Senior lawyer and jurist Ram Jethmalani on Thursday, 17 May, moved the Supreme Court in his personal capacity against the Karnataka governor's decision to invite the BJP to form the government in the state, saying it was a "gross abuse of constitutional power".
A bench headed by Chief Justice Dipak Misra considered Jethmalani’s submission seeking urgent hearing and said that a three-judge special bench – which had heard the matter on the intervening night of 16-17 May – would re-assemble on Friday, 18 May.
The bench, also comprising Justices A M Khanwilkar and DY Chandrachud, asked the veteran lawyer to make his submission before the three-judge bench led by Justice AK Sikri on 18 May, when the petitions filed by the Congress party and the Janata Dal (Secular) (JD(S)) would be taken up for further hearing.
The governor’s order is a gross abuse of the constitutional power and this has brought disrepute to the constitutional office he has been holding.Ram Jethmalani
Jethmalani also said that he has not come before the court in favour of or against any party, but has been hurt over the unconstitutional decision taken by the governor.
The Supreme Court bench, which also comprised Justices SA Bobde and Ashok Bhushan, in a pre-dawn hearing on 17 May refused to stay Yeddyurappa's swearing-in as Karnataka’s chief minister after the Congress-JD(S) combine made a last-ditch attempt to stall the saffron party's surge in the southern state.
The Congress alleged that the BJP, which has 104 MLAs, was invited by the governor to form the government "in an unconstitutional manner", even as JD(S) leader HD Kumaraswamy has the support of 116 MLAs.
In the polls that took place on 12 May, BJP emerged as the single largest party with 104 members, while the Congress secured 78 seats and the JD(S) got 37 seats.
Soli Sorabjee Thinks Otherwise
Former attorney general Soli Sorabjee, however, has a different approach to the entire episode. Whike speaking to The Economic Times (ET), Sorabjee said that the single-largest party should be invited first and asked to prove its majority on the floor of the House within a short period of time (about 7-10 days).
If it fails to do so, then the next largest party, or a coalition, should be invited. If that too fails, then President's Rule should be imposed.
"If it fails, the governor can give other parties a chance to form a government. If none could form the government, then the governor could recommend imposition of President's rule in the state and keep the House in suspended animation," said Sorabjee, as quoted by ET.
Sorabjee's view draws parallel from the 1988 Sarkaria Commission report, which specifically dealt with the situation where no single party obtains absolute majority and provides the order of preference the governor should follow.
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