A 5 judges Constitution bench of the Supreme Court considered the request for reference of the case concerning the 2022 Maharashtra political crisis to a larger bench of seven judges so as to re-examine the apex court's 2016 judgment in Nabam Rebia v. Deputy Speaker. The issues will be heard along with the merits of the case and not separately.

The bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha passed the order on a batch of cases filed by rival factions of the Shiv Sena led by Uddhav Thackeray and Eknath Shinde in relation to the political crisis of 2022. This entire rift led to a change in power in the Western State.

The Apex Court said "Issue of reference cannot be decided in isolation without facts of the case. Issue of reference will be decided only with merits of the case".

It, therefore, directed that the matter be listed for hearing on merits of the case will be on 21 February 2023, Tuesday at 10:30 am.

According to Nabam Rebia, if a notice of removal under Article 179(c) of the Constitution is pending, a Speaker will not be permitted to decide disqualification petitions under the anti-defection provision (10th schedule of the Constitution). The attorneys defending Uddhav Group have questioned whether this viewpoint is accurate in the current case. The Shinde side maintains that no references are necessary. 

The Uddhav side was represented by senior attorneys Kapil Sibal, Dr. Abhishek Manu Singvhi, and Devadatt Kamat. They essentially argued that the Nabam Rebia decision allows defecting MLAs to stall disqualification proceedings against them by merely issuing a notice to remove the Speaker. Senior Advocates Maninder Singh, Mahesh Jethmalani, Neeraj Kishan Kaul, Harish Salve, and Siddharth Bhatnagar, who were representing the Shinde group, disagreed with the requirement for references. Tushar Mehta, the Indian Solicitor General, spoke against the requirement for references when speaking on behalf of the Governor.

The lawyers for the Shinde group argued that it would be against natural justice principles to let the Speaker decide on disqualification when he or she is the subject of a resolution calling for his or her removal because the Speaker could then alter the make-up of the house by ejecting members, ensuring the defeat of the motion against him.

"Now look at the other end. If you say that notwithstanding the fact that the continuance of the Speaker is placed under cloud by the issuance of the notice he can still decide the disqualification notices, the consequence of that is, essentially, a leader of a political party who has lost his or her flock, he or she can then hold them down to the group, though as a matter of realpolitik he or she has lost the flock. So, adopting the other extreme would mean that you are really ensuring a political status quo though the leader has effectively lost his or her leadership. That is the other end, if we completely overrule Nabam Rebia. But if we hold Nabam Rebia, then also serious consequences are there, because then it is a free flow".

"So both ends, whichever way you accept it, have serious consequences. Both are not desirable", CJI added.

"So Maninder Singh, according to you, the bar on the Speaker in entertaining the petition for disqualification must attach once a notice for intention to remove the Speaker is sent for the following reasons, first, that the Speaker is acts as an adjudicator under the tenth schedule, second there is a finality to his adjudication and third the consequence of the adjudication is that the MLA loses his seat. And these are very serious consequences", CJI summarised.

Case Title : Subhash Desai versus Principal Secretary, Governor of Maharashtra and others 
Citation: W.P.(C) No. 493/2022 and connected cases

