Why the Vacation Bench of the Supreme Court could be crucial

Nearly a year ago, on May 17, 2018, the Supreme Court of India was privy to one of the most significant cases in recent history. Though the case has largely been forgotten, the interim order passed in it by a Vacation Bench has had a significant impact on the Indian political landscape ever since.

This was the case relating to the 2018 Karnataka Assembly election.

The State of Karnataka was one of the make or break states for the Indian National Congress party. The stakes involved were high as the Bharatiya Janata Party (BJP) pushed hard for a Congress-mukt Bharat.

The BJP emerged as the single largest party but fell short of the majority mark. The Congress and the Janata Dal (Secular) reached a post-electoral alliance taking them past the magic mark. This development begged the question as to whom the Governor should invite to prove majority on the floor of the house – BJP or INC-JD(S)? While BJP claimed that the single largest party should be called by the Governor, the INC claimed that the post-electoral alliance with the clear majority should be given preference.

The Governor (Vajubhai Vala), a former BJP legislator, invited BS Yeddyurappa, the leader of the BJP, to form the government. The Governor also gave Yeddyurappa 15 days’ time to prove his majority on the floor. It was decided on May 16 that the swearing in of BS Yedyurappa would be held on May 17.

And the Congress party was forced to knock on the door of then Chief Justice of India Dipak Misra late on May 17, challenging the decision of the Governor. The Congress wanted an urgent hearing since the swearing-in was scheduled for the next morning.

CJI Dipak Misra relented and constituted a 3-judge Bench to hear the case at night – a decision which eventually had major implications. The Bench comprised Justices AK Sikri, SA Bobde and Ashok Bhushan. In the hearing that took place in the early hours of May 17, the Bench sought the production of the communication between BS Yeddyurappa and the Karnataka Governor and kept an urgent hearing of the case for May 18.

When the matter was heard on May 18, the Court ordered a floor test to be held on May 19 for BJP to prove its numbers. Thus, the two-week window which the Governor had provided to BJP to prove its majority in the house was scrapped by the Supreme Court by way of its interim order. Yeddyurappa could not gather the requisite numbers needed when the floor test was held the next day, and the Congress-JD(S) coalition proceeded to form the government.

Thus, the midnight Bench of the Supreme Court effectively decided which party came to power in Karnataka.

The victory in Karnataka proved to be a turn-around of sorts for the Congress party, as it went on to win the Assembly elections in three more States in 2018 – Rajasthan, Chhattisgarh and Madhya Pradesh.

May 2019 

The Supreme Court closes for summer vacation on May 10. The results of the 2019 General Elections will be announced on May 23.

While political commentators have come out with myriad predictions, it is too early to determine the results.

NDTV has reported that twenty-one political parties that are opposing the BJP at the Centre are planning to sign a letter, saying that once election results are out, they will be ready to show the President their letters of support for an alternative government. The report states that the reason for this unusual step is to ensure that the President does not give the single largest party an opportunity to attempt and break regional parties and alliances. This report is indicative of the fact that if no political party gets a clear majority, the President’s decision to call upon one party or the other to form the government could very well be assailed in Supreme Court.

This issue still persists even nearly seven decades since we adopted our Constitution. This is because the law regarding who is to be invited to form a government by the President or Governor when no political party has a majority in the House, is still not settled.

[Read a detailed analysis of the legal issue involved here.]

Even in the Karnataka case, the Supreme Court had passed an interim order directing the floor test. However, the question of law, the Court said, would take time to decide and a detailed hearing would be required for the same.

The order passed on May 18 reads:

“Dr. Abhishek Manu Singhvi, learned senior counsel who is appearing for petitioner no.1 and Mr. Kapil Sibal, learned senior counsel who is appearing for petitioner no.2 contend that the Governor could not have invited respondent no.3 to form the Government on the basis of such letters and have made brief submissions in this behalf. These are refuted by Mr. Rohatgi.

In a matter like this, detailed hearing is required in order to decide as to whether action of the Governor in inviting respondent no.3 to form the Government was valid in law or not. Since it may consume substantial time and the final decision cannot be given immediately, we deem it proper that Floor Test to ascertain the majority of one or the other group is conducted immediately and without any delay.”

The matter has not been listed after May 19, 2018 and the question of law remains pending. Since the law in this regard is unsettled, the whole country could end up looking to the Vacation Bench of the Supreme Court in case of a hung verdict. The composition of the Vacation Bench is yet to be announced.

Flashback – 1975

There is an interesting history behind how the order of a Vacation Bench might have prompted the imposition of the National Emergency in 1975. On July 12, 1975, Justice Jagmohanlal Sinha of the Allahabad High Court had found then Prime Minister Indira Gandhi guilty of electoral malpractice. The Court disqualified her from Parliament and debarred her from holding any elected post for six years.

Gandhi chose to appeal to the Supreme Court.

At that time, the Vacation Bench of the Supreme Court was a single judge of Justice VR Krishna Iyer. Legal doyen Nani Palkhivala appeared for Indira Gandhi. Justice Krishna Iyer heard the matter but refused to grant an absolute stay on the Allahabad High Court judgment. This was despite the fact that the Allahabad High Court had itself granted a 20-day absolute stay of its judgment to enable Gandhi to file an appeal. Krishna Iyer J. stayed the Allahabad High Court judgment subject to certain conditions. Gandhi could attend Parliament but could not participate in the proceedings in the Lok Sabha, or vote, or draw remuneration in her capacity as a Member of Parliament. These conditions, as Krishna Iyer J himself admitted, made not much difference practically. But what it did, according to many experts, was slight the Prime Minister, who felt offended by the order.

Quoting Justice Krishna Iyer:

“This order, by me sitting single as Vacation Judge,, is being delivered with a sense of hurry, although after careful consideration of arguments head till last evening. Now the Parliament in not in session and the veto on the right to vote is currently academic. Situations may develop, circumstances may change and this order itself, like any interlocutory order, is provisional. If new events like the convening of Parliament take place or fresh considerations crop up warranting the review of the restrictions in this stay order, the petitioner-appellant will be at liberty to move a Division Bench of this Court again to modify the restrictions or pray for an unconditional stay. Likewise, the respondent may also if justifying considerations appear anew move for variation of the conditions in this stay order.”

National Emergency was proclaimed by Gandhi the very next day.

Read the order passed by Justice VR Krishna Iyer below.

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