NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY-NOV 2022)

LEGAL METHODS

C.A. II – PROJECT

SUBSTANTIVE V. PROCEDURAL LAW

SUBMITTED BY: SUBMITTED TO:

KANSIHK BAHRDWAJ AND YUG GANDHI

MR.ANIRUDDHPANICKER

B.A. LL.B. (HONS.) SEMESTER I (FACULTY OF LEGAL

METHODS)

(A partial fulfilment as an assignment submitted in Legal Methods-I)

 ACKNOWLEDGEMENT

At the very beginning of this project, I would like to express my gratitude to all those who have
helped me in completion of this project. I feel highly indebted to them because without their help
and constant support, I would not be able to complete this assignment.

First of all, I would like to thank the Faculty, Legal Methods, Mr. Aniruddh Panicker who has
helped me throughout this project. He guided and supported me to get better insight into this
topic. It was because of his continuous support and guidance that I was able to complete my
assignment. I would like to thank him for his precious time he gave me to clear my doubts and
queries. I would also like to thank the members of the library who provided me the much-needed
assistance to complete my assignment. I am also grateful to all IT staffs for providing me the
sources during the execution of this project.

I would also like to extend my gratitude to my friends and batch mates for helping me in
completion of this assignment. At last I thank all who extended their support to me during the
completion of this research project.
INTRODUCTION…………………………………………………………………1
SUBSTANTIVE AND PROCEDURAL LAW…………………………………2-4
SUBSTANTIVE LAW
PROCEDURAL LAW
INTERRELATIONSHIP BETWEEN SUBSTANTIVE AND PROCEDURAL
LAW……………………………………………………………………………….5
DIFFERENCE BETWEEN SUBSTANTIVE AND PROCEDURAL LAW……...6
CIVIL LAW……………………………………………………………………….7
SUBSTANTIVE CIVIL LAW
PROCEDURAL CIVIL LAW
CRIMINAL LAW…………………………………………………………………8
SUBSTANTIVE CRIMINAL LAW
PROCEDURAL CRIMINAL LAW
ADMINISTRATIVE LAW………………………………………………………..9
SUBSTANTIVE ADMINISTRATIVE LAW
PROCEDURAL ADMINISTRATIVE LAW
BIBLIOGRAPHY……………………………..…………………………………10

INTRODUCTION

Law is a system of rules which a particular country or community recognizes as regulating the
actions of its members and which it may enforce by the imposition of penalties. It is obedience to
the law that ensures order and equity in a state.

Having a preliminary knowledge of what law is, it becomes important for us to know different
laws and heads under which they can be classified so as to present a true, vivid picture of law, as
a subject-matter of study and research.
Substantive and Procedural laws are two such heads under which almost all laws of a country can
be organised. Substantive law defines how the facts in the case will be handled, as well as how
the crime is to be charged. It states the rights and obligations of the citizens. However, the
procedural law determines how a proceeding concerning the enforcement of substantive law will
occur and thus, creates the mechanism for the enforcement of the law. What is right or what is
wrong and what are the liabilities of an individual, a group or even the State for different wrongs
committed by them against other(s) form a matter of substantive law. How a right should be
protected or liability for a wrong is to be fixed and imposed or how a person or a group of
persons can be punished for any wrong or crime done is a matter of procedural law.

The knowledge of substantive law and the procedural of the land will help the members of any
civilized society to play an effective role in the society with regard to their rights and duties and
also of others and thus, there arises a need for in-depth study and analysis of the concepts of
Substantive and Procedural laws.

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 SUBSTANTIVE AND PROCEDURAL LAW

1. SUBSTANTIVE LAW :- The law which defines rights and liabilities is known as
substantive law1. It is so called because it puts in a clear-cut and precise form the
substance of the subject matter for enforcing which the courts of law and the officers of
law exist. The function of substantive law is to define, create or confer substantive legal
rights2 or legal status or to impose and define the nature and extent of legal duties or
liabilities.

