Amid high political drama, the Supreme Court early on Thursday didn't stop B.S. Yeddyurappa from taking oath as Karnataka's new Chief Minister but the legal battle for the BJP leader and his party is far from over.
After a rare midnight hearing that ran for hours, the court refused to stay the oath taking ceremony as was sought in a joint petition by the Congress and the Janata Dal-Secular (JD-S).
"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 (by the Congress and JD-S)," said the three-judge bench, recording the proceedings of the night in the packed Room No.6.
Presiding the proceedings were Justices A.K. Sikri, S.A. Bobde and Ashok Bhushan.
Yeddyruppa took oath as planned but on Friday at 10.30 a.m. when the apex court hears the matter again, he will have to produce the two letters dated May 15 and 16 he has written to Governor Vajubhai Vala to stake his claim for government formation.
The BJP leader is said to have claimed a majority support in the letters.
But the question is how?
The Congress and JD-S had challenged Karnataka Governor Vala's invitation to Yeddyurappa to form the government despite the BJP falling short of legislative numbers to claim majority in the 222-member Assembly. Voting was not held in two of the 224 constituencies on May 12.
The BJP won 104, the Congress 78 and the JD-S 37. Any party or grouping needs 112 members to claim majority as per the present strength of the House. The Congress and JD-S didn't have a pre-poll alliance but cobbled together a grouping after the results threw a hung Assembly.
Together, and with a support of one BSP member and an independent, the Congress and JD-S make 117.
The Governor still invited Yeddyurappa and gave him 15 days of time to prove majority.
The Congress lashed out at the Governor's move calling it "partisan and biased" and rushed to the Supreme Court for an urgent hearing that commenced at 2.20 a.m. and concluded at 5.30 in the morning.
During the hearing, senior counsel Abhishek Manu Singhvi, appearing for the Congress, argued that the Governor must have invited the post-poll coalition to form government as no single party secured majority.
He questioned the 15-day time given to Yeddyurappa for proving majority, saying the Supreme Court had earlier said that "to give such time is to encourage the constitutional sin of poaching".
In his argument that ran for more than an hour, Singhvi also cited instances of Meghalaya, Manipur, Goa, Delhi, Jharkhand and Jammu and Kashmir as precedents of post-poll alliances being invited to form governments.
"There is only one way a party which got 104 will get 113… I heard he asked for seven days (time to prove majority) but the Governor gave 15. Elementary common sense and arithmetic go against this kind of giving of time," Singhvi said. "Question is whether it is valid, fair or capricious."
Attorney General K.K. Venugopal, appearing for the Centre, said everything was in the realm of "speculation" as the entire matter was still "a grey area".
Former Attorney General Mukul Rohatgi, who appeared for the BJP, questioned the urgency of the matter to hear it at midnight as if "heavens will fall if a person is sworn in the morning".
Justice Sikri asked him on what basis was his side claiming majority in the House. "It is not a fluid situation. In view of this arithmetic, on what basis you claim majority."
Venugopal intervened: "Everything is reversible. What is the great loss by waiting for 15 days?"
Justice Bobde countered: "That is the other point. Why wait for 15 days?"
Venugopal said it was the Governor's decision.
The court observed that it was "preposterous" to argue that before MLAs take oath they were not amenable to anti-defection law.
"It means open invitation to horse-trading. It is preposterous (to argue) that before he (an elected MLA) takes oath as member all this (floor crossing) is allowed," Justice Sikri told the Attorney General.
"In a case like this where the opposite side is showing 117 MLAs support, how you will have 112," Justice Sikri asked, adjourning the hearing till Friday morning.