Scope of the ordinance making the power of the president
1. Introduction:
The lawyer as well as the laymen is offer puzzled by the pharase’’ordinance making power’’ as implement to the American executive. Some of our legal text writers, none of our courts, speak of the ordinances of any administrative organs except municipals corporatation. For this expectation there is almost unknown to the technical language of our law. There are indeed writers writers who recognize that our executive do in face have power of a legislative charahter, but although they are not agreed on a term of such power. On the other hand professor Fairlie has recently spoken it has a administrative legislation.The term is used in England in the fourteenth century to disgrate an enactment of the king or the king in council without the assetnt of parliament. Basically the power of the ordinance, which become more limited than the power of legislation, died out, says Anson in the fifteenth century to be the received in the next as the power of the proclamations’ might be implement to warn the issue of what the law was, but not the create a new offense.[1] They continued to be so used, however, until the abolition of the extraordinary court of the Star Chamber in 1641. Actually both England and America proclamation is a form of executive promulgation in the contents. [2]A plain reading of Article 74 of the Constitution would communicate in unmistakable stipulations that, for the exercise of power by the President, there must be a Council of Ministers with the Prime Minister as the Head, to aid, help out and advise the President.
This is because the Constitution premeditated by the Constituent Assembly, has not made complete or rigid division of functions that are required to be exercised by the Executive, the Legislature and the Judiciary. Apart from the constitutional requirements of Executive made legislative functions the Indian President has also been entrusted with powers to frame rules, set of laws, and notifications under several laws and ordinances which are essentially legislative functions in character. But the real crux of the problem is as to how the President exercises such powers. The good judgments in the exercise of Presidential powers in promulgating ordinances is considered in a formal sense and have to be exercised upon the aid, assistance and advice of the Council of Ministers.
There are three distinct activities in every government through which the will of the people are expressed.[3] These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. breach of law.[4] Each organ while amateur dramatics its activities tend to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public.[5] Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. The question which assumes significance over here is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co-ordination among them.An analysis into these three organs and the relations between them is to be done with the experience in different countries along with India which will give a clear idea about this doctrine and its importance in different Constitutions.
2. PATR A: PRESIDENTIAL ORDINANCE-MAKING POWER
(a) SEPARATION OF POWERS
As a means of carrying out constitutional and lawful duties, Presidents issue convention, proclamations, and EXECUTIVE ORDERS. Although this bring to bear of legislative power by the President appears to contradict the set of guidelines of SEPARATION OF POWERS, the scope of directorial legislation has remained broad. Rules and regulations, as the Supreme Court noted in United States v. Eliason (1842), “must be received as the acts of the executive, and as such, be binding upon all within the speciality of his legal and constitutional authority.”
[6]It is recognized DOCTRINE that “the authority to set down rules and regulations is not the power to make laws, for no such power can be delegated by the Congress,” as a federal court of appeals acknowledged in Lincoln Electric Co. v. Commissioner of Internal Revenue (1951). Nevertheless, vague grants of delegated authority by Congress give administrators significant good judgment to make federal policy. [7]Over a twelve-month period from 1933 to 1934 the National Recovery Administration issued 2,998 orders. This flood of rule-making activity was not collected and published in one place, leaving even executive officials in doubt about relevant regulations.
(b) The Administrative Procedure:
Legislation in 1935 provided for the safekeeping of federal documents and their publication in a “Federal Register.” The Administrative Procedure Act of 1946 established uniform standards for rule-making, including notice to the parties concerned and an opportunity for public involvement. Recent Presidents, especially GERALD FORD, JIMMY CARTER, and RONALD REAGAN, have attempted to keep an eye on and control the impact of agency regulations on the private sector.
Proclamations are a second apparatus of administrative legislation. Sometimes they are hortatory in character, without legislative effect, such as proclamations for Law Day. Other proclamations have substantive effects, especially when used to regulate international trade on the basis of broad grants of constitutional influence. Still other proclamations have been issued solely on the President’s constitutional authority, as with pardons and AMNESTIES and ABRAHAM LINCOLN’S proclamations in April 1861. When a statute prescribes a specific procedure in an area reserved to Congress and the President follows a different course, proclamations are illegal and void.
