ObituariesOP. ED.

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

Case BriefsSupreme Court

Supreme Court: In a case where the Kerala High Court had refused to entertain the plea of Saritha Nair who was disqualified from contesting the elections on the ground that she was convicted in 2 criminal cases, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has held that though the High Court was right in not taking up the election petition but the ground on which it rejected the petition i.e. incurable defects, was wrong.

The Court held that when the petitioner was disqualified from contesting the elections in terms of Section 8(3), she could not have maintained an election petition as “a candidate at such election” in terms of Section 81(1) of the Representation of the People Act, 1951.

Background

In the 2019 Lok Sabha Elections, Saritha Nair filed her nomination on 04.04.2019 in the Ernakulam Constituency. She was to contest as an independent candidate. On 06.04.2019 the nomination of the petitioner was rejected on the ground that she was convicted in 2 criminal case and was sentenced to imprisonment for 3 years in each of those cases by judgments dated 08.06.2015 and 16.02.2016. While she did not dispute the fact of her conviction, it was the case of the petitioner the suspension of her sentence by an appellate/revisional court was enough to save her from the applicability of Section 8(3).

She also filed her nomination from one more constituency, namely Wayanad Constituency and her nomination was rejected even in the said Constituency, for the very same reasons.

She further argued that she had simultaneously filed a nomination in the Amethi Constituency of Uttar Pradesh and that despite disclosure of the very same information about her conviction and pendency of appeals, her nomination was accepted there. Therefore, she contended that 2 different yardsticks cannot be applied.

Grounds for rejection of the Election Petition by the High Court

(i) Lack of proper verification;

(ii) An incomplete prayer; and

(iii) Allegations of serious nature made against the former Chief Minister with a possible leverage not to own up the pleadings.

Analysis

Were the defects incurable?

“A defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective.”

The Court held that the High Court committed a grave error in holding the aforementioned 3 defects as incurable. The defects are curable and an opportunity to cure the defects ought to have been given to the petitioner.

Further, the High Court was wrong in thinking that the defective verification of the election petition was a pointer to the game plan of the election petitioner to disown the pleadings at a later stage, especially after making serious allegations against the former Chief Minister.

“If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper.”

The Court, hence, held that though the election petitioner should have been more careful and diligent in incorporating an appropriate relief and making a proper verification but no motives could have been attributed to the petitioner, only because she made serious allegations against someone.

Is suspension of sentence enough to save the petitioner from disqualification under Section 8(3) of the RP Act?

The appellate Court in one case and the revisional Court in another case had suspended only the execution of the sentence of imprisonment and not the conviction. The contention of the petitioner was that the suspension of the sentence was sufficient to save her from the applicability of Section 8(3).

Section 8(3) deals with two aspects:

(i) the conditions for disqualification; and

(ii) the period of disqualification.

The conditions for disqualification are

(i) conviction for any offence other than an offence referred to in Subsections (1) and (2); and

(ii) sentence of imprisonment for not less than two years.

In so far as the period of disqualification is concerned, Section 8(3) says that the disqualification will commence from the date of conviction. This is made clear by the usage of the words “shall be disqualified from the date of such conviction”. It is needless to state that the words “the date” appearing in Section 8(3) refers to the event of conviction and it is post facto. The disqualification which commences from the date of conviction, continues till the expiry of a period of six years from the date of his release. Hence,

“… the date of conviction is what determines the date of commencement of the period of disqualification. However, it is date of release which determines the date on which the disqualification will cease to have effect.”

Hence, it is clear that the mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3).

Further, in Lily Thomas it was held that a Member of Parliament or the State Legislature who suffers a frivolous conviction, will not be remediless. The appellate Court has ample powers under Section 389(1) of the Code, to stay the conviction as well as the sentence and that wherever a stay of conviction itself has been granted, the disqualification will not operate.

Hence, the disqualification under Section 8(3) will continue so long as there is no stay of conviction. Since, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence, her nominations were validly rejected by the Returning Officer.

“Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription.”

