The following article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. This article seeks to provide conceptual discussion on the topics of substantive laws and procedural laws, their meaning, nature and sources of the laws. The juristic approach and the aspects distinguishing are also covered.

It has been published by Rachit Garg.

Introduction

Laws are the set or system of rules established by the government for the citizens to obey and also to govern their behaviours and conduct. They are usually enforced by governmental institutions. The mechanism of the law ensures that all citizens abide by them and that society can function safely without any obstructions. In India, the laws are made by the Indian Parliament, implemented by the executives and interpreted and enforced by the judiciary.

Law can be further divided into two broad categories – I. Substantive laws and II. Procedural laws. They form the two major branches of law. 

• Substantive laws are the statutory laws passed by the legislature. 
• Whereas, procedural laws comprise the rules and processes which any court follows for hearing and determining the cases. 

Procedural laws are also known as ‘Adjective laws’. In absence of substantive laws, procedural laws cannot be framed. Similarly, without procedural laws, substantive laws cannot be applied fairly and properly. Both the laws are equally important and one could not be applied effectively in absence of the other law. 

In the case of Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup and Sons (1994), the Supreme Court of India made the distinction between substantive and procedural laws clear. 

The Court defined substantive laws as the laws which fix duties and establish rights and responsibilities among and for natural or artificial persons, while procedural laws are those which prescribe the methods in which such rights and responsibilities may be exercised and enforced respectively.

Juristic views on procedural laws and substantive laws

Several jurists have given their opinion regarding the distinction of laws. 

Jeremy Bentham, an English philosopher, jurist, and social reformer first coined the terms ‘substantive laws’ and ‘adjective laws’, i.e. procedural laws in his book “The works of Jeremy Bentham”, while describing the procedure and course taken for the execution of the laws in 1843. However, he stated that in jurisprudence, both the procedural and substantive laws should co-exist i.e. both cannot exist without the help of the other.

John Austin, on the other hand, had a completely different approach to the objective of the law and was critical of such distinction.

Thomas Holland, the British jurist, in his book ‘The Elements of Jurisprudence’ defined ‘Substantive Law’ as the laws which specify the way the laws will aid to protect rights. Whereas, Adjective laws or Procedural laws are the laws which provide the methods of aiding and protecting the rights.

The jurist Salmond believed that the ‘exact nature of distinction’ of the laws cannot be stated with precision. According to him in his book “Jurisprudence”, procedural laws govern the processes of litigation and are the laws of ‘actions’ and the remaining laws are substantive law. He further explains that substantive laws are concerned with the results sought by the administration of justice whereas procedural laws deal with the methods and instruments to attain these results. 

There exists another juristic view that states that there are absolutely no distinctions between substantive and procedural laws. Charles Frederic Chamberlayne, in his book A Treatise on the Modern Law of Evidence, mentioned that the distinction between the laws is ‘artificial and illusory’. Professor Cook in Substance and Procedure in the Conflict of Laws termed the distinctions between the laws as an ‘alleged distinction’. He was of the opinion that apart from ‘substance’ and ‘procedure’, there exists a grey area.

Meaning and nature of substantive laws and procedural laws

Both the substantive laws and the procedural laws are two related sets of legal systems and are interdependent on each other. 

Substantive laws are the essential laws that govern any particular field and declare the rules and lay down the principles. The Indian Penal Code (IPC) which lays down different types of crimes and defines their respective punishments is one of the examples of substantive laws in India. 

Procedural laws are the set of procedures to be followed for making, administering and enforcing substantive laws. For example, the Code of Criminal Procedure (CrPC) defines the procedures to be followed in criminal proceedings in India.

Substantive laws

Substantive laws define the rights and responsibilities in civil law and crimes and punishments in criminal law. Substantive laws are codified in legislated statutes or may be practised or modified through precedent, especially in the common law system. These laws can also be enacted through the initiative process. Substantive laws refer to the actual claims and defences to refer to in any particular case.

