The Rationale Behind Choosing Arbitration Over Litigation: A Law & Economics Perspective

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In 2023, the Delhi High Court disposed of more than 87,000 cases, a recordbreaking figure. Yet its backlog grew. Across India, governments have doubled judicial strength in some states, built stateoftheart ecourts, and implemented case management software. Still, over 5.1 crore cases remain pending. The standard explanation treats this as a resource problem: too few judges chasing too many litigants. But what if the real answer is more uncomfortable What if delay is not a bug in the system, but a feature, a currency that judges spend, save, and strategically deploy This paper advances a heretical proposition: that for the Indian High Court judge, disposing of cases is not always the rational choice. In a system where the government is simultaneously the largest litigant and the arbiter of judicial careers, where a controversial judgment can trigger a punitive transfer while a safe adjournment goes unnoticed, and where forty dismissals at the admission stage count the same as one laboriously reasoned final verdict, delay emerges as the equilibrium strategy. The crisis of pending cases is not an accident of overload; it is the predictable outcome of incentives working exactly as designed. Employing a political economy framework, we model the High Court judge as a strategic actor maximizing a utility function comprised of reputation (professional prestige), leisure (workload aversion), promotion prospects (chances of elevation or postretirement appointment), and the cost of dissent (risk of punitive transfer or career backlash). The paper proposes an empirical model to test whether judicial delays correlate with political cycles and the identity of the litigant (State vs. Citizen), suggesting that strategic delay is a rational response to the institutional constraints of the Indian judiciary.

• Tathagat Sharma