By DeAndre, Duke of Hanumanteshwar

Every constitutional case eventually reaches a moment when the public begins asking the wrong question.

The Bombay High Court's pending income tax case involving a same-sex couple has already reached that point.

Many observers have described it as another chapter in India's continuing debate over marriage equality. Others have treated it as a dispute about taxation or dismissed it as an indirect attempt to persuade the judiciary to recognize same-sex marriage after the Supreme Court's decision in Supriyo @ Supriya Chakraborty v. Union of India. Viewed through either of those lenses, the case appears familiar. It seems to revisit questions that constitutional institutions have already considered.

I believe that understanding misses the constitutional significance of what is actually before the Court.

The petitioners are not asking the Bombay High Court to legalize same-sex marriage.

They are asking something both narrower and, in many respects, more constitutionally important.

They ask whether the State may continue imposing financial consequences upon citizens because they are unable to obtain a legal status that the law itself presently denies them.

That distinction deserves careful attention.

Marriage is one legal institution.

Equality is a constitutional guarantee.

Those two concepts frequently intersect, but they are not identical. A court may decline to create a new legal institution while still asking whether existing legislation operates consistently with the Constitution. Likewise, a legislature may retain authority over family law while remaining subject to constitutional scrutiny whenever statutory classifications produce unequal treatment between similarly situated citizens.

The pending case therefore raises a question that extends well beyond marriage.

May the State deny citizens access to a legal status while simultaneously relying upon the absence of that very status as the justification for treating them differently under another law?

That is not merely a question of tax policy.

It is a question of constitutional consistency.

Section 56(2)(x) of the Income Tax Act exempts certain gifts exchanged between legally recognized relatives, including spouses. The statutory objective is neither unusual nor controversial. Legislatures around the world commonly distinguish between transactions occurring within recognized family relationships and those occurring between unrelated persons. The constitutional difficulty arises because the statute itself does not define the word "spouse." In practice, tax authorities look to India's marriage laws, with the consequence that heterosexual married couples receive the exemption while same-sex couples, who presently cannot marry under Indian law, remain outside its protection.

The result is striking.

The statute never states that homosexual couples should pay more tax.

It simply limits an exemption to a legal status that one class of citizens cannot presently obtain.

That difference may appear technical.

Constitutionally, it is profound.

Because the question before the Court is no longer whether marriage should be expanded.

It is whether constitutional equality permits one statute to borrow a legal classification from another statute when doing so produces unequal treatment.

That is a different constitutional inquiry altogether.

It shifts the conversation away from the creation of new rights and toward the interpretation of rights that already exist.

The Constitution of India does not promise equality only when legislatures have completed every necessary reform.

It promises equality now.

How courts give practical effect to that promise, while respecting the institutional role of Parliament, lies at the heart of the constitutional question now before the Bombay High Court.

I. The Constitution Is Being Asked to Examine a Classification

Constitutional litigation often changes character as it progresses.

The public continues debating yesterday's question while the courts quietly begin examining tomorrow's.

That appears to be what is happening before the Bombay High Court.

Since the Supreme Court delivered its judgment in Supriyo, much of the public conversation has remained centered on marriage equality. Understandably so. Marriage occupies a unique place within every legal system. It carries profound personal, social, religious, and legal significance. It is also the legal gateway through which countless statutory rights are distributed.

But this case does not ask whether the Court should create that gateway.

It asks whether the Constitution permits another statute to rely upon its absence.

That distinction changes the constitutional analysis.

Section 56(2)(x) of the Income Tax Act does not prohibit same-sex relationships.

It does not distinguish between heterosexual and homosexual citizens.

It does not expressly deny financial benefits based upon sexual orientation.

On its face, the provision appears entirely neutral.

The exemption simply applies to gifts exchanged between individuals who satisfy certain legally recognized family relationships, including spouses.

If one reads only the words of the statute, there appears to be no constitutional controversy.

The difficulty emerges only when the statute begins operating in the real world.

A heterosexual couple may choose to marry.

Once married, financial transfers between them fall within the statutory exemption.

A same-sex couple, however, cannot presently obtain that same legal status under Indian law.

The consequence is not that the statute expressly taxes one couple differently from another.

The consequence is that one couple has access to the legal classification upon which the exemption depends, while the other does not.

That is an important constitutional distinction.

