Maharashtra Govt Formation : Deja Vu Karnataka Assembly Case?

As the Supreme Court is set to hold a special urgent sitting today at 11.30 AM to decide the legality of Maharashtra government formation, it is pertinent to recall a case which bears striking similarities to the present situation.

It is the case relating to Karnataka government formation in 2018, in which orders were passed by the apex Court after a rare midnight intervention.

The results of Karnataka assembly elections in 2018 led to a hung assembly, with BJP emerging as the single largest party with 104 seats, falling short of majority by seven seats in a 222 member assembly.

While so, Congress and Janata Dal (Secular), who had fought each other in the election, forged a surprising alliance with their 80 and 37 seats respectively to stake claim for government formation.

But the Karanataka Governor Vajubhai Vala invited BJP leader B S Yeddyurappa to form government, apparently on the basis of the letters submitted by him claiming majority support in the house.

As his oath taking ceremony was scheduled to take place on May 17, 2018, Congress-JD(S) moved an urgent writ petition in the Supreme Court on the night of May 16, challenging the Governor's decision to invite Yeddyurappa to form government.

After an urgent mention made by the lawyers of Congress-JD(S) before the then CJI Dipak Misra at his residence, a special bench was constituted to hold an urgent hearing of the plea on the night of May 16/17.

This special bench comprising Justices A K Sikri, Bobde (as he was then) and Ashok Bhushan commenced hearing past midnight, at around 2 AM on May 17. 

Senior Advocate Dr A M Singhvi, appearing for the petitioners, submitted that the Governor acted unconstitutionally by ignoring the claims of post-poll alliance of Congress-JD(S) which had clear majority. Senior Advocate Mukul Rohatgi, appearing for the then CM-designate Yeddyurappa, submitted that the Governor invited him based on the letters showing majority support produced by him. Attorney General K K Venugopal and Solicitor General Tushar Mehta urged that the Supreme Court had limitations in reviewing the Governor's exercise of discretion. 

After a marathon hearing which lasted for nearly three and half hours, the bench passed an order at 5.30 AM asking Yeddyurappa to produce the letter submitted by him to the Governor before the Court on the next day. This was based on the argument by the petitioners that the Governor took the decision on the basis of fictitious letters.

After the hearing, Dr. Singhvi in a tweet commended the Supreme Court for its three and a half hour sitting from 2 AM.

Sc deserves immeasurable kudos 4sitting 3+ half hrs frm 2am. Patient hearing par excellence. Tho no stay bench made swearing fully subject 2further orders. In a sense BSY's oath is provisional. SC can change interim order tomm after seeing docs. Preponement of fl test also open.

— Abhishek Singhvi (@DrAMSinghvi) May 17, 2018

The oath taking ceremony of Yeddyurappa took place on May 17 evening, as scheduled.

On the next day, the Court considered the case again, based on the letter produced by Yeddyurappa. Notably, the letter did not contain names of MLAs who had pledged support for him. It merely asserted that he had majority support in the house.

In this backdrop, the Court ordered floor test in Karnataka assembly on the next day evening. In effect, the Court advanced the floor test, as the Governor had granted 15 days time for Yeddyurappa for the floor test. This was taking note of the petitioners' arguments that a wide time window for floor test will give scope for horsetrading to poach MLAs from the other camp.

In the floor test, Yeddyurappa could not establish majority, and eventually Congress-JD(S) formed government with H D Kumaraswamy as Chief Minister.

In the Maharashtra assembly case too, similar situation is present, as the Governor has invited the single largest party without clear majority to form government, amidst claims by a post-poll alliance with clear majority.

The Maharashtra governor has given seven days time for the Fadnavis government to show majority in house. It needs to be seen whether the SC will intervene to advance the floor test as it did in Karnataka case.

One aspect which distinguishes Maharashtra case from Karnataka case is that the plea by Shiv Sena-Congress-NCP was filed in Supreme Court after the swearing in of the Chief Minister.

Interestingly, Justice Ashok Bhushan, who was there in the Karnataka assembly case, is part of today's bench comprising Justices N V Ramana and Sanjiv Khanna, which will hear the petition challenging the constitutionality of Maharashtra governor's decision.

[P.S : The Karnataka assembly case is still pending in SC, and the orders passed by the Court were interim orders]