(c) President became a valid device of federal law :
From primordial times a proclamation was accurately a public notice, whether by trumpet, voice, print, or posting. [8]Yet in 1873 the Supreme Court in Lapeyre v. United States declared that a proclamation by the President became a valid device of federal law from the moment it was signed and deposited in the office of the secretary of state, even though not published. These early proclamations ultimately found their way into the Statutes at Large, but not until the Federal Register Act of 1935 did Congress require the prompt publication of all proclamations and executive orders that have general applicability and legal effect
.Executive orders are a third source of ordinance-making power. They draw upon the constitutional power of the President or powers expressly delegated by Congress.[9] Especially courageous were the orders of President FRANKLIN D. ROOSEVELT from 1941 to 1943; without any legislative authority he seized plants, mines, and companies. Actions that go beyond legal bounds have been struck down by the courts, a major example being the Steel Seizure Case (YOUNGSTOWN SHEET AND TUBE CO. V. SAWYER, 1952).[10] Executive orders cannot take over from a statute or override contradictory congressional expressions.
Congress has used its power of the purse to restrict executive orders.[11] After President RICHARD M. NIXON issued executive order 11605 in 1971, rejuvenating the SUBVERSIVE ACTIVITIES CONTROL BOARD, Congress reduced the agency’s budget and particularly forbidden it from using any of the funds to put into operation the President’s order. Congress has also prevented the President from using appropriated funds to finance agencies created solely by executive order.
(d) Temporary law making power in the shape of Ordinances:
Like most of the countries, with Parliamentary Democracy the Indian Executive Head that is the President, who is the political Sovereign, has also been conferred with temporary law making power in the shape of Ordinances. Apart from the constitutional provisions of Executive made legislative functions the Indian President has also been entrusted with powers to frame rules, regulations, and notifications under several laws and ordinances which are for all intents and purposes legislative functions in character. But the real crux of the problem is as to how the President exercises such powers. The discretion in the exercise of Presidential powers in promulgating ordinances is considered in a formal Sense and has to be exercised upon the aid, assistance and advice of the Council of Ministers.
3. PART (B): Constituent Assembly that for promulgation of an Ordinance
(a) prerogative powers in exceptional situation:
President occupies the same position as that of the King in the British Constitution and he can do nothing contrary to their (Ministers) advice and the President means the Central Cabinet responsible to Parliament.[12] Ambedkar doubtlessly emphasized that the President would be mere figure head, who has no discretion and no powers of administration at all since he will be generally bound by the advice of the Council of Ministers. Even if the word generally is being interpreted under ejus dem generis rule, the President would not enjoy any discretion to use prerogative powers in exceptional situation.
[13]In pursuance of the past practice and for the maintenance of the out ward dignity of the office of the President and for avoiding some practical difficulties of a constitutional character, it was also decided in the Constituent Assembly that for promulgation of an Ordinance, the President is generally bound by the advice of the Council of Ministers. However, certain members of the Constituent Assembly were not satisfied with the language of the provisions in the Draft Constitution which required abiding to the aid and advice of the Council of Ministers for promulgating an Ordinance.[14] To settle the issue, the historic deliberation of Dr. B.R. Ambedkar with Dr. Rajendra Prasad, in shaping the Constitution particularly with special reference to conferment of ordinance making power on the President, is illuminating :
(b)Separation Of Powers Under Different Constitutions:
Despite the safeguards it gives against tyranny, the modern day societies find it very difficult to apply it rigidly. In principle they go for separation of powers and dilution of powers simultaneously.
U.S.A.
The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional structure. Art. I vests the legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court. The framers of the American constitution believed that the principle of separation of powers would help to prevent the rise of tyrannical government by making it impossible for a single group of persons to exercise too much power. Accordingly they intended that the balance of power should be attained by checks and balances between separate organs of the government. This alternative system existing with the separation doctrine prevents any organ to become supreme.
U.K.
