Article 14

• Art. 7 of the Universal Declaration of Human Rights, 1948, declares that all are equal before the law and are entitled with out any discrimination to the equal protection of laws.
By and large the same concept of equality inheres in Art. 14 of the Indian Constitution
• “Equality is one of the magnificent corner-stones of Indian democracy.” (a basic feature of the Constitution)
• Consequently, a constitutional amendment offending the right to equality will be declared invalid.
• The goal set out in the Preamble to the Constitution regarding status and opportunity is embodied and concretized in Arts. 14 to 18.
• The Constitution of India guarantees the Right to Equality through Articles 14 to 18.
• In this series of constitutional provisions, Art. 14 is the most significant. Given a highly activist magnitude in recent years by the courts and generates many court cases.
• The doctrine of equality before law is a necessary corollary of Rule of Law which pervades the Indian Constitution.
• Neither Parliament nor any State Legislature can transgress the principle of equality.
• Article 14 of the Constitution embodies the principle of “non-discrimination”.
• It outlaws discrimination in a general way and guarantees equality before law to all persons.
• Due to the indefiniteness attached to the general principle of equality enunciated in Article 14, separate provisions to cover specific discriminatory situations have been made by
subsequent Articles.
• Art. 15 prohibits discrimination against citizens on such specific grounds as religion, race, caste, sex or place of birth.
• Art. 16 guarantees to the citizens of India equality of opportunity in matters of public employment.
• Art. 17 abolishes untouchability
• Art. 18 abolishes titles, other than a military or academic distinction.

26-09-2023 2
• Art.14 is the genus, while Arts. 15 and 16 are the species.
• Arts. 14, 15 and 16 are constituents of a single code of constitutional guarantees supplementing
each other.
• Article 14 is not a free-standing provision.
• It has to be read in conjunction with rights conferred by other articles like Art. 21 of the
Constitution. This is because Article 21 refers to “right to life” which embodies several aspects of
life including that of “opportunity”
• Scope of Art. 14 – originally on discrimination and classification, subsequently expanded to
recognize principles like the doctrine of promissory estoppel, non-arbitrariness, natural justice,
eschewing irrationality, etc.
• Art. 14 runs as follows : “The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.”
• This provision corresponds to the equal protection clause of the 14th Amendment of the U.S.
Constitution which declares: “No State shall deny to any person within its jurisdiction the equal
protection of the laws.”

26-09-2023 3
• Two concepts are involved in Art. 14, viz., ‘equality before law’ and ‘equal protection of laws’.
• The first is a negative concept which ensures that there is no special privilege in favour of any one, that all are equally subject to
the ordinary law of the land and that no person, whatever be his rank or condition, is above the law.
• This is equivalent to the second corollary of the DICEAN concept of the Rule of Law in Britain.
• This, however, is not an absolute rule and there are a number of exceptions to it, e.g., foreign diplomats enjoy immunity from the
country’s judicial process; Art. 361 extends immunity to the President of India and the State Governors; public officers and judges
also enjoy some protection, and some special groups and interests, like the trade unions, have been accorded special privileges by
law.
• The second concept, ‘equal protection of laws’, is positive in content.
• It does not mean that identically the same law should apply to all persons, or that every law must have a universal application
irrespective of differences of circumstances.
• Equal Protection of the laws does not postulate equal treatment of all persons. It postulates the application of the same laws alike
and without discrimination to all similarly situated persons.
• It denotes equality of treatment in equal circumstances.
• Among equals the law should be equal and equally administered, that the like should be treated alike without distinction of race,
religion, wealth, social status or political influence