[Saritha S. Nair v. Hibi Eden,  2020 SCC OnLine SC 1006, decided on 09.12.2020]


*Justice V. Ramasubramanian has penned this judgment

For petitioner: Advocate D. Geetha 
Hot Off The PressNews

Press Council of India while considering the communication received from Election Commission of India advises the print media to refrain from publishing article which in any way whatsoever predict the results of the elections during the prohibited period under Section 126A to ensure free, fair and transparent election.

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Press Council of India

[Dt. 20-10-2020]

Case BriefsSupreme Court

Supreme Court: In the controversy relating to the Arunachal Pradesh elections where the illegal withdrawal of the nomination of Atum Welly resulted into unopposed election of Kameng Dolo, the Court upheld the decision of the Gauhati High Court wherein the said election was held to be void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951.

Noticing that there were only two candidates in the fray, one from the Indian National Congress and the other from the Bhartiya Janata Party and that the election petitioner while campaigning came to know that his nomination papers were withdrawn that were alleged to be withdrawn by Sanjeev Tana who was neither the candidate himself nor the proposer nor the election agent of the candidate and, therefore, the High Court held that he was not authorized to seek withdrawal of the candidature. It was noticed that though it is a settled law that election of a candidate who has won at an election should not be lightly interfered with but it has also to be borne in mind that one of the essentials of election law is to safeguard the purity of the election process and to see that people do not get elected by flagrant breaches of that law or by corrupt practices.

Refusing to interfere with the decision of the High Court, the bench of Dipak Misra and A.M. Khanwilkar, JJ said that Section 37 of the Act reflects that the legislature has provided number of safeguards before exercising the authority for acceptance of withdrawal of a candidate. The intention of the Parliament is that due care and caution has to be taken in letter and spirit so that no confusion is created. The issue of alert and careful exercise gains more significance when there are two candidates because if one’s withdrawal is allowed in complete violation of the statutory provision, the other candidate gets automatically declared elected, for there is no election, no contest. When in transgression of the statutory provision, a candidate’s candidature is allowed to be withdrawn, it will tantamount to sacrilege of democracy.

The Court noticed that, in the instant case, there was no contest at all and there can be no manner of doubt that there was flagrant breach of Section 37 of the Act leading to unopposed election of the appellant. Hence, the election had been materially affected and accordingly the election result dated 15.03.2014 is void under Section 100(1)(d)(iv) of the Act. [Kameng Dolo v. Atum Welly, 2017 SCC OnLine SC 556, decided on 09.05.2017]

 

Case BriefsHigh Courts

Bombay High Court: In a recent case,  an application for stay on his conviction by Sessions Court, Pune under Sections 304 and 34 IPC during pendency of the was appeal filed for. The reason being that the applicant  wanted to contest Municipal elections and to support his claim, the counsel on his behalf tried to rely upon Rajbala v. State of Haryana, (2016) 2 SCC 445 wherein it was held that right to vote and right to contest elections are the constitutional rights of a citizen and therefore, he was entitled to contest the elections.

While accepting the aversion of applicant that it was his constitutional right to contest elections, it held that at the same time object of legislature behind Section 8(3) of the Representation of the People Act too needs to be kept in mind. The object of the provision is to keep away the persons convicted of an offence and sentenced to 2 years or more than two years of imprisonment. Justice A.M. Badar decided to interpret the section purposively and held that just because the accused wishes to contest elections, the conviction can’t be stayed to fulfil his desire as it will be contrary to the statute.

Citing Navjot Sngh Sidhu v. State of Punjab, 2007 2 SCC 574 and other landmark cases on the point, the Court went on to declare that stay has to be granted only in exceptional circumstances, by exercising great circumspection and caution. While paying attention to the facts of the case and considering that the victim was injured due to election rivalry, there were chances that he might be trying to rope in as many opponents as possible; it still held that whatever are the facts and however high may the chances of acquittal of the applicant in appeal, it noted that object of legislature in keeping away the convicts from the contest of elections has to be given primacy while deciding such applications. [Navnath Sadashiv Taras v. State of Maharashtra, 2017 SCC OnLine Bom 118, decided on 1.02.2017]