The difference arises not from the language of the tax code alone, nor solely from the law governing marriage.

It arises from the interaction between two separate legal frameworks.

One statute distributes financial benefits.

Another determines who may qualify for those benefits.

Together, they produce unequal consequences.

This is precisely why the petitioners frame their argument in terms of indirect discrimination rather than direct discrimination.

Direct discrimination announces itself openly.

A statute may distinguish between citizens based upon race, religion, caste, sex, or another protected characteristic.

The constitutional question becomes immediately visible because the classification appears within the legislation itself.

Indirect discrimination operates differently.

The law speaks in neutral language.

Everyone appears to be governed by the same rule.

Yet when the rule interacts with the broader legal system, one group consistently bears burdens that another group does not.

The discrimination lies not in the words alone.

It lies in their practical effect.

Constitutional courts throughout the democratic world have long recognized that equality cannot be measured solely by reading statutory language in isolation.

A law may appear perfectly neutral while producing consequences that consistently disadvantage one class of citizens because of circumstances beyond their control.

That is why constitutional review examines not only legislative text but also legislative operation.

The Constitution asks a practical question.

Who bears the burden?

That inquiry becomes especially important here.

The petitioners are not arguing that Section 56 was enacted to disadvantage same-sex couples.

There is no evidence that Parliament drafted the provision with such an objective.

Their argument is more restrained.

Because the State presently limits access to marriage, the State cannot then rely upon that same limitation as the basis for imposing a financial disadvantage elsewhere in the legal system.

Whether that argument ultimately succeeds is for the Bombay High Court to determine.

Its constitutional significance, however, extends well beyond taxation.

It asks whether equality should be measured by legislative language alone, or by the legal consequences that citizens actually experience.

That question reaches the very heart of constitutional adjudication.

Because constitutions were never written simply to evaluate statutes in the abstract.

They were written to protect citizens living under them.

II. Constitutional Recognition Cannot Be Selective

One of the most interesting developments since the Supreme Court's decision in Supriyo has received surprisingly little constitutional attention.

India has not remained entirely unchanged.

While the law governing marriage continues to exclude same-sex couples, the administrative State has increasingly acknowledged that these relationships exist.

Government agencies have gradually recognized that same-sex partners may open joint bank accounts. Administrative guidance has permitted partner nominations in certain financial arrangements. Queer households have received recognition for purposes such as ration cards, while additional protections have emerged in areas including healthcare and prison visitation.

None of these developments created marriage.

None attempted to redefine family law.

Yet each reflected something important.

The State itself increasingly recognizes that committed same-sex relationships exist within Indian society.

That constitutional reality deserves closer examination.

Recognition matters.

Not because it answers every constitutional question, but because it changes the nature of those questions.

For many years, one could argue that the legal system simply lacked mechanisms through which same-sex relationships could be acknowledged.

That argument becomes increasingly difficult to sustain when the State itself begins creating those mechanisms across multiple areas of public administration.

The constitutional issue therefore evolves.

It is no longer whether these relationships exist in the eyes of the State.

The State increasingly acknowledges that they do.

The question becomes why that recognition appears sufficient for administrative purposes but disappears when statutory rights or financial protections become involved.

That inconsistency deserves constitutional attention.

A government should, wherever reasonably possible, speak with one constitutional voice.

Citizens should not encounter one understanding of their legal identity when interacting with a bank, another when accessing public services, and yet another when seeking equal treatment under taxation.

Such inconsistencies may arise for legitimate legal reasons.

Different statutes often pursue different objectives.

Different legal classifications may therefore survive constitutional review.

But those distinctions cannot simply be assumed.

They must be justified.

The Constitution requires government to explain why similarly situated citizens should be treated differently under the law.

That obligation becomes particularly significant when the State itself has already acknowledged the factual reality underlying the relationship.

The petitioners are not asking the Court to invent a relationship that does not exist.

They are asking the Court to examine the constitutional consequences of a relationship that the State increasingly recognizes in practice while declining to recognize fully in law.

That distinction is profound.

It shifts the constitutional conversation away from whether same-sex couples deserve legal visibility.

They already possess increasing administrative visibility.

Instead, it asks whether constitutional equality permits that visibility to disappear precisely where legal protections become most significant.

This is why I believe the Bombay High Court case represents more than a dispute over taxation.

