- Congress had challenged Yeddyurappa oath in top court late on Wednesday
- It called Governor's decision an "encounter of the Constitution"
- Won't restrain oath, said top court; to resume hearing of case tomorrow
"As far as swearing-in is concerned, we are not restraining it, but we are making it subject to the outcome of the case," a three-judge bench, comprising Justices AK Sikri, SA Bobde and Ashok Bhushan, said after the all-night hearing that stretched for three-and-a-half hours.
The Supreme Court will resume hearing the case Friday morning at 10.30 a.m. and has ordered the BJP to produce the letters submitted by BS Yeddyurappa to the governor by then.
Chief Justice of India Dipak Misra had agreed to open the doors of the Supreme Court at around 1 a.m. and constituted a three-judge bench to hear the last-minute petition that asked the judges to stop Mr Yeddyurappa's swearing-in scheduled to be held a few hours later.
This is the second time that the Supreme Court is holding an overnight hearing. The first was in July 2015 when the top court held a 90-minute hearing in the middle of the night to hear a last-minute petition against the execution of Yakub Memon for his role in the 1993 Mumbai blasts case.
"The governor can't negate democracy... The other side has 104 members and this side, 116.... It is elementary common sense on numbers (which one is greater)," Abhishek Singhvi, who had filed the request on behalf of the Congress-JDS combine, told the three-judge bench.
The government was represented by the government's top law officer KK Venugopal and his deputies Tushar Mehta and Maninder Singh. Mr Venugopal's predecessor, Mukul Rohatgi said he was appearing for some BJP legislators.
Before entering the Supreme Court, Mr Rohatgi rubbished criticism that the BJP did not have the numbers. "How do you know BJP doesn't not have the numbers," Mr Rohatgi shot back, pointing that a party's strength could only be tested on the floor of the assembly, not in Raj Bhavan or elsewhere.
Before the overnight hearing began, Abhishek Singhvi thanked the top court for hearing the petition at the late hour. "Shows justice never sleeps and accessibility is 24X7 where merits so demand. Which apex court in world allows such accessibility," Mr Singhvi tweeted before entering the court.
Mr Singhvi had kept the petition ready in case the governor did invite Mr Yeddyurappa, the leader of the single largest party and overlooked the claims of the Congress-Janata Dal Secular alliance which had the numbers.
The BJP has 105 lawmakers, including an Independent, in the 224-seat assembly, but is seven short of majority. The Congress, which got 78 seats, has partnered with the Janata Dal Secular and together they have 116 seats, four more than the halfway mark.
Congress leaders see the late evening invitation for the swearing-in ceremony just 12 hours later as a tactic to prevent them from approaching the court against Raj Bhavan's decision.
Mr Singhvi tweeted the short gap between the invitation and the swearing-in ceremony validated the urgency. If the Supreme Court registry accepts the request on the basis of the petition, "I will appear and argue tonight".
The BJP contends that it should be allowed to form the government as it is the single largest party. Union Minister Ravi Shankar Prasad defended the governor's decision, saying it was the BJP which had been given the mandate by the people who gave the party 104 clear seats though, he added, it was still short of the 112-majority mark by a few seats.
Congress spokesperson Randeep Surjewala lashed out at the governor, saying he had "shamed his office".
"Amit Shah and BJP today sanctioned an encounter of the constitution and the law. Governor has subjugated the law and shamed the office of governor and I don't think such a person has the right to continue," Mr Surjewala said.
Back in Bengaluru, the Congress has actioned its backup plan to block Yeddyurappa from poaching its lawmakers and sequestered them in a Eagleton Golf Resort 60 km from state capital Bengaluru.
Janata Dal Secular leader HD Kumaraswamy said by giving 15 days to prove majority, "the governor is encouraging horse-trading by BJP leaders, this is unconstitutional. We will discuss the future plan."
Mr Prasad responded, "The party that blew up the Constitution to shambles is teaching us the constitution, the party that imposed President Rule the most number of times is giving us lessons."