On 17 August, the Supreme Court examined draft aviation rules placed before it in a sealed cover in an ongoing PIL challenging dynamic airline pricing and other passenger-related practices. The Centre said it expected to finalise the rules within three weeks, and the matter returns on 7 September.
That raises a more basic question than whether a peak-period airfare during events such as the Maha Kumbh is too high: why is an Article 32 court examining rules the executive has not yet made?
The petition, filed last year by S. Laxminarayanan, seeks controls on dynamic fare fluctuations and ancillary charges, changes to baggage allowances, stronger refund and passenger-protection rules, and an independent aviation regulator.
The case now proceeds on two tracks. First, it asks the court to direct the Union and Directorate General of Civil Aviation (DGCA) to frame binding regulations within a fixed timeline. Second, it argues that the DGCA’s existing powers under the Aircraft Rules are already sufficient and are simply not being exercised.
Article 32 exists to enforce fundamental rights. The immediate complaint is about the fare charged by a private airline. To sustain an Article 32 claim against the Union or DGCA, the petitioner must show how State action or inaction under existing law violates a fundamental right, and what enforceable duty that places on the State. Simply saying DGCA has not used a statutory power is not, by itself, enough. That should have been the threshold question before the PIL moved into scrutiny of future aviation rules.
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There is already a law governing airfare
Rule 135 of the Aircraft Rules requires airlines to establish tariffs taking into account factors such as cost of operation, characteristics of the service, reasonable profit and generally prevailing tariffs.
It also says the DGCA may issue directions if the Director-General is satisfied that an airline has set excessive or predatory fares, or engaged in oligopolistic practices.
The Bharatiya Vayuyan Adhiniyam, 2024, repealed the Aircraft Act, 1934, but expressly preserves existing rules unless they are inconsistent with the new law.
Both parts of Rule 135 matter.
Rule 135 imposes standards on airline pricing. But it does not convert those factors into a mathematical ceiling for an individual ticket. Nor does it define “excessive” by reference to a particular fare, multiple or percentage increase. A fare does not become unlawful merely because it doubles, triples or is considerably higher than another airline’s fare.
That judgment belongs to the regulator, as stated in Rule 135.
There is a familiar role for courts here. If DGCA refuses to consider something the law requires it to consider, a court can require it to do so. If DGCA misunderstands its powers, ignores mandatory considerations, relies on legally irrelevant factors or otherwise exercises its discretion unlawfully, judicial review is available.
But judicial review of discretion is not the same as exercising that discretion for the regulator.
The Supreme Court’s own price-fixation jurisprudence makes the distinction unusually clear. In Union of India v. Cynamide India Ltd. in 1987, the court said that “price fixation is neither the function nor the forte of the Court”. A court may examine whether relevant statutory considerations were taken into account and irrelevant ones excluded. The substantive exercise of fixing the price belongs elsewhere.
The same distinction has already been applied specifically to airfares. In Amit Sahni v. Union of India in 2024, the Delhi High Court dismissed PILs seeking court-directed airfare caps. Relying on Rule 135, it declined to direct DGCA to “fix and regulate the airfares of the private airlines as a matter of norm”, noting the legislature’s conscious shift toward deregulation.
The DGCA itself told the Competition Commission of India in January 2026 that airfares are not generally regulated by it and that the Bharatiya Vayuyan Adhiniyam has not vested it with general economic-regulatory powers over civil aviation. Rule 135 nevertheless gives it specific corrective and supervisory powers over tariffs.
At the May hearing in the Laxminarayanan case, the petitioner argued that the necessary powers already exist with the DGCA, and that the problem is their non-exercise. That claim can be tested under Rule 135: what was DGCA required to do, did it unlawfully fail to do it, and does that failure violate a fundamental right? That is the question on which Article 32 jurisdiction depends.
That is very different from asking what India’s future airfare policy ought to be.
Why does the court need rules that do not yet exist?
By a written order of 13 July, a bench of Justices Vikram Nath and Sandeep Mehta directed the Union to place before the court, within two weeks and in a sealed cover, the rules being framed under the Bharatiya Vayuyan Adhiniyam, “irrespective of the fact whether they are placed before the Houses of Parliament”.
The government’s counsel had told the court that the draft rules were ready, were being translated and would have to be laid before Parliament.
But what relevance should unfinished future rules have to the legality of the regulatory regime that exists today?
The existing-law argument can be adjudicated under Rule 135. It does not explain why the court needs to inspect unfinished future rules. If the existing framework itself violates a fundamental right, that too can be adjudicated under existing law.
The government may independently decide to replace or supplement that framework. But Section 10(2)(c) of the Bharatiya Vayuyan Adhiniyam gives the central government rule-making power over the economic regulation of civil aviation, including air-transport tariffs.
A forthcoming rule may be relevant to how a pending case is managed, but it does not alter the existing legal position until it is made. Nor does its possible future relevance make an unfinished rule a judicial work product.
The central government, exercising the delegated legislative power conferred on it by Parliament, frames the rules. Once those rules are made, they are subject to the statutory parliamentary process and to judicial review if challenged.