Substantive law defines, in regard to a specific subject, the legal rights and relationship of people
among themselves or their relationship with other people or between them and the state. Any
wrong done by an individual, group Substantive Law and Procedural Law of persons or the state
against the other(s) will make the wrong-doer accordingly liable to the others. Wrongs may be
either civil or criminal. Substantive law refers to all categories of public and private law,
including the law of contracts, property, torts and crimes of all kinds.

For a civil wrong, law calls upon and forces the wrong-doer to perform his part of contract; to do
the act in question which it was his legal duty or obligation to have done the very act, or the
failure or the denial to do which is the wrong in question against which remedy is sought. It could
be a wrong against any private person or against society as such, or against the State itself. State
has right and power to maintain the law and order within the community, to keep society intact, if
it has been disturbed.

A criminal wrong, on the other hand, has an altogether different character. A criminal wrong is
an act or omission which is made punishable by any law for the time being in force; and, in legal
language, it is called an offence. Substantive law deals with the "substance" of your charges, in
case of any crime done against the other. Substantive law requires that the prosecutor prove every
element of a crime in order for someone to be convicted of that crime.

1 Holland , in his book “treatise on jurisprudence”

2 Salmond on jurisprudence

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Substantive law defines civil rights and responsibilities/liabilities in civil law as well as crimes
and punishments in the criminal law. It is codified in legislated statutes or can be enacted through
the initiative process. For example: Murder is an offence under the Indian Penal Code (IPC) and
is defined therein. The IPC also provides for punishment for the crime. This is known as
substantive law. Similarly, the provision of the Indian Contract Act, 1872 are substantive in
nature.
The Indian Contract Act, the Transfer of Property Act, the Industrial Disputes Act, the Indian
Penal Code are some instances of substantive law.

PROCEDURAL LAW:- The law which tells about how the courts and the officers dealing with
the law act in giving effects to the substantive law of the land is known as Adjectival OR
Procedural law3. 'Civil' and 'Criminal' laws are not two water-tight compartments. There are
several wrongs for which there are both civil and criminal liabilities and there may be actions
which are both civil and criminal in nature.

The law of procedure is that branch of law which governs the process of litigation. It embodies
the rules governing the institution and prosecution of civil and criminal proceedings. Procedural
law comprises the rules by which a court hears and determines what happens in civil or criminal
proceedings. Historically, the law known to many is substantive law, and procedural law has been
a matter of concern to those who used to preside as judicial officers or those who advocate law.
But, over time, the courts have developed rules of evidence and procedure, which also fall under
procedural law mostly related to fairness and transparency of the process.

the law of procedure is the law of actions. The word 'actions' is used in the sense to include all
legal proceedings. Procedural law deals with the means and instruments by which the ends of
administration of justice are attained, i.e. effective administration or application of substantive
law.4

Procedural law is the vehicle providing the means and instruments by which those ends are
attained. It regulates the conduct of the Courts and the litigants in respect of the litigation itself,
whereas substantive law determines their conduct and relations in respect of the matters litigated 5.

3 Bentham’s commentary in” the works of Jeremy bentham”

4 Salmond (fitzgerald 2006)
5 1995 ECR 425 SC

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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” 6. 

In brief, the procedural law:

● informs about the process that a case will go through (whether it goes to trial or not);
● determines how a proceeding concerning the enforcement of substantive law will
occur; and
● prescribes the practice, procedure and machinery for enforcement of the rights and
liabilities.7

The Indian Evidence Act, the Limitation Act, the Code of Civil Procedure, the Code of
Criminal Procedure are some instances of procedural law.

6 Tirumalai chemicals ltd. V. union of india

7 Thomas Holland in his book elements of jurisprudence

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 INTERRELATIONSHIP BETWEEN SUBSTANTIVE AND PROCEDURAL LAW

For having a better insight into the concepts of Substantive and Procedural law, it is
quintessential to draw the points of similarity/interrelationship that the two concepts in
consideration go on to share. Both, substantive and procedural laws are related to each other
as follows:

1) Substantive law and procedural law are the two main categories within the law. One
without the other is useless. Both are essential for delivery of justice.8

2) Procedural law is an adjunct or an accessory to substantive law and renders

the enforcement of substantive rights very effective.