26-09-2023 4
• Article 14 prescribes equality before law.
• But the fact remains that all persons are not equal by nature, attainment or circumstances, and, therefore, a mechanical equality
before the law may result in injustice.
• Thus, the guarantee against the denial of equal protection of the law does not mean that identically the same rules of law should
be made applicable to all persons in spite of difference in circumstances or conditions.
• The varying needs of different classes or sections of people require differential and separate treatment.
• The principle of equality of law thus means not that the same law should apply to everyone but that a law should deal alike with
all in one class; Likes should be treated alike”
• It does not mean that ‘unequals should be treated equally’.
• Persons who are in the like circumstances should be treated equally.
• Where persons or groups of persons are not situated equally, to treat them as equals would itself be violative of Art. 14 as this
would itself result in inequality.
• As all persons are not equal by nature or circumstances, the varying needs of different classes or sections of people require
differential treatment.
• This leads to classification among different groups of persons and differentiation between such classes.
• Accordingly, to apply the principle of equality in a practical manner, the courts have evolved the principle that if the law in
question is based on rational classification it is not regarded as discriminatory

26-09-2023 5
• Article 14 forbids class legislation; it does not forbid reasonable
classification
• Classification to be reasonable should fulfil the following two tests:
• (1) It should not be arbitrary, artificial or evasive. It should be based
on an intelligible differentia, which distinguishes persons or things
grouped together in the class from others left out of it.
• (2) The differentia adopted as the basis of classification must have a
rational or reasonable nexus with the object sought to be achieved by
the legislation in question.

26-09-2023 6
ADMINISTRATIVE DISCRETION & ART. 14

• SAydnm Dinistrative Discretion & Art. 14

• A common tendency in modern democracies is to confer discretionary power on the government or
administrative officers.
• The power is usually couched in very broad phraseology and gives a large area of choice to the administrator
concerned to apply the law to actual factual situations.
• In order to ensure that discretion is properly exercised, it is necessary that the statute in question lays down
some norms or principles according to which the administrator must exercise discretion.
• Many a time the statutes do not do this and leave the administrator free to exercise his power according to
his judgment. This creates the danger of official arbitrariness which is subversive of the doctrine of equality.
To mitigate this danger, the courts have invoked Art. 14.
• Art. 14 has evolved into a very meaningful guarantee against any action of the Administration which may be
arbitrary, discriminatory or unequal.
• This principle manifests itself in the form of the following propositions:
• (1) A law conferring unguided and unrestricted discretionary power on an authority is bad.
• (2) No discrimination in the exercise of any discretionary power.
• (3) Art. 14 strikes at arbitrariness in administrative action

26-09-2023 7
1) A law conferring unguided and unrestricted
power on an authority is bad for arbitrary
power is discriminatory.
• A statute is discriminatory either because it does not make a reasonable classification, or
confers unregulated discretion on the executive
• A law that confers absolute or uncontrolled discretion on an authority negates equal
protection of the law because such power can be exercised arbitrarily to discriminate
between persons and things similarly situated without reason.
• The law frowns on uncanalised and unfettered discretion conferred on any
instrumentality of the State.

• 2) ADMINISTRATIVE DISCRIMINATION

• The second proposition envisages a situation where the statute itself does not suffer
from any such vice, but the administrative authority may implement it in a discriminatory
manner, or may not follow the policy or principle laid down in the Act to regulate its
discretion

26-09-2023 8
3) ARBITRARY STATE ACTION

• Courts in India have, over time, held that Art. 14 is “a guarantee against
arbitrariness”
• The Supreme Court in Royappa has held that “equality is antithetic to
arbitrariness.”
• Any action that is arbitrary must necessarily involve the negation of equality.
• Whenever there is arbitrariness in state action, Art. 14 springs to life and judicial
review strikes such an action down.
• Every state action must be non-arbitrary and reasonable. Otherwise, the Court
would strike it down as invalid
• Every state action must be informed by reasons and guided by public interest.
• Actions uninformed by reasons may be questioned as arbitrary.

