‘Freedom at Midnight’ is the phrase used to denote the time India got freedom from the Britishers. Then, the time of midnight was thoughtfully and mutually chosen by Lord Mountbatten and Indian leaders for ‘auspicious’ reasons.Today, the door of the Supreme Court of India is too often knocked at midnight seeking justice. This phenomenon can be termed as ‘Freedom (to knock) at Midnight’.
On 16th-17th midnight, the Congress Party legal corps knocked the doors of the Supreme Court pleading for an emergency hearing of their petition challenging the Karnataka Governor’s decision to invite Sri BS Yeddyurappa, the leader of the single largest party, to form the government. The hearing was held between 2 am to 5:30 am on 17th May. After the marathon hearing, the Supreme Court rejected the Congress plea to stall the swearing-in ceremony of Sri BS Yeddyurappa but passed orders fixing for floor test the very next day i.e. 18th May at 4 PM.
Two very crucial and critical aspects have been overlooked by the court during the hearing.
1) By allowing the petition to be listed urgently as it was contended that the issue involved was a ‘demanding’ one and
2) The Supreme Court fixing the floor test within next 24 hours overlooking the discretionary powers of the Governor under article 163 and 164 of the Constitution of India.
It is very pertinent to note that on the day of the hearing i.e. 17th May, within 5-6 hours of the judgment, the Congress party General Secretary Mr Rahul Gandhi, in a shocking comment he made in the afternoon of 17th May in Raipur, cast aspersions on the Judiciary and the honorable justices.
Mr Rahul Gandhi has defied the Supreme Court by saying that ‘the judiciary and the press fear BJP’. In continuation, he has drawn the Pakistan analogy of our Judiciary saying that such things happen in Pakistan and in countries where the rulers are dictators, but unfortunately it’s happening in India. This reaction of Rahul Gandhi was a clear indication of his frustration over the Supreme Court’s refusal to stay the oath taking of Sri BS Yeddyurappa, in totality, unconditionally and outright. This is what the Congress Party’s legal corps wanted but was disappointed by the order passed by the Supreme Court. Every word that Rahul Gandhi spoke against the Supreme Court in a sarcastic manner amounted to the vilification of the judiciary. The Congress not only just anticipates but also intimidate that every outcome of their plea should be inevitably in their favour. Or else, it will be taken care of in public meetings, battering the judiciary with indirect intimidations, casting aspersions etc.
Considering the entire nation was shocked by his comment, it would have certainly pained the judges of the Supreme Court too. Rahul Gandhi’s absurd outburst on judiciary must have affected the judges deeply. The Court opened the doors at midnight, keeping in mind the backlash that might follow if the petitioners were despised even judiciously too. The judges were agreed to hear the petition in the night, for the sake of protocol. In the past, only on two or three occasions the court has opened its doors at midnight.
But, the Congress party again approached the Supreme Court, a second time on 18th May late evening, and this time challenging the appointment of pro tem speaker Mr K G Bopaiah on the ground that he is likely to sabotage the outcome of the floor test as his past record is ‘notorious in helping the CM Sri Yeddyurappa.’ The Bench, this time, very aptly shunned the team and did not entertain mid-night or early hours, hearing. The Bench stoutly refused to replace the speaker with their own MLA on the ‘excuse’ of seniority. The Bench further placed before the petitioner an option to go ahead with the floor test at the appointed time or to forego the same and continue with the arguments.
The first order where floor test timing was fixed within 24 hrs span was highly questionable. Under Article 163, it is purely to the discretion of the Governor to fix the time and this is in conformity with the law elucidated in Sarkaria Commission Report.
When Governor ordered for a trust vote within 15 days, SC pushing it back to 24 hours is highly arbitrary and without considering natural justice. If Congress felt that 15 days time was too long a period and beneficial to the BJP, according to the same logic, 24 hours time is too short and painful too, for the defendant. What the court ought to have ordered was ‘a reasonable time of one week’ or near. By sticking to 24 hrs, the Judges denied justice to the defendant.
Article 163 is clear and unambiguous on Governor’s discretion in ordering floor test as well fixing the time of ‘trust vote’. Sarkaria Commission clearly stipulated 30 days time to the Chief Minister-elect to prove majority on the floor of the house. There are a number of case laws too on the discretionary powers of the Governor to order for a ‘trust vote’ and this can take place any time as ordered by the Governor. The only issue the Apex court had not regarded very judiciously is, ‘reducing the time for trust vote from days to hours’. Sri BS Yeddyurappa of BJP was denied justice, denied a fair chance of winning a trust vote thereby callously throwing the ‘mandate’ of the people of Karnataka.
The senior lawyer Mukul Rohatgi did not fire the cannon balls in the right direction with adequate steam.
This judgment is now would be a case-law in the future, since it has snatched the ‘discretion-power’ to the Governor which has been provided by the Constitution, with a rider.
The Article 163 (2) reading “…. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final…”
Many nationalists and patriots have rightly predicted a couple of years ago that the ‘losers’ will unite and assault our Constitution in an extrinsic way- that is bombarding the Indian Courts including the Supreme Court with frivolous, unsustainable, unfair petitions, thereby confusing the people, disturbing their rational thinking, and beliefs.
Again our warning goes to BJP’ top brass, ‘Never be overconfident, never.’
