The Pause Between Constitutional Breaths

By Prince DeAndre, Duke of Hanumanteshwar

On July 30, 2026, the Bombay High Court did not answer the constitutional question before it.

Instead, it chose to wait.

The Court adjourned proceedings concerning Section 56(2)(x) of the Income Tax Act while awaiting the outcome of a related constitutional challenge before the Karnataka High Court. To many observers, it looked like an ordinary procedural decision. Courts delay cases every day. Schedules change. Related litigation is allowed to develop. From a legal standpoint, there was nothing extraordinary about the order.

From a constitutional standpoint, however, I believe there was.

We often think constitutional history is written only on the days courts issue landmark judgments. Those are the moments that fill textbooks, dominate headlines, and shape public memory. We remember the decisions. We remember the celebrations and the disappointments. We remember the votes cast in legislatures and the speeches delivered outside courthouse steps.

But constitutions are not shaped only when institutions speak.

They are also shaped while institutions wait.

Between one judgment and the next lies a period that rarely receives much attention. Legislatures continue writing laws. Governments implement new policies. States exercise their constitutional authority. Citizens continue living with the consequences of existing legal frameworks, and when those frameworks produce new constitutional questions, they return to the courts asking for answers that did not exist before.

The Constitution does not stop evolving simply because a case has been adjourned.

That is the constitutional moment India now occupies.

When the Supreme Court of India delivered its judgment in Supriyo v. Union of India in October 2023, it did far more than decide a single case. It acknowledged a constitutional reality that neither supporters nor critics of the judgment could honestly ignore. Same-sex couples experience genuine legal disadvantages because their relationships remain unrecognized by law. Those consequences extend into taxation, inheritance, succession, pensions, healthcare, property rights, financial planning, and countless other areas where legal recognition determines access to rights that many citizens never have to think about.

The Court recognized those constitutional injuries.

At the same time, it exercised judicial restraint. The majority concluded that restructuring the legal architecture surrounding marriage involved a broad network of interconnected statutes and policy choices that, in its view, belonged primarily to the legislature rather than the judiciary.

Whether one agrees with that conclusion is not the question that interests me here.

The question that interests me is what happened after the judgment was delivered.

Nearly three years have passed.

During that time, governments have acted. States have legislated. Administrative bodies have responded. Citizens have returned to the courts with new constitutional questions shaped by those legislative choices. The constitutional record before India's High Courts today is not the same constitutional record that existed in October 2023.

That is why I do not see the recent proceedings before the Bombay High Court as merely another tax case.

I see them as an opportunity to reflect on something much larger.

Sometimes the most important constitutional developments occur not when a court speaks, but during the silence that follows.

Sometimes the pause itself becomes part of constitutional history.

This is an essay about that pause.

The First Breath: Recognition Before Resolution

Every constitutional journey begins with recognition.

Not recognition of the answer.

Recognition of the question.

That distinction matters because constitutions rarely move from injustice to equality in a single decision. More often, they begin by acknowledging that an injury exists. Only then does the difficult work begin of determining which institution has the constitutional authority to respond.

That was the significance of Supriyo v. Union of India.

Public reaction to the decision quickly settled into familiar positions. Some saw it as a profound disappointment because the Supreme Court declined to recognize marriage equality. Others praised it as an example of judicial restraint and respect for the separation of powers.

I believe both reactions overlooked something more fundamental.

Before any constitutional court can decide how an injury should be remedied, it must first determine whether that injury exists at all.

In Supriyo, the Supreme Court answered that question.

It recognized that same-sex couples experience genuine legal disadvantages because their relationships remain outside India's existing framework of legal recognition. Those consequences extend far beyond marriage itself. They reach into taxation, inheritance, succession, pensions, healthcare, property ownership, financial planning, medical decision-making, and countless other areas where legal recognition shapes everyday life.

That recognition matters.

Constitutions are built upon facts before they are built upon remedies. A court cannot debate how an injury should be addressed until it first acknowledges that the injury is real.

The Supreme Court did exactly that.

The constitutional question then became something different.

Who should provide the remedy?

The majority concluded that recognizing marriage equality would require changes across a broad network of interconnected statutes governing family relationships and the legal rights that flow from them. Those changes, the Court concluded, belonged primarily to the legislature rather than the judiciary.

Reasonable people will continue to disagree with that conclusion.

That is neither surprising nor unhealthy. Constitutional democracies depend upon thoughtful disagreement about the proper limits of institutional authority.

For me, however, the enduring significance of Supriyo lies somewhere else.

The Court recognized a constitutional injury.

It acknowledged the limits of its own institutional role.

Then it stepped back.

That moment marked more than the conclusion of a case.

It marked the beginning of a constitutional conversation that other institutions would inevitably continue.

The legislature would be asked to consider its responsibility.

