Case BriefsSupreme Court

Supreme Court: In a big relief for A.G. Perarivalan, convicted for assassination of former Prime Minister Rajiv Gandhi, the 3-judge bench of L. Nageswara Rao*, BR Gavai and AS Bopanna, JJ has directed his release after being incarcerated for 32 years.

Release of Perarivalan

Perarivalan was convicted for offences under IPC, the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Wireless Telegraphy Act, 1933 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. He was sentenced to death by the designated TADA Court. The Supreme Court, however, commuted the death sentence to imprisonment for life on 18.02.2014.

Perarivalan’s petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continued to remain pending for over a year since the reference by the Governor. This was the main reason that weighed in with the Supreme Court while ordering his release.

Apart from this, the Court also noticed that Perarivalan was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on the death row and 29 years in solitary confinement. There has been no complaint relating to his conduct in jail. On the two occasions that Perarivalan had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release. Medical records, filed on behalf of Perarivalan, show that he is suffering from chronic ailments. Apart from his good behaviour in jail, Perarivalan has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses.

The Court, hence, held,

“Given that his petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriate to remand the matter for the Governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142 of the Constitution, we direct that the appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The appellant, who is on bail, is set at liberty forthwith.”

Governor’s power to refer a recommendation made by the State Cabinet to the President of India

The advice of the State Cabinet is binding on the Governor in matters relating to commutation / remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the Governor’s power to refer a recommendation made by the State Cabinet to the President of India. In the instant case, the Governor ought not to have sent the recommendation made by the State Cabinet to the President of India. Such action is contrary to the constitutional scheme elaborated above.

In the case at hand, recommendation made by the State Cabinet was on 09.09.2018, which remained pending before the Governor for almost two and a half years without a decision being taken. It was only when the Supreme Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of Perarivalan’s sentence to the President of India.

Hence, being fully conscious of the immunity of the Governor under the Constitution with respect to the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of such powers and duties, the Court observed that non-exercise of the power under Article 161 is not immune from judicial review.

[AG Perarivalan v. State, 2022 SCC OnLine SC 635, decided on 18.05.2022]

*Judgment by: Justice L. Nageswara Rao

For Perarivalan: Senior Advocate Gopal Sankaranarayanan

Case BriefsSupreme Court

Supreme Court: While addressing the plea of a murder convict seeking remission on the ground of blindness, the Division Bench comprising of Sanjay Kisan Kaul and M. M. Sundresh, JJ., directed him to under go medical assessment under Rule 363 of the M.P. Prison Rules and thereafter approach the Governor under Article 161 of the Constitution.

The appellant herein was convicted along with three others in connection with an incident which caused death of two brothers of the complainant and injuries to his father. At the inception itself, by an Order dated 29-01-2010, in view of a medical certificate produced by the appellant that he is visually impaired and is suffering from 100% blindness, the appellant was granted exemption from surrendering and finally on 18-10-2011 the appellant was granted bail.

Notably, the appellant had already undergone sentence of 9 years 10 months and 6 days including remission (actual period 8 years 1 month and 23 days). While pleading remission of sentence to the sentence already undergone, the appellant submitted that instead of canvassing the appeal on merits, an alternative course might be adopted; i.e. Rule 363 of the M.P. Prison Rules, 1968 which provides that where the Medical Officer of the prison is of the opinion that the convicted prisoner has gone completely and incurably blind not as a result of any voluntary act of the prisoner or that a convict prisoner has become completely decrepit or has become disabled on account of incurable physical informity which incapacitated him from the commission of further crime on his release and as such where the release of such a prisoner is not likely to be attended with mischief or danger, he shall report the case of the prisoner to the Superintendent.

The appellant contended that since he is visually impaired to the extent of suffering permanently from 100% blindness and that was not a result of any voluntary act of the prisoner, the aforementioned provision would come to his aid for consideration of his case for release from serving out the remaining sentence.

