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NLSIU, Nalsar mooters slam new organiser of legendary Nani Palkhivala tax moot; Sastra returns fire

Participants from NLSIU Bangalore and Nalsar Hyderabad, in the 12th Nani Palkhivala Tax Law Moot, condemned the moot’s organisation for being allegedly fraught with “organisational failures”. The moot’s organiser, Sastra University School of Law Thanjavur, dismissed the allegations and advised the NLSIU and Nalsar team to “adopt a more sportive spirit towards moot court competitions”.

The two teams alleged that:

  • the judges presiding over the mooting rounds did not seem to be qualified in international tax law,
  • gave winning points to opponents who had submitted concocted treaties that did not exist as citing authority, and
  • advanced teams that had made written submissions with only two cited authorities and no rules of formatting to advanced rounds of the competition.

Sastra Moot Court Committee Convenor Kiran Khanna “unequivocally” denied these allegations, and responded: “I feel there is no need for a point-wise response to such baseless, arbitrary, unfair, imaginative & sweeping allegations made by the teams from NLSIU Bangalore and NALSAR. We feel that their inability to accept their exit in the preliminary rounds and their failure to take the fair result of the competition in the right spirit has resulted in this avoidable frustration and their puerile outburst.”

(Khanna’s full response below)

Sastra took over the organisation of the prestigious national moot last year from GLC Mumbai, which organised the first 10 editions of Nani Palkhivala.

The 12th edition of the moot was held last weekend. It claimed in its response that the judges invited to the judge the rounds were lawyers from firms such as Lakshmikumaran & Sridharan, and that the other allegations of the two teams were “puerile”.

NLSIU third year student Anumeha Karnatak, second year student Mohnish Mathew, fourth year student Anumeha Saxena and Nalsar second year students Vinoothna Vinjam, Mukbang Pertin and Theja Saai participated from the two law schools.

The teams had emailed the following joint statement to Legally India:

This is a joint statement released by the teams representing National Law School of India University, Bangalore and NALSAR, Hyderabad, at the 12th Nani Palkhivala Tax Law Moot, 2016.

We write this statement to bring forth some of the most serious failures on part of the Organizing Committee of this moot, which boasts to be one of the most prestigious moots in the country.

While this might have been the case till 2 years ago when Government Law College, Mumbai used to host the moot, the standard of the moot has substantially declined (especially in terms of judging in the preliminary rounds) since Sastra University of Law started organizing it.

Following are the grievances of the two teams. The Organising Committee was approached on all of these issues and made no reasonable effort to resolve the same. Hence, we have resorted to issuing a public statement.

1) Highly incompetent judges in the preliminary rounds: During the second preliminary round, the opposing team facing NLSIU, cited an amending protocol purported to have been entered into between the United States and the Federal Republic of Germany.

However, the protocol cited by the opposing team, which they say was in 1991, DOES NOT EXIST. The NLSIU team clearly pointed this issue out to the judges, and provided them with the relevant links to verify the same (since the judges were given tablets to verify the authenticity of the sources).

Having pointed this out, the bench raised the issue with the other team, but when the team said that the non existence of the authority is irrelevant, the bench did not press this aspect. At the end of the round, when the team approached the judge to clarify his treatment of the fraudulent submissions of the opposing team, the judge stated that it was merely a “matter of opinion”.

After the rounds, when quizzed about a specific aspect of the law, the judge said that he believed that a High Court could ignore a judgment of the Supreme Court, as judgments of the Supreme Court may be reversed in the future. Hence, it was his belief that a High Court was competent to ignore a binding precedent of the Supreme Court. And this judge teaches at the host University itself and is also a part of the Management Committee of the Moot.

On being told that the opposite team had argued the wrong law throughout, the judge responded by saying that he “liked the style of advocacy of the opposite team”. Thus, according to him, a team could argue the wrong law throughout and still win a round with a substantial margin just because their “style of advocacy” is pleasant.

As per the official website of the University, the judge’s areas of expertise are Human Rights Law and Women's Rights. It's appalling to see how he could have been allowed to judge a moot based on international taxation of corporates.

There were two legal issues in the moot problem. In one of the preliminary rounds of the team from NALSAR, the judges, probably because of lack of knowledge of international taxation, did not care about issue 2 and the speaker who dealt with issue 2 was ONLY asked questions related to issue 1. Now this is problematic because it suggests that they did not pay attention to issue 2 at all.

