Karnataka Elections: Hung Assembly and Governor’s decision, SC to lay down law [Read full account]

Murali Krishnan

The atmosphere in Courtroom 6 today was in stark contrast to what it was yesterday morning when the Congress and JDS leaders had knocked the doors of the Supreme Court for a midnight hearing in the Karnataka elections matter.

A jam-packed courtroom was thronged by lawyers and journalists even 45 minutes prior to the sitting of the Court.

The bench comprising Justices AK Sikri, SA Bobde, and Ashok Bhushan sat at around 10.40, ten minutes later than the usual.

Senior Advocates Kapil Sibal and Abhishek Manu Singhvi appeared for the petitioners while Attorney General KK Venugopal appeared for the Union of India. ASG Tushar Mehta appeared for the Governor and State of Karnataka and Senior Advocate Mukul Rohatgi represented BS Yeddyurappa.

The hearing lasted for more than an hour before the Bench made a very significant decision to settle a very crucial question of law once and for all.

It also passed an interim order directing that the floor test in Karnataka Assembly be held at 4 pm tomorrow.

Below is a detailed account of the hearing that took place today:

Senior Advocate Mukul Rohatgi, appearing for BS Yeddyurappa, handed over the two letters written by Yeddyurappa to the Governor of Karnataka, Vajubhai Vala, on May 15 and May 16.

Mukul Rohatgi: Letter says that we are the largest party in the Assembly. We will show the numbers when it is required. Why should we show the numbers in Supreme Court?

Justice AK Sikri: They have given a letter with signatures of 117 MLAs and on the other hand you have given us a letter which is claiming stake to form the government. In such a case, what will the Governor do?

Mukul Rohatgi: The only role of the Governor is to see who will form a stable government. In the list of names which they have submitted to the Governor, two names don’t have signatures. I believe that the documents were never given to the Governor; what was given to the Governor was some other letter. If the letter was not given to the Governor then my case is that the petition should be heard no further.

It is our case that they are detaining their MLAs.

Justice AK Sikri: Ultimately, it’s a numbers game… In cases where no single party has an absolute majority, Sarkaria Commission says first preference should be for the pre-poll alliance, then single the largest party along with other groups and independents and third post-poll alliance. But Sarkaria Commission has not been given legal […]

So, we are proposing two alternatives.

  1. We will decide whether the act of the Governor in calling the Single largest party was correct or not.
  2. Floor test will be held, but tomorrow itself.

I will go to the extent of saying that even if we go for the second alternative, we will decide on the first.

AM Singhvi: The question is who gets the call first. The intent here (of the Governor) was to give fifteen days’ time after calling ‘A’ over ‘B’. Your Lordships should not merge the two alternatives. Let us have the floor test tomorrow.

What Rohatgi submitted in fact, makes my case. Yeddyurappa sent the first letter on May 15 but the notification of results came out on May 16. So, he claimed that they were the single largest party even before the results are published.

Regarding the signatures, even two signatures are missing, there are still 115 which is good enough.

If the Governor receives a letter with 117 signatures and another letter with 104 signatures, can the Governor apply his mind to say 117 is bigger than 104?

What Your Lordships are saying is that there is a leeway as per Sarkaria Commission report. But, that applies where the single largest party shows that they have got the numbers.

Here, you say that he can form the government but he had to also say that he has 104 and he will get the support of seven more. Only then he can be called.

The Law cannot and should not be that the single largest party is automatically called even if it is not in majority.

Justice AK Sikri: By the time we hear the issue and deliver a judgment, it might not achieve practical results in this issue. That is why we are proposing to hold the floor test tomorrow.

Kapil Sibal: There is no such thing as a discretion of a Constitutional functionary because the discretion is circumscribed by Constitution and Law.

(After reading the preferential order in Sarkaria Commission report)

The letter says that he is the single largest party and he has the support. If he claims so then he has to show whose support. Therein comes the discretion of the Governor. But should the Court, by interpreting ‘discretion’, perpetuate Constitutional immorality?

The Governor, in this case, knew that the only way for Yeddyurappa to get the majority is either through Congress or JDS MLAs. There is no other way.

Tushar Mehta: I appear for the State. The Governor has not received any letter with signatures [of MLAs]. The Governor has received annexures with names but no signatures.

Justice AK Sikri: There is another important thing.

P Chidambaram: Your Lordships, no Anglo Indian should be nominated to the Assembly till the floor test is over.

(Mukul Rohatgi objects to the same)

Justice AK Sikri: Mr. Rohatgi, let us be very clear. Till you are able to win this floor test, there can be no such nomination.

Mukul Rohatgi: The Governor has given fifteen days [for the floor test]. House has to be constituted, MLAs have to come. So, the floor test should not be held tomorrow. At least three days should be given so that MLAs can come, apply their mind without fear and vote.

Ram Jethmalani: I’m ashamed to say that the Governor, in this case, has acted like a person who […]

Order: The Court proceeded to direct that the Floor test be held tomorrow at 4 PM.

In a matter like this, detailed hearing is required in order to decide as to whether action of the Governor in inviting respondent no.3 to form the Government was valid in law or not. Since it may consume substantial time and the final decision cannot be given immediately, we deem it proper that Floor Test to ascertain the majority of one or the other group is conducted immediately and without any delay. Though the Governor in his letter dated 16.05.2018 inviting respondent no.3 to form the Government has given him 15 days’ time for proving the majority on the floor of the House, having regard to all the circumstances of this case, we are of the view that such a Floor Test be conducted tomorrow itself i.e. on 19.05.2018.

Since the elected Members of Legislative Assembly are yet to take oath as specified in Schedule III of the Constitution and the Speaker is also yet to be elected, the Court ordered that the following procedure be followed for conducting the Floor Test.

  • Pro-tem Speaker shall be appointed for the aforesaid purpose immediately.
  • All the elected members shall take oath tomorrow (19.05.2018) and this exercise shall be completed before 04.00 p.m.
  • The Pro-tem Speaker shall conduct the Floor Test on 19.05.2018 at 04.00 P.M. in order to ascertain the majority.
  • Adequate and sufficient security arrangements shall be made and Director General of Police, State of Karnataka will himself supervise the said arrangements so that there is no lapse on this count whatsoever.

Senior Advocate Mukul Rohatgi undertook that no policy decision will be taken till the Floor Test is conducted.

Similarly, ASG Tushar Mehta appearing for Karnataka government stated that no Anglo-Indian member  will be nominated.

Read Order


Read Letters written by BS Yeddyurappa to Governor

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