26-09-2023 9
Article 19
• Art. 19(1) clauses (a) to (g) guarantees to Indian citizens six freedoms, viz., of ‘speech and
expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and ‘practising any
profession and carrying on any business’.
• Necessary not only to promote certain basic rights of the citizens but also democratic values, the
oneness and unity of the country.
• These rights are natural rights, inherent in the status of a citizen of a free country
• The group of rights listed as clauses (a) to (g) do not stand on a common pedestal; they have
varying dimensions and underlying philosophies.
• Originally, Art. 19 guaranteed seven freedoms. The freedom to hold and acquire property was
deleted in 1978.
• The freedoms guaranteed by Art. 19(1) are not absolute
• Each of these rights is liable to be controlled, curtailed and regulated to some extent by laws
made by Parliament or the State Legislatures.
• Accordingly, clauses (2) to (6) of Art. 19 lay down the grounds and the purposes for which a
legislature can impose ‘reasonable restrictions’ on the rights guaranteed by Arts. 19(1)(a) to (g).

26-09-2023 11
• As there is a general presumption in favour of the constitutionality of a
legislation, in a challenge to the validity of any legislation allegedly violating any
right or freedom guaranteed by Art. 19 (1), a prima facie case of such violation
has to be made out; thereafter, the onus will shift to the respondent State to
show that 1) the particular restriction is reasonable and 2) the legislation falls
within the permissible limits of restrictions set out in clauses (2) to (6) of Art. 19
• A foreigner enjoys no rights under Art. 19.
• Limitations imposed by Arts. 19(2) to 19(6) on the freedoms guaranteed by Arts.
19(1)(a) to (g) serve two purposes viz. 1) they specify that these freedoms are not
absolute but are subject to regulation; 2) they put a limitation on the power of a
legislature to restrict these freedoms.
• A legislature cannot restrict these freedoms beyond the requirements of Arts.
19(2) to 19(6).
26-09-2023 12
• 3 significant characteristics of clauses 19(2) to 19(6) may be noted:
• (1) The restrictions under them can be imposed only by or under the
authority of a law; no restriction without legal backing
• (2) The restriction must be reasonable.
• (3) A restriction must be related to the purposes mentioned in Clauses
19(2) to 19(6)

• Double test to adjudge the validity of a restriction –

• whether it is reasonable; and
• whether it is for a purpose mentioned in the clause under which the
restriction is being imposed?

26-09-2023 13
TEST FOR REASONABLENESS
• No definite test to adjudge reasonableness of a restriction.
• Each case is to be judged on its own merits; There is no abstract standard, or
general pattern of reasonableness that applies uniformly to all cases.
• The burden to show that the restriction is reasonable, lies on the state
• A Court evaluating the reasonableness of a restriction imposed on a Fundamental
Right guaranteed by Art. 19 enjoys a lot of discretion in the matter.
• There must be a direct and proximate nexus or a reasonable connection between
the restriction imposed and the object sought to be achieved
• A restriction to be reasonable must also be consistent with Art. 14 of the
Constitution.
• In judging the reasonableness of the restriction, the Court must bear in mind
Directive Principles of State Policy.

26-09-2023 14
FREEDOM OF SPEECH: ARTICLES 19(1)(A) AND
19(2)
• the bulwark of democratic government.
• Essential for the proper functioning of the democratic process.
• The freedom of speech and expression is regarded as the first condition of
liberty
• the mother of all other liberties
• It embraces within its scope the freedom of propagation and interchange
of ideas, dissemination of information which would help formation of one’s
opinion and view point and debates on matters of public concern
• The freedom of speech under Art. 19(1)(a) includes the right to express
one’s views and opinions at any issue through any medium, e.g., by words
of mouth, writing, printing, picture, film, movie, etc. It thus includes the
freedom of communication and the right to propagate or publish opinion

26-09-2023 15
• Article 19(1)(a) corresponds to Amendment I of the U.S. Constitution which says:
“Congress shall make no law....abridging the freedom of speech or of the press.”
• Unlike Art. 19(1)(a) of the Indian Constitution, the provision in the U.S. Constitution has
two notable features, viz., (1) Freedom of Press is specifically mentioned & (2) No
restrictions are mentioned on the freedom of speech unlike Art. 19(2)
• The Courts in the U.S.A. have to spell out the restrictions on this right from case to case.
• In India, freedom of the press is implied from the freedom of speech and expression
guaranteed by Art. 19(1)(a).
• “Bandhs” organised by political parties are unconstitutional and is not part of the
freedom of speech and expression
• under Art. 19(2), the state may make a law imposing ‘reasonable restrictions’ on the
exercise of the right to freedom of speech and expression ‘in the interests of’ the
security of the State, friendly relations with foreign States, public order, decency,
morality, sovereignty and integrity of India, or ‘in relation to contempt of Court,
defamation or incitement to an offence’.