Nature of substantive laws

• Substantive laws deal with those areas of law which establish the rights and obligations of the individuals and what individuals may or may not do.
• These laws have independent power to decide any case.
• Substantive laws dictate the legal context of any crime such as how the case will be handled and what specific punishments to be given for any crime.
• Statutory laws or precedents in the common law system are substantive laws. 
• Substantive laws deal with the legal relationship between individuals or the legal relationship between an individual and the State. 
• Substantive laws are the statutory laws which define and determine both the rights and obligations of the citizens to be protected by law and the crimes or wrongs and also their remedies.
• Substantive laws determine the subject matter of litigation pertaining to the administration of justice.

In the case of Thirumalai Chemicals Ltd. v. Union of India and others (2011), the Supreme Court ruled that substantive laws are a body of rules that “creates, defines and regulates rights and liabilities”. On the other hand, procedural laws establish “a mechanism for determining those rights and liabilities and a machinery for enforcing them”. 

Sources of substantive laws

The Substantive Laws are usually derived from: 

I. the principles in Common laws which already exist, codified statutory laws 

II. Constitution 

III. judicial precedents in cases with similar facts and circumstances. 

Substantive laws are also derived from various treaties that dictate the conditions of the law. One such example is the regulations and directives of the European Union followed by trade treaties, rules of the WTO and bilateral treaties.

Other sources of substantive laws include:

• The writings of legal scholars: In civil laws, academic writings which explain or interpret the Constitution or laws influence the decisions of the courts.
• Edicts from a king/ ruler;
• “Sharia law” in religious books and edicts in the case of some of the Islamic countries.

Indian Penal Code, Indian Contract Act, 1872, Transfer of Property Act, 1882, Specific Relief Act, 1963 etc., are some of the examples of substantive laws in India. 

Types of substantive laws

The substantive laws define both the rights and the wrong and the punishment or remedy for it. The laws include all categories of Public and Private law also including both substantive civil and criminal laws.

Substantive civil laws

Substantive civil laws are the laws which deal with disputes between any individuals, organisations or between both of them where the victim is entitled to compensation. Using substantive civil laws, the courts find out whether the legal rights of the plaintiff have been violated or not. 

The plaintiff should have to prove that he/ she has gone through damages or has suffered injury by using the relevant substantive civil laws. If the plaintiff is successful in proving his/ her point before the court by himself/ herself or through his/ her attorney, substantive civil laws would be used to compensate the plaintiff for any injury or harm caused accordingly.

Substantive civil laws do not provide any constitutional protection to any of the parties but provide the right to appeal to both the parties.

Examples

Some examples and functions of substantive civil laws in India include:

• Law of Contracts such as the Indian Contract Act, 1872 defines what are the essential elements and conditions required to enter into any contract. The broader category of the laws related to the contract also includes the Sale Of Goods Act, 1930 for the sale of goods and the Partnership Act, 1932 for the law related to the formation and registration of partnership firms and businesses.
• The Indian Succession Act, 1925 is an Act dealing with the substantive laws of testamentary and intestate succession concerning the persons who follow any forms of Christianity in India. 
• Other substantive civil laws in India are the Transfer of Property Act 1882; Indian Trust Act, 1882; Maternity Benefit Act, 1961; The Factories Act, 1948; Industrial Disputes Act, 1947 etc
• Substantive civil laws also include any private wrong caused to anyone or ‘Tort’. The Law of Torts is also an example of substantive civil laws. However, the law of Tort in India has evolved from that of its English counterpart and is not codified.

Substantive criminal laws

Substantive criminal laws deal with criminal offences and the punishments to be awarded for each of these criminal offences. 

A criminal prosecution starts after the defendant violates any criminal statute. The primary purpose of substantive criminal laws is to provide punishment to the convict while compensation may be provided to the victim depending on the situations.

Using substantive criminal laws, the court finds out whether the accused is guilty or not and if found guilty, what should be the punishments for the criminal offence.

Unlike substantive civil laws, substantive criminal laws offer constitutional protections to the accused from the very beginning of the trial. However, here only the defendant can appeal instead of both the parties as in the case of substantive civil laws.

Examples

Various penal offences and their respective punishments have been described in the Indian Penal Code (IPC). It also defines the conditions for various penal offences such as ‘Murder’, ‘Rape’, ‘Abduction’ etc.

Apart from IPC, Domestic Violence Act, 2005; the Juvenile Justice (Care and Protection of Children) Act,2000; the Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 are some of the substantive criminal laws in India.

