In a setback for the Congress-JD(S) post-poll alliance, the Supreme Court after a midnight hearing decided not to stay the swearing-in of BJP leader BS Yeddyurappa as the new chief minister of Karnataka on Thursday.

After Karnataka Governor Vajubhai R Vala invited the BJP to form government, ignoring the Congress-JD(S) combine that claimed to have the numbers, the latter moved the apex court late Wednesday night seeing an urgent hearing against the decision.  The Congress also objected to the long 15-day window given to Yeddyurappa to prove majority in the House.

The SC agreed to open its doors at 1.45 am, constituting a bench comprising Justice AK Sikri, Justice SA Bobde and Justice Ashok Bhushan to hear the Congress-JD(S) plea challenging Karnataka Governor Vajubhai R. Vala’s decision to administer oath to Yeddyurappa.

The court, however, sought the communications which Yeddyurappa had written to the Governor informing him his election as BJP legislature party.

The BJP leader is scheduled to take oath at 9.30 am on Thursday.

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Senior Congress leader Abhishek Manu Singhvi, who was leading his party’s challenge, called Karnataka governor’s invite “an encounter of the constitution”. He argued that the BJP couldn’t claim to have majority unless it triggered defections from the Congress and the JD(S).

According to TV reports, Singhvi told the court: “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).”

The government was represented by top law officer KK Venugopal and others. His predecessor Mukul Rohatgi was also present, and appeared for some BJP legislators.

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The hearing, which commenced at 2.20 am, concluded at 5.30 am when the court passed the order and asked Attorney General KK Venugopal to produce the letters which the court was told were with the Karnataka Governor.

The Supreme Court refused to stay the swearing-in of Yeddyurappa saying it could not intervene in the Governor’s decision. It, however, did not dismiss the Congress-JD(S) petition, saying it would take up the matter later. The hearing is likely to take place on Friday.

The court also said how long the BJP should be given to prove majority could be debated after two days.

Answering media questions before the hearing, Rohatgi dismissed the Congress-JD(S) claim that BJP did not have the numbers. He said a party’s strength could only be tested on the floor of the House.

With 105 MLAs, including an Independent, in the 222-seat House, the BJP is seven seats short of majority. The Congress with 78 seats and the Janata Dal (Secular) with 38, including one seat of ally BSP, together have at least 117 seats, four more than the halfway mark.

Inviting the BJP to form government, the Governor has given it 15 days to prove majority. However, Yeddyurappa will take oath alone. His cabinet will be sworn in only after he is able to prove the numbers.

After BJP got the call to form government, the Congress said the late evening invite from the Raj Bhavan for the swearing-in ceremony that was to take place 12 hours later was a tactic to prevent the alliance from approaching the court against the decision.

Justifying his petition to the SC, Singhvi tweeted that this short gap between the invitation and the swearing-in ceremony validated the urgency. He said if the SC registry accepted the request, “I will appear and argue tonight”.

Earlier, Congress spokesperson Randeep Surjewala lashed out at the governor saying he had denigrated 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,” Surjewala said at a press conference.

After the SC agreed to hear the matter, Abhishek Singhvi thanked the top court and tweeted: “Shows justice never sleeps and accessibility is 24X7 where merits so demand. Which apex court in world allows such accessibility.”

This is the second time that the Supreme Court held an overnight hearing. The apex court had held a 90-minute hearing in the middle of the night in July 2015 to hear a last-minute petition against the execution of Yakub Memon for his role in the 1993 Mumbai blasts case.