The Supreme Court today ordered a floor test in the Karnataka Assembly at 4 PM tomorrow, drastically slashing the 15-day window given by the Governor to BJP Chief Minister B S Yeddyurappa to prove majority.
"Let the House decide and the best course would be floor test," a three-judge bench headed by Justice A K Sikri said, while noting that ultimately the question was about a majority which has to be proved on the floor of the House.
The bench, which also comprised Justices S A Bobde and Ashok Bhushan, turned down Yeddyurappa's request for a secret ballot during the floor test and also directed the Karnataka government and the Governor not to nominate any MLA from the Anglo-Indian community to participate in the voting to prove majority.
It asked the newly elected government not to take any policy decision till it proved majority in the House, while also making it clear that it would later deal with the constitutionality of the Governor's letter inviting Yeddyurappa to form government.
The bench said the pro tem Speaker will take decisions in accordance with the law on the issue of floor test and ordered the authorities, including the Director General of Police, to ensure law and order outside the Karnataka Assembly.
The BJP has emerged as the single largest party with 104 seats, followed by the Congress with 78, JD(S) with 37 and three seats have gone to others in the 224-member Assembly where elections were held for 222 seats.
The majority mark was 112 seats and the post-poll alliance strength of the Congress-JD(S) combine, which claims to have 117 MLAs and has alleged foul play in the Governor inviting BJP to form the government.
Now the majority mark has gone down by one to 111 as JD(S) leader H D Kumaraswamy has won from two assembly constituencies of Ramanagaram and Channapatna. However, he will be eligible to cast only one vote during the floor test.
The high-voltage hearing witnessed trading of charges between the BJP and the Congress-JD(S) combine with both claiming to have numbers in their favour.
The combine has alleged that Governor Vajubhai Vala was not correct in inviting the BJP, which had lesser numbers than the Congress-JD(S) alliance.
However, the BJP has contended that the support letter given by Kumaraswamy to the Governor can be disputed as one of the Congress MLAs, Anand Singh, has not signed it.
Rohatgi sought reasonable time till Monday for the floor test but the bench ordered for tomorrow by accepting the plea of the rivals.
Senior advocate Abhishek Manu Singhvi, appearing for the combine, said the question is whether the Governor was correct to call the party which has less numbers than the alliance which has the majority, has to be tested upon.
"Therefore, at that time, it was not clear who has the majority and Yeddyurappa could not have claimed majority at that time in his letter to the Governor," he said.
Senior advocate Kapil Sibal, appearing for Kumaraswamy, said the Governor cannot have used his discretionary power as signatures of MLAs were placed before him.
Yeddyurappa placed before the apex court letters he had sent to Governor in which he had staked claim to form the government in Karnataka.
Yeddyurappa, who was sworn in as the chief minister of Karnataka yesterday, told the bench that being the single largest party, the BJP had the "mandate of people" of the state who have "thrown out" the Congress.
Rohatgi said there was no pre-poll alliance between the Congress and JD(S) and they have formed an "unholy alliance" after the elections.
"The single largest party (BJP) is the mandate of people of Karnataka who have thrown out the ruling party. The ruling party has much less members than us. There was no pre-poll alliance. It (Congress-JD(S)) is an unholy alliance," he said adding there was no requirement to give or disclose names of MLAs supporting the party to the Governor.
"It can be done on the floor of the House. According to us we do have the support. It is the discretion of the Governor to swear in the CM of the party whom he feels can provide a stable government in the state," Rohatgi said.
However, the bench said there is no doubt about it, but the only question here is a person who has just staked claim of having majority and another person who has staked the claim of majority with names of MLAs.
"We have to decide on what basis the Governor called A over B or B over A," the bench said. It also justified its order for a floor test tomorrow in the later part of the hearing saying "there are precedents where courts have orders floor test in 24 or 48 hours".
Attorney General K K Venugopal was also present to assist the court, at one point, came to the aid of Rohatgi by advocating holding of secret ballot during the floor test.
Additional Solicitor General Tushar, appearing for Karnataka, said Governor did not receive any notice containing the signatures of MLAs of Congress-JD(S) combine.
The court said the only question was who has the right to enter the arena first and added "at the end of the day, ultimately it has to be tested on the floor of the House, who has the majority.
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