3) Both, substantive law and procedural law, are codified in the form of rules. While the
substantive law refers to the body of rules that stipulate the rights and obligations of
individuals and collective bodies, the procedural law is also the body of rules, but governing
the process of determining the stipulated rights and liabilities of the parties in the given facts
and circumstances.

4) Substantive laws and procedural laws exist in both civil and criminal laws. But, in criminal
law, if the procedural law is used to prevent commission of offences then it assumes the
character of substantive law as well.

The another juristic view states that there are absolutely no distinctions between substantive
and procedural laws9.

With same viewpoint the distinctions between the two types of law is illusionary and is an
alleged distinction, apart from substance and procedure there exist a grey area10.

8 The works of Jeremy bentham

9 Charles Frederic chamberlayne book-a treatise of modern law of evidence
10 Professor cook in substance and procedure in conflict of laws

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 DIFFERENCES BETWEEN SUBSTANTIVE AND PROCEDURAL LAW

We also need to understand the difference or the distinction between the substantive law and
procedural law. Substantive law precedes the procedural law 11. Procedural laws sub-serve the
substantive laws in the sense that the former will act as a means to promote and achieve the
interests, objectives, aims or goals of the latter.

Justice Schroeder explained in a family law case, that "It is vitally important to keep in mind
the essential distinction between substantive and procedural law"12.

The differences between substantive law and procedural law are as follows:-

BASIS OF
SUBSTANTIVE LAW PROCEDURAL LAW
DISTINCTION

Deals with those areas of law Deals with and lays down the
which establish the rights and ways and means by which
Definition
obligations of individuals , what substantive law can be enforced
individuals may or may not do13

Independent powers to decide the No independent powers

Powers
fate of a case

Cannot be applied in non-legal Can be applied in non-legal

Application
contexts contexts

By Act of Parliament or By statutory law

Regulation
government implementation14

11 Madhya Pradesh highcourt in case of farooq mohammed v. state of Madhya pradesh

12 Sut v. sut, 1969
13 Marion and oliver 2012
14 Right to appeal is substantive law made by statute case- keshvananda bharati v. state of kerala
See also EGCC LIMITED v. mukul sriram epc jv.

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We can conclude that the substantive law defines the rights and duties, while procedural law
provides the machinery or mechanism for enforcing the rights and duties. However, the clear
differentiation between substantive law and procedural law is that the latter sub-serves the
former.

CIVIL LAW

Civil law can be both substantive and procedural. The civil substantive law refers to what the
statute or regulation actually says. Civil procedural law refers to both statutory as well as other
rules set out by the court or other competent agency for handling the application of the law.

For instance, the law says that "you can't make loud noises after 10 P.M. within the city limits".
Then,
1) the substance of the law is; i) the loud noise, ii) the time, iii) the place, and iv) the prohibition.
2) the procedure of law may be to call the police, lodge a complaint, appear before the court at
specified time and place, testify in a certain manner, etc.

CIVIL SUBSTANTIVE LAW:- Law is a set of codified rules. So, the Acts/Statutes are nothing but
the codified rules in respect of specified matter(s). These substantive laws (Acts/Statutes) are
made by Parliament at the Central level, or the Legislature at the State level or other competent
law-making body at that respective level. The substantive laws so made cover wide range of
subjects and many different laws. Just to provide you clarity, some specific instances of civil
substantive laws are given below.
Law of Contract - The Indian Contract Act, 1872.
Law of Marriage -The Hindu Marriage Act, 1955.
Law of Transfer of Property - The Transfer of Property Act, 1882.

