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The combine 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 contended that the letter given by rivals on the support of MLAs could be disputed.
At the outset, senior advocate Mukul Rohatgi, appearing for the BJP and Chief Minister B S Yeddyurappa, said there is no requirement to give names of MLAs supporting the party to the governor and the leader of the party is not required to disclose their names.
“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 as CM the leader of the party whom he feels can provide a stable government in the state,” Rohatgi said.
A bench of Justices AK Sikri, S A Bobde and Ashok Bhushan said there is no doubt about it but the only question is here is a person who has just staked claim of having majority to the governor and on the other hand there is another person who has staked the claim of majority with names of MLAs.
“We have to decide as on what basis the governor called A over B or B over A,” the bench said and at the later part of the hearing added, “There were precedents where courts have orders floor test in 24 or 48 hours”.
While the BJP sought time till Monday for the floor test, the Congress-JD(S) combine urged the bench to order conveying of the floor test either today or tomorrow.
Battery of advocates from both sides took the opportunity to counter each others’ arguments. Attorney General KK Venugopal was also present to assist the court. Rohatgi and Additional Solicitor General Tushar Mehta were appearing for the BJP, Yeddyurappa and Karnataka respectively.
The Congress-JD(S) combine was represented by senior advocates Abhishek Manu Singhvi, Kapil Sibal and P Chidambaram who countered the submission of Rohatgi.
Rohatgi said the governor can’t verify from the claim and he has to see the ground reality, stability factor and the outcome of the poll in which the ruling party was thrown out.
He disputed the signatures of MLAs in one of the letters given by Congress-JD(S) combine leader HD Kumaraswamy to the governor.
“One Congress MLA Anand Singh has not signed the letter. So, there is no point considering the signatures given in the list of MLAs,” Rohatgi said.
He said it is the discretionary power of the governor given under the Constitution and he has to apply his mind after taking into consideration various aspects and ground reality.
The court said only question is who has the right to enter the area first.
“Sarkaria Commission laid down the sequence and said if the party has the absolute majority then it has to be given the priority over others as ultimately its the number game that matters. However, after the absolute majority in the sequence is pre-poll alliance and if such an alliance has majority, it has to be called for formation of the government,” the bench said.
It said that the post poll alliance is kept below the sequence keeping in mind various aspects like the parties may have contested against each-other in the polls, general feeling of voters.
“At the end of the day, ultimately it has to be tested on the floor of the house who has the majority,” the bench said.
The court said it has to be debated upon whether Governor was right in calling single largest party over the post poll alliance.
Singhvi said question is whether the Governor was correct to call the party which is low in number than the alliance which has the majority.
He said the first letter of Yeddyurappa was written on May 15 at 5 PM even before the counting process was over or the election commission has given certificate to MLAs.
“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.
The court said there are several things that the Congress-JD(S) combine have to say and there are several things which the other side has to say.
“It will be appropriate if we direct floor test tomorrow so that no one has enough time in the given situation as if we continue hearing arguments then it will take some time. We understand the sensitiveness of the situation, therefore we will direct for floor test tomorrow and ask the DGP to provide security to all MLAs and videography of the floor test as we did in the Jharkhand case,” it said.
It said courts have an obligation to uphold the majesty of the rule of law and the Constitution.
Sibal said the Governor can’t have used his discretionary power as signatures of MLAs were placed before him.
Rohatgi said the Sarkaria Commission has recommended 30 days time for floor test but the Governor gave only 156 days.
“The court should give reasonable time for the floor test instead of tomorrow as candidates who have won the election have to come from different part of the states. They have to apply their minds so a reasonable time should be given,” Rohatgi said.
Chidambaram raised the issue of the Anglo-Indian member in the house.
Mehta said as per his information there is no such nomination made.