The executive would decide how to respond within its own authority.

States would continue exercising their legislative powers.

Citizens would return to the courts as new constitutional questions emerged.

The Constitution had not reached the end of its journey.

It had taken its first breath.

And like every first breath, it made the next one inevitable.

The Second Breath: Recognition Without Authority

When the Supreme Court exercised judicial restraint in Supriyo, it did not end the constitutional conversation.

It passed that conversation to another institution.

In the months that followed, the Union Government established a committee to examine the practical challenges experienced by LGBTQIA+ citizens. At first glance, that appeared to be exactly what the Court had anticipated. The judiciary had acknowledged a constitutional injury. The executive would now consider what could be done within its own sphere of responsibility.

That response deserves more attention than it has received.

Governments do not establish committees to study problems they believe do not exist. By choosing to examine the everyday legal and administrative difficulties faced by LGBTQIA+ citizens, the executive implicitly acknowledged that those difficulties were real. That acknowledgment, while administrative in form, carried constitutional significance.

Recognition, however, is not the same as authority.

The committee's work was intentionally limited. It could examine practical barriers. It could recommend administrative improvements. It could explore ways to reduce hardship within the existing legal framework.

It could not redefine that framework.

It was not authorized to recommend marriage equality.

It was not asked to consider civil unions.

It could not alter the legal status from which many of the identified inequalities arise.

That distinction matters because many of the disadvantages recognized in Supriyo do not originate with administrative policy. They originate in legislation. Taxation, inheritance, succession, pensions, medical decision-making, next-of-kin status, and countless other legal rights often depend upon one fundamental question:

Does the law recognize this family?

Administrative action can improve how government serves its citizens.

It cannot create legal recognition where legislation has chosen not to provide it.

I do not view that as a criticism of the executive.

I view it as a reminder that constitutional government depends upon institutions respecting both their responsibilities and their limits.

Each branch possesses authority.

Each branch also has boundaries.

The executive responded within the authority it possessed.

Whether that response was sufficient is ultimately a matter of public debate and constitutional judgment.

What cannot be ignored, however, is what happened next.

The constitutional conversation did not end with the committee's work.

While the executive addressed the consequences of legal exclusion, legislatures continued writing laws.

States continued exercising their constitutional authority.

Citizens continued asking questions the existing legal framework had not yet answered.

The constitutional pause was no longer defined by judicial silence alone.

It had become a conversation carried forward by every institution that followed.

And with each response, the Constitution took another breath.

The Third Breath: While the High Courts Wait, the States Continue to Govern

One of the most enduring lessons of constitutional government is that the Constitution never belongs to a single institution.

While courts interpret it, legislatures continue to write laws.

While judges deliberate, governments continue to govern.

That has been one of the defining constitutional developments since Supriyo.

When the Supreme Court decided the case in 2023, one of the central questions before it was whether recognizing marriage equality would require changes throughout an interconnected legal framework. Marriage was not viewed as a single statute. It was understood as a legal institution touching taxation, inheritance, succession, pensions, property rights, adoption, and countless other areas of law.

Whether one agreed with that reasoning or not, it reflected the legal landscape before the Court at that time.

Since then, that landscape has not remained static.

Several states have undertaken significant reforms to family law through their own constitutional authority. Uttarakhand enacted a Uniform Civil Code. Other states, including Gujarat, Madhya Pradesh, and Maharashtra, have pursued their own approaches to modernizing aspects of family law and related legal frameworks. Each has acted according to its own legislative priorities. Each has reached its own policy choices.

None of those decisions resolves the constitutional questions now before the High Courts.

Nor should they.

Legislatures make policy.

Courts determine whether those policies satisfy constitutional guarantees.

Those are different responsibilities.

What these developments do demonstrate, however, is that governments are capable of revisiting long-established legal frameworks when they conclude that reform is appropriate.

That observation leads me to a different constitutional question than the one being asked in 2023.

If legislatures are prepared to modernize family law...

If they are prepared to revise inheritance rules...

If they are prepared to create new systems of registration and redefine legal relationships...

Then future constitutional review necessarily occurs against a different legislative record than the one that existed when Supriyo was decided.

That does not tell a court how it should rule.

It does not diminish the separation of powers.

It does not require legislatures to reach any particular policy outcome.

It simply recognizes a constitutional reality.

The legal landscape has changed.

And when the legal landscape changes, constitutional review changes with it.

That is why I believe the proceedings now before the Karnataka High Court and the Bombay High Court deserve to be understood as more than isolated disputes over taxation.

The constitutional questions may be new.

The statutes may be different.

But they arise within a legislative landscape that has continued to evolve while the courts have remained silent.

That is the constitutional significance of the pause.

The Constitution has continued to move because the states have continued to govern.

