New Delhi: The Supreme Court will take up for scrutiny on Friday the two letters written by Karnataka chief minister B.S. Yeddyurappa (who was sworn in on Thursday) to the Karnataka governor on May 15 and 16 staking his claim to forming the government.
At a hearing held in the early hours of Thursday, a three-judge bench of Justices A.K. Sikri, S.A. Bobde and Ashok Bhushan, after a marathon hearing that lasted for over three hours, asked attorney-general K.K. Venugopal to submit the two letters based on which the governor had invited Mr Yeddyurappa to form the government though he had the support of only 104 MLAs in an Assembly of 222 members (for now).
The court said it wanted to examine the contents of the two letters, which formed the basis for the governor to invite Mr Yeddyurappa to form the government.
On Thursday senior lawyer and former law minister Ram Jethmalani made a “mention” before Chief Justice Dipak Misra for listing a petition filed by him in his personal capacity questioning the decision of the governor to invite Mr Yeddyurappa to form the government. He said this would result in horse-trading and corruption. The CJI asked Mr Jethmalani to make a mention on Friday when the case is to be taken up for hearing by a bench headed by Justice Sikri.
The Congress and the Janata Dal (Secular), which had filed a petition to stay the swearing-in, are also questioning the rationale of the governor’s decision to grant 15 days’ time to Mr Yeddyurappa to prove his majority on the floor of the House. It was pointed out during the hearing held from 2 am to 5.30 am on Thursday that the governor had granted 15 days, though Mr Yeddyurappa had sought only seven days. On Friday, they will urge the court to advance the floor test by restricting the number of days from 15 to seven.
The bench will also take up for hearing a fresh application seeking to restrain the chief minster from nominating or appointing any member of the Anglo-Indian community as an MLA in the Assembly until the floor test is conducted. It was submitted that the governor could not exercise the power of nomination, which can be done only on the aid and advice of the chief minister and his council of ministers. In this case, as Mr Yeddyurappa is yet to undertake the floor test, he does not have the legal, moral or constitutional authority to advise the governor to exercise his power under Article 333. Further in any event, the governor in the light of fast-moving developments, could not be seen to enter the political thicket by even unilaterally exercising his powers under Article 333, in the face of the looming floor test with a pre-determined motive to help the incumbent chief minister.
On Thursday morning, the court said that it could not overturn the decision of the governor without seeing on what basis the BJP had claimed to have the numbers. The JD(S) and the Congress had moved the Supreme Court after governor Vajubhai Vala invited the BJP to form the government first, seeking a stay on the swearing-in, calling it unconstitutional. After senior counsel Abhishek “Manu” Singhvi cited the urgency, the Chief Justice constituted a three-judge bench headed by Justice Sikri. The Supreme Court, which was closed, was opened past midnight and the hearing was held in court hall number 6 from 2 am to 5.30 am on Thursday.
Mr Singhvi argued that the governor should have invited the majority post-poll coalition of the Congress and the JD(S) first, which enjoyed the support of 117 MLAs. The court said it wondered if the Supreme Court can restrain the governor, which might lead to constitutional vacuum in the state. The court also observed that the general trend of its past judgments was not to issue injunctions or to restrain the governor.
When the court wanted to know whether staking a claim to form the government with only 104 MLAs would not result in horse-trading, the attorney-general, Mr Venugopal, argued that since the elected candidates had not taken the oath, they were not subject to the anti-defection law. Defection is if one member crosses over to another party. “The defection law won’t apply before an elected member is sworn in as an MLA,” he said.
The court said it was preposterous to make such an argument and this was an open invitation to horse-trading. The court asked the A-G to produce the two letters written by the newly sworn-in Karnataka chief minister after getting them from the governor’s office.