Most other judges in the preliminary rounds had no clue about even the most basic principles of international taxation and had not even read the problem (clear from the number of times they asked the counsels to direct them to a particular fact in the moot proposition).

They had just been given a very preliminary briefing which was insufficient since the area of law was largely technical in nature. Furthermore, there was no system for providing feedback at the end of the rounds which is unlike what happens in most national as well as international moots.

2) Deplorable standards for memorials: This moot had a system of memorial breaks wherein only the top 16 teams were selected for the oral rounds. However, to the shock of the NLSIU team, the memorial received by them in the preliminary rounds contained a grand total of TWO citations.

The other team they faced had written some 7-8 pages on a question of law that was not even in dispute. The team from NALSAR received a heavily plagiarised memo, of which a majority was just repetition of the applicable statute/treaty.

3) Arbitrary exercise of discretion: In the second preliminary round of the NALSAR team, the judges granted the opposing counsels 10 minutes of additional time over and above the slotted time. However, when it was the NALSAR team’s time to rebut, in spite of having reserved 2 minutes for rebuttals, the court only allowed them 30 seconds to do so.

4) Lack of transparency: When asked to release the judges’ profile and the individual score sheets with break-up, the convenor of the Moot Court Committee responded by saying that both could be released only after the conclusion of the final rounds.

Since enough damage had already been caused, the least the MCC could have done is release the qualifications of the judges and the score sheets to put all the doubts of the teams to rest. In response to most doubts, the convenor of the MCC responded by saying something along the following lines: “What’s done is done. Such things happen in moots. The law may work differently in a moot court.” Thus, according to him, unfair marking by judges who lack expertise and even the basic knowledge of the subject matter is something all mooters need to get used to, and that in a moot court, nobody is bound by the law of the land. Individual speaker scores, memorial scores and judges’ profile are yet to be released and it’s been 2 days since the moot got over.

5) No Maintenance of Strict Disclosure of Teams’ Identity: Pretty much all the student organisers and court clerks knew which colleges we were from and there was absolutely no effort made to make sure that there is strict non-disclosure of the identity of each team.

While most national moots are popular for arbitrary judging, this particular moot, which claims to be one of the most prestigious and challenging moots in the country, has broken all records.

We hope that the Organizing Committee will ponder over inviting qualified judges to judge the preliminary rounds of the subsequent editions of the moot. Such deplorable judging in the preliminary rounds results in incompetent teams qualifying for the subsequent rounds and is downright unfair to other teams.

In terms of hospitality, transport and accommodation, the Organizing Committee deserves appreciation. Comfort and convenience of the participants, even in the scorching weather of Thanjavur, were duly taken care of."

Sastra Moot Court Committee Convenor Kiran Khanna emailed the following response to the NLS and Nalsar teams’ joint statement:

“As the Chief Student coordinator and after consultation with my core-team members, I feel there is no need for a point-wise response to such baseless, arbitrary, unfair, imaginative & sweeping allegations made by the teams from NLSIU Bangalore and NALSAR. We feel that their inability to accept their exit in the preliminary rounds and their failure to take the fair result of the competition in the right spirit has resulted in this avoidable frustration and their puerile outburst.

As responsible organisers of a prestigious moot like this, we always endeavour to bring the best resource persons as judges and continuing the same tradition, this time also the competition witnessed an array of judges from various domains of taxation, some of whom are associates of leading tax firms such as LKS Attorneys and S.A.P.R Associates, standing counsels of the IT department, and committed & qualified academics. It is also the inherent duty of the organisers to uphold the finality of the judges’ decision and to provide them with the much required & allowed judicial independence within a reasonable framework to evaluate the teams' performances as seen fit by their erudition - a fundamental tenet of judging which will be agreed with by most of the organisers across the globe.

On the issue of memorials, what is relevant is the fact that the memorial scores were only considered to filter the top 16 teams for physical participation and nowhere in any of the oral rounds were the memorial scores used. Therefore, teams had to qualify to the subsequent rounds only through their sheer excellence in advocacy and articulation of arguments. That the aggrieved team lost to a team which they claim had an ‘inferior memo’ is irrelevant to the issue and deserves to be ignored.