26-09-2023 16
FREEDOM TO ASSEMBLE: ARTS. 19(1)(b) AND
19(3)
• Article 19(1)(b) guarantees to the citizens of India the right to
assemble peaceably and without arms.
• Under Art. 19(3), however, the state can make any law imposing
reasonable restrictions on the exercise of this right in the interests of
public order, and sovereignty and integrity of India
• Does not include the right to strike
• Does not include the right to hold meetings on government premises.

26-09-2023 17
FREEDOM TO FORM ASSOCIATION: ARTS.
(19)(1)(c) AND 19(4)
• Article 19(1)(c) guarantees to the citizens of India the right to form associations or unions.
• Under Art. 19(4), reasonable restrictions in the interests of public order or morality or sovereignty
and integrity of India may be imposed on this right by law.
• The right to form associations is the very lifeblood of democracy.
• Without such a right, political parties cannot be formed, and without such parties, a democratic
form of government, especially that of the parliamentary type, cannot be run properly.
• Given the importance of the right to form associations in a democratic society, the Courts have
not favoured discretion vested in a government official to prohibit the formation of an
association, without proper safeguards
• The right to form an association is fundamental, however, the recognition of such an association
is not a Fundamental Right and, thus, Parliament can by law regulate the working of such
associations by imposing conditions and restrictions on such functions
• The Fundamental Right guaranteed by Art. 19(1)(c) can be claimed by government servants as
well. A government servant may not lose his right under Art. 19(1)(c) by joining government
service.

26-09-2023 18
FREEDOM OF MOVEMENT AND RESIDENCE:
ARTS. 19(1)(d), (19)(1)(e) AND 19(5)
• Article 19(1)(d) guarantees to every citizen the right to move freely throughout the territory of India.
• Art. 19(1)(e) guarantees to a citizen the right to reside and settle in any part of India.
• According to Art. 19(5), however, the State may impose reasonable restrictions on these rights by law in the
interests of general public or for the protection of the interests of any Scheduled Tribe.
• A citizen can move freely from one State to another, or from one place to another within a State.
• These rights underline the concept that India is one unit
• The rights under Article 19(1)(e) applies only to the citizens and not to foreigners. The Government of India
thus has the power to expel foreigners from India
• The police is entitled to impose reasonable restraints on the physical movement of the members of the
public to protect public property and avoid needless inconvenience to other citizens in their lawful pursuits
• Requiring compulsory wearing of helmet by a person driving a two wheeler has been framed for the
ensuring safety & not to curtail freedom of movement.
• Articles 19(1)(d) and 19(1)(e) have been invoked frequently to challenge the validity of an externment order
served by the executive on a citizen requiring him to leave a State or a district. Such an order prima facie
curtails the freedoms guaranteed by these Articles

26-09-2023 19
• In States, there are police regulations providing for police surveillance
of activities of persons suspected of criminal tendencies. This includes
secret picketing of the house, domiciliary visits at nights, and
shadowing the movements of the suspect.
• The purpose of police surveillance is the prevention of the
commission of crimes by such persons.
• The right to privacy is not absolute, and reasonable restrictions can
be placed in public interest under Art. 19(5).

