Adish Joy
The calm of Pahalgam, a picturesque town nestled in the Kashmir Valley, was shattered in May 2025 when unidentified gunmen opened fire on tourists in the Baisaran meadow.. Situated along the sacred route of the Amarnath Yatra and known for its natural beauty, Pahalgam has long symbolized both peace and precariousness in the region. The attack resulted in multiple casualties and injuries, triggering shockwaves across the country. While investigations are ongoing, the incident has raised significant questions about national security, legal preparedness, and the possible escalation of internal conflict.
The tragedy has also reignited debates around one of the most extreme constitutional measures available to the Indian government: the declaration of a national emergency under Article 352 of the Indian Constitution. Could this incident, or a chain of similar events, justify such an action? To answer that, one must look beyond the emotional reactions and delve into the legal thresholds, historical context, and existing counterterrorism frameworks.
What Happened in Pahalgam?
According to reports, on the evening of April 22, 2025, a group of tourists was attacked by militants in the Baisaran meadow near Pahalgam in the Anantnag district of Jammu and Kashmir. The assailants opened fire without warning, causing deaths and injuries before fleeing into nearby forested terrain. The Union Territory’s administration responded with a coordinated manhunt, deploying paramilitary forces and sealing off the area. Early suspicions point toward a terror group, although official confirmation is pending.
This attack comes at a time when the region has been relatively calm following years of political and military reorganization. Still, this flashpoint exposes the fragile balance between peace and the ever-present risk of insurgent violence in Jammu and Kashmir.
Can the Attack Trigger a National Emergency?
India’s Constitution allows the central government to declare a national emergency only under exceptional circumstances. Article 352 lays down the precise legal conditions under which this extraordinary power can be invoked: war, external aggression, or armed rebellion. Crucially, the Constitution also permits such a declaration even before an actual occurrence, provided there is imminent danger of these threats.
Dissecting Article 352: A Clause-by-Clause Understanding
• Clause (1) empowers the President to declare an emergency if satisfied that such a threat exists. However, this satisfaction cannot be arbitrary; it must be rooted in fact and national interest.
• Clause (3) makes it mandatory that the Union Cabinet (not just the Prime Minister) conveys in writing its recommendation for the proclamation. This requirement was introduced by the 44th Constitutional Amendment to prevent unilateral misuse.
• Clause (4) dictates that the Proclamation must be laid before both Houses of Parliament within one month and approved by resolutions in both. Failure to do so means the Proclamation lapses.
• Clause (5) allows an approved Proclamation to remain in force for six months and to be extended further with each renewal requiring a special two-thirds majority in Parliament.
• Clause (7) provides Parliament, especially the Lok Sabha, with the authority to disapprove or discontinue the emergency.
• Clause (8) introduces an internal check: if one-tenth of the Lok Sabha members submit a notice for disapproval, a special session must be convened within 14 days to deliberate.
These provisions reflect the constitutional belief that emergency powers are not to be used lightly or preemptively without robust justification.
Does the Attack Meet the Constitutional Threshold?
To invoke Article 352, the government would need to demonstrate that the Pahalgam incident either constitutes an “armed rebellion” or presents imminent danger of one. The term “armed rebellion” replaced the vague phrase “internal disturbance” after the 1975 Emergency, to impose a higher threshold for suspending democratic processes.
An armed rebellion, in constitutional interpretation, involves more than isolated acts of violence. It refers to sustained, organized efforts to overthrow or destabilize the constitutional order through force. At present, there is no public evidence to suggest that the Pahalgam attack forms part of such a widespread movement. Without proof of coordination, state complicity, or rebellion-level violence, a national emergency remains legally unjustified.
Furthermore, there is no indication of external aggression defined as an armed attack by a foreign state or war. The perpetrators appear to be non-state actors, possibly part of a terror outfit, but not acting on behalf of another nation in a declared or undeclared war scenario.
A Glance at India’s Past Emergencies
India has invoked a national emergency on three occasions since independence, each under markedly different circumstances. The first came in 1962 during the Sino-Indian War, when the country faced external aggression from China. This emergency remained in force until 1968, underscoring the prolonged nature of geopolitical threats. The second instance occurred in 1971 during the war with Pakistan and the creation of Bangladesh, again justified by external aggression. However, it was the third emergency, declared in 1975 by then Prime Minister Indira Gandhi, that remains the most controversial. Unlike the previous two, this was declared on grounds of “internal disturbance”—a vague and now outdated constitutional phrase. It led to the suspension of civil liberties, press censorship, and mass detentions, sparking widespread criticism and eventually culminating in the 44th Constitutional Amendment. That amendment was a turning point, narrowing the grounds for declaring a national emergency to the far more precise terms of war, external aggression, or armed rebellion, and imposing stricter safeguards against executive overreach ensuring that emergency powers are a last resort, not a tool of political convenience.
Other Legal and Security Measures Available
While a national emergency may not be viable, Indian law provides several robust mechanisms to address acts of terrorism and maintain internal security.
- The Unlawful Activities (Prevention) Act (UAPA)
This law allows the government to:
• Designate individuals or groups as terrorists.
• Detain suspects without filing charges for up to 180 days.
• Investigate and dismantle terror networks.
UAPA has been used extensively in Jammu & Kashmir to counter radicalization and cross-border militancy. Its powers, while controversial, are constitutionally validated and subject to judicial oversight.
- The Role of the National Investigation Agency (NIA)
Established in 2008, the NIA has national jurisdiction over crimes that threaten the sovereignty of India. It can take over investigations from state police and coordinate with international bodies if needed. The NIA is currently leading the investigation into the Pahalgam attack.
- Electronic Surveillance and Communication Monitoring
Under the Information Technology Act and the Indian Telegraph Act, the government can intercept digital and telephonic communications for national security reasons. These powers are regulated by procedural safeguards, including review committees, to prevent abuse.
- Jammu & Kashmir-Specific Measures
Following the abrogation of Article 370 and the enactment of the Jammu & Kashmir Reorganisation Act,2019, the central government wields broader control over the Union Territory. This includes:
• Imposition of curfews.
• Internet shutdowns.
• Detention under the Public Safety Act (PSA), which allows preventive detention without trial for up to two years.
These tools are often used following incidents of unrest or terror to prevent escalation and facilitate investigation.
Article 355: The Intermediate Step
Before Article 352 is even considered, Article 355 provides that the Union government must protect states and Union Territories from both external aggression and internal disturbances. This constitutional responsibility allows the Centre to deploy armed forces, take control of law and order, and offer administrative support to local authorities.
While not as extreme as Article 352, Article 355 enables a stronger federal role in crisis management without overriding civil liberties to the same extent. It acts as a buffer against premature recourse to national emergency.
Conclusion: The Need for Legal Precision and Strategic Restraint
The Pahalgam attack is undeniably a tragedy and a security challenge. It reveals the ongoing risks in regions with a history of insurgency and the delicate balance between peace and precaution. However, it does not, in its current form, justify the declaration of a national emergency under Article 352.
India’s legal framework offers a spectrum of responses that allow the government to act decisively without compromising the Constitution. Emergency powers are the nuclear option in governance. They exist, but their use must be reserved for existential crises. Laws like the UAPA, investigative tools like the NIA, and constitutional mandates like Article 355 provide adequate strength to respond lawfully and effectively.
As investigations proceed under the NIA, a measured response rooted in constitutional legality, not emotion, will reinforce both national security and democratic integrity. The real strength of a constitutional democracy lies not in how quickly it reacts, but in how wisely it chooses its tools for action.
