Common Law in India: What Foreign Law Students Should Know

India is usually classified as a common law jurisdiction, inherited through nearly two centuries of British colonial administration, but it is a common law system with significant differences from England, the US, or other Commonwealth jurisdictions, which is exactly why it tends to interest comparative law students.

Precedent, but constitutionally entrenched

Article 141 of the Constitution makes Supreme Court decisions binding on all other courts in India, a rule of precedent given direct constitutional force rather than resting purely on judicial convention as in England. High Court decisions bind subordinate courts within that state but are only persuasive, not binding, on other High Courts.

Heavy codification within a common law frame

Unlike the pure case law tradition sometimes associated with common law systems, India’s core private and criminal law is extensively codified, the Indian Contract Act, the Transfer of Property Act, the Sale of Goods Act, the Negotiable Instruments Act, and now the Bharatiya Nyaya Sanhita for criminal law. Courts interpret these codes, but the baseline rules are statutory, closer in form to a civil law code than classic English case-built common law.

A written, supreme Constitution

England has no single written constitution and no judicial power to strike down an Act of Parliament. India’s Constitution is supreme written law, and constitutional review by the judiciary, including the doctrine that Parliament cannot amend away the Constitution’s “basic structure”, is a major point of divergence worth studying on its own.

Where this shows up in practice

Personal law (marriage, inheritance, succession) in India also varies by religious community rather than applying one uniform civil code, another feature with no close equivalent in England or the US, and a live, debated legal and political question in India itself (the Uniform Civil Code debate).

For a structured comparative angle, Lexfolio’s certificate courses include options on AI law and governance and contract law that build in comparative framing, and the free guides cover the new criminal codes and constitutional structure in more depth for readers building out a comparative law paper or thesis chapter.