Considering the case of State of Haryana v. Raj Kumar, (2021) 9 SCC 292, wherein it was held that the benefit of remission can only be granted by the State Government if a prisoner has undergone a minimum period of imprisonment of 14 years without remission as well as the provisions of 432, 433 & 433A of the CrPC read with Article 161 of the Constitution, the Bench agreed that the State can recommend and the power would have to be exercised by the Governor under Article 161 of the Constitution albeit on the aid and advise of the State.

Accordingly, the Bench directed that the appellant, though on bail, to report to the Medical Officer of the prison and stay in observation for few days if required to enable the authorities concerned to comply with procedure enshrined in Rule 363 of the M.P. Prison Rules, 1968 and assess disability of the appellant. Thereafter, the case of the appellant was directed to be laid before the Government.

Hence, the Bench observed that it is only after compliance of Rule 363 that the case of the appellant could be referred to the Governor for exercise of power under Article 161 of the Constitution. Therefore, the Bench directed that the appellant to invoke Rule 363 of the said rules and make an application with all the relevant material within three weeks and simultaneously apply to the Governor under Article 161 of the Constitution.

Since the Court had not addressed the appeal on merit, the matter was directed to listed for directions on 19-07-2022.

[Banshi v. State of M.P., Criminal Appeal No.1944 of 2011, decided on 02-03-2022]

Kamini Sharma, Editorial Assistant has put this report together

Foreign LegislationLegislation Updates

The Act concerning Data Privacy Breaches was signed on 16 June 2021, by the Connecticut State Governor and entered into effect, on 1 October 2021.

Key Highlights of the Act

  • Scope of Definition of personal information has been broadened to include additional categories of sensitive information. The definition includes:

“personal information” means an individual’s

A. first name or first initial and last name in combination with any one, or more, of the following data:  

(i) Social Security number;  

(ii) taxpayer identification number;

(iii) identity protection personal identification number issued by the Internal Revenue Service; (iv) driver’s license number, [or] state identification card number;

(iv) passport number, military identification number or other identification number issued by the government that is commonly used to verify identity;

(v) credit or debit card number;

(vi) financial account number in combination with any required security code, access code or password that would permit access to such financial account;

(vii) medical information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional;

(viii) health insurance policy number or subscriber identification number, or any unique identifier used by a health insurer to identify the individual; or

(ix) biometric information consisting of data generated by electronic measurements of an individual’s unique physical characteristics used to authenticate or ascertain the individual’s identity, such as a fingerprint, voice print, retina or iris image; or

B. user name or electronic mail address, in combination with a password or security question and answer that would permit access to an online account.

  • Shortened the time period to notify consumers and the Attorney General (‘AG’) of a security breach from 90 to 60 days; and
  • Providing confidentiality for material obtained by the AG through Civil Investigative Demands.
Legislation UpdatesStatutes/Bills/Ordinances

Governor of Madhya Pradesh promulgates the Madhya Pradesh Freedom of Religion Ordinance, 2020.

Purpose of this Ordinance

To provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith.

Prohibition of unlawful conversion from one religion to other religions [Section 3]

The said ordinance states that no person shall:

  • Convert or attempt to convert, either directly or otherwise, any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
  • Abet or conspire such conversion

Complaint against conversion of religion [Section 4]

No police officer shall inquire or investigate except upon written complaint of a person converted in contravention of Section 3 above or his parents or siblings or with leave of the Court by any other person who is related by blood, marriage or adoption, guardianship or custodianship as may be applicable.

Punishment for contravention of provisions of Section 3 [Section 5]

Imprisonment for a term not less than one year but which may extend to 5 years and the person shall also be liable to not less than Rs 25,000 fine.

There are certain proviso clauses mentioned under the said Section.

Marriages performed with the intent to convert a person shall be null and void [Section 6]

Marriages performed in contravention of Section 3 shall be deemed to be null and void.

Jurisdiction of Court [Section 7]

To declare the marriage null and void, the petition shall be presented by any person mentioned in Section 4 before the family court or where a family court is not established, the Court having jurisdiction of a family court within the local limits wherein, —

  • The marriage was solemnized or
  • Respondent at the time of the presentation resides or
  • Either parties to the marriage last resided together or
  • Where the petitioner is residing on the date of presentation of the petition.

