Lily Thomas vs the Union of India

Is legal practice compatible with a conscience? This is the story of a lawyer who joins the two. Her exploits include the disqualification of Lalu Yadav and Rasheed Masood

trithesh

Trithesh Nandan | April 4, 2014




Sheel Kumar Roy never imagined the steely resolve that lay behind the soft voice of 86-year-old Lily Thomas when she greeted him on that fateful day in 2005. Roy had been fighting tooth and nail his dismissal from the army in 1991 and had gone to every single court, till he was left with the only option of approaching the supreme court. His case was controversial, and lawyers were wary of taking it up. That’s when he stumbled into Lily Thomas’s chambers. After an hour-long impassioned presentation of the case by Roy, Thomas agreed to take the brief. In 2007 the apex court gave Roy the relief that he had been seeking for long.

“He (Roy) should be deemed to have been discharged from September 7, 1991. He would, thus, be entitled to all benefits arising there-from,” said the judgment. Thomas, however, is not satisfied and wants to get Roy total service benefits. The never-say-die lawyer has filed a grievance petition. “I am trying to get back his uniform, even for a day,” she says. “The decree is not in accord with the judgment.”

For Thomas, age is only a number. Her courage, enthusiasm and fighting spirit has not dimmed; it has gotten brighter with the greying hair and the toothy smile. Thomas has helped countless people like Roy, yet she is better known as the giant killer; as someone whose single-minded effort to get the Augean stables of electoral politics cleaned up led to the clipping of the wings of the likes of Lalu Prasad, Congress leader Rashid Masood, and JD-U’s Jagdish Sharma. In fact, Lalu, Masood and Sharma not only can’t fight elections, but have also lost their existing memberships of parliament due to Thomas. Prasad and Sharma were found guilty of financial impropriety of the fodder case, while the law caught up with Masood in a 21-year-old case.

The political giants were cut to size when in a landmark judgment in July, now famously called the Lily Thomas judgment, the supreme court struck down section 8(4) of the Representation of the People Act (RPA) as unconstitutional. Now, an MP or a legislator stands disqualified immediately if convicted by a court for crimes with punishment of two years or more.

“Parliament is a temple of democracy where there should be no place for convicts. This was a vital judgment,” says Thomas, now eagerly watching the run-up to the general elections. She first filed the petition in 2005, enraged with criminals taking a stay from the courts, contesting and then entering parliament. She was 78 when she filed the petition and justice RC Lahoti was the chief justice. At first justice Lahoti rejected her petition and asked her to prepare again. Thomas added substance to it, but the chief justice rejected it again: “Justice Lahoti wanted me to study and add more value to this important petition.” The third time her relentless quest for improvement found favour with justice Lahoti.

When KG Balakrishnan took over as the chief justice, things slowed a little. But under chief justice Altamash Kabir, the petition took a life of its own. “He said that this matter is of utmost importance and should be heard immediately. Justice Kabir also suggested I take the consent of attorney general GE Vahanvati.” She got the consent from the office of the attorney general, and finally the matter was assigned to the bench of justices AK Patnaik and SJ Mukhopadhyay.

Thomas often got help from unexpected quarters in her long, and often lonely fight to clean up the electoral system. She remembers one occasion with particular fondness: when she had gone to the court for the date of hearing on her petition she found constitutional expert Fali S Nariman sitting next to her. Thomas approached Nariman and requested him to argue on the petition. “I asked Nariman because I didn’t have the requisite knowledge to do the same. I told him that you have got a responsibility to fight for the case. He accepted,” remembers Thomas.

“The main purpose was to utilise Nariman’s experience and his stature because court also sees depth of the lawyer in such matter,” says Nischal Kumar Neeraj, advocate on record of SC and one of the team members of Thomas. Once Nariman gave his consent to fight the case, members of Team Thomas sat with his office staff to jointly work on the case. Meanwhile Lok Prahari, a Lucknow-based NGO, had also filed a petition on the same lines. Both the petitions were clubbed and Nariman argued for both in front of a two-member bench.

