On December 8, the Supreme Court's division bench stated unequivocally that the issue relating to the established Memorandum of Procedure (MoP) for appointment of judges of the High Courts and the Supreme Court has been resolved and must be followed. The bench of Justices Sanjay Kishan Kaul, A.S. Oka, and Vikram Nath asserted that once the component of the MoP is settled by the judgement of an Apex Court Constitution Bench, the Union Government cannot get around the issue by referring to observations made by two judges, Justices Ranjan Gogoi and J. Chelameshwar, sitting in a 7-Judge Bench to rationalise the postponement in making appointments.

In 2016, the Government sent a revised MoP in response to the Apex Court's decision to overturn NJAC. In response, the Supreme Court collegium returned the draught the following year. The collegium's final opinion was expressed in the MoP, which was received by the government on March 13, 2017.

The Bench recorded in the order -
"We may notice that in the judgment from which the present contempt proceeding is arising in para 9 the aspect of MOP was settled in 2017. The timelines set out were also extracted in para 9. All this is required to supplement para 24 of existing MOP. We have expressed the opinion that the MoP is final...and would apply."

On behalf of the Union Government, the Attorney General of India referred to the two judges' observation that some fine tuning of the existing MoP might be required. "The MOP issue is over. Now you say in a subsequent judgment 2 judges made some observations. Now is it logically to latch on to those observations of 2 judges when there is a Constitution Bench decision?"

Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. 
Citation: Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019