Inheritance Right [Section 8]

Child born out of a marriage performed in contravention of Section 3 will be legitimate and succession to the property by such child shall be regulated according to the law governing inheritance of the father.

Right to Maintenance [Section 9]

Woman whose marriage is declared null and void under Section 7, children born out of that marriage shall be entitled to maintenance.

Declaration before conversion of religion [Section 10]

Any person who desires to convert shall submit a declaration to that effect 60 days prior to such conversion to the District Magistrate stating his desire to convert without any force, coercion, undue influence or allurement.

Section 11 states the punishment for violation of provisions of Ordinance by an institution or organization.

Burden of Proof [Section 12]

Burden of Proof as to whether a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means done for the purpose of carrying out conversion lies on the accused.

Investigation [Section 14]

No police officer below the rank of sub-inspector of police shall investigate any offence registered under the ordinance.

Also Read:

Prohibition of Unlawful Religious Conversion | Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 [Brief Explainer]

Case BriefsSupreme Court

Supreme Court: Dealing with an issue relating to special remission being granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India, The 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran referred the question to a larger bench and framed the following issue:

“Whether in exercise of power conferred under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be granted by the Executive without placing facts or material with respect to any of the cases before the Governor and whether such exercise can override the requirements under Section 433-A of the Code.”

In the matter before the Court, the appellant was convicted under Section 302 read with Section 34 of the Penal Code and sentenced to suffer life imprisonment and to other punishments including fine and default sentence under certain other offences. The Supreme Court had rejected his bail application in 2017 and when t\the Court took up the second bail application for consideration, it was reported that after having completed 8 years of actual sentence and the Appellant being aged above 75 years, in accordance with the existing policy of the State Government, he was prematurely released in 2019.

The Court, therefore, called upon the State to file an affidavit indicating whether the policy permitted premature release even before completion of actual sentence of 14 years in connection with an offence punishable under Section 302 IPC. State submitted before the Court that special remission was granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India. The individual facts and circumstances of the case were not even placed before the Governor.

While hearing the matter, the Court noticed that the consistent line of cases decided by this Court has laid down that the principles of Section 433-A of the Code do not and cannot apply to the exercise of constitutional power either under Article 72 or under Article 161 of the Constitution.

“It has always been accepted that no limitation can be read into the exercise of such constitutional power that the sovereign power would not be bound by restrictions emanating from Section 433-A of the Code.”

In Maru Ram v. Union of India, (1981) 1 SCC 107 , the Constitution Bench of this Court considered the validity of Section 433-A of the Code. The majority Judgment cautioned that mere length of imprisonment may not by itself regenerate goodness in a convict and stated that the rules of remission may be effective guidelines of a recommendatory nature.

“The decisions of this Court rendered since Maru Ram and some of them being decisions of the Benches of three Judges of this Court, do show that the relevant material must be placed before the Governor in order to enable him to exercise the power under Article 161 of the Constitution and failure on that count could result in quashing of the concerned orders of remission issued under Article 161 of the Constitution.”

The Court further noticed that the modalities adopted in the present matter, unmistakably, show that the individual facts and circumstances of the case were not even placed before the Governor. The basic aspects viz., the manner in which the crime was committed, the impact of the crime on the Society and the seriousness of the crime got completely suppressed and relegated in the background under the norms laid down in the policy and it was then left to the Executive to see whether any individual case came within the parameters laid down by the policy. The basic facts and circumstances of the case were not even looked into.

Hence, considering that the decision in Maru Ram was rendered by the Constitution Bench, the Court thought it proper to refer the matter to a larger bench.

[Pyare Lal v. State of Haryana, 2020 SCC OnLine SC 583 , order dated 17.07.2020]

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ has held that the Madhya Pradesh Governor was right in ordering floor test after the State Government lost majority. The bench said,

“in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. The Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority.”

In a detailed judgment, the Court also explained the scope of the power of the Governor and the law revolving around floor tests.

On the timing of directing a trust vote

The Court explained that in directing a trust vote, the Governor does not favour a particular political party and that it is inevitable that the specific timing of a trust vote may tilt the balance towards the party possessing a majority at the time the trust vote is directed. The Court, however, added,

“where the evidence indicates that circumstances of violence and coercion exist that would undermine a free and fair vote in the assembly, the Governor and the court must take measures to ensure that the sanctity of the trust vote is maintained.”