26-09-2023 20
RIGHT TO PROPERTY: ARTICLES 19(1)(F) AND
19(5)
• Article 19(1)(f) guaranteed to the Indian citizens a right to acquire,
hold and dispose of property.
• Art. 19(5), however, permitted the state to impose by law reasonable
restrictions on this right in the interests of the general public or for
the protection of the interests of any Scheduled Tribe.
• Arts. 19(1)(f) and 19(5) have been repealed by the Constitution
(Forty-fourth Amendment) Act, 1979

26-09-2023 21
FREEDOM TO CARRY ON TRADE AND
COMMERCE: ARTS. 19(1)(g) AND 19(6)
• Article 19(1)(g) guarantees to all citizens the right to practise any profession, or to carry on any occupation, trade or business.
• Article 19(1)(g) uses four expressions, viz., profession, occupation, trade and business.
• Under Art. 19(6), the state can make a law imposing, in the interests of the general public, reasonable restrictions on the exercise
of the above right.
• The State can also make—
• (i) a law relating to professional or technical qualifications necessary for practicing a profession or carrying on any occupation,
trade or business; or
• (ii) a law that empowers the state, or by State-owned corporation to carry on any trade, business, industry or service, whether to
the exclusion, complete or partial, of citizens or otherwise.
• For long India has believed in a regulated and planned economy and not in a laissez faire economy.
• A number of constitutional provisions in the DPSP underscore this economic philosophy
• In 1978, by the 44th Amendment of the Constitution, the word ‘socialist’ was introduced in the Preamble to the Constitution
• the trend has shifted to privatisation. Instead of government control over trade and commerce, the emphasis now is to relax
government control. The government has come to view its role more as a facilitator, rather than as a controller, of private
enterprise.

26-09-2023 22
• Even though Art. 19(1)(g) uses four different expressions it protects only
such activities which are of a commercial or a trading nature.
• Any activity not regarded as trade or business falls outside the purview of
this protection.
• A citizen has no Fundamental Right to trade or business in intoxicating
liquors and that such trade or business can be completely prohibited.
• Betting and gambling is not trade and so falls outside the purview of Art.
19(1)(g)
• Can a restriction amount to a prohibition? Yes, a restriction may even
amount to prohibition if the mischief to be remedied warrants total
prohibition

26-09-2023 23
Article 21
• Even though couched in negative language, Article 21 is an inexhaustible source of many rights.
• Available to non-citizens, citizens and to those whose citizenship is unknown
• Life.- most fundamental of all & most difficult to define.
• The US Constitution has the 5th and 14th Amendments, which say that no person shall be deprived of his
• “life, liberty, or property, without due process of law“

• In Munn Y. Illinois'", Field J held that the term 'life’, is something more is meant than mere animal existence.

• This statement, which has been repeatedly quoted with approval by our Supreme Court

• Francis Coralie’s case - Bhagwati J held: right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings

26-09-2023 25
Interpreting Life
• The right to livelihood part of the right to life because no person can live without the
means of living
• Right to employment as such has not yet been recognised in Article 21
• Employment of innocent tribals as special police officers placing their as well as others
lives at risk violates right to life
• The right of agriculturists to cultivation is part of their fundamental right to livelihood.
• The right to carry on trade or business is not covered by Article 21
• Right to unpolluted environment is part of right to life
• Right to life includes the right to "a reasonable accommodation to live in“ "and right to
shelter
• Rape violates the right to life
• Right to water and the right to education part of right to life

26-09-2023 26
Personal Liberty
• Article 21 qualifies "liberty" by "personal", which leads to an
inference that the scope of liberty under our Constitution is narrower
• Includes the right to privacy.

26-09-2023 27
Procedure established by law
• Procedure established by law – Initially was interpreted as procedure prescribed by the law of the State. Accordingly, it required:
• existence of an enacted law authorising interference with the life or personal liberty
• the law should be valid, and
• the procedure laid down by the law must be followed.
• In the absence of non-compliance of any of these conditions any deprivation of life or personal liberty of a person by any authority
violates Article 21.
• In the US, instead of procedure established by law, they follow due process which means the court would examine a law to
ascertain if it is a just and fair law in its procedure & substance
• In Maneka Gandhi, the procedure in Article 21 "has to be fair, just and reasonable, not fanciful, oppressive or arbittary"1

• Sunil Batra v. Delhi Admn. (Sunil Batra), Krishna Iyer J said, "True, our Constitution has no 'due process' clause ... but ... after
Maneka Gandhi the consequence is the same" and added that Article 21 is the counterpart of the procedural due process in the
US.