Limitations of substantive laws

• Elements of substantive laws sometimes act as an obstacle to access to justice. Some elements of substantive laws which are unfavourable to any litigant will constitute an impediment to justice.
• Substantive laws can be used to limit and restrict the power and freedom of any individual.
• The State possesses the uncontrolled and unlimited power to frame laws according to its own will which the judiciary is bound to follow. 

However, in India, the judiciary may strike down any law if it is unconstitutional.

For example, the Supreme Court of India struck down the Constitution (Ninety-Ninth Amendment) Act, 2014, which established the National Judicial Appointment Commission (NJAC) for the appointment of judges instead of the traditional collegium system of appointment of judges, in the case of Supreme Court Advocates-on-Record Association and another v. Union of India (2016).

Procedural laws

In contrast to substantive laws, procedural laws, also known as Adjective Laws, are the laws which act as the ‘machinery’ for enforcing rights and duties. Procedural laws comprise the rules by which a court hears and determines what happens in civil, criminal or administrative proceedings, as well as the methods by which substantive laws are made and administered. The rules are designed to ensure a fair and consistent application of due process and fundamental justice to all cases before any particular court.

The validity of the substantive laws is tried and tested through the procedures of the procedural law. In the context of procedural laws, the rights may not exhaustively refer to the rights to information, rights to justice, rights to participate and general civil and political rights. For example, in the sphere of environmental law, these procedural rights have been considered in the UNECE Convention On Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters, also known as the Aarhus Convention.

Procedural laws are made to ensure the best distribution of judicial resources. All procedural laws are made following the due process of the law. A court cannot impose a civil or criminal penalty on any individual who has not received any notice of the case filed against him/ her or has not got a fair opportunity to present evidence or defend himself/ herself. The standardisation of the procedural laws depends on how any case is filed, parties are informed, evidence is presented and the facts are determined to maximise the fairness of any legal proceeding.

Nature of procedural laws

• Procedural laws lay down the ways and means substantive laws can be enforced.
• They do not carry any independent powers to decide any case.
• These laws are applied in the legal procedure which sometimes may be used in non-legal contexts, such as filing any suits or the manner any case will proceed.
• These laws are enforced by the Acts of Parliament or implemented by the government.
• Apart from prescribing ways and means of enforcing rights, procedural laws also redress for the infringement of rights, also describe the machinery for proceedings of any suit.
• In the opinion of Holland, although procedural laws are concerned with the rights and acts of private litigants, it also describes the organisation of Courts and the duties of judges.
• A procedural law should always follow substantive law. The Madhya Pradesh High Court held the decision in Farookh Mohammed v. the State of Madhya Pradesh (2015). The Himachal Pradesh High Court held that procedural law should not ordinarily be considered “mandatory” in the case of Gurudwara Bei Sehjal v. Nanhku And Others (2022).

Sources of procedural laws

Procedural laws are extremely important in the administration of justice. They function as the means by which substantive laws should be implemented. 

The primary source of procedural laws is the Constitution. Other sources of procedural laws include: 

• Statutes enacted by the legislature; 
• Written regulations for employees of various law enforcement agencies. These regulations cannot be considered as laws but violating them results in taking internal actions.
• Various rules, procedural guidelines and rulings of cases laid down by the Supreme Court. 

Types of procedural laws

Different legal systems have different procedural laws. Some of the procedural laws may primarily look for the truths or fairness between the parties and some procedural laws target a speedy resolution of disputes. Other procedural laws may also consist of a proper and thorough application of legal principles. Procedural laws are the means to enforce substantive laws. Hence, there exist different types of procedural laws depending on the characteristics of substantive laws. 

Based on these, the procedural laws are primarily of two types:

1. Civil procedural laws or laws of civil procedure and 
2. Criminal procedural laws or laws of criminal procedure

Laws of Civil Procedures

Laws of Civil Procedures comprise the rules, regulations and standards for the courts to follow during the cases relating to civil matters and various civil trials. 

These procedural laws govern how a civil suit or case should commence and the procedures to be followed during the case. They also dictate:

• the nature of pleadings and statements of case, motions or applications;
• available remedies for civil cases; 
• the orders to be passed in civil cases; 
• the limiting time for appeal and the manners of how the cases are to be disposed of; 
• the conduction of civil trials; 
• the process for passing judgement, and 
• how the courts, judicial officers and clerks must function. 