It, hence, held that in the present case there existed no extraordinary circumstances for the Governor to determine that a trust vote was not the appropriate course of action on 16 March 2020.

On short-circuiting the Speaker’s discretion

The Court noticed that neither the Governor, nor for that matter this Court, has the power to impinge upon the authority of the Speaker to take a decision on the said issue, however, it refused to accept the submission that holding of a trust vote would short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification. It explained that holding of trust vote is a matter which can brook no delay since the authority of the government presided over by the Chief Minister depends on the Council of Ministers continuing to have the faith of the legislative body as a collective entity. Particularly where the Members resigned in an expression of a lack of faith in the existing government, the convening of a floor test is the surest method of assessing the impact of the resignations on the collective will of the house. It concluded by holding that,

“nothing prevents the Speaker from taking a decision either on matters of resignation or disqualification despite convening of a trust vote.”

On seeking Access to the ‘Captive’ Members

On the plea that access be made to the twenty-two Members who have been elected on the ticket of the INC were “spirited away” to Bengaluru, the Court held that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh.

The Court, however, said that it cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House.

“Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents.”

Factual Timeline

  • On 28 November 2019, elections for the fifteenth Legislative Assembly of the State of Madhya Pradesh were held.
  • On 11 December 2018, results were declared and INC staked the claim to form the government together with the support of four independents Members, two Members of the Bahujan Samaj Party and one Member belonging to the Samajwadi Party.
  • On 10 March 2020, leaders of the BJP met the Speaker of the Madhya Pradesh Legislative Assembly and handed over what purported to be the resignation letters of twenty-two Members belonging to the INC.
  • On 13 March 2020, the Chief Minister addressed a communication to the Governor alleging that following a foiled attempt on 3/4 March 2020 to allure Members owing allegiance to the INC, the BJP had on 8 March 2020 arranged three chartered aircraft “to whisk away” nineteen Members to Bengaluru.
  • On 14 March 2020, the INC issued a three-line whip to ensure the presence of all its Members in the forthcoming Budget Session and to vote for and support the government.
  • On 15 March 2020, the Governor addressed a further communication to the Chief Minister that since the facility for mechanically recording votes (through the “press of a button”) was not available, the trust vote should be taken by the raising of hands.
  • On 16 March 2020, the Governor recorded that despite his earlier letter dated 14 March 2020, the Chief Minister did not initiate the process of proving his majority on the house floor and the proceedings of the Legislative Assembly were adjourned to 26 March 2020. He asked the Chief Minister to have the floor test carried out on 17 March 2020 and to establish his majority.
  • On 19 March 2020, the Supreme Court had ordered a floor test in the Madhya Pradesh Assembly to be held on March 20, following which Chief Minister Kamal Nath tendered his resignation. Bharatiya Janata Party leader Shivraj Singh Chouhan had later taken oath as the new state Chief Minister.

[Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly,  2020 SCC OnLine SC 363, decided on 13.04.2020]

Hot Off The PressNews

Supreme Court:  After hearing the Congress-NCP-Shiv Sena’s plea today against the decision of the Maharashtra Governor inviting Devendra Fadnavis to form the Government for 2 days, the 3-judge bench of N.V. Ramana, Ashok Bhushan and Sanjiv Khanna, JJ has said that it will pronounce the verdict tomorrow.

The Governor’s order on November 23, inviting Fadnavis to form a government & correspondence/letter of Fadnavis to the Governor claiming majority was produced before the Court today.

