Human beings are different from animals because they have power to reason. To reason is power to think. It is on the basis of this ability only, human beings were able to develop a civilization and culture. A culture where “Jungal laws” are not a basis of existence. These jungal laws cannot be a basis even when they are enacted by a competent legislature. The Supreme Court confirmed this view in Maneka Ghandhi when it said that the “law” within the meaning of Article 21 is not any enacted piece of legislation, it has to be a reasonable law.

Wharton Law Dictionary describes reason as the very life of law. When the reason of law once ceases, the law itself generally ceases, because reason is the foundation of all our laws. It is the reason which is the basis of whatever we have attained, and also whatever we will be able to attain in future.

It is the manifestation of this reasonableness, that the law says every order must be a speaking order. The Right to Information Act imposes a duty on all public authorities to give reasons for all its quasi judicial or administrative orders. Whenever a writer writes something, it is expected that he will give reasons for his views. The views may be unacceptable to the society or may be criticized by readers or may not be accepted by the authorities; it is the reasons for the views which will survive. Reasons are thus developed in course of time and orderly changes takes place in the society.

As an author I am open to criticism, for it is the critiques only who helps the author to align his reasons to the fundamental truth, which is the ultimate goal for any process of reasoning. However, I take any criticism devoid of reasons very lightly and never reply to that criticism. The Ld. reader was pleased to criticize my view in a manner wholly devoid of reasons and in a dogmatic manner. Incidently, the issue in hand which was dealt by me in the article was found to be dogmatic and devoid of reasons. I always felt that it is unreasonableness and dogmatism are the only grounds, which is the basis of existence of such unreasonable law. This unreasonable and dogmatic criticism of my paper has again showed to me that this unreasonable law supported by equally unreasonable supporters. My views have been re-enforced further. I am thankful to the learned reader for reinforcing my views by being unreasonable and dogmatic. Still the Ld. reader has raised some myths which are required to be answered and which is the basic purpose of this paper.

NO ONE HAS EVER HEARD OF TAXMAN BLUDGEONING SOMEONE TO EXTRACT HIS CONFESSION !!!

Is it a myth? If it is one, it does not exist. Threats, undue pressure and torture are as common in recording statements as the recording statements itself. As a matter of fact, in recording almost all statements threats are applied by taxmen. Off course no study has been conducted either by the department or some authority to examine this fact. I invite the assessees to express their experience during interrogation in the “reader’s forum” of the Excise Law Times to demolish this myth. On my part I will document the evidence of threats and torture in interrogation and bring it before the readers of Excise Law Times soon.

Off course we have heard of a few deaths which have happened during interrogation by taxmen, deaths are not common in such interrogation. However absence of deaths is not because there is no torture but it is for the simple reason that the assessees are not hardened criminals and confessions can be extracted from them without torturing him to death. A few threats, moderate physical torture are sufficient in these cases to extract confessions. If the society wants to justify threats and moderate physical torture to extract confessions, it has ceased to a civilized one.

ASSISTANCE OS LAWYER WHILE RECORDING STATEMENT- THE STATEMENT IS NOT TRUE???

The first rule of unreasoning- make bold statement. Even when it is a lie. After all Hitler said- repeat a lie hundred times, it will become a truth.

A lawyer cannot guarantee that a witness is speaking a truth. Neither a taxmen or legislature guarantee truth in the statements of witnesses. With the assistance of a lawyer, we can only guarantee that the statement is voluntary. When I said lawyer’s presence is required during interrogation, I pleaded for it for guaranteeing voluntariness of the statements. An informed voluntariness on the part of the asessee.

If we accept the argument that whenever a person is assisted by a lawyer, he does not speak the truth, then we have to accept that our jails are full of innocent persons. After all these persons have been convicted on the basis of statements recorded in the presence of lawyers in the court of law.

Have we ever thought why do people retract their confessions just after they are out of the interrogator’s office. If it is a voluntary statement, and has been given after understanding the legal implications of the statement, it should not be retracted. Retraction can be for two reasons only- either it is not voluntary or it has been given without understanding the legal implication of the statement. To stop both types of abuses, lawyers presence is required during interrogation.

Rule of law is the basis of existence of our state. Even a suspicion of illegal techniques in legal proceeding by the state is sufficient to undermine the rule of law. It is an open secret in our country as to the illegal techniques applied by the investigative authorities during investigation. Various surveys have shown conclusively that these investigative agencies are the most corrupt arm of governance.

CORRUPTION AND EXTRACTION OF STATEMENT:

One thing is beyond any doubt- our taxmen are thoroughally corrupt. Leave alone the lower rank officers who are caught red handed daily, even the Chairmen and Chief Commissioners and Commissioners have been caught red handed. Have we ever thought why do people pay bribes to them? It can be done for two reasons only-either you are a tax evader and want them to save you in the business of tax evasion or you want them to catch your enemy into a false case of tax evasion. In both the cases false statements are required to be recorded. The amount of corruption itself shows abuse of power by the taxmen. Do we need any further evidence of extraction of confessions and recording of false statements by the taxmen.

There is a Voluntary Organisation called “Parivartan”, a voluntary organisation active in Delhi, started out as a people’s movement in June 2000, to provide relief to taxpayers from extortionist corruption in the income tax department. “The idea was to help people get their income tax refunds without paying bribes,” says Manish Sisodia Parivartan’s founder. Thirty-eight-year-old Arvind Kejriwal, who side-stepped a career in the Indian Revenue Service (IRS) to pursue a calling in civic activism, won the 2006 Magsaysay in the ‘Emergent Leadership’ category. He was also cited for “empowering the poorest citizens of India’s capital city to fight corruption”. The corrupt practices of the taxmen are reason enough to disbelief any statement recorded by them. Presence of lawyers during interrogation will also have a salutary effect on the tendency of corruption in the taxmen.

