On Wednesday, a Constitution Bench of the Supreme Court made an oral observation that one of the problems is a "difficult constitutional question to decide" while deliberating the matter pertaining to the split within the Shiv Sena party. 

One matter that has been referred to the Constitution Bench is the validity of the Supreme Court's conclusion in Nabam Rebia v. Deputy Speaker from 2016, which held that a Speaker cannot start disqualification procedures while a motion to remove him is still pending. 

The bench hearing the case, presided over by Chief Justice of India DY Chandrachud, remarked that both perspectives on Nabam Rebia have significant ramifications, making the decision difficult.

"It is a tough constitutional issue to answer for this reason that the consequences of both positions have very very serious ramifications for the polity", CJI said addressing Neeraj Kishan Kaul.

"If you take the Nabam Rebia position, it says, once the existence of Speaker itself comes under a cloud due to the issuance of a notice, then the Speaker should not decide upon the disqualification till his own continuation meets the ratification of the house. The consequence of that, as you have seen in Maharashtra, is to allow the free flow of human capital from one political party to another", CJI added.

"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".

The CJI concurred that both sides' views on this matter have "compelling reasons." 

In August 2022, a 3-judge panel headed by the outgoing Chief Justice of India, NV Ramana, submitted the matter to the Constitution Bench. A bench made up of CJI DY Chandrachud, Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha is now hearing the reference. 

The constitutionality of Nabam Rebia's point of view is the first of the eleven issues the Constitution Bench was asked to address. The problem is stated as follows:

"Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution as held by the Court in Nabam Rebia"