Today marks the first death anniversary of Supreme Court advocate Lily Thomas who was responsible for Section 8(4) of the Representation of the People Act, 1951 being struck down by the Supreme Court resulting into disqualification of convicted legislators from running for elections or holding an elected seat.
Born on March 5, 1928, at Changanassery in Kottayam District, in the State of Kerala to Adv. K.T Thomas and Smt. Anamma, Lily Thomas had fluent grasp in Latin, Sanskrit, Malayalam and English.[1] A graduate in B.Sc., she chose to do L.LB from Madras University and being fascinated by the special features of the Constitution and its influence in the society, she did her LL.M. in Constitutional Law[2] and become the first woman in India to qualify for an LL.M. degree.[3] She then went to Delhi to do a doctoral research on Constitution from the Indian Law Institute but started practicing in the Supreme Court of India.[4]
Thomas, who never got married[5], in an interview with The Economic Times, recalled a judge asking her if she was a miss or a Mrs,
“I told him I am a miss but I don’t miss much. He laughed so hard that even it would have been audible at India Gate.”[6]
As a Supreme Court Advocate, Thomas’s first major case was where she filed a petition in the Supreme Court challenging the validity of the ‘Advocate on Record’ system on 14 January 1964. In In re Lily Isabel Thomas, AIR 1964 SC 855, she had argued that as an advocate entitled to practise in this Court, she was entitled as of right not merely to plead but also to act, and that the Rules of this Court which prescribe qualifications before she could be permitted to act were therefore invalid. She, hence, sought that Rule 16(1) of Order IV of the Supreme Court Rules[7] as amended in 1962 which contains this prescription of qualifications be declared ultra vires. While her petition failed, many petitions challenging the AOR system have been filed ever since.
In a bid to protect the rights of married women, Thomas filed a petition in the Supreme Court challenging such conversions where a non-Muslim would convert to Islam merely to marry a second time without divorcing his first wife, without any real change in his belief. The bench of S. Saghir Ahmed and RP Sethi, JJ, in Lily Thomas v. Union of India, (2000) 6 SCC 224, held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. It said,
“Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17, besides being an offence.”
The Court further held that mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.
Her most notable breakthrough, however, came at the age of 85 when, in 2013, she won a landmark case in Lily Thomas v. Union of India, (2013) 7 SCC 653, under which members of India’s Parliament and members of state legislative bodies, convicted of a crime or in jail, became ineligible to run for elections or hold an elected seat. On 10 July 2013, a bench of A K Patnaik and S J Mukhopadhaya, JJ held that,
“Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution”
Consequently, it was held,
“if any sitting Member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by sub-section (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and/or sentence.”
Resultantly, Lalu Prasad Yadav became one of the first politicians who couldn’t contest elections.[8]
When Jayalalitha got convicted, Thomas, in an interview with The Economic Times[9], said
“She looked so powerful when in power but now she stands betrayed and alone. Why didn’t her party stop her? Where is the wealth now? Shouldn’t it be confiscated? Our law should be so clear that there should be no ifs and buts,”
Thomas’s dedication towards upholding and protecting the spirit of the Constitution is evident from the fact that she did not stop working even in the evening of her life.[10]
[Image: Original image of Advocate Lily Thomas from Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors]
[1] Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors
[2] Ibid
[3] Senior Most Woman Lawyer Of SC, Lily Thomas Passes Away At 91, She the people, by Anushika Srivastava, December 10, 2019
[4] Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors
[5] Ibid
[6] Meet Lily Thomas, the 87-year-old lawyer behind clipping of wings of convicted politicians like Jaya, Lalu, The Economic Times, Last Updated: October 03, 2014
[7] 16. No advocate shall be qualified to be registered as an advocate-on-Record unless he—
(1) has undergone training for one year with an advocate-on-Record approved by the court, and has thereafter passed such tests as may be held by the court for advocates who apply to be registered as advocate-on-Record, particulars whereof shall be notified in the Gazette of India from time to time; provided however that an Attorney shall be exempted from such training and test:
(2) has an office in Delhi within a radius of 10 miles from the Court House and gives an undertaking to employ, within one month of his being registered as advocate-On-Record, a registered clerk; and
(3) pays a registration fee of Rs 25.
[8] Who was Lily Thomas? Supreme Court lawyer whose fight ended reign of convicted politicians in elections, Financial Express. December 10, 2019
[9] Meet Lily Thomas, the 87-year-old lawyer behind clipping of wings of convicted politicians like Jaya, Lalu, The Economic Times, Last Updated: October 03, 2014
[10] Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors
This article is such a meaningful tribute to Lily. I would just like to add that she was such a fun person too and a loving friend to many. The conversations in her chambers were fascinating, covering philosophy, astrology, law, and life in general. She loved jokes and told them too. She laughed a lot and never took herself, or anybody too seriously. But she was always ready to help someone in trouble. And she never, ever, bragged about her contribution to the law of the land. A unique and extraordinary personality. It was a privilege to have known her and felt her affection. I will never stop missing Lily.