It has been three days now that the political climate in Karnataka has kept everyone on tenterhooks. The Supreme Court, hearing the case filed by the Congress-JD(S) on Friday said that the BJP would have now to prove its majority on Saturday at 4pm.
The time that BJP had to do so has now been reduced to a mere day from the 15 days earlier granted by the Governor.
As Karnataka BJP chief BS Yeddyurappa was sworn in as the State Chief Minister despite the party falling short of the halfway mark in the Assembly Election, post-poll allies Congress and JD(S) approached the Supreme Court against Governor Vajubhai Vala’s decision inviting him to form the government.
The Congress-JD(S) MLAs who were taken to Hyderabad on Thursday night will now have to make a U-turn to Bengaluru.
The case was heard by Justices Arjan Kumar Sikhri, Ashok Bhushan, and Sharad Arvind Bobde.
Mukul Rohatgi, who is representing the BJP, read out the two letters that the party had submitted to Governor Vala. While the first one said that thr BJP could form the government because there was no pre-poll alliance, the second one claimed that Yeddyurappa had the required majority.
Mukul Rohatgi says he's got BSY letters. J. Bhushan asks him to give other side a copy— Krishnadas Rajagopal (@kdrajagopal) May 18, 2018
MR reads out May 15 letter saying since there is no pre-poll alliance, as Single Largest Party, BJP can form govt.— Krishnadas Rajagopal (@kdrajagopal) May 18, 2018
May 16 letter in which BSY says "I have the support of others and requisite majority" @the_hindu @abaruah64
In court, Rohatgi made the explosive statement that the BJP has several MLAs from Congress-JD(S)' side who have not given written support to the alliance. He said he could not reveal their names in court but was confident that they would have the majority if there was a floor test.
Singhvi says Election is one part but who gets invite first is a completely different ball game. We know what happens when a minority support base party gets invite to form government. It will kill democracy.— Dhananjay Mahapatra (@toi_dhanajayM) May 18, 2018
Meanwhile, Abhishek Manu Singhvi, representing the Congress-JD(S) alliance, argued in court that Yeddyurappa had, in his letter to the Governor, declared BJP as the single largest party even before the Election Commission declared results.
He also pointed out in court that BJP was claiming it had the majority without revealing names or numbers, whereas the Congress and JD(S) had presented a letter to the Governor with the MLAs' details. He then questioned how Governor Vala could have invited BJP to form the government.
His arguments were supplemented by senior advocate Kapil Sibal who argued that the "governor's discretion" must happen within the Constitutional boundaries.
Sibal: There is no such thing as Governor's discretion. That discretion is circumscribed by constitutional dictum and law @the_hindu— Krishnadas Rajagopal (@kdrajagopal) May 18, 2018
The three judges concurred that the best way to resolve this would hold a floor test in the Karnataka Assembly.
Floor test is the best option, let the larger question on law how should Guv invite a person to form the Govt can be settled here later: SC— Arvind Gunasekar (@arvindgunasekar) May 18, 2018
This comes after the same three-judge bench refused to stay Yeddyurappa’s swearing in as CM on Thursday but asked him to produce the letters he had given to the Governor in court – these have names and signatures of the MLAs supporting him.
While BJP now has very little time to prove its majority in the Assembly, Congress and JD(S) are trying hard to keep their flock together. This also leaves less space for resort politics and horse trading, and it remains to be seen whether the BJP will retain power in the state with a little over 24 hours remaining till the floor test.
The court however, denied the demand for videography and a secret ballot inside the Assembly. The bench added that the protem speaker will decide in what manner the floor test will be held.
Senior advocate and Congress leader Abhishek Manu Singhvi, appearing for the JD(s)-Congress combine at the 2am hearing at the Supreme Court on Thursday, said that post-poll alliances have been accepted in the past.
He 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.
"It is biggest license to poaching if Governor gives 15 days to the BJP to prove majority," Singhvi said.
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 and BS Yeddyurappa 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."
When Venugopal went on to argue that the anti-defection law doesn’t apply to MLA-elects before the oath-taking, the top 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 that he had submitted to the Governor on May 15 and May 16 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.
Incidentally, senior advocate Ram Jethmalani’s petition also challenges Yeddyurappa’s swearing in, and is being heard in the apex court.