All the Action From the All-Night SC Hearing on Karnataka Election

Here is all you need to know about the midnight drama in the Supreme Court.

• 9.30 PM: Karnataka Governor Vajubhai Vala formally invites BJP to form government, grants 15 days to prove majority
  
• 11.30 PM: Congress-JD(S) combine moves SC against governor’s decision, seeks urgent hearing
  
• 12.30 AM: Registrar accepts petition, heads to CJI’s house
  
• 2.15 AM: Abhishek Manu Singhvi represents Congress-JD(S), Attorney General KK Venugopal for the Centre, Mukul Rohatgi for three BJP MLAs
  
• 6 AM: Court refuses to stay BS Yeddyurappa’s swearing-in, says will take up the matter at 10:30 am on Friday, 18 May. The top court clarifies that swearing-in is subject to the outcome of the case before it
  
• 9 AM: Yeddyurappa takes oath as Karnataka Chief Minister
  

After over three hours of dramatic late night arguments, the Supreme Court this morning declined to interfere in the swearing-in of BS Yeddyurappa as chief minister of Karnataka. The Congress and the JD(S) had moved the court late in the night challenging the decision of Governor Vajubhai Vala to invite Yeddyurappa to form the government, and had asked that the swearing-in be deferred till the court had made a decision.

The special bench of Justices AK Sikri, SA Bobde and Ashok Bhushan said that they would review the Governor’s decision, and that the formation of the state government would be subject to their final decision.

For this, they asked Yeddyurappa to provide them with the two letters he had submitted on 15 and 16 May on the basis of which the Governor had decided to invite the BJP to form the government. The court will conduct its next hearing into the case at 10:30 am on Friday, 18 May.

Here’s how the whole drama played out.

Chapter 1: The Governor’s Gambit (9:36 pm, 16 May 2018)

It had been over a day since the JD(S) and the Congress had announced their post-poll alliance to achieve a majority in the hung Karnataka Assembly. Governor Vala had refrained from releasing any official invitation to either the BJP, which had emerged as the single-largest party with its 104 seats, or the JD(S)-Congress alliance with its 116-118 MLAs.

After hours of rumours, and a premature announcement by the BJP that was hastily withdrawn, the Governor at around 9:30 pm finally confirmed what everyone had suspected, releasing a copy of his invitation to Yeddyurappa to form the government. The letter also directed him to prove his majority by a floor test, which was to be completed within fifteen days of the swearing-in.

The moment the document was released, the Congress and the JD(S) filed their petition in the Supreme Court asking for an immediate, urgent hearing. As all the paperwork was in order, Chief Justice of India Dipak Misra assigned the case to be heard by the specially constituted bench at 1:45 am.

The matter was being heard urgently since Yeddyurappa had announced he would take his oath of office at 9:30 am on 17 May.

Chapter 2: Hearing Commences (2:15 am, 17 May 2018)

At around 2:15 am, the hearing began in Court No 6. Some of the most prominent senior lawyers turned up to take part in the proceedings, including:

• Abhishek Manu Singhvi for the Congress and the JD(S);
• Attorney-General KK Venugopal for the Union of India;
• Mukul Rohatgi for three BJP MLAs from Karnataka.

JD(S) and Congress’ Arguments

They needed to convince the court that the decision of the Governor was illegal and unconstitutional, because there were no good reasons to allow the BJP to form the government. Singhvi therefore argued that:

1. According to the guidelines in the Sarkaria Commission’s report of 1988, the largest party OR group of parties should first be invited by the Governor. The fact that this group came out of a post-election coalition is irrelevant – what’s relevant is that they have a majority, which the single-largest party in this case does not;
2. When the same situation came up recently in Goa, Manipur, Meghalaya, Jharkhand, Bihar, Jammu & Kashmir and Delhi, the Governors in each of those cases invited the coalition of parties which had a majority, not the single-largest party;
3. There was no call to give Yeddyurappa 15 days to demonstrate his majority, as this would only encourage horse-trading;
4. Decisions of Governors are subject to judicial review, as had been held by the Supreme Court in the Bommai and the Rameshwar Prasad cases, and in line with how the President’s decisions can also be reviewed.

The court pointed out that they did not have a copy of the letter from Yeddyurappa to the Governor which formed the basis of the Governor’s decision. Since neither of the two were represented in court, the judges couldn’t acquire the letter, and so couldn’t take a decision immediately. Singhvi then argued that the swearing-in be deferred for two days, to give the court enough time to examine the letter.

BJP’s Arguments

The lawyers for the Central government and the BJP MLAs had to convince the judges that the court could not actually review the decision of the Governor, that the Governor’s decision was legitimate, and that in any case, no action could be taken which would affect the swearing-in.

The Attorney-General ran into trouble at the outset by trying to argue that the court didn’t need to worry about horse-trading and bribery of MPs, since they would be able to vote for whoever they wanted during the floor test, even if that meant defying a party whip. He made this argument on the basis that the anti-defection law did not apply to a floor test at this stage, which the bench took strong exception to.

The bench also expressed concern about why 15 days had been given to the government to prove its majority. They clarified that all these decisions of the Governor would be subject to judicial review.

Venugopal and Rohatgi agreed, and said they were ok with the floor test being conducted within 7 days instead of 15. They insisted that there was no urgency for the court to reach a decision since the order of the Governor could be recalled later.

Chapter 3: The Decision That Wasn’t (4:30 am, 17 May 2018)

At this point, Justice Sikri started orally setting out what the court would do. He indicated that the court wouldn’t interfere with the swearing-in, and would not make any changes to the timeframe for conducting the floor test.

He also mentioned that they would issue a notice to Yeddyurappa to provide his side of the story, and get a look at the letters sent to the Governor. However, no timeframe was specified for this.

Singhvi launched a desperate last stand, arguing that if the court was going to eventually review the formation of the government, why let it be formed in the first place. And somehow, he was able to convince the judges to continue hearing arguments in the case.

The arguments between him and Rohatgi went on for another hour, during which they argued over whether the Supreme Court could injunct the decisions of the Governor or the swearing-in of a chief minister, since Governors enjoy immunity.

Chapter 4: A Decision at Dawn (6:00 am, 17 May 2018)

The court’s decision finally became public at around 6 am. They would not interfere with the swearing-in but they would be reviewing the whole decision within a specified timeframe – with the next hearing at 10:30 am, when the letters from Yeddyurappa would be scrutinised to see if they indicated a majority. Initially it was reported that the letters would need to be submitted to the court by 2 pm on Thursday, but the final order is silent on this.

It all ended with something of a positive result for both sides.

For the BJP, it meant there would be no hiccups before the swearing-in of their chief minister. It also gives them an opportunity to claim that they should be given the chance to prove their majority, an argument the Supreme Court has been partial to in the past, whether in Goa last year or Jharkhand in 2005.

For the Congress and the JD(S), it’s important that the court insisted it has the power to reverse the swearing-in – not just to advance the floor test, but to actually declare the Governor got it wrong. This will mean that the court will qualitatively assess the Governor’s decision, and say what was the correct course of action according to convention.

Effectively, if they can retain the support of their 116+ MLAs and be able to demonstrate this to the Supreme Court, they should be able to prove mathematically that Yeddyurappa cannot have the requisite majority. If they can do that, then the Governor will be required by convention to invite them to form the government (subject to a floor test of course).

Even if the court doesn’t reverse the Governor’s findings, the judges’ assertion that the anti-defection law would apply to a floor-test means that their MLAs can’t just vote in favour of the BJP if they issue a whip against this. This gives them some hope against the betrayal and horse-trading that are almost inevitable now.

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