And with every law enacted, every reform debated, and every legislative choice made, another breath has quietly been added to the constitutional record.

The Fourth Breath: The High Courts Inherit a Different Constitutional Record

The constitutional questions now before the Karnataka High Court and the Bombay High Court are often described as tax cases.

Legally, that description is accurate.

Constitutionally, I believe it is incomplete.

The immediate dispute concerns Section 56(2)(x) of the Income Tax Act and whether committed same-sex couples should receive the same tax treatment afforded to legally recognized spouses.

Standing alone, that appears to be a narrow statutory question.

I do not believe it is.

Taxation simply happens to be where a much larger constitutional question has arrived.

Every generation encounters that moment.

Sometimes constitutional questions emerge through voting rights.

Sometimes through education.

Sometimes through criminal justice.

Sometimes through marriage.

In this generation, one of those questions has arrived through the Income Tax Act.

The petitioners are not asking the High Courts to examine taxation in isolation. They are asking whether a legal classification created elsewhere in the law may continue to produce different legal consequences across an interconnected constitutional framework.

That question extends well beyond taxes.

If legal recognition determines eligibility for a tax exemption, it also influences inheritance, succession, pensions, medical decision-making, insurance, property rights, next-of-kin status, and countless other legal relationships that depend upon whether the law recognizes two people as a family.

Seen from that perspective, the Income Tax Act is not the destination.

It is the doorway.

What makes these proceedings particularly significant is not simply the constitutional question itself.

It is the constitutional record against which that question will now be considered.

When the Supreme Court decided Supriyo, it examined the constitutional questions presented on the legislative record that existed in October 2023.

The Karnataka High Court and the Bombay High Court inherit something different.

Since then, the Union Government has acknowledged practical inequalities through administrative action.

States have exercised their legislative authority to reform portions of family law.

New statutes have been enacted.

New constitutional questions have emerged.

None of those developments dictate how either High Court should rule.

Nor should they.

Courts decide constitutional questions according to law, not according to political momentum or public expectation.

But constitutional adjudication has always taken place within the factual and legislative record that exists when a case is heard.

That record has changed.

Every law enacted after 2023.

Every administrative response.

Every legislative choice to include, or not include, particular citizens.

Each has become part of the constitutional landscape that today's High Courts now inherit.

Perhaps that is why the Bombay High Court's decision to await developments in Karnataka deserves greater constitutional attention than it first appeared to receive.

The Court is not simply waiting for another High Court to address a similar legal question.

It is waiting while the constitutional record continues to evolve.

By the time these questions are ultimately answered, they will no longer be answered against the India that existed when Supriyo was decided.

They will be answered against an India that has continued to legislate, govern, debate, and evolve during the pause between constitutional breaths.

The Fifth Breath: The Constitution Is Still Breathing

By now, the constitutional pause no longer feels like silence.

It feels like movement.

The judiciary spoke.

The executive responded.

Legislatures continued governing.

The states exercised the constitutional authority entrusted to them.

Citizens returned to the courts with new questions born from a changing legal landscape.

None of these institutions acted alone.

None of them could.

That is the nature of constitutional democracy.

Each institution carries a different responsibility.

Each exercises a different authority.

Each operates within different constitutional limits.

Yet every action becomes part of the same constitutional story.

Perhaps that is why the image of breath has remained with me while reflecting on these cases.

In the yogic tradition, breath is not understood as a single movement. It is a continuous flow of life, moving in different directions while remaining part of one living whole. No single movement defines the breath. Together, they sustain it.

Constitutions endure in much the same way.

No single court defines a constitutional democracy.

No single legislature completes it.

No single government fulfills it.

The Constitution lives through the continuing dialogue between institutions, each answering the work of the others across time.

That is what I believe has unfolded since Supriyo.

The Supreme Court recognized a constitutional injury while exercising judicial restraint.

The Union Government responded within the authority it believed it possessed.

States continued legislating under their own constitutional powers.

Now the Karnataka High Court and the Bombay High Court inherit a constitutional record that is different from the one that existed in October 2023.

Whatever those courts ultimately decide, their decisions will become part of that continuing constitutional conversation.

They will not be its conclusion.

Another legislature will respond.

Another government will act.

Another citizen will ask a new constitutional question.

Another court will one day be called upon to answer it.

That is not a weakness of constitutional democracy.

It is its design.

Every generation inherits a Constitution shaped by those who came before.

Every generation leaves behind a constitutional record that those who follow must interpret.

The Constitution is never frozen in a single judgment.

It lives in the continuing relationship between principle and practice, between restraint and responsibility, between one generation and the next.

A healthy democracy is not measured by how loudly its institutions speak.

It is measured by whether, even in moments of silence, the Constitution continues to breathe.

The pause between constitutional breaths is not the end of the story.

It is where the next chapter quietly begins.