Appeal against Guv decision on Karnataka: late night arguments in SC

A three-judge Bench of Justices AK Sikri, SA Bobde and Ashok Bhushan decided early this morning (May 17), to not issue any interim stay on the swearing in of Karnataka Chief Minister B. S. Yeddyurappa.

The following were the arguments in court:

Senior Advocate Abhishek Manu Singhvi for the Congress while ASG Tushar Mehta represented the government, as well as senior advocate Mukul Rohatgi for Yeddyurappa.

Here are live updates on the hearing as it progresses:

 Rohatgi raised the preliminary objection. He said: “No injunction can lie against Governor.”

Singhvi cites the seats secured by different parties, setting out the factual matrix of the case.

He said when there is no absolute majority, then the Sarkaria Commission guidelines come into play which has been appropriated by your lordships in Rameshwar Prasad.

As per the Sarkaria Commission Guidelines, “largest party or group of parties” should be first to be invited by Governor, submits Singhvi.

Singhvi now dealing with powers of Governor with respect to formation of a new government.

“It is unheard of to give 15 days for floor test. Elementary common sense would tell that 104 member party being called ahead of 116 member parties and then giving them 15 days is adding insult to injury,” Singhvi said.

Singhvi dealt with the order of preference set out in Sarkaria Commission Report. 1. Pre poll alliance 2. Single Largest Party with support of others including independent 3. Post poll alliance. Singhvi tries to explain the scope of the above terminologies.

Encounters questions from the Bench on who stands where. “You (Congress) are at 3 but your case is that they (BJP) are not at 2,” Justice Sikri said.

Singhvi now arguing on the late night decision of the governor to invite Yedyurappa for swearing-in at 9 in the morning. “Swearing-in is a purely executive act.”

“What if the Governor invites a group of only 10 MLAs and keeps swearing in at 9 am. And Your Lordships say Governor cannot be injuncted,” asks Singhvi.

Justice Sikri relies on Nabam Rabia judgment. “In this case, this Court has approved Sarkaria Commission report,” says Justice Sikri.

Singhvi now cites examples where combination of parties was given preference over single largest party.  Meghalaya, Manipur, Goa, Delhi, Jharkhand, Jammu & Kashmir.

In Meghalaya, Manipur and Goa, INC was the single largest party but BJP and others were called. In Delhi, BJP was highest but INC and others were called. In Jharkhand also BJP was single largest but was not called.

Singhvi explained on SR Bommai and Rameshwar Prasad cases.

Singhvi gave arguments on scope of judicial review of governor’s actions. Bench had a long discussion.

Singhvi resumes submissions. “The claim of BSY is that he is leader of only BJP; he is claiming majority of his own party only. But claim of Kumaraswamy is he is leader of JD(S) and INC.”

Singhvi sought deferring of swearing-in by two days.

Attorney General KK Venugopal said: “The whole issue is a grey area subject to speculation.”

Rohatgi intervened: “I was woken up from sleep at midnight. This petition should never have been taken up at midnight. Will heavens fall if somebody is sworn in?”

Venugopal says defection law will not apply before taking of oath. Bench does not agree. “That is preposterous,” said Justice Sikri.

The bench asked Venugopal the ground on which Yeddyurappa has claimed stake to form government. “Letter by Yeddyurappa on what basis he has claimed is not available to us right now,” Justice Sikri, said.

“Why 15 days?” asked Justice Bobde. “That is the Governor’s decision”, replies Venugopal.

“You cannot deny that all these actions are subject to judicial review though he (Governor) might not be liable.” Justice Sikri said.

“I am not denying that,” said Venugopal.

Venugopal said no urgency in the matter. “Let the matter be heard at length. No irreversible damage will be done.”

Venugopal and Mukul Rohatgi say they are agreeable to floor test in seven days.

Justices Sikri and Bobde had another long discussion.

Singhvi raised question over the appearance of Rohatgi. “And he wants swearing-in tomorrow.”

“I want dismissal of the petition,” said Rohatgi as courtroom bursts out in laughter.

“This is an attempt to stultify democratic process,” Rohatgi said.

He said: “It happened in Nabam Rabia’s case.” He was referring to how the top court had issued notice to the governor and then recalled it.

“The governor’s action will be amenable to judicial review but he cannot be injuncted from exercising his duties,” Rohatgi said.

Rohatgi says if Governor is injuncted from exercising his powers, no law or ordinance can be passed.

“If Article 356 power cannot be injuncted then Article 361 power cannot be injuncted,” Mukul Rohatgi. “And what is so great about it. Every other day, Your Lordships set aside Governor’s actions”, says Rohatgi and refers to Uttarakhand case.

Court orally remarks it won’t restrain swearing-in but will issue notice and hear the other side and decide. No order passed yet. (Only oral remark by Justice AK Sikri).

Abhishek Manu Singhvi still fighting it out.

Rohatgi is arguing for a party who is not on record. “Yedyurappa does not come on record but sends Rohatgi to appear on behalf of two MLAs”, says Singhvi. “Argue on merits. Don’t make allegations against me”, Rohatgi retorts.

Singhvi says defer swearing-in till 4.30 pm. “If Yeddyurappa comes with the records/letter and the Court finds there is no merit in my case, I am out. Else I am in. But once he is sworn in then the whole thing will have to be reversed”, says Singhvi.

Can Governor be interdicted? Dialogue between Mukul Rohatgi and Justice SA Bobde.

–India Legal Bureau