Civil procedural laws determine the parties of any civil case. The parties for claims concerning the civil actions by private individuals or groups, companies, organisations or institutions against one another and in addition. The government in power or any of the subdivisions or agencies of the government may also be parties to civil suits filed by private individuals or groups. 

Examples

One of the major civil procedural laws in India is the Code of Civil Procedure which governs the administration of civil proceedings and implementations of civil orders and justice.

Laws of Criminal Procedures

While substantive criminal laws deal with punishment for criminal offences against public and private individuals. The laws of criminal procedure can be termed corollary where these laws lay down the criminal procedures. These laws describe how criminal law should be applied and its procedures. 

Judicial proceedings intend to find out the true facts and establish guilt or innocence by making the best use of the available pieces of evidence. Hence, criminal procedural laws also govern the presentation of evidence, becoming witnesses for the criminal offence committed and the documentation and establishment of offences through physical proof.

Stages of procedural criminal laws

Procedural Criminal Law can further be divided into two stages or phases: 

1. the investigatory stage; and 
2. the adjudicatory stage. 

In the investigatory stage, the investigation mainly consists of;

1. confirming facts and circumstances of the case by investigating police officers or by the investigative agency and; 
2. arresting the suspect based on circumstantial evidence. 

The adjudicatory stage starts with the trial of the suspect for the accusations of the criminal offence committed in the court.

Examples

In India, the Criminal Procedure Code, 1973 describes the processes of getting the prosecution of various types of criminal offences and the punishments to be awarded by the criminal courts. It also lays down the details of the procedures regarding the steps to follow during any criminal offence. These include the processes of the arrest of the accused, investigation of the alleged crime committed, granting of bail, the jurisdiction of the courts, filing of criminal appeals, and revisions and compounding of offence etc with regards to the various criminal offences.

Systems of procedural laws

There are two of the most widely used procedural legal systems in the world that have developed based on the different ways of implementing legal rules and choices. These systems are i. Civil law procedures and ii. Criminal law procedures. Besides advantages and strengths, both the civil and common law procedures have their fair share of weaknesses. 

Civil law procedures

Historically, civil law procedures have originated from the ancient Roman legal system. This system gives importance to the responsibility for the development and deciding disputes and maintains consistency in following the legal rules. The primary responsibility to decide the cases and disputes is given to the state officials, here being the judiciary. It is often associated with Roman law. 

Civil law procedures stress the responsibility of a judiciary in a professional manner. The judiciary thoroughly sees the matters of disputes and then decides the final outcome. The system helps in reducing the possibility that the outcome of lawsuits will favour one of the parties. It ensures that outcomes and legal rules will remain consistent throughout the proceeding.

However, it may make the parties feel that they were not given any opportunity to be heard properly and that the facts of the dispute were not adequately probed. 

Countries such as France, Germany, Greece, Italy, Japan, Mexico, Russia, Spain etc follow the civil law procedures.

Common law procedures

The common-law procedure has its root in the English legal system. Common law procedure is also found in the countries which were once English colonies and have followed or derived their legal system from the legal systems of England. 

Unlike the civil law procedure where the judiciary has the primary responsibility, the common law procedures give the primary responsibility to the parties and their legal representatives to present factual evidence and legal arguments in their own favour respectively to a judge or, in some cases, before the jury. The role of the judge or the jury is restricted in the common law procedures to decide which party has presented the better and most valid argument. A favourable judgement or order is usually given depending on the strength of the arguments.

Common law procedure allows the parties to control the flow of the litigation and it allows the winning party to be satisfied with the outcome of the particular dispute. The parties are given enough opportunity to be heard before any well-trained judiciary. However, the system leads the parties to spend huge sums as expenses on litigation. The common law system also sometimes results in legal rulings that are inconsistent and bad in law.

Countries such as the United States, Canada and most of the Commonwealth countries including India follow common law procedures.

Limitations of procedural laws

Procedural laws have certain drawbacks and limitations. 

