Bar and Bench - Indian Legal news
Justices AK Sikri, SA Bobde, Ashok Bhushan (from Left to Right)
Justices AK Sikri, SA Bobde, Ashok Bhushan (from Left to Right)

[Live]: 2 AM hearing of Congress-JDS petition in Supreme Court

Bar & Bench

A three-judge Bench of Justices AK Sikri, SA Bobde and Ashok Bhushan has begun hearing a petition filed by Congress and JDS leaders challenging the Karnataka Governor’s decision to invite the BJP to form the state government.

Breaking: Supreme Court directs production of letter written by BS Yeddyurappa on May 15, May 16 to Governor; No stay on swearing-in. However, the same will be subject to outcome of case. Notice issued to respondents. Matter to be taken up at 10.30 am on Friday.

Senior Advocate Abhishek Manu Singhvi is appearing for the petitioners, while ASG Tushar Mehta is representing the government and Senior Advocate Mukul Rohatgi is arguing for BS Yeddyurappa.

Here are live updates on the hearing as it progresses:

Arguments by Abhishek Manu Singhvi

  • Mukul Rohatgi raises preliminary objection – “No injunction can lie against Governor”, he says.
  • AM Singhvi commences submissions for petitioners. Cites the seats secured by different parties. Setting out the factual matrix of the case.
  • 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
  • AM Singhvi now dealing with powers of Governor wrt to formation of a new government.
  • “It is unheard of to give 15 days for floor test. Elementary common sense would tell that 104 party being called ahead of 116 parties and then giving them 15 days is adding insult to injury”, .
  • AM Singhvi is now dealing 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 trying 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”, AK Sikri J.
  • Singhvi now arguing on the late night decision of 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 .
  • Justice Sikri relies on Nabam Rabia judgment. ” In this case, this Court has approved Sarkaria Commission report”, says Sikri.
  • AM Singhvi now cites examples where combination of parties was given preference over single largest party. Meghalaya, Manipur, Goa, Delhi, Jharkhand, Jammu & Kashmir.
  • Meghalaya, Manipur, Goa was single largest party but BJP and others were called. In Delhi, was highest but and others were called. Jharkhand also BJP was single largest but was not called.
  • Abhishek Manu Singhvi explaining on SR Bommai and Rameshwar Prasad cases.
  • Abhishek Manu Singhvi now advancing arguments on scope of judicial review of Governor’s actions.
  • Bench having a long discussion.
  • Abhishek Manu Singhvi resumes submissions. “The claim of 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
  • Abhishek Manu Singhvi seeks deferring of swearing-in by two days.
  • Abhishek Manu Singhvi concludes submissions.

Arguments of Attorney General KK Venugopal and Senior Advocate Mukul Rohatgi

  • Attorney General KK Venugopal commences submissions for Central government.
  • “The whole issue is a grey area subject to speculation”, KK Venugopal.
  • Mukul Rohatgi intervenes: “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”, says AK Sikri J.
  • Bench asks KK 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”, AK Sikri J.
  • “Why 15 days?”, asks Justice SA 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”, AK Sikri J. “I am not denying that”, AG KK Venugopal.
  • AG KK Venugopal says no urgency in the matter. “Let the matter be heard at length. No irreversible damage will be done”, Venugopal.
  • AG KK Venugopal and Mukul Rohatgi say they are agreeable to floor test in seven days.
  • AK Sikri and SA Bobde JJ. having another long discussion.
  • Abhishek Manu Singhvi raises question marks over the appearance of Mukul Rohatgi. “And he wants swearing-in tomorrow”, Singhvi. “I want dismissal of the petition”, says Rohatgi as Court room bursts into laughter.
  • “This is an attempt to stultify democratic process”, Mukul Rohatgi begins his submissions for Yeddyurappa.
  • Rohatgi arguing on Governor’s immunity. “It happened in Nabam Rabia’s case”, says Rohatgi referring to how SC had issued notice to Governor and then recalled it.
  • “Governor’s action will be amenable to judicial review but he cannot be injuncted from exercising his duties”, Mukul Rohatgi.
  • 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 wont 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. Dont 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.
  • “Can you restrain the Governor from signing a bill? No, it is completely misconceived”, Mukul Rohatgi.
  • Mukul Rohatgi is now responding to the submission of Abhishek Manu Singhvi relating to Goa election case of 2017.
  • “Its an order. Hence not a binding precedent and lays down no law”, Rohatgi.
  • “Secondly, never staked a claim to form government in Goa. If you dont stake a claim then how will it help you?”, Mukul Rohatgi.
  • “This was not a case which should have been heard now. In Yakub Memon’s case the man was going to be hanged at 6 am. There is nothing like that here”, Mukul Rohatgi.
  • “That is the highest form of trivialisation”, retorts Abhishek Manu Singhvi. DrAMSinghvi
  • “Governor has immunity. You cannot call him or issue notice to him. But his actions can be subject to judicial review. I am challenging his decision though he cannot be made liable for the same”, Abhishek Manu Singhvi.
  • “His actions are fully reviewable”, Abhishek Manu Singhvi.
  • “The issue is can we injunct him? Of course his actions are subject to judicial review”, Justice SA Bobde.
  • Justice SA Bobde also says the question is of ‘injunction’ and not ‘stay’. “Stay is of an order. But injunction is against a ‘person’. So can we injunct a person to whom we cannot issue notice”
  • “If a one person party is made Chief Minister by Governor, then that Chief Minister can be injuncted by the Court from functioning”, Justice SA Bobde
  • Abhishek Manu Singhvi says Court has power to defer swearing-in, so that the Court can go through the records/ letter of Yeddyurappa.
  • Congress-JDS petition: Supreme Court dictating order now.
  • Supreme Court directs production of letter written by BS Yeddyurappa on May 15, May 16 to Governor; No stay on swearing-in. However, the same will be subject to outcome of case. Notice issued to respondents. Matter to be taken up at 10.30 am on Friday.

Read the order below.