Submissions before the Court on Day 2 of the hearing:

Solicitor General Tushar Mehta:

  • Maharashtra governor was cognizant of facts, situation after polls results that had led to invoking of President rule in state
  • After being assured that no party was in position to form government in Maha, governor recommended President rule in state
  • Maharashta Governor had invited Shiv Sena, BJP and NCP for government formation, President’s rule was imposed only after they failed
  • Governor not supposed to conduct roving, fishing inquiry to ascertain which party has numbers to form Government
  • Question is can a party come, seek court’s intervention to hold floor test within 24 hours
  • Nobody is disputing that floor test is ultimate test, no party can say it has to be conducted in 24 hours
  • Particular time frame cannot be asked to be implemented on mere apprehension of particular party
  • Grant us 2-3 days’ time. Let us file reply

Advocate Mukul Rohatgi appearing for BJP

  • Ajit Pawar had support of 54 NCP MLAs so governor asked him to form Government
  • It’s nobody’s case that letters have been forged, Maharashtra governor acted correctly so it is end of their case
  • Now question is can this court say whether floor test can be ordered within a particular time frame
  • Governor’s action, calling a party to form government, is immune from judicial review
  • Matter fraught with serious consequences, governor’s discretionary power cannot be judicially reviewed
  • 5-judge bench supposed to examine power of Speaker in such matters
  • No case for grant of interim order has been made out by Shiv Sena, NCP and Congress
  • Procedures of assembly like pro-tem speaker cannot be interfered with
  • Shiv Sena, NCP, Cong are asking SC to decide how Governor and Assembly should act. Parties are seeking direction to governor, who is immune, to act as per their wishes
  • Court cannot interfere with House procedure regulated by Assembly rules

Kapil Sibal, appearing for Shiv Sena

  • Where was national emergency to revoke President’s rule at 5.27 am and CM being administered oath at 8 am next morning
  • If BJP has numbers, then they be asked to prove majority within 24 hours

Sr. Adv. A M Singhvi appearing for Sharad Pawar’s NCP and Congress

  • It’s fraud of worst kind, did a single NCP MLA tell Ajit Pawar that he supported him to go with BJP
  • Both sides agree that floor test is ultimate, BJP does not want it quickly
  • If BJP has majority, why is it worried? I am happy to lose on floor of Maharashtra Assembly

The Court asked Sr. Adv. A M Singhvi appearing for Sharad Pawar’s NCP and Congress to withdraw fresh plea with affidavits of 154 Maha MLAs supporting combine as it has not been supplied to BJP. It said,

“Whatever you file in court, you need to give to other side”

AM Singhvi withdrew the plea and said that he was as referring to affidavits of 154 Maha MLAs to shock court’s conscience that majority was with them.

(Source: PTI)

Also Read:

Case BriefsSupreme Court

Supreme Court’s three-judge bench comprising of N.V. Ramana, Ashok Bhushan and Sanjiv Khanna, JJ., heard the Congress-NCP-Shiv Sena’s plea today against the decision of the Maharashtra Governor inviting Devendra Fadnavis to form the Government.

Petitioners had requested the Supreme Court to order a floor test to held on Sunday itself.

Counsel representing the parties:

Shiv Sena: Senior Advocate Kapil Sibal

NCP: Senior Advocate Dr A M Singhvi

BJP: Senior Advocate Mukul Rohatgi and Solicitor General Tushar Mehta.

Order given by Supreme Court in Today’s Hearing:

Supreme Court issues notice to Centre, Maharashtra Govt, Devendra Fadnavis & Ajit Pawar on Congress-NCP-Shiv Sena’s plea. Court requested Solicitor General Tushar Mehta to produce relevant documents from Guv’s letter for inviting BJP to form govt & letter of support of MLAs by 10.30 am tomorrow.

“We have taken note of all the arguments, particularly the argument that the Governor’s decision dated 23-11-2019 inviting the Respondent No.3 to form a Government on 23-11-2019 is unconstitutional. With regard to the second prayer as at `b’, we are not going to consider the same at present. As adjudication of the issues and also the interim prayers sought by the petitioners to conduct floor test within 24 hours has to be considered after perusing the order of the Governor as well as the letters submitted by Mr. Devendra Fadnavis – Respondent No 3, even though none appeared for the State Government, we request Mr Tushar Mehta to produce those two letters by tomorrow morning at 10.30 a.m. when the matter will be taken up, so that appropriate order will be passed.”

Issue involved is the Governor’s decision dated 23/11/19 inviting them to form a government is unconstitutional.