MISPLACED SYMPATHY WITH THE TAX PAYER:

Ironically, the learned reader justified his view of the basis of sympathy with tax payer. He says that presence of lawyer will complicate the matter, which will give power to best judgment assessment to the taxmen, which he can exercise against the assessee. Threats. This is how tax administration function in our country. Don’t bring your lawyer, or we will use our power against you! Shame.

It is easy to criticize lawyers saying that they are interested in their practice to earn money. Nothing can be farther to truth. A lawyer has no right to represent anybody before any forum unless until some person appoint him to represent him. A person can represent his case, anywhere, in courts including in supreme court on his own without appointing any lawyer. In fact he can appoint any person, not being an advocate, and the court may allow that person to represent him under Section 32 of the Advocates Act. When we say “right to be represented by a lawyer”, it is a right of the person concerned to appoint a lawyer or otherwise, and not a right of a lawyer to practice. Thus when we say presence of a lawyer during interrogation, it is right of the persons to seek lawyers assistance if he so desires and feels the need. It is nobody’s argument that it is mandatory for the persons being interrogated to take assistance of a lawyer.

If nobody has heard taxmen bludgeoning somebody to extract confessions, I am sure no assessee will seek lawyer’s presence during interrogation. If the assessee will have faith in the taxmen’s sense of justice, lawyers will not be required even after issuance of show cause notice or at any stage. Unfortunately that is not the case.

If this argument is accepted that all recording of statement is voluntary and as per law, there cannot be any objection to the lawyer’s presence during interrogation. In fact the lawyer’s presence will manifest the lawful working of the department and fair investigation of the taxmen. Any opposition to this proposal smacks of false claims and sinister motives of the taxmen.

LAWYERS PRESENCE DURING INVESTIGATION:

In a barbaric society people are condemned unheard. In not so barbaric societies, lawyers presence are allowed at some stages. In our society lawyers presence is guaranteed at least in criminal trials and in civil proceedings involving grave consequences. However in developed society things are changing.

United States:

The right to consult an attorney in private has deep roots in Anglo-American law. Indeed, according to a 1989 Supreme Court case, United States v. Zolin, "the attorney-client privilege under federal law [is] the oldest of the privileges for confidential communications known to the common law."

The right is not limited to those facing criminal prosecution; it applies to all sorts of legal counseling. Much of what clients seek to discuss may be sensitive or embarrassing–for example, family disputes or personal finances–but the law has traditionally encouraged them to confide broadly in their lawyers so that they can receive proper advice about their legal rights and duties. Confidentiality is key to the lawyer-client relationship; clients will hesitate to discuss delicate matters with their lawyers if they fear that their secrets will be disclosed. The historic right to consult lawyers confidentially is part of the reasonable expectation of privacy protected by the Constitution's Fourth Amendment, which prohibits "unreasonable" government intrusions.

Europe:

Fair trial in criminal proceedings is impossible without adequate guarantees of the defence rights. Effective exercise of these rights is inconceivable without the defence counsel whose task is to defend the accused against a criminal charge. Assistance of the lawyer, especially to a person deprived of liberty, is indispensable from the very first stage an investigation. At that stage this involves the counsel's presence at the first interrogations of the suspect and at investigations to produce evidence, assistance in lodging a complaint against the decision to detain the suspect and then, applications for release and possibly appeals against refusals.

The European Commission of Human Rights has stressed that the counsel may also play a particularly significant role as an observer monitoring the legality of proceedings, in particular at the stage of investigation, which is done both in the public and in the client's best interest.

The problem of allowing a lawyer to be present from the very start of investigation was discussed in the case Imbrioscia v. Switzerland. Following the case-law of the Swiss Federal Court prosecution authorities of the canton of Zurich can refuse to allow a lawyer to be present when a suspect is first questioned without giving reasons, but the law requires them to give reasons if they intend to exclude the lawyer from subsequent interviews.

In all civilized jurisprudence the movement is going on to allow presence of lawyers during investigation. It has largely been accepted also. India will not lag behind.

The interpretation of Article 22, I have not put forward is not any specious interpretation. It is an interpretation of a living organic document keeping in pace with times. Constitution is not to be construed as a mere law, but as the machinery by which laws are made. A constitution is a living and organic thing which, of all instruments has the greatest claim to be construed broadly and liberally. Greater citizen’s right is the need of the times. No body can stop an idea whose time has come.

THE FIRST THING WE DO, LET US KILL ALL THE LAWYERS:

The barn of avon could not have choosen a better character to proclaim this statement, King Henry VI. Without going into the context of the statement, this is a universal wish of the kings and their courtiers to kill the lawyers. In the present circumstances the kings and courtiers have been replaced by governments and their bureaucrats. They think they rule the country, lawyers says it is “rule of law”. Lawyers must be killed. They think they are sovereign, lawyers says sovereignty lies in the people. Off course the first thing they should do is to kill the lawyers. They think they are lords, lawyers says they are public servants. Off course, the first think they have to do is to kill the lawyers. For, they cannot exploit people in the presence of lawyers.

But the people will not let the lawyers die. For they know, with the lawyers Gandhi will die and with him their quest for freedom. With lawyers Linchon will die, and with him their struggle against slavery.