In State of Himachal Pradesh v. Yogendra Mohan Sengupta in 2024, the Supreme Court itself warned that courts cannot assume a “supervisory role over the rule-making power of the Executive”. It also held that even under Article 32, courts cannot direct the legislature or its delegate to enact subordinate legislation in a particular manner. Courts may review the legality of rule-making; they should not supervise its progress or content.
The court has recognised exceptional cases, such as Vishaka, where judicial guidelines temporarily filled a genuine legislative vacuum. But airfare regulation is not such a vacuum: Rule 135 already governs tariffs and gives DGCA specific corrective powers.
The sealed-cover direction makes the issue more unusual. If an unfinished regulatory document is relevant enough to influence a judicial proceeding, there is a legitimate question why it should be examined privately before the policy has even crystallised into law.
Civil Aviation Minister Ram Mohan Naidu rightly told Parliament that year-round fare caps were not feasible and that demand and supply should ordinarily determine airfares. He argued that increasing capacity was the longer-term answer to seasonal spikes, though he left room for intervention in exceptional circumstances. The existence of exceptional statutory powers does not make routine price-setting desirable. The Union should defend that distinction before the court.
Kumbh is a poor case for a right to cheap air travel
The petition relies in part on fare spikes during Maha Kumbh. But aviation was not how the country reached the Kumbh.
The Railway Minister said more than 16,000 trains carried over 4.5 crore devotees to and from Prayagraj during the Mela. By contrast, Prayagraj Airport’s data recorded about 5.6 lakh air passengers over almost the same period. Rail therefore carried roughly eighty times as many passengers. This does not even account for road.
There will always be individuals with urgent reasons to fly. But the Kumbh experience does not establish that affordable air travel was indispensable to accessing the event. Nor does a temporary shortage of airline seats, by itself, create a constitutional entitlement to a particular price.
The economics of the fare increase are straightforward.
An airline seat is perishable. Once the aircraft departs, an empty seat has no remaining value. Airlines therefore vary prices according to demand, remaining inventory, booking time, expected future bookings and route economics.
That is why a seat might sell for Rs 3,000 weeks before departure and Rs 15,000 shortly before a festival. When demand is weak, airlines discount seats rather than fly them empty. When demand rises much faster than available capacity, fares rise.
Short-run airline supply is highly inelastic. It is not completely fixed. Airlines added flights and increased seat capacity during Maha Kumbh. Connectivity expanded and tens of thousands of additional seats were announced.
But aircraft, crews, airport slots and infrastructure limit how quickly supply can respond. Capacity increased and demand still outran it.
Suppose that, after every feasible addition to capacity, 500 passengers are competing for 180 available seats. A fare ceiling does not create the missing 320 seats.
It changes how the 180 seats are rationed.
Market prices ration partly by willingness and ability to pay. That has distributional consequences. A price ceiling substitutes some other mechanism, such as earlier booking, queue position or luck. Scarcity remains.
Before regulating prices, look at constraints on supply
India’s aviation market is concentrated: IndiGo alone accounted for roughly 60 per cent of domestic available seat kilometres, according to the CCI’s February 2026 order. But a high fare is not itself evidence of oligopolistic conduct or market abuse.
The more useful questions concern supply. Can competitors obtain airport slots? Can they add flights? Are airport constraints, entry barriers or government rules making it unnecessarily difficult for capacity to respond?
Indian aviation is already heavily regulated by the State. Slots, airport capacity, international traffic rights, entry conditions and tariff oversight all affect supply. Competition law adds another layer of intervention.
Before responding to scarcity with another layer of price regulation, policymakers should ask how much of the difficulty in expanding supply is itself produced by existing constraints.
During Covid, the government imposed both upper and lower fare bands. But those are a poor precedent for regulating ordinary peak pricing. They were introduced after the government had suspended domestic aviation and then reopened it under strict capacity caps. The State was regulating prices in a market whose supply it had itself artificially constrained.
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Capping high fares can affect cheap tickets
Airline pricing works as a portfolio. The Rs 3,000 advance ticket and Rs 15,000 last-minute ticket are part of the same revenue-management system.
If regulation systematically reduces what airlines can earn from scarce peak-period inventory, airlines have other ways to adjust. They can offer fewer deeply discounted seats, raise average fares or ancillary charges, cut marginal frequencies or redeploy aircraft.
Where persistent high fares reflect genuine scarcity, they also tell airlines where additional capacity may be profitable in future scheduling cycles. Suppressing that signal weakens part of the incentive to put more seats where demand is greatest.
A regulator cannot assume that it can eliminate only the expensive tickets while leaving all the cheap ones untouched.
The petition also raises questions about refunds, cancellations, disclosure and grievance redressal. Those are distinct from price control. Enforcing refunds, contractual commitments and accurate disclosure concerns whether airlines honour the bargain they made with passengers; deciding what price that bargain may contain is another matter.
The Supreme Court can review whether DGCA has lawfully exercised its powers under Rule 135 and enforce any fundamental right actually implicated.
But Article 32 should not become a vehicle for examining future rules and supervising aviation policy when no violation of a fundamental right has been shown.
There is no fundamental right to a cheap airline ticket during Kumbh.
Judicial review of airfare regulation should not become judicial airfare regulation.
Ajay Mallareddy is the co-founder of Hyderabad-based Centre for Liberty. His X handle is @IndLibertarians. Views are personal.