• The word 'Law' in the expression 'procedure established by law' in Article 21 has been interpreted to mean in that the law must be
right, just and fair, and not arbitrary, fanciful or oppressive.

26-09-2023 28
Expanding horizons

• Right of release and rehabilitation of bonded labour

• Right to compensation.
• Right to know.
• Right to fair trial.
• Right against custodial violence and death in police lock-ups or encounters
• Right to human dignity
• Right against cruel and unusual punishment
• Right to Legal Aid
• Right to Speedy Trial
• Prisoner’s rights

26-09-2023 29
• 21-A. Right to education.-The State shall provide free and compulsory education to all children of the agse of six to fourteen years
in such manner as the State mav, by law, determine.

• Unni Krishnan, J.P. v. State of A.P. SC recognised the fundamental right of every child to free and compulsory elementary education
up to the age of 14 years
• To ensure sufficient and effective realisation of this right & to reassert national will and commitment in this regard, Article 21-A
was inserted by 86th Constitutional Amendment in 2002.
• Criticism - the right as expounded in Unni Krishnan was narrowed to exclude children below six years and makes the right
dependent on legislation.
• Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009.
• The Act entitles a child to free and compulsory education between the age of 6 to 14 years in a neighbourhood school.
• Even private unaided schools are not to charge any capitation fee from any child, nor will they do any screening of the child or its
parents.
• For better social inclusion every unaided school is under an obligation to admit 25 per cent students from weaker sections of
society in the neighbourhood.
• The State shall reimburse the school for expenditures on these students.
• The Supreme Court has upheld this provision subject to the clarification that it shall not apply to unaided minority schools. Later,
it also excluded from this requirement even aided minority schools.

26-09-2023 30
How to Read a Legal Opinion
WHAT’S IN A LEGAL OPINION?
• When two people disagree and that disagreement leads to a lawsuit,
then the lawsuit will sometimes end with a ruling by a judge in favor
of one side.

• The judge will explain the ruling in a written document referred to as

an “opinion.”

• The opinion explains what the case is about, discusses the relevant
legal principles, and then applies the law to the facts to reach a ruling
in favor of one side and against the other.

26-09-2023 32
The Caption
• The first part is the title of the case, known as the “caption.” Examples include Brown v.
Board of Education and Miranda v. Arizona.
• The caption tells you the last names of the person who brought the lawsuit and the
person who is being sued.
• These two sides are often referred to as the “parties” or as the “litigants” in the case.
• For example, if Ms. Smith sues Mr. Jones, the case caption may be Smith v. Jones (or,
depending on the court, Jones v. Smith).
• In criminal law, cases are brought by government prosecutors on behalf of the
government itself.
• This means that the government is the named party. For example, if the federal
government charges John Doe with a crime, the case caption will be United States v. Doe.
• If a state brings the charges instead, the caption will be State v. Doe, People v. Doe, or
Commonwealth v. Doe, depending on the practices of that state.

26-09-2023 33
The Case Citation
• Below the case name, you will find the citation
• A citation tells you the name of the court that decided the case, the
law book in which the opinion was published, and the year in which
the court decided the case.
• Example, “U.S. Supreme Court, 485 U.S. 759 (1988)” refers to a U.S.
Supreme Court case decided in 1988 that appears in Volume 485 of
the United States Reports starting at page 759.

26-09-2023 34
The Author of the Opinion
• The name of the judge who wrote the opinion.
• The name tells you which judge wrote that particular opinion.
• In older cases, the opinion often simply states a last name followed by
the initial “J” which stands for “Judge” or “Justice,”
• On occasion, the opinion will use the Latin phrase “per curiam”
instead of a judge’s name. Per curiam means “by the court.”
• It signals that the opinion reflects a common view among all the
judges rather than the writings of a specific judge.