Following are the documents to be produced tomorrow:

— Governor’s order on November 23, inviting Fadnavis to form a government

— The correspondence/letter of Fadnavis to the Governor claiming majority

[Shiv Sena v. Union of India, 2019 SCC OnLine SC 1501, decided on 24-11-2019]

Live Tweets from the Hearing:

  • #MaharashtraPolitics #KapilSibal appearing for #ShivaSena in SC, on Shiv Sena, NCP & Congress’ plea against the decision of Guv inviting Devendra Fadnavis to form govt: Court should order floor test today itself.
  • #Singhvi contends that How did Ajit Pawar become NCP when 41 of 54 elected NCP members signed a document at 3.30 pm on Nov 22 saying Pawar is not NCP legislative party leader.
  • #AbhishekManuSinghvi: Obligations of the Governor is to form a prima facie satisfaction of the majority on a written document. The document must have signatures, physical verification, satisfaction based on these things. This is the criterion.
  • #Rohatgi says there was no need for a Sunday hearing Justice Bhushan says that it is a prerogative of the #chiefjusticeofindia
  • Referring to the Jagadambika Pal case, #Singhvi says, “The only agenda would be to conduct a floor test between the competing parties. This is composite. May the best man win.
  • #Rohatgi: There are some things that are with the President which are not even open to judicial intervention.
  • #Rohatgi: Governor’s decision made yesterday is not open for judicial review. Art. 361, the President or Governor shall not be answerable to any court.
  • Ramana J.: These issues have been settled. Governor cannot just appoint anyone.
  • #MaharashtraCM #Rohatgi: Can the SC order the Governor to advance floor test? The petition is without annexures, they don’t know anything, they were sleeping for three weeks.
  • There is no supporting document to their claims. Senior advocate Mukul Rohatgi appeared for some BJP and independent MLAs, says this plea should have been filed in Bombay HC.
  • Sibal: Fadnavis has numbers, let him prove it on the floor of House, else we have numbers to form govt in Maha
  • Shiv Sena-NCP-Congress seeks SC direction for the composite floor test today itself.
  • Act of Governor recommending revocation of President’s rule ‘smacks’ of bias: Sibal to SC hearing Maha case

Also Read:

Hot Off The PressNews

Supreme Court: In yet another high-profile election drama, when the Congress-JDS approached the Supreme Court at late hours of Wednesday to stall the swearing in ceremony of BJP candidate BS Yeddyurappa as the Karnataka Chief Minister after the Karnataka Governor Vajubhai Vala asked him to seek trust votes in the floor test within 15 days of his swearing in, the 3-judge bench of Dr AK Sikri, SA Bobde and Ashok Bhushan, JJ directed:

“As far as swearing-in is concerned, we are not restraining it, but we are making it subject to the outcome of the case.”

In the hearing that began at 01:45 AM, Congress-JDS contended that despite presenting the list of 116 MLAs, governor Vajubhai Vala has invited the BJP which has 104 MLAs to form the government and has given relatively longer time of 15 days to prove the majority on the floor of the House.

Below are the highlights of the midnight drama that transpired post Karnataka Election:

  • Senior Advocate Abhishek Manu Singhvi (For Congress-JDS):
    • There are innumerable instances where combination of post-poll group was called despite there was a different single largest party, one such instance being the Goa Elections Goa where BJP outnumbering single largest party was called to form the Government and the Supreme Court had upheld this.
    • We are challenging the act of Governor not calling us. Should a person be given 15 days for proving majority? Governor can’t negate democracy and after the swearing in happens I can’t come to Supreme Court.
    • 104 ahead of 116 is adding insult to the injury. Giving 15 days is encouraging unconstitutional sin of poaching.
  • Bench: it is to be considered whether the Court can restrain a Governor,
  • Singhvi: Governor action is subject to judicial review. The argument is court should not issue injunction and judicial review is not the question.
  • Bench: We don’t even have the letter other party has written to governor.  How can we decide?
  • Singhvi: In Meghalaya, Manipur and Goa, Congress was the single-largest party but BJP and other parties were invited to form Government. Governor’s exercise of Government duty is under judicial review. Court can question Governor. Supreme Court can defer the swearing-in.
  • Bench: You want us to scrutinise discretion of governor but you don’t have letter given to governor which found basis for inviting BJP.
  • Singhvi: Governor doesn’t give any reason in calling BJP. Claim of BS Yeddyurappa is leader of BJP whereas Kumaraswamy is claiming Congress support. Unless Supreme Court sees Mr Yeddyurappa’s letter to the Governor, the court can defer the swearing-in. On what basis the governor invited BS Yeddyurappa.


