In S.P. Gupta Vs. President of India and Others, , it was clearly pointed out that a High Court Judge is a high constitutional functionary and while dealing with the question of the machinery having legal sanction to deal with a High Court Judge against whom allegations of lack of integrity and corruption were made, it was stated as under:
… Baldly put, the question is: Should an Additional Judge whose misbehaviour or lack of integrity has come to the fore be continued as an Additional Judge or confirmed as a Permanent Judge? The answer at the first impulse and rightly would be in the negative but the question requires deeper consideration. If the misbehaviour or lack of integrity is glaringly self-evident the question of his continuance obviously cannot arise and in all probabilities will not engage the attention of the appointing authority, for, the concerned Judge in such a situation would himself resign but when we talk of misbehaviour or lack of integrity on the part of an Additional Judge having come to the fore, by and large the instances are of suspected misbehaviour and/or reported lack of integrity albeit based on opinions expressed in responsible and respectable quarters and the serious question that arises is whether in such cases the concerned Additional Judge should be dropped merely on opinion material or concrete facts and material in regard to allegations of misbehaviour and/or lack of integrity should be insisted upon? In my view since the question relates to the continuance of a high constitutional functionary like the Additional Judge of High Court it would be jeopardising his security and judicial independence if action is taken on the basis of merely opinion material. Moreover, no machinery having legal sanction behind it for holding an inquiry – disciplinary or otherwise against the concerned judge on allegations of misbehaviour and/or lack of integrity obtains in the Constitution or any law made by the Parliament, save and except the regular process of removal indicated in Article 124(4) and (5) read with Article 218 and the Judges (Inquiry) Act, 1968. therefore, the important question that arises in such cases of suspected misbehaviour and/or reported lack of integrity is who will decide and how whether the concerned Judge has in fact indulged in any misbehaviour or act of corruption? In the absence of satisfactory machinery possessing legal sanction to reach a positive conclusion on the alleged misbehaviour or an act of corruption the decision to drop him shall have been arrived at merely on the basis of opinions, reports, rumours or gossip and apart from being unfair and unjust to him such a course will amount to striking at the root of judicial independence. The other alternative, namely, to continue him as an Additional Judge for another term or to make him permanent if a vacancy is available and then take action for his removal under the regular process indicated in Article 124(4) and (5) read with Article 218 and Judges (Inquiry) Act, 1968 may sound absurd but must be held to be inevitable if judicial independence, a cardinal faith of our Constitution, is to be preserved and safeguarded. Not to have a corrupt Judge or a Judge who has misbehaved is unquestionably in public interest but at the same time preserving judicial independence is of the highest public interest. It is a question of choosing the lesser evil and in inevitable course has to be adopted not for the protection of the corrupt or dishonest judge but for protecting several other honest, conscientious and hardworking Judges by preserving their independence; it is a price which the Society has to pay to avoid the greater evil that will ensue if judicial independence is sacrificed. Considering the question from the angle of public interest therefore, I am clearly of the view that while considering the question of continuance of the sitting Additional Judges on the expiry of their initial term either as Additional Judges or as Permanent Judges the test of suitability contemplated within the consultative process under Article 217(1) should not be invoked – at least until such time as proper machinery possessing legal sanction is provided for enabling a proper inquiry against an alleged errant Judge less cumbersome than the near impeachment process contemplated by Article 124(4) and (5) of the Constitution.
(Tulzapurkar, J.)(pp.920-21)
… As the law now stands it is not open to any single individual, whether it is the President or the Chief Justice of India or anybody else to take cognizance of any allegations of misbehaviour or of incapacity of a Judge and to take any legal action on their basis under the Judges (Inquiry) Act, 1968. One hundred Members of the Lok Sabha or fifty Members of the Rajya Sabha alone can initiate any action on such allegations. Naturally, all others are excluded from taking cognizance of them and acting on them.
(Venkataramiah, J.)(pp.1338-39)
(emphasis supplied)