PRE­POS­TER­OUS

SC wants to see let­ters of sup­port, al­lows pro­vi­sional oath

The Free Press Journal - - FRONT PAGE - OLAV ALBUQUERQUE

Says apex court to Cen­tre af­ter it ar­gues 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 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-ahalf-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 an­tide­fec­tion 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 per- mit­ting 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 up­per- most. 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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