  • Attorney General KK Venugopal (For BJP): Defection is one member crosses to other party. Defection law won’t apply before he is swearing in as MLA.
  • Bench: You mean before swearing in MLAs can switch sides? In a case like this how you will have more numbers when the other side has already given 116 to Governor. JDS and Congress outweigh BJP. In a situation like this on what basis Mr Yeddyurappa has staked claimed. The arithmetic defies in what way he was invited to form Government.
  • AG: Even if swearing-in takes place it is reversible. Once the floor test takes place real picture will be known.
  • Bench: Why 15 days were given by the governor?
  • AG: It is governor’s decision. Waiting for 15 days heavens will not fall. What’s the purpose of stopping the swearing-in? Let the floor test take place.
  • Bench: Your argument is floor test will fail.
  • AG: We don’t know.
  • Bench: What’s bothering us is the fluid situation.
  • AG: The the time given to BJP for proving majority can be reduced to seven days


  • Former Attorney General and Senior Advocate Mukul Rohatgi (For BJP): This case should have never been taken up at midnight.
  • Bench: On what basis you are claiming?
  • Rohatgi: 
    • Heavens won’t fall if someone is sworn in. Last time Supreme Court heard in night, the case related to hanging of Yakub Memon.
    • Congress wants injunction and wants governor not to discharge his function. Action of swearing can always be reversed by Supreme Court.
    • Question is can court stop governor from discharging his constitutional duty? Can Supreme Court stop President from signing warrant of appointing judges? Job of governor is to give oath – whether right or wrong.
    • Supreme Court can’t ask governor to file affidavit and can’t issue notice.
  • Bench: Is this your interpretation that governor action amenable but the governor as individual not answerable to court?
  • Rohatgi: 
    • Yes. Governor can’t be stopped to do his job. It is unheard of.
    • Supreme Court can reduce time period from 15 to 10 or 7 days for BJP to prove majority.


  • Bench: Swearing in will go on.
  • Singhvi: Don’t stay the swearing-in but defer it for two days. Defer swearing-in for at least till 4.30 and ask Mr Yeddyurappa to produce the letter he gave to the governor.
  • Bench: This petition is a subject of hearing later on.

Supreme Court issued notice to BS Yeddyurappa and other respondent’s and listed the matter for further hearing on 18.05.2018. The Court, in it’s order, said:

“it is necessary to peruse the letters dated 15th May, 2018 and 16th May, 2018 submitted by the respondent No.3 to the Governor which find a mention in the communication dated16th May, 2018 of the Hon’ble Governor.”

Without passing any order staying the oath ceremony of the new Karanataka Chief Minsiter, the Court said:

“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.”

[Dr. G. Parmeshwara v. Union of India, WRIT PETITION (CIVIL) Diary No.19482/2018, order dated 17.05.2018]

(With inputs from NDTV)

Appointments & Transfers

  • Shri Ram Naik has been appointed as the Governor of Uttar Pradesh w.e.f the date he assume charge of his office; 
  • Shri Balramji Dass Tandon has been appointed as the Governor of Chhattisgarh w.e.f the date he assume charge of his office; 
  • Shri Keshari Nath Tripathi has been appointed as the Governor of West Bengal w.e.f the date he assume charge of his office; 
  • Shri Om Prakash Kohli has been appointed as the Governor of Gujarat w.e.f the date he assume charge of his office. 
  • Padmanabha Balakrishna Acharya has been appointed as the Governor of Nagaland. The President has also appointed him, to discharge the functions of the Governor of Tripura, in addition to his own duties, until regular arrangements for the office of the Governor of Tripura are made