26-09-2023 35
The Facts of the Case
• The first part of the body of the opinion presents the facts of the case. In
other words, what happened?
• There are no particular rules for what facts a judge must include in the fact
section of an opinion.
• Sometimes the fact sections are long, and sometimes they are short.
Sometimes they are clear and accurate, and other times they are vague or
in- complete.
• Most discussions of the facts also cover the “procedural history” of the
case.
• The procedural history explains how the legal dispute worked its way
through the legal system to the court that is issuing the opinion.

26-09-2023 36
The Law of the Case
• After the facts, the opinion will discuss the law.
• Many opinions present the law in 2 stages.
• The first stage discusses the general principles of law relevant to cases such
as the one the court is deciding. This section might explore the history of a
particular field of law or may include a discussion of past cases
(“precedents”) that are related to the case the court is deciding.
• The second stage of the legal section applies the general legal principles to
the particular facts of the dispute.
• This part in many ways is the heart of the opinion: It gets to the bottom
line of why the court is ruling for one side and against the other.

26-09-2023 37
Concurring and/ or Dissenting Opinions
• When a group of judges get together to decide a case, they vote on which side
should win and also try to agree on a legal rationale to explain why that side has
won.
• A majority opinion is an opinion joined by the majority of judges on that court.
• Although most decisions are unanimous, some cases are not.
• Some judges may disagree and will write a separate opinion offering a different
approach.
• Those opinions are called “concurring opinions” or “dissenting opinions,” and
they appear after the majority opinion.
• A “concurring opinion” (a “concurrence”) explains a vote in favor of the winning
side but based on a different legal rationale.
• A “dissenting opinion” (“dissent”) explains a vote in favor of the losing side.

26-09-2023 38
Common Legal Terms Found in Opinions
• In 1066, William the Conqueror crossed the English Channel from
France and conquered England.
• The conquering Normans spoke French and the defeated Saxons
spoke Old English.
• The Normans took over the court system, and their language became
the language of the law.
• For several centuries after this event, lawyers and judges in English
courts spoke in French.
• When English courts eventually returned to using English, they
continued to use many French words.

26-09-2023 39
• The American colonists considered themselves Englishmen, so they
used the English legal system and its language.
• American legal opinions are littered with French terms. Examples
include plaintiff, defendant, tort, contract, crime, judge, attorney,
counsel, court, verdict, party, appeal, evidence, and jury.

26-09-2023 40
Types of Disputes and the Names of
Participants
• 2 basic kinds of legal disputes: civil and criminal.
• Civil case - one person files a lawsuit against another asking the court to order the
other side to pay him damages (money) or to stop doing something (“injunction”)
• The person bringing the lawsuit is known as the “plaintiff” and the person sued is
called the “defendant.”
• Criminal cases - No plaintiff and no lawsuit.
• The role of a plaintiff is occupied by a government prosecutor ( the state,” “the
prosecution,” or “the government”)
• Instead of filing a lawsuit (or “suing” someone), the prosecutor files criminal
“charges.”
• The prosecutor asks the court to punish the individual through either jail time or
a fine.

26-09-2023 41
Terms in Appellate Litigation
• An “appeal” is a legal proceeding that considers whether another court’s legal deci-sion was right or wrong.
After a court has ruled for one side, the losing side may seek review of that decision by filing an appeal
before a higher court.
• The original court is usually known as the trial court, because that’s where the trial occurs if there is one.
• The higher court is known as the appellate or appeals court, as it is the court that hears the appeal.
• A single judge presides over trial court proceedings, but appellate cases are decided by panels of several
judges.
• For example, in the federal court system, run by the United States government, a single trial judge known as
a District Court judge oversees the trial stage.
• Cases can be appealed to the next higher court, the Court of Appeals, where cases are decided by panels of
three judges known as Circuit Court judges. A side that loses before the Circuit Court can seek review of that
decision at the United States Supreme Court.
• Supreme Court cases are decided by all nine judges. Supreme Court judges are called Justices instead of
judges; there is one “Chief Justice” and the other eight are just plain “Justices” (technically they are
“Associate Justices).