• Some of the procedural laws may impose strict time limitations which may either hasten or slow down the speed of the legal proceedings.
• Any party who is unfamiliar with procedural laws may breach the guidelines. Though they may not affect the merits of the case, the failure to follow these guidelines may severely damage the chances of the party.
• Procedural laws are constantly torn between arguments that judges should have greater discretion to avoid the rigidity of the rules. While the other argument is that the judges should have less discretion in order to avoid a result based more on personal preferences than the laws or the facts.

Differences between substantive laws and procedural laws

Topic	Substantive laws	Procedural laws
Subject matter	Substantive laws deal with the legal rights and obligations of the individuals among themselves and towards the state.	Procedural laws describe the ways and methods following which substantive law is enforced.
Objective	These laws control and govern the rule of law as a whole.	Procedural laws exclusively deal with the proceedings in the court and the methods to start a legal case.
Context of application	Substantive laws are applied only in legal contexts.	Procedural laws are applied in both legal and non-legal contexts including proceedings of litigation.
Regulation	Substantive laws are regulated by the Acts of Parliament or governmental implementations.	Procedural laws are regulated by statutory laws only.
Capacity	Substantive laws have individual capacities to decide the course of any legal proceedings.	Procedural laws only can dictate the paths any legal proceeding should follow.

Illustrations

Some facts which further illustrate the distinctions between Substantive laws and Procedural laws are as follows:

• The right of appeal is substantive and is a creature of the Statute. Rules of Limitation pertain to the domain of Adjective Law, the Supreme Court of India ruled the decision among others in the landmark case of Kesavananda Bharati v. State of Kerala and anr (1973). 
• The Supreme Court of India held that the right to appeal is not simply a mere matter of procedure but is a substantive right in the case of ECGC Limited v. Mokul Shriram Epc Jv (2022).
• The right to recover any property is guided by the principles of substantive law but in which court and within what time limit an individual should start the legal proceedings are decided by procedural law.
• For the application of remedies in case of violated rights with regards to the administration of justice, the substantive laws define the ‘remedy’ and the right, while the procedural laws define how the remedy to the violated right should be provided. 
• Substantive laws decide whether any offence is punishable by fine or by imprisonment while how the offence should be punished is laid down by procedural laws.

Conclusion

Both substantive and procedural laws play an important role in administration of justice. Substantive laws deal with the rights and obligations of the individual towards one another and towards the state. These laws also deal with the objectives and subject matters of the litigations. On the other hand, procedural laws supervise and direct the proceedings of the litigation of any particular case. The substantive and procedural laws are complementary to each other. While substantive laws explain the guiding rules and regulations as per law, procedural law describes how the laws should be enforced. As rightly held by the Hon’ble Supreme Court and confirmed in several of the cases, “A procedural law is always subservient to the substantive law.”.

Frequently Asked Questions (FAQs) about substantive and procedural laws

1. What is meant by the term  ‘substantive law’?

Substantive laws are the laws which govern the original rights and obligations of the individuals. These laws are mostly made by the lawmaking body of a State by usually taking inspiration from the common law, statutes, or a constitution. 

For example, a claim for recovering the damages for breach of contract or negligence or fraud would be guided by substantive laws.

2. What are the alternative terms used for procedural laws?

Procedural law is referred to as remedial law, or rules of court since these laws comprise the rules by which a court should hear and decide the happenings in the civil, lawsuit, criminal or administrative proceedings.

Procedural law has also been named as Adjective law by Bentham.

3. Is Constitutional law substantive or procedural?

In India, Constitutional law serves as the guidance for both substantive and procedural law.

4. What is the key difference between substantive law and procedural law?

The key difference between the substantive law and the procedural law is that while the substantive laws regulate the conduct, rights and responsibilities of any individual or the government, procedural law dictates the methods in which the case is to be filed and how it should proceed.

References

• https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1231&context=flr 
• https://www.britannica.com/topic/procedural-law 
• https://www.echr.coe.int/Documents/Research_report_substantive_law_access_court_ENG.PDF 
• https://study.com/academy/lesson/substantive-law-vs-procedural-law-definitions-and-differences.html 
• https://www.jstor.org/stable/1331381 
• https://indiankanoon.org/search/?formInput=procedural%20law&pagenum=14 
• https://thefactfactor.com/facts/law/civil_law/civil-procedure-code/substantive-laws-procedural-laws/13266/ 
• https://www.thoughtco.com/procedural-substantive-law-4155728

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