With respect to all the other allegations raised by the two teams, we unequivocally deny them and would recommend to those participants to adopt a sportive spirit towards moot court competitions and uphold the basic tenets of judicial discipline. Mudslinging the judges and the organisers in a hurried reaction to their own failures does ill to not only their individual careers but also to the reputation of the institution they represent. Wishing them the best in their future academic & professional pursuits.”

The team from NLSIU emailed to Legally India a detailed counter response rebutting all the points made by Khanna in his response. In full below:

I'd like to thank the Organising Committee of Sastra University for responding to our statement. However, their response is riddled with irregularities and must be rebutted. I assume this mail was written by Kiran, who seems to be the head of their MCC. I find it very puzzling that Kiran and his other Org Comm members find our complaints baseless since we met with them personally after the round (I still remember that look of 'What The F---' on Vikas' face when he saw the opponents' memo). I will restrict myself to the judge and the legitimacy of our response, as the other claims have been clearly articulated in the statement above.

After receiving the preliminary rounds' results, and understanding that we had lost the second round, we sought to understand what had happened. We ran into the impugned judge outside the hall and asked him if he could give us some feedback (at this point we had no reason to doubt his credibility or knowledge of the law). Since the elephant in the room was in fact the fictitious protocol dreamed up by the other team, I asked him how he accepted their arguments based on the same. To which his response was, that it was a matter of opinion and so they ruled in their favour. This response puzzled us quite a bit.

At this point we were definitely shocked and surprised, as we had demolished every argument put forth by the other team, and returned to our rooms to think things through. We were rooming with the team from NALSAR (they, also, did not break) and began talking to them about our rounds and heard from them about theirs. We realised that there seems to be some systemic errors in the evaluation of the rounds simply on the basis of the fact that the opposing teams had committed such egregious errors that it was very surprising that they made it through. Add to that their inability to address our arguments or rebuttals. We decided to raise our grievances with the OC. The OC had been very responsive to our requests and acco needs earlier and we were quite pleased, so we sought to raise it with them, not strictly to obtain some relief or redressal but as a bona fide attempt to make them aware of what we believed was a lapse on the part of the judge.

We went to the venue and met with Kiran and Vikas. Both Kiran and Vikas were kind enough to take time out of their busy day and speak to us. We told them of our concerns and to buttress any concerns they may have had about our prejudices and biases, sought to show them exactly where the opponents had committed fraud and were wrong in law, so we asked them for copies of the opposing teams' memoranda so we could illustrate our respective grievances to them. They were kind enough to oblige our request. I personally pointed out the errors we had flagged to Vikas, who diligently verified our claims and found that the team had committed the aforementioned breaches and had most notably invented a treaty. If I may quote Vikas, I believe his exact words were "Yeah, this treaty is bullshit". The team from NALSAR also pointed out to them the ridiculous memorandum of the team they faced, and I will leave it to them to clarify the exact details of it. At this point Kiran and I discussed possible options of going ahead. Kiran, quite understandably, didn't see the possibility of taking action against the other team since the next round had already begun. We disagreed on this, but we asked finally to meet one of our two judges who was available at the time. (The other judge, was judging the quarters).

Kiran fulfilled our request, and I proceeded to the faculty room along with him. We met the concerned judge, and I raised my concerns more elaborately with him. I specifically asked him how he treated the fact that they had created a fake treaty. His earlier response was that it was a matter of opinion, however now he stated that they did in fact account for it and they did in fact penalise them for it. I was quite surprised by this as it couldn't be reconciled with the wide margin by which they had given the round to the other team (margin of 66 points in a round of 200 points). While I may not be able to objectively assert my mooting prowess on this forum, I take upon myself the task of stating, fully aware of its stench of arrogance, that my colleague and I are phenomenally fluent and coherent speakers, who if nothing else had the fortune of having good law on their side (ours was the second best memorial).

The judges' response seemed fishy to me, and following the most basic rule of diagnostic medicine, I decided to press where it hurt. I asked the judge which argument in particular he found convincing. The judge evaded my question, and said its not that our arguments were bad, just that he liked theirs. (This seems to run contrary to the grand canyon of a margin that they marked us with, a margin of 33%!). On being asked for the 4th time, he selected one argument they made on Sec. 90(4) of the IT Act, 1961. I was quite puzzled he found it appealing as they argued for an interpretation which flew directly in the face of a decision of the Supreme Court of India, and they didn't provide any grounds on which the Court could distinguish or do away with that binding authority. (This is the Madras High Court in this moot). I asked how he decided not to be bound by a decision of the Supreme Court on that very point. It is at this point that I received that gem of legal reasoning we referred to earlier. He said that the Supreme Court very often reverses its decisions in later judgments. So he reasoned, a High Court could anticipate such an overruling by the court, and choose not to be bound by it. At this point, despite my best efforts to maintain decorum, I laughed for a good three seconds and looked at Kiran in disbelief. I had just opened a Pandora's box on this judge's capability and I got a look at its sheer intellectual decadence.

