Karnataka Elections 2018: Supreme Court wants to see letters of support, allows provisional oath

The Supreme Court on Thursday refused to stay BJP leader B S Yeddyurappa‘s swearing-in as Karnataka chief minister after a rare post-midnight courtroom hearing on Congress-JD(S) combine’s bid to stall the government formation.

After a nearly three-and-a-half-hour hearing beginning 2:11 AM, a three-judge apex court bench made it clear that the provisional swearing-in and the government formation would be subject to the final outcome of the case before it. In this context, it also ordered placing before it the MLAs’ letters of support presented by the BJP to Karnataka Governor Vajubhai Vala.

Why so? Sources said the court wants to a) check if BSY has falsified facts; b) whether he has included MLAs who are not on his side. “Unless we see that letter of support, we cannot speculate,” the bench said. Significantly when the Centre argued that the anti-defection law, which bans lawmakers from switching parties, does not apply to Karnataka’s newly-elected legislators if they haven’t been sworn in yet, the court called it a preposterous argument. The court said:  “This means it is (an) open invitation to horse-trading,” so that in effect the governor is permitting buying of MLAs by the BJP to prove their majority on the floor of the house.

This is the second time in its history that the top court sat after midnight—the first time being when terrorist Yakub Memon was to be hanged in the wee hours in 2015. But judges, like God, are supposed to subjugate their personal pique to keep the nation’s welfare uppermost. This is apparently what CJI Misra did after midnight on Thursday–although the police barricaded his official residence. A junior registrar of the Supreme Court sat with the CJI to set up the three-judge bench.

From the outset, it appeared the bench would refuse any relief to the Congress. Justice Sharad Bobde asked Abhishek Manu Singhvi, “How can we stop the swearing in? The trend of the Supreme Court is not to interfere. It stands to reason we cannot injunct a party (the Governor) here, to whom you cannot issue notice. ” Bobde will be the CJI after Ranjan Gogoi.

‘‘If a Governor dared to make a one-man party the chief minister, we cannot injunct the CM from taking the oath but we can stay his government from functioning,” Bobde said. The court wondered how Yedurappa had claimed the support of more than half the MLAs when the Congress-JD (S) alliance had 116 MLAs. The judges said: “The arithmetic defies the way he was invited”. The bench asked the attorney-general to produce the two letters given to the Governor on May 15 and 16.

Journalists say that in one of the letters, Yedurappa, who is a sick man and has to take injections every morning, has claimed the BJP has the support of 104 MLAs which is short of an absolute majority. If Governor Vajubhi Vala has allowed Yedurappa 15 days to prove his majority, he has clearly abused the governor’s office. This is because like apex court judges, governors take an oath to uphold the Constitution and not their own political interests which seems to be what Governor Vajubhai Vala has done.

Despite a marathon session for 220 minutes, the three-judge bench refused to stay the swearing in which had obviously been advanced to favour the BJP. The court also disregarded senior advocate Manu Singhvi’s plea that the governor’s decision was subject to judicial review.

One opinion is that the petition has in effect been rendered infructuous despite the next date of hearing given on Friday at 10.30 a.m. Also, by not giving any relief to the Congress, the Supreme Court has allowed the Karnataka governor to virtually declare his actions are above the law. It is unlikely that the three-judge bench will grant any relief to the Congress on Friday if it has refused to stay the swearing-in on Thursday. The principle of seeing no evil, however evil the government may be, appears to be a principle of ensuring there is no judicial overreach.

Hence, while indulging in judicial overreach in certain other matters, the apex court has now chosen not to interfere in the politically-surcharged atmosphere of Karnataka where hundreds of crores of rupees and ministerial berths are being bartered. Just as it has chosen to delay the elevation of Uttarakhand chief justice K.M. Joseph who had the temerity to strike down President’s rule in that state, the CJI and his brother judges have chosen a laissez-faire approach. Ensuring there is no judicial overreach in a democracy appears more important to the Supreme Court than ensuring justice for the masses.


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