Read the reference order

Appearance of the Advocates:-

For Petitioner(s) 
Mr. Kapil Sibal, Sr. Adv.
Mr. Abhishek Manu Singhvi, Sr. Adv.
Mr. Devdatt Kamat, Sr. Adv.
Mr. Amit Anand Tiwari, Adv.
Mr. Rohit Sharma, Adv.
Mr. Rajesh Inamdar, Adv.
Mr. Javedur Rahman, Adv.
Mr. Nizam Pasha, Adv.
Mr. Anish R. Shah, AOR
Mr. Harsh Pandey, Adv.
Mr. Revanta Solanki, Adv.
Mr. Amit Bhandari, Adv.
Mr. Sunny Jain, Adv.
Mr. Nishant Patil, Adv.
Ms. Devyani Gupta, Adv.
Ms. Tanvi Anand, Adv.
Ms. Aparajita Jamwal, Adv. 
Mr. Harish Salve, Sr. Adv.
Mr. Mahesh Jethmalani, Sr. Adv.
Mr. Neeraj Kishan Kaul, Sr. Adv.
Mr. Maninder Singh, Sr. Adv.
Mr. Siddharth Bhatnagar, Sr. Adv.
Ms. Malvika Trivedi, Sr. Adv.
Mr. Chirag J Shah, Adv.
Mr. Utsav Trivedi, Adv.
Mr. Ravi Sharma, Adv.
Mr. Nihar Thackeray, Adv.
Mr. Himanshu Sachdeva, Adv.
Ms. Manini Roy, Adv.
Ms. Shivani Bhushan, Adv.
Ms. Mugdha Pande, Adv.
Mr. Ajay Awasthi, Adv.
Mr. Piyush Tiwari, Adv.
Ms. Srishti Kumar, Adv.
Mr. Kumar Sumit, Adv.
Ms. Kanjani Sharma, Adv.
Ms. Chaitali, Adv.
Mr. Wedo Khalo, Adv.
Mr. Aditya Sidhra, Adv.
Ms. Prachita Kar, Adv.
Mr. Nadeem Afroz, Adv.
Mr. Prabhash Bajaj, Adv.
Mr. Navneet R., Adv.
Ms. Sujal Gupta, Adv.
M/s. TAS Law
Mr. Neeraj Kishan Kaul, Sr. Adv.
Mr. Maninder Singh, Sr. Adv.
Mr. Siddharth Bhatnagar, Sr. Adv.
Mr. Abhikalp Pratap Singh, AOR
Mr. Abhay Anturkar, Adv.
Mr. Prbhas Bajaj, Adv.
Mr. Dhruv Sharma, Adv.
Ms. Ira Mahajan, Adv.
Mr. Ramchandra Madan, Adv.
Mr. Toshiv Goyal, Adv.
Mr. Raghav Agrawal, Adv.
Ms. Shreya Saxena, Adv.
Ms. Yamini Singh, Adv.
Ms. Pritha Suri, Adv.
Ms. Vijetha Ravi, Adv.
Mr. Ajay Sabharwal, Adv.
Mr. Rangasaran Mohan, Adv.
Mr. Rohit Sharma, Adv.
Mr. Amit Anand Tiwari, Adv.
Mr. Javedur Rahman, AOR
Mr. Rajesh Inamdar, Adv.
Mr. Sunny Jain, Adv.
Mr. Amit Bhandari, Adv.
Mr. Nizam Pasha, Adv.
Mr. Harsh Pandey, Adv.
Mr. Revanta Solanki, Adv.
Ms. Aparajita Jamwal, Adv.
Mr. Nikhil Purohit, Adv.
Mr. Ashok Kumar, Adv.
Ms. Devyani Gupta, Adv.
Ms. Tanvi Anand, Adv.
Mr. Siddharth Seem, Adv.
Mr. L. Nidhiram Sharma, Adv.
Mr. Aman Sharma, Adv.
Mr. Ashima Chauhan Singh, Adv.
Mr. Mudassir, Adv.

For Respondent(s) 
Mr. Tushar Mehta, SG
Mr. Kanu Agrawal, Adv.
Mr. Padmesh Mishra, Adv.
Mr. Digvijay Dam, Adv.
Mr. Madhav Sinhal, Adv.
Mr. Arvind Kumar Sharma, Adv.
Mr. Kartikay Aggarwal, Adv.
Mr. Aaditya Aniruddha Pande, AOR
Mr. Siddharth Dharmadhikari, Adv.
Mr. Bharat Bagla, Adv.
Mr. Sourav Singh, Adv.

Ms. Rukhmini Bobde, Adv.
Ms. Astha Prasad, AOR
Ms. Trishala Trivedi, Adv.
Mr. Ajit Pravin Wagh, Adv.
Mr. Ankit Ambasta, Adv.
Ms. Prachi Thakur, Adv.
Ms. Neeta Sanjay Savale, Adv.
Mr. Javedur Rahman, AOR
Mr. Kailash Prashad Pandey, AOR
Mr. Mahendra Kawchale, Adv.
Mr. Vijay Pal, Adv.
Mr. Pramod Kumar Singh, Adv.
Mr. Kundal Lal, Adv.
Mr. Anil Kumar, Adv.
Mr. Umang Tripathi, Adv.
Mr. Deepankar, Adv.
Mr. Vinay Kumar Aherodiya, Adv.
Ms. Kajal Kumari, Adv.
Mr. Mahendra Kumar, Adv.
Ms. Sundri, Adv.
Mr. Om Prakash, Adv.
Mr. Shiv Kumar Golwalkar, Adv.
Mr. Asim Sarode, Adv.
Ms. Shriya Awale, Adv.
Mr. Pradeep Kumar Gupta, Adv.
Mr. Ashok Kumar Gupta Ii, AOR
Ms. Smita Singalkar, Adv.
Dr. A.P. Singh, Adv.
Mr. V.P. Singh, Adv.
Ms. Richa Singh, Adv.
Ms. Geeta Chauhan, Adv.
Ms. Pratima Rani, Adv.
Mr. Sharwan Kumar Goyal, Adv.
Mr. Sadashiv, AOR
Mr. T.R. B. Sivakumar, AOR
Mr. Raj Singh Rana, AOR
Dr. Gunratan Sadavate, Adv.
Mr. Pankaj Kumar Singh, Adv.
Mr. Pawan Kumar Shukla, Adv.
Mr. S.C. Tripathi, Adv.
Mr. Gaurav Belsare, Adv.