At this point, quite paternalistic-ally, I broke it down for this judge and explained to him that the Supreme Court can do that because it is specifically granted this power by the Constitution of India. As a High Court he did not have the liberty to do the same with a judgment of the Supreme Court, and not with that gem of reasoning for sure. At this point, Kiran stepped in, probably after getting a whiff of the judge having just crapped his pants, and said that we must remember that "in a moot court, the proceedings aren't always in accordance with the law of the land". I replied to Kiran in the most condescending voice I could muster and asked if he honestly believed that in a moot about corporate taxation in India, and the government's sovereign authority to tax an entity, the Constitution of India was not applicable? He then added that he has also done moots where he has personally argued wrong law and gotten away with it, even with applause sometimes. While I understand he made this point to add standing to his argument, I was quite amused that he didn't realise he had just taken a chainsaw to the legs of that argument. We continued this back and forth chatter for another minute until the judge told us that he could not help us any further and namaskar'd us away. We left the Faculty room in a greater amount of shock than when we entered. I asked Kiran about the qualifications of this judge. He told me that he is a Professor at their University, an accomplished scholar, and that he held him in high regard. I made a quip, which in hindsight may seem disdainful, and asked if he still held him in high regard etc. The question was rhetorical, but Kiran surprised me with a "Yes".

We returned to our room, and having gotten a whiff of the judge's qualifications, decided to dig further. We went to Sastra's website and found the judge's profile. To our shock, we found that this judge was merely a Ph.D candidate at Sastra University, who taught there as well. As per their website, his specialization is in Human Rights law and Women's Rights. (The irony of this is unfathomable. If you'd like greater insight as to how women are second class citizens in Sastra, do write back to me, that merits a piece of its own). This judge possessed no specialization in taxation law, let alone corporate taxation. The accomplished scholar that he is, the judge had a grand total of one publication to his name. This was in a journal which, after seeing its website and their edit. board, I would not want to be seen in the same room with, let alone be published in it). He wrote a piece on retrospective taxation in India. This piece is an excellent source of good humour, and rivals the likes of PG Wodehouse in its belly tickling prowess. Some of the intellectual turds you can find in this piece are "Constitution of India allows retrospective laws" along with a skillful massacre of the English language. What's more surprising is that he said this by citing Art. 20. Apparently, the distinction between civil and criminal laws, like the binding nature of the SC, does not exist for him.

Having interacted with the members of the Org. Comm, the so called judge, and the NALSAR team, we realised the sheer extent of the intellectual rot behind the judging of our round. We are being faulted by the Org Comm of being bad sports and being asked to abide by that evergreen mantra of 'shit happens'. I think our approach is quite appropriate however. We decided to call the exterminator to deal with this intellectual wood rot, rather than just give up, raise our hands and look for a new house. It is at this point, that we decided to draft this petition, not when we realised we lost. While I understand that calling me a sore loser is the easiest strategy to take, and I congratulate them on seeing this (they're making progress), I'd like to respectfully state that this is not loser's remorse. The lapses which have taken place in the conduct of this moot, at least our round, were so grave and disastrous, that we felt that they merited this kind of a response. I apologise to the Org Comm of Sastra for slinging mud at them and their illustrious judge, because my aim tends to ring true (there's that arrogance again), but I'd like to ask them to please acknowledge my mud with a response and not deny the existence or legitimacy of that handful of mud coming their way. I'd appreciate if Sastra can justify this person's appointment as a judge (with his plethora of qualifications in the area of Human Rights). He is definitely not a part of that illustrious band of judges, they are flaunting around like trophies, from LKS or wherever.


All of this taken in totality, adequately highlights our concerns about the quality of judging in this moot, inter alia.

I'd also like to thank them for their concern for our professional success. It's really warming to receive such unsolicited words of advice.

With sugar, spice and everything nice, A team still recovering from that radiating terror (No I don't mean the Thanjavur sun)"

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