In a historic pre-dawn hearing, the Supreme Court today cleared the last-minute hurdle created by the Congress-JD(S) combine for the BJP's ambitious surge in southern India by paving the way for B S Yeddyurappa to be sworn in as the Chief Minister of Karnataka.
Hours after an apex court bench, specially convened in the wee hours, refused the Congress-JD(S) challenge to Governor Vajubhai Vala's communication to Yeddyurappa to be sworn in as CM, the lingayat leader took the oath at 09:00 AM at a simple ceremony in the Raj Bhavan in Bengaluru.
A specially constituted three-judge bench comprising Justices A K Sikri, S A Bobde and Ashok Bhushan, after more than three hours of hearing, made it clear that it was not interfering with the Governor's decision to invite the saffron party to form government in the state in which BJP with 104 seats has emerged as the single largest party.
During the high-voltage hearing, which lasted from 2.11 AM to 5.28 AM, the top court made it clear that the swearing-in and government formation would be subject to the final outcome of the case.
The court directed the Centre to place before it two communications sent by Yeddyurappa to the Governor in which he had staked claim to form government, saying their perusal was necessary to decide the case.
The unprecedented hearing, during which the doors of the top court were unlocked at around 1.30 AM, saw senior advocate Abhishek Manu Singhvi, appearing for Congress-JD (S) combine, questioning the validity of the Governor's invitation to Yeddyurappa to form government and giving him 15 days time to prove his majority.
His arguments were countered by Attorney General K K Venugopal, appearing for the Centre, and senior advocate Mukul Rohatgi, representing three BJP MLAs -- Govind M Karjol, C M Udasi and Basavaraj Bommai.
When the issue of anti-defection was raised, the bench observed, "it is completely preposterous to argue that once a person is elected and before he takes oath as an MLA, he is not amenable to the anti-defection law. This means that it is an open invitation to horse trading".
"This Court is not passing any order staying the oath-taking ceremony of B S Yeddyurappa. In case, he is given oath in the meantime, that shall be subject to further orders of this court and final outcome of the writ petition," the bench said in its order.
Venugopal questioned the manner in which the plea was filed and said "we do not know what transpired in the meeting between the BJP leader (Yeddyurappa) and the Governor. I do not think B S Yeddyurappa is served or represented here. The whole thing is in a grey area and in a realm of speculation."
Rohatgi also questioned the filing of the plea at midnight and said, "Heavens will not fall if somebody is sworn-in. This is not a matter of life or death or as if someone is going to be hanged".
He referred to the earlier midnight hearing in the 1993 Mumbai serial blasts convict Yakub Memon's case and said even if swearing-in was done, the Governor's action could always be judicially reviewed and the court may order for restoration of status-quo ante as was done in Arunachal Pradesh.
Singhvi referred to the number of seats won by the BJP, Congress and JD (S) and said the Congress-JD (S) combine had a majority in the house with 117 MLAs while the BJP had only 104 seats, which was below the majority mark of 112 at present.
He questioned the Governor's decision to give 15 days to Yeddyurppa to prove majority and claimed that this might lead to "horse trading" and "poaching" of MLAs.
He repeatedly urged the court to defer the swearing-in, scheduled for 9.30 AM today, till 4.30 PM and said the Centre or BJP should be asked to place before the bench the letters sent by Yeddyurppa to the Governor.
Singhvi referred to several instances where combination of 2-3 parties, after a post- poll alliance, were invited to form the government while the single largest party was not.
On being asked by the bench about Yeddyurappa's two letters sent to the Governor, he said, "we do not have those letters".
The bench said: "we are saying that they (BJP) may be the single largest party but they do not have support of any other party or the independents. It is very unlikely that they (BJP) have said that they do not have support of 112 MLAs (the majority mark)."
However, Venugopal told the bench, "We really do not know what was the basis of which the Governor invited him (Yeddyurppa)".
He said no purpose would be served by stopping the swearing-in ceremony since it was "purely a reversible situation".
During the hearing, the bench observed, "Here, there are three major parties. BJP is the single largest party, Congress is second and JD (S) is third. Now, the Congress-JD (S) combine outweigh the BJP.
"Then, in this situation, on what basis he (Yeddyurppa) has staked claim to form the government? We do not have those letters. It's only on surmises. The arithmetic is such that it defies on what basis this was done," the bench observed.
In the May 12 polls, BJP emerged as the single largest party with 104 members, while Congress secured 78, the JD(S) 37 and others three.