Before we go to India, it’s important to know the constitutional setup of the country to which India was a colony and ultimately owes the existence of the form of government it has. U.K. follows a parliamentary form of government where the Crown is the nominal head and the real legislative functions are performed by the Parliament. The existence of a cabinet system refutes the doctrine of separation of powers completely. It is the Cabinet which is the real head of the executive, instead of the Crown. It initiates legislations, controls the legislature, it even holds the power to dissolve the assembly .[15] The resting of two powers in a single body, therefore denies the fact that there is any kind of separation of powers in England.
India
Though, just like American constitution, in Indian constitution also, there is express mention that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any particular organ. It has accordingly been held that there is no rigid separation of powers. Although prima facie it appears that our constitution has based itself upon doctrine of separation of powers. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature.[16] Constitution restricts the discussion of the conduct of any judge in the Parliament. The High Courts and the Supreme Court has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. The judges of the S.C. are appointed by the President in consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for efficient conduction of business .
Our review establishes that all three branches of the Federal Government – Congress, the Executive, and the Judiciary – agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.
(c)Ordinance and Constitution is the security of the Nation:
The President’s constitutional power to defend the United States and the lives of its people must be understood in light of the Founders’ express intention to create a federal government “cloathed with all the powers requisite to [the] complete execution of its trust[17].” The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives committed to that trust by the Constitution is the security of the Nation. As Hamilton explained in arguing for the Constitution’s adoption, because “the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency.”
[18] “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981) (citation omitted). Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the Nation and its interests in accordance “with the realistic purposes of the entire instrument.” Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to actions necessary for “victories in the field.” Application of Yamashita, 327 U.S. 1, 12 (1946). The authority over national security “carries with it the inherent power to guard against the immediate renewal of the conflict.” Id.
(d)Constitutional Structure:
Our reading of the text is reinforced by analysis of the constitutional structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. [19]“Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.” The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch. As Hamilton noted, “Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks.” Id. at 391. [20]This is no less true in war. “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”
Second, the Constitution makes clear that the process used for conducting military hostilities is different from other government decisionmaking. In the area of domestic legislation, the Constitution creates a detailed, finely wrought procedure in which Congress plays the central role. In foreign affairs, however, the Constitution does not establish a mandatory, detailed, Congress-driven procedure for taking action. Rather, the Constitution vests the two branches with different powers – the President as Commander in Chief, Congress with control over funding and declaring war – without requiring that they follow a specific process in making war. By establishing this framework, the Framers expected that the process for warmaking would be far more flexible, and capable of quicker, more decisive action, than the legislative process. Thus, the President may use his Commander-in-Chief and executive powers to use military force to protect the Nation, subject to congressional appropriations and control over domestic legislation.
[21] Third, the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature – such as the power to conduct military hostilities – must be resolved in favor of the executive branch. Article II, section 1 provides that “[t]he executive Power shall be vested in a President of the United States.” U.S. Const. art. II, § 1. By contrast, Article I’s Vesting Clause gives Congress only the powers “herein granted.” Id. art. I, § 1. This difference in language indicates that Congress’s legislative powers are limited to the list enumerated in Article I, section 8, while the President’s powers include inherent executive powers that are unenumerated in the Constitution. To be sure, Article II lists specifically enumerated powers in addition to the Vesting Clause, and some have argued that this limits the “executive Power” granted in the Vesting Clause to the powers on that list. But the purpose of the enumeration of executive powers in Article II was not to define and cabin the grant in the Vesting Clause. Rather, the Framers unbundled some plenary powers that had traditionally been regarded as “executive,” assigning elements of those powers to Congress in Article I, while expressly reserving other elements as enumerated executive powers in Article II. So, for example, the King’s traditional power to declare war was given to Congress under Article I, while the Commander-in-Chief authority was expressly reserved to the President in Article II. Further, the Framers altered other plenary powers of the King, such as treaties and appointments, assigning the Senate a share in them in Article II itself. (10) Thus, the enumeration in Article II marks the points at which several traditional executive powers were diluted or reallocated. Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.
4. Conclusion
“Power corrupts and absolute Power tends to corrupt absolutely” .Conferment of power in a single body leads to absolutism. But, even after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power. Therefore, the set of guidelines of separation of powers is a theoretical concept and is impracticable to follow it completely. The status of modern state is a lot more different than what it used to be. It has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein it has multifarious roles to play, like that of a protector, arbiter, controller, provider. This omnipresence of the state has rendered its functions becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers of an organ. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a violation of the principle of separation of powers. But, it can claim the exercise of the incidental functions of another organ. This distinction prevents encroachment of an organ into the essential sphere of activity of the other.