It asks whether constitutional recognition may be selective.

May the State acknowledge a relationship when administering public services, documenting households, or facilitating financial arrangements, yet deny the legal consequences of that same relationship when statutory benefits depend upon it?

If the answer is yes, then constitutional recognition becomes fragmented.

Citizens encounter different versions of their legal identity depending upon which branch of government they happen to be dealing with.

That is difficult to reconcile with the Constitution's promise that all persons stand equal before the law.

The Constitution does not require government to treat every legal relationship identically.

It does require government to explain why differences in treatment remain consistent with the principles of equality, dignity, and non-discrimination.

That burden grows heavier as the State itself increasingly acknowledges the very relationships it later declines to recognize.

Because constitutional consistency is not measured only by what government says.

It is measured by whether government applies the same constitutional principles across the laws it administers.

III. The Constitutional Record Has Changed

Constitutional adjudication does not occur in isolation.

Every court inherits more than the words of a statute. It inherits the constitutional record that has been built by earlier judicial decisions, legislative action, and the conduct of the State itself. Constitutional law develops through this continuing dialogue, with each institution adding another chapter to an evolving constitutional history.

The Bombay High Court is no exception.

The Court is not considering Section 56(2)(x) as though it were being interpreted for the first time. Nor is it examining the petition in the same constitutional environment that existed before the Supreme Court's decision in Supriyo @ Supriya Chakraborty v. Union of India.

The constitutional landscape has changed.

In Supriyo, the Supreme Court did not conclude that same-sex couples experienced no constitutional disadvantage. On the contrary, every member of the Court recognized that the absence of legal recognition created significant hardships across numerous areas of civil life. The judgments discussed taxation, inheritance, succession, pensions, insurance, medical decision-making, adoption, and other statutory rights that often depend upon legally recognized family relationships.

The constitutional injury was never in dispute.

The principal disagreement concerned institutional responsibility.

The Court concluded that constructing a comprehensive legal framework governing marriage and related family rights involved complex legislative choices that were more appropriately addressed by Parliament than through judicial interpretation alone.

That conclusion reflected constitutional restraint.

It also reflected constitutional confidence.

Judicial restraint carries an implicit expectation that the institution receiving responsibility will meaningfully exercise it. Courts defer because they recognize that legislatures possess democratic legitimacy and broader policymaking authority. But that deference is not extended in a constitutional vacuum. It assumes that the legislative process will eventually engage the constitutional questions that have been identified.

That assumption forms part of the constitutional record now before the Bombay High Court.

Nearly three years have passed since Supriyo.

During that time, the Union Government has introduced certain administrative measures acknowledging the practical realities of same-sex relationships. At the same time, however, comprehensive legislative reform addressing the broader legal consequences identified by the Supreme Court has not emerged.

Equally significant, several States have begun exercising the very legislative authority that Supriyo recognized as belonging to them.

Uniform Civil Code legislation has moved forward in some jurisdictions.

These developments are constitutionally important not because every legislature was obligated to adopt one particular policy outcome. The Constitution does not compel legislatures to embrace identical political solutions.

What matters is that legislative engagement has now occurred.

The constitutional conversation has moved beyond speculation.

In several jurisdictions, lawmakers have considered the future structure of family law. They have debated modern legal relationships, drafted new statutory frameworks, and determined who will be recognized within those systems. Yet, despite that legislative activity, LGBTQIA+ couples remain largely excluded from the legal recognition that gives practical effect to many statutory rights.

That changes the constitutional context in which this case arrives before the Bombay High Court.

In 2023, one could reasonably argue that the legislative process should first be given an opportunity to respond.

Today, the Court confronts a different constitutional record.

The injury has already been acknowledged.

The responsibility has already been assigned.

Legislative engagement has already begun.

The underlying constitutional inequality remains substantially unchanged.

That does not dictate the outcome of this litigation.

Nor does it diminish Parliament's constitutional authority to legislate.

It does, however, raise a legitimate constitutional question.

How should courts evaluate continued judicial deference after the legislative process identified by the Supreme Court has begun, yet the constitutional classification giving rise to the inequality remains substantially the same?

That is not a challenge to legislative authority.

It is an examination of constitutional accountability.

Every institution within a constitutional democracy remains accountable to the Constitution itself.

