LILY THOMAS, 85, an advocate in the Supreme Court, has worked on constitutional law, women’s rights and issues of personal liberty. She was the petitioner in the Supreme Court case ( Lily Thomas vs Union of India and others ) where the court struck down Section 8(4) of the Representation of the People Act (RPA) as being unconstitutional. In 2000, in response to a petition filed by her, the Supreme Court came down heavily on conversion to Islam for the express purpose of entering into a second marriage. Lily Thomas spoke to Frontline about her passion for constitutional values, the possible impact of this judgment on the Indian polity, and the enhanced role of the judiciary and civil society. Excerpts:
The Supreme Court judgment striking down Section 8(4) of the RPA has been hailed as charting a path for decriminalisation of politics. What objectives did you have in mind when you filed the petition?
The primary aim that we had in mind was to ensure that Parliament and public service should be free of criminals and corruption. This is our job; it’s the duty of the Bar. With my training and education as an advocate, I would consider it a serious dereliction of duty if I did not take up these issues. This petition was filed in 2005. Also, the Supreme Court has played an important role as the custodian of political ethics. It was receptive to this 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. In the present judgment, the Supreme Court cited the case but said that the issue of constitutionality of Section 8 was not at all considered by the Constitution Bench.
What ramifications will the judgment have on Indian polity? Also, why did you think the Supreme Court did not apply the judgment retrospectively on politicians who have resorted to the use of this section?
It is for us as a society to make the judgment work. Corruption and criminality have become part of elections. This pattern of democracy has to be changed. All sorts of evils have crept into the practice of fighting elections. Thanks to judgments like these, our civil society is more active now. The civil society is a natural social phenomenon. We must create “centres of leadership”. This is how democracy works. Then only will you become a part of the system. Otherwise, the government becomes an organisation run according to a patron-client system. Citizens do not have access to administration because of corruption. We must create access to an administration and a political system free of corruption.
During the hearing of this case, S.N. Shukla, advocate, cited a passage from the Constituent Assembly debates which clearly provides for disqualification of a Member of Parliament convicted of a crime. Though Article 102 of the Constitution allows Parliament to define disqualification, the right to appeal and the consequent three months’ deferral of disqualification are not allowed by the Constitution. I think it was wise on the part of the Supreme Court not to apply the judgment retrospectively because this would have created a whole lot of practical problems. A huge amount of litigation would have come in then and it would have been a huge burden on the administration.
The judgment has once again brought to the fore the issue of Parliament restricting the powers of the government when legislation violates constitutional principles. Does this pre-empt more conflicts between the judiciary and the executive?
The judgment is a clinical interpretation of law, of what the Constitution says. The judiciary very well knows its own limits. The interpretation of law is the function of the judiciary. This judgment will make people think. It will create awareness about constitutional principles.
Doubts have been raised about the political implications of this judgment on the stability of governments in the long run. For instance, if a number of representatives are convicted on criminal charges, a crisis in the government might arise. What are your thoughts on this critique?
If stability is coming from criminals, it is against natural law. Crime does not give stability. Ethics give stability. Stability comes from natural justice. Politicians are making this argument because of their own vested interests. J.M. Lyngdoh had once referred to corrupt politicians as “cancer of society”. Only a clean, “satvic” image of Parliament can provide stability.
Are there more such petitions in the offing? What issues do they address?
The court will get to know about the petitions first [smiles]. There is no stale news for the court.
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