On Tuesday, Senior Advocate Kapil Sibal, representing the Uddhav Thackeray group, submitted before a 5-judge Supreme Court bench comprising of Chief Justice of India D.Y. Chandrachud, Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha that the matter should be referred to a 7-judge bench to consider the correctness of the 2016 Constitution Bench judgement in Nabam Rebia versus The following directive was issued:

"Mr. Kapil Sibal, learned Senior Counsel, submits that when the matter is taken up for hearing, he would be arguing for a reference of the correctness of the view of the Constitution Bench in Nabam Rebia (2016) 8 SCC 1 to a 7-judge bench. It has been agreed that Mr.Kapil Sibal shall circulate a brief note of his submission on the proposed reference to a 7-judge bench that he would seek. The note shall be circulated at least two weeks in advance to the other respondents. The respondents would be at liberty to circulate a brief note of submissions in response. Both sets of notes shall be compiled by the nodal counsel and be circulated to the bench".

A 5-judge bench ruled in Nabam Rebia that a Speaker cannot initiate disqualification proceedings while a resolution seeking his removal is pending. Sibal argued before a five-judge Constitution Bench comprised of Chief Justice of India D.Y. Chandrachud, Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha that the correctness of the Nabam Rebia proposition is one of the issues referred to the Constitution Bench.

"One of the issues relate to the Nabam Rebia decision in respect of the removal of the Speaker. That issue may have to be dealt with 7 distinguished judges if we are able to persuade your lordships that the decision is wrong", Sibal agreed. Sibal requested a preliminary hearing on the reference issue. The CJI then instructed both parties to submit a brief note of points on this issue. Senior Advocate Neeraj Kishan Kaul, representing the Eknath Shinde group, and Solicitor General of India Tushar Mehta, representing the Maharashtra Governor, agreed to share written responses to Sibal's proposal.

The matter has been adjourned to 10th January 2023, by the bench.

The following legal issues have been referred to the Constitution Bench for consideration:
1.    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;
2.    Whether a petition under Article 226 and Article 32 lies inviting a decision on a disqualification proceeding by the High Courts or the Supreme Court as the case may be;
3.    Can a court hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?
4.    What is the status of proceedings in the House during the pendency of disqualification petitions against the members?
5.    If the decision of speaker that a member was incurred disqualification under the Tenth Schedule relates back to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?
6.    What is the impact of the removal of Para 3 of the Tenth Schedule? (which omitted "split" in a party as a defence against disqualification proceedings)
7.    What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?
8.    What is the interplay with respect to the provisions of the Tenth Schedule?
9.    Are intra-party questions amenable to judicial review? What is the scope of the same?
10.    Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?
11.    What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.