intervene, and should it?

Justices Sikri, Bobde and Bhushan said they were wondering whether the Supreme Court can restrain a Governor, and if that might lead to a constitutional vacuum in a state. Article 361 of the Constitution gives immunity to the Governor from judicial intervention, assuming that the Governor will act fairly. The SC is of the opinion that the general trend of the past SC judgements was not to issue an injunction to Governor or to restrain Governor.

Yet, Singhvi said that an intervention is possible. "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?"

"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,” he added.

There is a case to be made for the SC to intervene.

First, the BJP has been making its case by quoting the SR Bommai case, when it is clear that their demand has no basis on the Bommai case. Yes, the Bommai case says that the floor of the assembly is the best place to test majority, but it makes it clear that its orders were passed in the context of an incumbent CM loses majority during their term.

“We make it clear that what we have said above is confined to a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House. It is not relevant to a situation arising after a general election where the Governor has to invite the leader of the party commanding majority in the House or the single largest party/group to form the Government. We need express no opinion regarding such a situation,” says para 396 of the SR Bommai judgment.

However, a reading SR Bommai case from another section of its judgment might work against the Governor here. As Sruthisagar Yamunan points out, the SC made it clear that decisions of the President under Article 356 should be fair and he should keep in mind the great political and constitutional consequence of exercising this extraordinary power.

“The scope of judicial review would be on the same or similar grounds on which the executive action of the State is challengeable under constitutional or administrative law principles evolved by this Court, namely, non-compliance with the requirements of natural justice, irrational or arbitrary, perverse, irrelevant to the purpose or extraneous grounds weighed with the President, misdirection in law or mala fide or colourable exercise of power, on all or some of the principles. The petitioner has to satisfy the Court only prima facie that the Proclamation is vitiated by any one or some of the above grounds and burden then shifts on the Council of Ministers to satisfy the Court of the legality and validity of the Presidential Proclamation issued under Article 356,” the SC said in Bommai judgment.

Yamunan argues that the role of the Governor is similar, and the same applies to the Governor too.

What gains importance here is if the intentions of the Governor were malafide. There is a clear majority with the JD(S)-Congress combine, and the BJP does not have full majority going by the number of seats it won – is it not fair then for the Governor to ask HD Kumaraswamy to prove his majority first? The SC will decide on Friday.

With IANS inputs