From Electoral Integrity to Personal Liberty: The Jurisprudence of Advocate Lily Thomas

From Electoral Integrity to Personal Liberty: The Jurisprudence of Advocate Lily Thomas

Adv. Saju Jakob, c/o Law Office of the Lily Thomas (generally known as Lily Thomas Jr)

10th December 2019 marked the passing of one of India’s most courageous legal warriors, Advocate Lily Thomas. Her funeral on 12th December closed the earthly chapter of a woman who, for over six decades, refined the contours of constitutional litigation, public accountability, and judicial activism. Even today, her legacy shapes the developments in constitutional law in India.

Born on March 5, 1928, in Kottayam, Kerala, she was a trailblazer from the very beginning. She holds the historic distinction of being the first woman in India to earn an LL.M. degree, securing the First Rank from Madras University. Entering the legal profession at a time when courtrooms were overwhelmingly male, she armed herself with precision, persistence, and an unwavering sense of justice to fearlessly take on the most entrenched structures of power. Unlike many legal practitioners, she used law not merely as a profession, but as a mission to safeguard public interest and our constitutional ethos.

Her name today is synonymous with Public Interest Litigation (PIL), as she embraced PILs as a medium to correct systemic failures and uphold a democracy rooted in constitutionalism.

Below are the most significant and landmark judgments where Advocate Lily Thomas was the lead petitioner, counsel, or driving force. These are essential for understanding her stature in Indian constitutional jurisprudence.

Below are the most significant judgments where Advocate Lily Thomas served as the lead petitioner, counsel, or driving force. These cases are essential for understanding her enduring stature in Indian constitutional jurisprudence.

Significant Landmark Judgments of Advocate Lily Thomas

1. Decriminalizing Politics: Lily Thomas v. Union of India, (2013) 7 SCC 653

This is perhaps her most celebrated Public Interest Litigation (PIL), resulting in a historic “cleansing” of Indian politics. In a landmark verdict, the Supreme Court struck down Section 8(4) of the Representation of the People Act, 1951 (RPA) as unconstitutional.

• The Issue: While Section 8 of the RPA outlined grounds for disqualifying MPs and MLAs, Section 8(4) created a loophole. It granted sitting legislators immunity from immediate disqualification if they filed an appeal within three months of their conviction. This allowed convicted politicians to retain their seats, vote in the House, and enjoy governmental privileges while their appeals dragged on for years.
• The Argument: Advocate Lily Thomas, alongside the NGO Lok Prahari, argued that:
  1. Constitutional Parity: Articles 102(1) and 191(1) of the Constitution do not distinguish between a “candidate” and a “sitting member” regarding disqualification. Parliament, therefore, lacked the power to create an artificial distinction via Section 8(4).
  2. Integrity of Governance: Allowing convicted criminals to make laws and represent constituents undermined the sanctity of democratic institutions.
  3. Perverse Incentives: The provision incentivized criminal politicians to delay legal proceedings to remain in power.
• The Verdict: On July 10, 2013, the bench comprising Justices A.K. Patnaik and S.J. Mukhopadhaya declared Section 8(4) ultra vires (beyond the powers of) the Constitution. The Court held that any legislator convicted and sentenced to two years or more stands immediately disqualified, irrespective of any pending appeal.
• Impact: This judgment set a critical benchmark for electoral integrity. It led to the swift disqualification of high-profile leaders, including Lalu Prasad Yadav and J. Jayalalithaa, reaffirming that legislative power cannot coexist with criminal conviction.

2. Prevention of Bigamy via Conversion: Lily Thomas v. Union of India, AIR 2000 SC 1650

This judgment addressed a deeply troubling social practice where Hindu men converted to Islam solely to contract second marriages without divorcing their first wives.

• The Context: The case arose when Sushmita Ghosh, championed by Advocate Lily Thomas, filed a petition challenging her husband’s actions. Her husband, G.C. Ghosh, had converted to Islam for the sole purpose of marrying another woman, Vanita Gupta, without legally divorcing Sushmita. Despite producing a certificate from the Shahi Qazi, he continued to identify as Hindu in official documents and practices.
• The Argument: Lily Thomas argued that while Article 25 protects the freedom of conscience and religion, it cannot be weaponized to defeat the statutory rights of a wife or to circumvent penal laws.
• The Verdict: The Bench of Justices R.P. Sethi and S. Saghir Ahmad accepted these arguments, holding that conversion does not automatically dissolve a prior marriage.
  • The Hindu Marriage Act, 1955 continues to apply until a legal divorce is granted.
  • Consequently, a second marriage contracted after such a conversion is void, and the husband is liable for bigamy under Sections 494 and 495 of the IPC.
• Impact: The Court established the doctrine that a “sham” conversion—undertaken as a legal stratagem to facilitate bigamy—cannot be recognized as genuine. This decision stands as a fortress for women’s rights, affirming that personal laws cannot override the constitutional guarantees of Equality (Article 14) and Life and Liberty (Article 21).

3. The Right to Practice: In Re Lily Isabel Thomas, AIR 1964 SC 855

In this early career challenge, Lily Thomas contested the constitutionality of the Advocate-on-Record (AOR) system.

• The Challenge: She challenged Rule 16(1) of Order IV of the Supreme Court Rules, 1962, which mandated a specific examination for advocates to “act” (file cases) in the Supreme Court. She argued that Section 30 of the Advocates Act granted all advocates an absolute “right to practice,” making additional barriers unconstitutional.
• The Outcome: Although the petition was dismissed, it produced a crucial legal acknowledgment: the “right to practice” encompasses both pleading and acting.
• Impact: Her challenge was prophetic. It anticipated modern critiques of the AOR system, which many jurists continue to debate today as an artificial barrier to the legal profession.

Other Significant Areas of Work

Beyond these headlines, Advocate Thomas’s docket was filled with petitions addressing the silent suffering of the marginalized:

• Railway Employees & Administrative Law: She filed numerous petitions regarding pension disputes and the rights of railway employees, highlighting her commitment to administrative justice for the working class.
• Women’s Rights: Recognizing that women in India face intersectional discrimination, she fought cases ranging from matrimonial disputes to succession rights, always prioritizing the vulnerable.

Her Legacy: A Guardian of the Constitution

Unlike many litigators, Advocate Lily Thomas chose cases not for commercial gain, but for constitutional clarity. She believed the judiciary must act whenever the Constitution was in danger. Her work established these enduring principles:

• Religious freedom cannot be weaponized to evade the law.
• Electoral processes and qualifications are fully subject to judicial review.
• Personal law cannot override Fundamental Rights.
• Equality demands identical standards for candidates and sitting legislators.

She was a prime example of how a lawyer armed with conviction can alter the course of public law. Her cases now form the core of Indian constitutional jurisprudence, inspiring a new generation of lawyers to prioritize the Constitution above all else.

As we commemorate her contributions, we remember her not just as a lawyer, but as a defender of democracy and a relentless trailblazer. Though she passed away on December 10, 2019, and we bid her a final adieu on December 12, 2019, as she was laid to rest, her legacy continues to echo in every courtroom and every public interest petition that seeks to hold power to account. She remains a powerful reminder that one determined individual can indeed reshape the constitutional destiny of millions.