Science for Everyone: Footnote the Scholar

“Economic impact of a decision, wherever warranted, has to be kept in mind… in a situation where two views are possible or wherever there is a discretion given to the Court by law, the Court needs to lean in favour of a particular view which subserves the economic interest of the nation. Conversely, the Court needs to avoid that particular outcome which has a potential to create an adverse affect on employment, growth of infrastructure or economy or the revenue of the State.”

Recently, while explaining the concept of ‘Law and Economics’, the SC quoted Richard A. Posner in a footnote [See, Shivashakti Sugars Ltd. v. Shree Renuka Sugar Ltd., Civil Appeal No. 5040 of 2014].

Judge Posner evidently writes the way other men breathe. In the past 50 years there has been no figure more dominant or more controversial in American Law than Posner. He has written more than 50 books, over 500 articles and nearly 3,000 majority opinions for his Court.

Judge Posner
Judge Posner

This is not the first-time Hon’ble Justice A.K. Sikri has relegated a distinguished scholar to the bottom of a page. Richard A. Gardner had the same fate in Vivek Singh v. Romani Singh, [Civil Appeal No. 3962 of 2016]. In both cases the citation is of questionable merit, let alone style.

In Vivek Singh, a Court that has been insisting on ‘science’ in adjudication, relied on a theory that is elaborately disputed and remains merely an ipse dixit – Parental Alienation Syndrome.

Former Rhodes Scholar, Gautam Bhatia has a similar criticism of Shivashakti Sugars:

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I had earlier pointed out the erroneous invocation of Euclid’s Theorems in over 70 SC Judgments. Shivashakti Sugars introduces to the lay reader, The Theorem of R.H. Coase.

Coase is an unusual economist and a highly unusual Nobel Prize winner. First, his writings are sparse. In a sixty-year career he wrote only about a dozen significant papers – and very few insignificant ones. Second, he uses little or no mathematics, disdaining what he calls ‘blackboard economics’. Yet his impact on economics has been profound. That impact stems almost entirely from two of his articles, one published when he was twenty-seven and the other published twenty-three years later.

Even if SC increasingly reviews the economic impact of its decisions in the coming years, it is expected the Coase Theorem will go unexplained like Euclid’s for many decades to come.

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