The midnight battle of Karnataka

Bengaluru: As B.S. Yeddyurappa has become the Chief Minister of Karnataka for the third time, a legal and political battle ensues on the other side over whether he should become the CM at all. Immediately following the Governor’s invite to the BJP to form the government, the Congress filed a petition in the Supreme Court seeking urgent relief, as a result of which the apex court was forced to conduct its second midnight hearing in history.

Abhishek Manu Singhvi, legal representative of the Congress-JD(S), said that the urgency in seeking the intervention of the apex court was “self-validating”. He sought to challenge the Governor’s decision, of inviting the BJP to form the government, that very night. The Supreme Court also agreed to hear the petition at 1:45 am. Chief Justice of India Dipak Misra constituted a Bench comprising Justices A.K. Sikri, S.A. Bobde and Ashok Bhushan to hear the matter. Mukul Rohatgi represented the BJP and ASG Tushar Mehta represented the Centre. Rohatgi also made it quite clear that he was representing some BJP MLAs and not Yeddyurappa.

The arguments began at around 2:15 am. Singhvi cited innumerable examples where post-poll alliances were called to form the government, instead of the single largest party. He quoted the Chandrakant Kavlekar order of April 2017, regarding the Goa Assembly Elections. He also quoted from the Bommai and Rameshwar Prasad verdicts: “Discretion of Governor in dissolution of existing government. Same discretion will apply to inviting new Chief Minister.” He told the Bench that the decision of the Governor was “unconstitutional”.

Singhvi also argued that the 15 days provided to the BJP for proving majority was a “license” for poaching. He cited the examples of the Jharkhand case in 2005, the Goa case in 2017 and the Jagadambika Pal case in Uttar Pradesh where the court advanced the date of floor test from 7 days to 48 hours. But in contrast, the Bench said that the Court could not pass an injunction on the Governor’s order. “We are wondering whether SC can restrain Governor that might lead to constitutional vacuum in the State. General trend of past SC judgement is not to issue injunction to Governor or restrain Governor,” the Bench said.

While Singhvi argued before the Bench for more than an hour, the only question from Rohatgi was why the Congress had to hurry to bring the intervention of the apex court at midnight. Attorney-General Venugopal also observed that there was no loss in waiting for 15 days. He told the Bench that “everything is reversible” and asked that the swearing-in be held. He opined that the swearing-in was subject to the outcome of the floor test.

Rohatgi asked the Bench to dismiss the petition filed by the Congress since it was misconceived. He said that an attempt to injunct the Governor is in violation of Article 361(1). “In Goa, Digambar Kamat of Congress never made a claim. Manohar Parrikar of BJP made a claim and was invited to form the government,” he added. After much discussion, the Bench observed that the court could not injunct the CM from taking oath, but could only stay his government from functioning.

The Supreme Court gave the final verdict at around 5:30 am that the swearing in of Yeddyurappa as the Chief Minister of Karnataka at 9am on Thursday will not be stayed. But it will be “subject to the outcome of petition here or further orders.” The court also asked the Attorney-General to produce the May 15 and May 16 letters given to the Governor by Yeddyurappa staking his claim to form the government. The case will be proceeded further on Friday at 10:30 am.