Attorney General KK Venugopal had opposed the Congress' petition against BS Yeddyurappa's hearing

Highlights Congress challenged Yeddyurappa oath in top court late on Wednesday

Congress says has 116 MLAs with JDS, BJP, at 105, doesn't have majority

Anti-defection law won't apply if MLAs switch sides before oath: centre

The anti-defection law, which bans lawmakers from switching parties, does not apply to Karnataka's newly-elected legislators if they haven't been sworn in yet, the centre argued in a post-midnight Supreme Court hearing on Congress' petition after BJP's BS Yeddyurappa was invited by the governor to form government and also given 15 days to prove his majority.Calling the argument "preposterous", the court said in the hearing that went on till dawn , "It means open invitation to horse-trading."The BJP has 105 lawmakers, including an independent, and is seven short of a majority. The party, however, has won this round against the Congress-Janata Dal Secular, which together have 116 lawmakers.Abhishek Manu Singhvi, who had filed the petition for the Congress-JDS alliance, argued before three judges that the BJP could not claim to get a majority unless it claims it will encourage lawmakers to defect. To this, the court said this would be covered by anti-defection law.KK Venugopal, the centre's top law officer, suggested that this may not be the case. "Defection is one member crosses to other party. Defection law won't apply before elected member is sworn in as MLA," he said. Mr Yeddyurappa's swearing-in on hold he Supreme Court did not put but wasn't entirely convinced by this argument. "You mean before swearing-in MLAs can switch sides?" the court asked, wondering how the BJP intended to cross the majority mark of 112."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 had countered before a bench comprising Justices AK Sikri, A Bobde and Ashok Bhushan.The court wondered how BS Yeddyurappa had claimed the support of more than half the lawmakers if the Congress-JDS alliance has 116 members . The court said they hadn't seen his letter to the governor but "the arithmetic defies in what way he was invited".Mr Venugopal and Mukul Rohatgi, the government's former top law officer who said he was representing two BJP legislators, had asked the Supreme Court to dismiss the Congress petition, insisting that the court could not stay the governor's decision."Heavens won't fall if someone is sworn in. Last time, Supreme Court heard in night, the case related to hanging of Yakub Memon", Mr Rohatgi argued.Mr Rohatgi said the Karnataka case was very different from the one in Goa last year, which had also reached the Supreme Court. In Goa, the Congress had emerged the largest party but the BJP and its allies were invited to form government.

Mr Rohatgi said Goa governor Mridula Sinha had invited the BJP's Manohar Parrikar only because the Congress did not stake claim.