SC at Mid-Night: Refused to stay Swear-in of BSY; Who Said What? (Read SC Order)

Supreme Court in Mid-Night hearing refused to stay swear-in-ceremony of BS Yeddyurappa paving the way for formation of his government after dramatic turn of events through the night inside and outside the courtroom that saw a rare post-midnight hearing continuing till the wee hours. Hours before the swearing-in ceremony, the apex court made it clear that the swearing-in and the government formation would be subject to the final outcome of the case before it. The apex court, meanwhile, has posted the matter for hearing on Friday. The court has asked that the letter given by Yeddyurappa and senior BJP leaders to the Governor in which it was stated that the party has the requisite number of MLAs to form the government be produced before the court. During the overnight hearing by the three-judge bench, comprising justices A K Sikri, SA Bobde and Ashok Bhushan, the letter of support from majority of MLAs submitted to the governor for forming the government had become a major sticking point. The Supreme Court said that it can’t overturn the decision of the Governor without seeing on what basis the BJP had claimed to have the numbers. The apex court made it clear that it won’t stay the swearing-in but it would be subject to outcome of the petition in the court on Friday.

Though the court didn’t rule in its favour, the Congress on Thursday morning hailed the Supreme Court bench for giving the petition a patient hearing at 2am in the night.


The Congress-JDS had moved the court late on Wednesday night, seeking a stay on the swearing-in, calling it unconstitutional. It argued that the Governor should have invited the majority post-poll coalition of JDS-Congress first. 2 Identical Petition were filed by JD(S) & Congress led by their counsel Dr. Abhishek M Singhvi. The Congress and JD(S) in its plea to the Supreme Court stated, “Court may pass an order declaring order of Governor inviting BS Yeddyurappa to form govt as unconstitutional and quash the same, or, pass direction to Guv to invite alliance of INC & JD(S) which has support of more than 112 MLAs to form gov.”

Karnataka governor Vajubhai Vala invited Yeddyurappa to form the government through a letter Wednesday night, after the latter was formally elected leader of the BJP legislature party. The governor has given him 15 days to prove his majority on the floor of the house.

As per the official results of the assembly elections put out by the Election Commission of India, the BJP won 104 of the 222 seats for which elections were held, while the Congress won 78, and the Janata Dal (Secular) and its ally Bahujan Samaj Party combined for 38 seats. Others won two seats.

As soon as the results were declared Tuesday, the Congress and the JD(S) swiftly landed at Raj Bhavan and submitted a letter claiming that together they had 116 MLAs, four more than the majority mark.

Who said What in Supreme Court

Abhishek Manu Singhvi appearing for Congress and JD(S), Additional Solicitor General (ASG) Tushar Mehta for Union government and former Attorney General Mukul Rohatgi for BJP, in hearing of the petition filed by Cong & JD(S) challenging Karnataka Governor’s decision.
Congress’ lawyer Abhishek Manu Singhvi begun his arguments by saying that the governor has completely dispensed with the constitutional norm. Former Attorney General Mukul Rohatgi countered by saying the Court can’t issue an injunction against the Governor. Singhvi said that HD Kumaraswamy staked his claim on forming the government with support from Congress MLAs, taking the alliance’s number to 116. “Calling upon the single largest party is at the end of the line when it comes to discretion of the governor,” said Singhvi.
“I may not form the government. I may fail to show numbers but not calling me to form the government in wrong. The governor cannot call someone else even when I have the numbers. In Jharkhand (Anil Kumar v UIO), Goa (Kavlekar v UOI) and UP (Jagdambika Pal v UIO) the court has preponed the floor test. There’s no reason to not do it now. We don’t have the letter BS Yeddyurappa wrote to the Governor but we have it on good knowledge that he has sought 7 days to prove majority,” says Abhishek Singhvi in Supreme Court.
I am not asking for adjourning the petition by Congress & JD(S). I am saying dismiss the petition. Governor can’t be restrained from performing his constitutional function by an interim order. SC may reverse the order and hold it bad but it can’t be injuncted. You cannot call a Governor to court. You can’t ask him to file an affidavit or appear in court. The Centre has to defend him because he cannot defend himself. In this country, there is no authority whose order can’t be challenged. A Governor will be a Badshah if his actions can’t be challenged. I am saying his actions are amenable but he can’t be stopped,” argues Mukul Rohatgi
“Curtailing 15 days to 7-10 days for the floor test didn’t have to be debated today and certainly not at 4 am,” said Mukul Rohatgi.
To which Justice Bobde retorted, “What can be done tomorrow, we can do today as well. It has nothing to do with 4 am.”
“Anti-defection law would come into force only after the MLAs are sworn in,” said KK Venugopal.
To this, Justice Sikri said, “Does that mean all the suitcase exchange is possible before they are sworn in? That’s impermissible.” Justice Bobde asked if a floor test can be held after swearing in just the MLAs. KK Venugopal said that it would be highly unorthodox.
We do not know what kind of majority BS Yeddyurappa has claimed: Justice SA Bobde

