On Tuesday, a constitutional bench led by Chief Justice of India D.Y. Chandrachud and Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha listed the petitions concerning constitutional issues arising from the schism within the Shiv Sena party between the Eknath Shinde and Uddhav Thackeray groups on 14th February 2023.

Senior Advocate Kapil Sibal informed the bench at the outset that he had previously indicated that he would like to argue on the correctness of the Nabam Rebia judgement and the need for the matter to be referred to a seven-judge bench. A 5-judge bench ruled in Nabam Rebia that a Speaker cannot initiate disqualification proceedings while a resolution seeking his removal is pending. CJI Chandrachud stated that it was up to the 5-judge bench to decide whether the matter should be referred to the 7-judge bench.

The three-judge bench that referred the petitions to the Constitution Bench, comprised of Chief Justice of India NV Ramana, Justice Krishna Murari, and Justice Hima Kohli, had framed the following 11 issues for consideration -

A.    Whether the speaker's removal notice precludes him from continuing the disqualification proceedings under Schedule X of the Indian Constitution, as the Court held in Nabam Rebia;
B.    Can a court hold that a member is deemed to be disqualified by virtue of his/her actions in the absence of a decision by the Speaker?
C.    What is the status of House proceedings while disqualification petitions against members are pending?
D.    If the speaker's decision that a member was disqualified under the Tenth Schedule dates back to the date of the complaint, what is the status of proceedings that occurred during the pendency of the disqualification petition?
E.    What effect does the removal of Paragraph 3 of the Tenth Schedule have? (which omitted the phrase "split" in a party as a defence to disqualification proceedings)
F.    What is the scope of the Speaker's authority to appoint the legislative party's whip and leader of the house?
G.    What is the interplay between the Tenth Schedule provisions?

H.    Are intra-party disputes subject to judicial review? What exactly is the scope of the same?
I.    Does the governor have the authority to invite someone to form the government, and if so, is this subject to judicial review?
J.    What are the powers of the Election Commission of India in terms of discouraging an ex parte split within a party?

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. 
Citation: WP(C) No. 493/2022