It is the exercise of incidental powers only which has made executive grow everywhere in this social welfare state. It has assumed a vital role but, it has not usurped any role from any other wing. It just happened that the other two organs, namely, judiciary and legislature, became unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the executive increased. As controller and provider, the judicial processes were very time consuming and the legislature was overburdened with work. Therefore, it was in natural scheme of things which made the administrators end up performing a variety of roles in the modern state including those of legislature and judiciary too, to an extent.
[22] In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President’s constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation.
BIBLIOGRAPHY:
1) Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd., 2005.
2) Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition, 2005
3) Takwani, C.K., ‘Lectures On Administrative Law’, Eastern Book Company, Lucknow, 2004
4) Sathe, S.P., ‘Administrative Law’, Lexis Nexis, New Delhi, Seventh Edition, 2004
5) Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004
6) Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law Publishers, Agra, Editio1996
7) Jain, M.P., ‘Indian Constitutional Law’, Wadhwa and company, Nagpur, Fifth Edition, 2005
8) 13119, 64 Fed. Reg. 18,797 (Apr. 16, 1999) (designating March 24, 1999, as “the date of the commencement of combatant activities” in Yugoslavia); John C. Yoo, US Wars, US War Powers, 1 Chi. J. Int’l L. 355 (2000).
9) 16. News Briefing, Office of the Assistant Secretary of Defense (Public Affairs), June 10, 1999, available at http://www.defenselink.mil/news/Jun1999/t06101999__t0610asd.html (remarks of Sec. Cohen).
10) .
11) 18. General Michael E. Ryan, It may take time, but it’s inevitable, Air Force News (released June 8, 1999).
12) 19. See Nick Cook, War of Extremes, in Jane’s Defence Weekly (July 7, 1999), available at http://www.janes.com/defense/news/kosovo/jdw990707__01__n.shtml.
13) 1. “As Lincoln aptly said, ‘[is] it possible to lose the nation and yet preserve the Constitution?'” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment).
14) John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
15) Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon, Constitutional Diplomacy 80-84 (1990);
16) Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989).
17) Powers Resolution Revisited, 21 Val. U.L. Rev. 1 (1986); John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673 (2000); Yoo, supra n.4
18) Accord Massachusetts v. Laird, 451 F.2d at 31 (“[t]he executive may without Congressional participation repel attack”).
19) . Robert F. Teplitz, Taking Assassination Attempts Seriously: Did the United States Violate International Law in Forcefully Responding to the Iraqi Plot to Kill George Bush?, 28 Cornell Int’l L. J. 569, 609 (1995) (citation omitted).
20) 24. See generally Wallace F. Warriner, U.S.M.C., The Unilateral Use of Coercion Under International Law: A Legal Analysis of the United States Raid on Libya on April 14, 1986, 37 Naval L. Rev. 49 (1988); Teplitz, supra n.23, at 583-86.
21) Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 17 (1986
22) Accord Massachusetts v. Laird, 451 F.2d at 31 (“[t]he executive may without Congressional participation repel attack”).
23) Dames & Moore, 453 U.S. at 661
24) Campbell v. Clinton, 203 F.3d at 40 (Tatel, J., concurring) (quoting testimony of Secretary of Defense Cohen that “‘[w]e’re certainly engaged in hostilities [in Yugoslavia], we’re engaged in combat'”); Exec. Order No.
25) 13119, 64 Fed. Reg. 18,797 (Apr. 16, 1999) (designating March 24, 1999, as “the date of the commencement of combatant activities” in Yugoslavia);
26)
27) John C. Yoo, US Wars, US War Powers, 1 Chi. J. Int’l L. 355 (2000).
28) 16. News Briefing, Office of the Assistant Secretary of Defense (Public Affairs), June 10, 1999,
29) available at http://www.defenselink.mil/news/Jun1999/t06101999__t0610asd.html (remarks of Sec. Cohen).