Thomas believes that there is a fundamental flaw in our democracy that inadvertently devalues the judiciary. “When the Representation of People Act (RPA) says you can file an appeal and that will put stay on the conviction, it encourages tainted leaders to contest elections. This should never have been permitted,” she says, explaining her reasons for filing the petition. “There was an earlier judgment of the constitution bench of the supreme court in K Prabhakarn vs P Jayarajan in 2005, which was interpreted by the respondents as upholding the validity of sub-section (4) of section 8 of the RPA,” she points out. Thomas wanted the court to be held in high esteem and wanted that sub-section to be declared illegal.

The important part of the Thomas judgment was that merely filing an appeal in the higher court doesn’t automatically allow a convicted legislator to contest elections. “As a result of the risk of conviction, such legislators and leaders will not be nominated anymore,” says Thomas.

The UPA government, however, in September brought an ordinance to nullify the judgment. Thomas was aghast at the attempt by politicians to scuttle the judgment through an ordinance. She quickly prepared a review petition against the ordinance. “Better sense ultimately prevailed and the ordinance was withdrawn,” adds the feisty lawyer, who credits her father, KT Thomas, a lawyer himself, for her tenacity. He fought against the segregated Church for Scheduled Caste Christians in Kerala, which finally got dismantled only in the 1960s. “My father fought because he always thought that there shouldn’t be this type of segregation,” she recalls.

Thomas was first enrolled in the Madras high court in 1955. “At that time enrolment in the bar used to happen by the high court judges.” Two years later, the Madras University offered the LLM course, so she enrolled, got the Ford scholarship and completed the course in 1959. Soon Thomas landed in Delhi, aiming for a doctorate in law. She started with the course but dropped out after a few months. “I was not made for the rigour of academics,” she explains. She then joined the supreme court where her brother John Thomas was already practising.

When she joined the supreme court in 1960 only three women lawyers were in active practice. “Despite this I never faced any difficulty in practising in the courts,” she recalls. She soon made a mark in the legal fraternity, and her penchant for taking on the establishment led to her moniker ‘Lily Thomas vs. Union of India’. “Justice Katju, in one of the open courts, remarked about her that you are the same Lily Thomas who made us read about Lily Thomas vs. Union of India,” recalls Neeraj.

It all started in 1964 with Lily Thomas taking on the Union of India resulting in the impugning of the validity of AOR exams.

“Whenever some important issues appear in newspapers, she puts us to task on whether we should file a petition or not on it. She always takes extra pain in working on people’s issues,” says Neeraj, who met first met Thomas 12 years ago. Once the railways made her counsel for a case, but she quickly dropped it when she realised that the demands of the employees were justified. That’s not all: she made a plea for the employees. In 2000 she filed a petition when the supreme court came down heavily on conversion to Islam for the express purpose of entering into a second marriage.  Thomas is unmarried, has no regrets and deals with life with her unique brand of philosophy and humour.

“I may have missed the bus, but I am a romanticist. I like a combination of James Bond, Abraham Lincoln and Winston Churchill. But where are such people?” she asks. She wears her self-deprecating humour on her sleeve: “Justice Desai once asked me in the court: madam counsel, are you Miss or Mrs? I replied, I am a miss, but don’t miss much,” she says. “The entire court erupted into laughter.”

She walks slowly and with stoop, but her enthusiasm and determination is ramrod straight. She is ready with new PILs on the case disposal law to make government answerable for the timeframe of the trial, and another on Fraud Marriages Act to provide security to women and children. “In the next few months, I will file these petitions,” says a determined Thomas.

Thomas supported former justice AK Ganguly, when he was accused of sexual harassment. Thomas is also a patron of the Supreme Court Women Lawyers Association.

While many complain about the functioning of the courts, she doesn’t find too many faults with it. However, Thomas feels that the functioning of the registry office (where cases are filed first) needs to be improved substantially.

“They are blocking and disposing the cases in the court. Lawyers face a lot of problems getting clearance from the registry. It is a big problem but no lawyer stands up to the registry office. Actually cases are defeated in the registry. Cases are lost in the registry,” says Thomas. With experience of over 54 years, and still counting, Thomas’s words are worth their weight in gold. Here’s wishing her more of Lily Thomas vs Union India judgments.

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