“Dharma Dando-Asi”— You (King) are the sceptre that upholds dharma—is the clarion message of ancient Indian polity. It was more than a moral exhortation; it was a constitutional warning before its time. Power, whether royal or republican, is legitimate only when exercised within the bounds of rightful conduct. In today’s democratic setup, that dharma is embodied and codified in the Constitution. And when any branch of government begins to stray from its constitutional limits, it becomes the solemn duty of others to call it back to its path.

That is precisely what Vice President Jagdeep Dhankhar did when he recently raised concern over the Court’s ruling in State of Tamil Nadu v. Governor (2025). Far from being “out of line,” the Vice President was upholding the most fundamental principle of constitutional governance: that every institution must follow its constitutional dharma.

Even the Supreme Court of India acknowledges this in its own motto: “Yato Dharmah Tato Jayah”—“Where there is dharma, there is victory.” The judiciary is the guardian of constitutional dharma. For its decisions to carry the moral weight of justice, they must reflect not only fairness and outcome-oriented concern, but fidelity to due process, procedural discipline, and structural restraint.

Rajguru and Rajya Sabha: The Duty to Remind Power of Its Limits

What needs to be appreciated is that the Vice President is not merely a ceremonial figure. In ancient Indian political tradition, the Rajguru was not the wielder of power but its conscience. His role was to remind the king of his dharma, especially when ambition clouded judgment. Similarly, the Vice President, as Chairman of the Rajya Sabha, plays a parallel role in modern governance. He presides over the federal second chamber that represents the States, checks executive actions, and ensures legislative balance. A verdict that affects the role of Governors, and the legislative process itself falls squarely within his sphere of concern.

When a Supreme Court judgment prescribes the timeline for the Governors and the President —injecting a wholly new doctrine into Articles 200 and 201—it is not merely the Vice President’s right but his constitutional obligation to raise a red flag. His intervention was not political. It was principled, institutional, and timely.

Public discourse on constitutional functioning is not a breach of decorum—it is essential to the health of a democracy and is indicative of a mature and functioning democracy. In a system of checks and balances, criticism of judgments is not only permissible—it is necessary. Judgments are not immune to critique—especially when they impact the federal structure, legislative procedure, and constitutional design. Robust dissent is not contempt—it is constitutionalism in action.

Why is the Judgment Being Criticised?

At the heart of the controversy lies the Court’s creation of a “deemed assent” mechanism. Under Articles 200 and 201 of the Constitution, a Governor may assent to a bill, withhold assent, return it for reconsideration, or reserve it for the President. Nowhere does the Constitution state that inaction translates to assent. By judicially inventing such a fifth outcome, the Court has not merely interpreted the Constitution—it has effectively amended it. Yet that power rests exclusively with Parliament under Article 368. In its eagerness to resolve executive delay, the Court has recast the legislative process itself. That is not constitutional adjudication. It is judicial legislation.

The Court invoked Article 142, which permits it to do “complete justice,” to support this new doctrine. But Article 142 is not a substitute for the constitutional amendment process. It cannot become a magic wand to legislate by reimagining provisions that the Constitution does not contemplate, and introducing them by way of interpretation supplanting its wisdom for the Constituent Assembly. That would amount to rewriting the Constitution by stealth—a precedent with long-term costs for institutional balance.

Equally concerning are the procedural irregularities. The judgment was delivered by a two-judge bench, despite engaging with substantial constitutional questions. Article 145(3) requires such matters to be heard by a five-judge Constitution Bench. Not only this, the judgment sidestepped binding precedent: Nabam Rebia v. Deputy Speaker (2016), a Constitution Bench ruling directly interpreting the Governor’s discretionary powers. It also treated B.K. Pavitra (2019), a decision by a bench of equal strength, as per incuriam—a move clearly barred by the Supreme Court’s own precedent in Dawoodi Bohra (2005). These are not aberrations, but they are major departures and deviations from judicial discipline, and they erode the legitimacy of the very institution expected to uphold constitutional rigour.

Separation of powers is not a foreign import. It is a basic feature of the Indian Constitution, repeatedly reaffirmed by the Court itself. It is what ensures mutual accountability and prevents the concentration of power in any one branch. When the judiciary assumes legislative powers—even in the face of executive paralysis—it disturbs this equilibrium. The Vice President’s critique is not an assault on judicial independence. It is a plea for judicial restraint.

The Court was rightly concerned about Governors sitting on bills indefinitely. But the solution lay in legislative oversight, public debate, or even constitutional amendment—not judicial creation of doctrines absent from the text. Deadlocks in democracy must be resolved politically—not by circumventing constitutional processes. Judicial creativity cannot become a permanent fix for executive dysfunction. Otherwise, we risk institutionalising judicial supremacy, not constitutional democracy.

Conclusion: The Constitution Deserves Process, Not Just Outcome

The Vice President’s remarks may have unsettled some, but they serve as a constitutional compass. His intervention reminds us that fidelity to process is as important as fidelity to purpose. Some have argued that the Vice President, as a constitutional authority, should have refrained from public comment. But this misunderstands the essence of democratic accountability. The Vice President did the right thing in sparking a public discourse on the correctness of the approach adopted by the Judiciary.

As Swami Vivekananda had said: “Let us perfect the means; the end will take care of itself”. The Supreme Court’s verdict in the Tamil Nadu Governor case and the aim to break the logjam may have been well-intentioned—but the path it chose is constitutionally problematic. It must be referred to a Constitution Bench to preserve institutional balance, and procedural integrity.

Power—legislative, executive, or judicial—must remain within its limits. For the sceptre, whether it rests with the king or the Court, must always uphold dharma, not expedience.

Author is an Advocate practicing in the Supreme Court of India.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]

Aditya Kashyap