Judicial nudges to the executive to use rule-making powers it already holds raise questions of separation of powers. Examine with reference to the recent airfare-regulation PIL.

Section 10 of the Bharatiya Vayuyan Adhiniyam, 2024 lets the Centre make rules on the economic regulation of aviation, including reviewing airline tariffs [2]. Even so, a PIL by S. Laxminarayan had to be pursued before the Centre committed to finalised airfare rules, which the Supreme Court has directed be placed before it on 16 November 2026 [1]. Such nudges are mostly legitimate, but they should cover only when rules are made, not what they say.

Why the judicial nudge is justified

• Executive inaction: The petition called the failure to regulate fares a "dereliction of constitutional duty". Steep fares came back before Diwali [1].
• Power left unused: Under Rule 135, Aircraft Rules, 1937, the DGCA could already act against excessive or predatory fares. Yet the Ministry kept saying that fares are "market-driven" [4].
• Parliamentary oversight was ignored: The 2023 Standing Committee on Transport, Tourism and Culture asked for DGCA fare powers and a SEBI-style regulator. The Ministry turned this down, saying it would hurt the sector's growth [3].
• Narrow remedy: The Court has not fixed any fares. It has only asked for the framed rules, a light form of continuing mandamus [1].

Separation-of-powers concerns

• Discretion turned into a duty: Section 10 says the Centre "may" make rules [2]. A court-set timeline turns this choice into an obligation, which strains the functional separation that is part of the Basic Structure.
• Technical economic choices: A fare cap has to be weighed against airline viability. Aviation turbine fuel (ATF) is about 40% of operating costs and is taxed differently by each state [3]. Courts lack the expertise to judge these trade-offs.
• Rushed drafting: Rules written to meet a deadline may again leave "predatory" undefined. Rule 135 failed because "reasonable profit" was never defined [3].
• Precedent creep: If courts become accelerators of policy, ministries may wait for litigation before acting rather than plan ahead.

Balancing the two

• The Court should limit itself to timelines and procedural fairness. The content of the rules should stay with the executive and be open to judicial review once notified.
• Parliament should set up the independent economic regulator the Committee proposed, so that courts are not needed to fill the gap [3].

The airfare PIL shows that judicial nudges can fill an accountability gap when the executive leaves its powers unused and ignores Parliament's advice. If the Court confines itself to deadlines and the executive owns the policy, such nudges uphold the Article 14 guarantee against arbitrariness and protect consumers without weakening the separation of powers.