Justice SA Bobde said, “we do not know what kind of majority BS Yeddyurappa has claimed. Unless we see that letter of support, we cannot speculate.” Countering this, Congress Counsel Singhvi said, ” Yes you can’t on mere speculation, so postpone the swearing in by two days.”

Will heavens fall if somebody is sworn in: Mukul Rohatgi

Mukul Rohatgi said that the hearing shouldn’t have been taken up at midnight.  ” Will heavens fall if somebody is sworn in? I was woken up from sleep at midnight. This petition should never have been taken up at midnight.”

Singhvi concludes submissions: Swearing-in ceremony can be held the day after tomorrow

Irrespective of merits, the fact that three judges of the SC can sit at 2 in the night and hear the matter is a victory for democracy, said Singhvi. He added saying that the swearing-in should be put on hold until the matter is solved, ‘Swearing-in ceremony can be held the day after tomorrow,’ said Singhvi.

We are trading humans and calling it horse trading: Congress Counsel

Someone said we are giving horses a bad name by calling it horse trading. We are trading humans and calling it horse trading, says Singhvi pointing out that long time given for proving majority will encourage poaching. Yedyurappa has staked claim to form Govt as leader of only his own party BJP while Kumaraswamy has staked claim as leader of a coalition of his party and Congress, he added.

Where is the letter of the Governor in which he invited BJP to form the government: SC

At the midnight hearing, the Supreme said to  the Congress, “How can we review the decision of the Governor, when you don’t have the letter of Yeduyarappa submitted to the Governor”

“Where is the letter of the Governor in which he invited BJP to form the government,” three-judge bench asked petitioner’s lawyer Abhishek Manu Singhvi while hearing the petition filed by Cong & JD(S) challenging Karnataka Governor’s decision.

“It is unheard of to give 15 days for a floor test. Elementary common sense would say that a 104-seat party being called ahead of 116-seat party and then giving them 15 days is adding insult to injury. It is unlikely that their (BJP’s) letter won’t state they have the support of more MLAs, including independents,” said Singhvi. To this, the SC asked why the Congress also cannot claim the support of independents.

Mukul Rohatgi: Congress cannot cite the Goa judgment since it never staked a claim to form the the govt there. Whether BSY should be given 10 days or 15 days can be decided in a couple of days. It never had to be decided at a pre-dawn hearing. Rohatgi concludes his arguments.

“What will happen if the court waits till 4:30 pm tomorrow for swearing in? Let him (Yeddyurappa) bring the letter (which talks of majority support to BJP), if he is right, he gets what he wants but if we are right… this court can decide,” pleads Abhishek Manu Singhvi.

After starting to hear the joint petition by JDS and Congress around 2am on Thursday morning, the Supreme Court finally pronounced its order around 5.30am, hours before BS Yeddyurappa is scheduled to take oath of office as the Karnataka CM. The court refuses to stay the swearing-in after hearing arguments and counter-arguments for over 3 hours in the rare midnight hearing.

Read SC Order here:


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