26-09-2023 42
Terms in Appellate Litigation
• During the proceedings before the higher court, the party that lost at the
original court and is therefore filing the appeal is known as the “appellant.”
(“plaintiff in error”)
• The party that won in the lower court but must defend the lower court’s
decision is known as the “appellee” (“defendant in error”)
• Some courts label an appeal as a “petition,” and require the losing party to
petition the higher court for relief.
• In these cases, the party that lost before the lower court and is filing the
petition for review is called the “petitioner.”
• The party that won before the lower court and is responding to the
petition in the higher court is called the “respondent.”

26-09-2023 43
READING A CASE
• Know the Facts
• Facts are important because the law is often highly fact-sensitive,
• the proper legal outcome depends on the exact details of what
happened.
• If you don’t know the facts, you can’t really understand the case and
can’t understand the law.

26-09-2023 44
• 2. Know the Specific Legal Arguments Made by the Parties
• The lawyers, not the judges, take the lead role in framing the issues
raised by a case.
• In an appeal, for example, the lawyer for the appellant will articulate
specific ways in which the lower court was wrong.
• The appellate court will then look at those arguments and either
agree or disagree.
• Because the lawyers take the lead role in framing the issues, you need
to understand exactly what arguments the two sides were making.

26-09-2023 45
• 3. Know the Disposition
• The “disposition” of a case is the action the court took.
• Often announced at the very end of the opinion.
• For example, an appeals court might “affirm” a lower court decision,
upholding it, or it might “reverse” the decision, ruling for the other
side.
• Alternatively, an appeals court might “vacate” the lower court
decision, wiping the lower-court decision off the books, and then
“remand” the case, sending it back to the lower court for further
proceedings.
• When a higher court “affirms” it means that the lower court had it
26-09-2023 46
4. Understand the Reasoning of the Majority
Opinion
• To understand the reasoning of an opinion, you should first identify the source of the law
(Constitution, Statutes, common law) the judge applied.
• After you have identified the source of law, you should next identify the method of reasoning that
the court used to justify its decision.
• When a case is governed by a statute, for example, the court usually will simply follow what the
statute says. The court’s role is narrow in such settings because the legislature has settled the law.
• Similarly, when past courts have already answered similar questions before, a court may
conclude that it is bound by the past precedents. This is an application of the judicial practice of
“stare decisis,” meaning “That which has been already decided should remain settled.”
• In other settings, courts may justify their decisions on public policy grounds. That is, they may pick
the rule that they think is the best rule, and they may explain in the opinion why they think that
rule is best. This is particularly likely in common law cases where judges are not bound by a
statute or constitutional rule.
• Other courts will rely on morality, fairness, or notions of justice to justify their decisions. Many
courts will mix and match, relying on several or even all of these justifications.

26-09-2023 47
5. Understanding the Significance of Majority
Opinion
• Opinions resolve the parties’ legal dispute by announcing and
applying a clear rule of law to a particular case is the “holding” of the
case.
• Holdings are often contrasted with “dicta” found in an opinion.
• Dicta refers to legal statements in the opinion not needed to resolve
the dispute of the parties
• Originates from the Latin phrase “obiter dictum,” which means “a
remark by the way.”
• No mathematical formula, you need to develop the skill

26-09-2023 48
6. Understanding any Dissenting or
Concurring Opinion
• Concurrences and dissents are very important.
• Anglo-American law is often been judge-made.
• Learning to “think like a lawyer” often means learning to think like a judge,
which means learning how to evaluate which rules and explanations are
strong and which are weak.
• Courts occasionally say things that are silly, wrongheaded, or confused, and
you need to think independently about what judges say.
• Concurring and dissenting opinions often do this work for you.
• Concurrences and dissents can offer some valuable insights and raise
important arguments.
26-09-2023 49