30) . 18. General Michael E. Ryan, It may take time, but it’s inevitable, Air Force News (released June 8, 1999).
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[1] See, Bakshi, P.M., ‘The Constitution of India’, Universal Law Publishing Co. Pvt. Ltd., 2005.
[2] explain about The President is also vested with certain executive powers and the capacity of such executive power embraces the remainder of powers after the legislative or judicial powers are exhausted or taken away.
[3] The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the
[4] Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition, 2005
[5] There are ultra-literal views on various constitutional provisions whichsay that the President if acts in disregard to the aid, aidstance and
advice of the Council of Ministers, he could become an autocrat. D.N.Banerjee, an eminent jurist opined negatively and said that the Presidentis not only a dignified part of Government but also a cardinal componentof the essential apparatus and great pivot of substantial utility which
attract motive power to be effectively employed in times of necessity.
[6] In pursuance of the past practice and for the maintenance of the outward dignity of the office of the President and for avoiding some practical
difficulties of a constitutional character, it was also decided in theConstituent Assembly that for promulgation of an Ordinance, the
President is generally bound by the advice of the Council of Ministers.
[7] See, Takwani, C.K., ‘Lectures On Administrative Law’, Eastern Book Company, Lucknow,
[8] Sathe, S.P., ‘Administrative Law’, Lexis Nexis, New Delhi, Seventh Edition,
[9] See, Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004
[10] explain So, it’s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy, does not follow an absolute separation and is, rather based upon fusion of powers, where a close co-ordination amongst the principal organs is unavoidable and the constitutional scheme itself mentions it. The doctrine has, thus, not been awarded a Constitutional status. Thus, every organ of the government is required to perform all the three types of functions. Also, each organ is, in some form or the other, dependant on the other organ which checks and balances it. The reason for the interdependence can be accorded to the parliamentary form of governance followed in our country. But, this doesn’t mean that this doctrine is not followed in India at all.
[11] Except where the constitution has vested power in a body, the principle that one organ should not perform functions which essentially belong to others is followed. This observation was made by the Supreme Court in the re Delhi Laws Act case, wherein, it was held by a majority of 5:2, that, the theory of separation of powers is not part and parcel of our Constitution. But, it was also held that except for exceptional circumstances like in A. 123, A. 357, it is evident that constitution intends that the powers of legislation shall be exercised exclusively by the Legislature.
[12] 148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the “WPR”), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11
[13] See, Jain, M.P., ‘Treatise on Administrative Law’, Wadhwa and company Law Publishers, Agra, Edition 1996
[14] The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
[15] See, Jain, M.P., ‘Indian Constitutional Law’, Wadhwa and company, Nagpur, Fifth Edition, 2005
[16] In a similar fashion certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs , Immunity from judicial scrutiny into the proceedings of the house , etc. Such provisions are thereby making legislature independent, in a way. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself. The President and the Governor enjoy immunity from civil and criminal liabilities. But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature. India, since it is a parliamentary form of government, therefore it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and that, the Real head is the Prime minister along with his Council of Ministers. The reading of Art. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.
[17] . See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces “abroad or to any particular region”); Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (“As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual”); Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (The “inherent powers” of the Commander in Chief “are clearly extensive.”); Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President “may direct any revenue cutter to cruise in any waters in order to perform any duty of the service”); Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has “power as Commander-in-Chief to station forces abroad”); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).
[18] See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
[19] See, The Federalist No. 70, at 392 (Alexander Hamilton).
[20] See, Id. No. 74, at 415 (Alexander Hamilton).
[21] 6. See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon, Constitutional Diplomacy 80-84 (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989).
[22] We of course understand that terrorist organizations and their state sponsors operate by secrecy and concealment, and that it is correspondingly difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States. Moreover, even when evidence sufficient to establish involvement is available to the President, it may be impossible for him to disclose that evidence without compromising classified methods and sources, and so damaging the security of the United States. See, e.g., Chicago & Southern Air Lines, Inc, 333 U.S. at 111 (“The President . . . has available intelligence services whose reports are not and ought not to be published to the world.”); see also Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int’l L. 559, 568-74 (1999) (analyzing difficulties of establishing and publicizing evidence of causation of terrorist incidents). But we do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the President from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.