When courts defer, legislatures legislate, and governments administer the law, each contributes to the constitutional record inherited by the next court called upon to decide a related question.

The Bombay High Court is therefore not deciding this case against an empty canvas.

It is deciding it against a constitutional history that now includes Navtej, NALSA, Puttaswamy, Supriyo, expanding administrative recognition by the State, legislative consideration of family law through Uniform Civil Code initiatives, and the continuing exclusion of LGBTQIA+ couples from many of the legal classifications upon which statutory protections depend.

That accumulated constitutional history cannot answer the question before the Court.

But neither can it be ignored.

It forms the constitutional record against which Section 56(2)(x) must now be examined.

Because constitutional adjudication is not merely an interpretation of statutory language.

It is also an interpretation of constitutional history as it continues to unfold.

IV. The Next Constitutional Question

The Bombay High Court cannot decide whether India should recognize same-sex marriage.

That question is not before it.

Nor can it rewrite the broader framework of family law that the Supreme Court in Supriyo concluded belongs primarily within the legislative domain.

Those constitutional boundaries remain.

Respecting those boundaries, however, does not diminish the Court's responsibility.

It defines it.

Every constitutional court must decide the case that is actually before it, not the case many assume is being argued.

The petition before the Bombay High Court does not ask whether same-sex marriage should become legal in India.

It asks whether an existing statutory classification continues to operate consistently with the Constitution after years of constitutional development.

That is a different constitutional inquiry.

The Constitution does not ask whether the petitioners have been permitted to marry.

It asks whether the legal consequences attached to marriage may continue to produce unequal treatment for citizens who remain legally unable to obtain that status.

That distinction is fundamental because constitutions do not merely protect legal institutions.

They protect the people who live under them.

Throughout this article, I have intentionally avoided suggesting how the Bombay High Court should ultimately decide this case.

That responsibility belongs exclusively to the Court.

Nor have I argued that Parliament or the State Legislatures must adopt one particular model of family recognition.

Those decisions belong within India's democratic process.

The Constitution assigns different responsibilities to different institutions.

What it does not permit is for constitutional questions to be examined as though time itself has stood still.

The constitutional record before the Bombay High Court is not the constitutional record that existed before Supriyo.

It now includes judicial recognition that constitutional inequalities exist.

It includes the Union Government's own submission that comprehensive reform belongs primarily to the legislative process.

It includes years of administrative recognition acknowledging that same-sex relationships exist within Indian society.

It includes legislative opportunities to modernize family law.

It includes State Uniform Civil Code initiatives that have largely preserved existing exclusions.

Each of these developments forms part of the constitutional history the Court now inherits.

Viewed individually, none answers the constitutional question.

Viewed collectively, they fundamentally change the constitutional context in which that question must now be examined.

The issue is therefore no longer whether constitutional inequality has been identified.

It has.

Nor is it whether the legislative process should have an opportunity to respond.

That opportunity has already been provided.

The question now becomes whether an acknowledged constitutional inequality may continue producing new legal consequences under different statutes after the constitutional conversation has progressed through judicial recognition, executive acknowledgment, and legislative consideration.

That is not simply a question about taxation.

It is a question about constitutional consistency.

Every constitutional democracy eventually reaches moments such as this.

Courts do not revisit the past.

They determine what the Constitution requires in light of everything that has happened since.

That is how constitutional law develops.

Not through abrupt constitutional revolution, but through the steady accumulation of constitutional understanding.

The Bombay High Court now stands within that constitutional tradition.

Its judgment will undoubtedly determine the tax obligations of the parties before it.

Its broader significance, however, may extend much further.

It may become one of the first judicial decisions to examine what constitutional equality requires after Supriyo, not before it.

History will determine where this case ultimately stands within India's constitutional development.

But whatever the outcome, this litigation reminds us that constitutional evolution rarely occurs through one landmark judgment alone.

It unfolds through an ongoing dialogue between citizens, legislatures, governments, and courts, with each institution inheriting the constitutional record created by those that came before.

Constitutions do not stand still while society changes around them. They accumulate constitutional history through every judgment, every statute, every act of legislative restraint or legislative engagement, and every generation called upon to interpret their enduring principles.

The question before the Bombay High Court is not whether that constitutional history exists. It plainly does.

The question is what the Constitution now requires because of it.