CIVIL PROCEDURAL LAW:- Though the substantive laws are very important, the value and
importance of procedural law , or otherwise called adjudicative law, cannot be under-estimated.
The rules of procedure are intended to be a handmaid to the administration of justice, and they
must, therefore, be constructed liberally and in such manner as to render the enforcement of
substantive rights very effective. Thus, the procedural law is an adjunct or an accessory to
substantive law. The Code of Civil Procedure, 1908 is an instance of procedural law in India. It is
intended to regulate the procedure to be followed by civil courts in adjudicating substantive rights
under different substantive laws.

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CRIMINAL LAW

Like civil law, criminal law can also be divided into two branches or sets of law --- criminal
substantive law and criminal procedural law.

Criminal substantive law deals with the nature and substance of charges made against a
person or a group of persons. Every charge is comprised of some elements. These elements
the specific acts the State must prove to show that a person has committed a crime. Criminal
procedural law, as the name implies, sets out the procedure for how a criminal case will
proceed. The procedures are usually written down in a set of codified rules called a "Code of
Criminal Procedure".

A. CRIMINAL SUBSTANTIVE LAW:- It is the criminal substantive law that will really
take of many such matters as defining crime, its nature, kind and penalties, etc.
Maintenance of peace and order is essential in any advanced society and, in
particular, for all human beings to live peacefully and without fear of injury to
their lives, limbs and property. This is possible only in States where the penal law
is effective and strong enough to deal with the violators of law. Criminal
substantive law defines how the facts in the case will be handled, as well as how
the crime is to be charged. In essence, it deals with the substance of the matter, i.e.
the crime and its nature. E.g. Indian Penal Code,1860.

B. CRIMINAL PROCEDURAL LAW:- The law of criminal procedure is intended to

provide a mechanism for the enforcement of criminal substantive law. Without
proper procedural law, the substantive criminal law which defines offences and
provides punishments for the same would be almost of no use; because, in the
absence of enforcement machinery, the threat of punishment held out to the law-
breakers by the substantive criminal law would remain empty in practice. Empty
threats do not deter, and without deterrent effect, the law of crimes will have
hardly any meaning or justification.
It tells not only about how to punish for but also about how to prevent offences.

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 E.g. Code of Criminal Procedure, 1973.

ADMINISTRATIVE LAW

While the delivery of justice involving the issues related to constitutional. civil or criminal law is
performed by the courts (the judiciary), effective implementation of all laws including the
constitutional provisions primarily falls in the domain of governance - entire administrative
machinery - at Central, State and other levels. Administrative law actually enables the authorities
to perform not only pure administrative functions but also many legislative and quasi-judicial
functions as part of the administration.

Like the civil and criminal law, the administrative law can also be divided into two branches -
administrative substantive law and administrative procedural law. We will discuss these laws
below, mentioning that it is difficult to demarcate it as substantive and procedural law.

A. ADMINISTRATIVE SUBSTANTIVE LAW:- IN INDIA, ADMINISTRATIVE LAW CAN BE TRACED

TO THE WELL-ORGANISED AND CENTRALIZED ADMINISTRATION UNDER THE MAURYAS
AND THE GUPTAS, SEVERAL CENTURIES BEFORE THE CHRIST. HOWEVER, THE

ADMINISTRATION UNDER THE EAST INDIA COMPANY IS THE PRECURSOR OF THE MODERN

ADMINISTRATIVE SYSTEM. THUS, ADMINISTRATION IS NOT OF RECENT ORIGIN AND HAS

BEEN VERY MUCH IN EXISTENCE SINCE THE TIMES IMMEMORIAL, BUT IN DIFFERENT

FORMS. IN A DEMOCRATIC COUNTRY, ADMINISTRATIVE LAW IS AN INTEGRAL AND

INSEPARABLE PART OF THE GENERAL LAW OF THE LAND AND OF THE SPECIFIC

ACTS/STATUTES LEGISLATED BY THE RESPECTIVE LEGISLATIVE BODIES. THUS, THE

ADMINISTRATIVE SUBSTANTIVE LAW SUB-SERVES THE INTERESTS AND OBJECTS OF THE

GENERAL LAW OF THE LAND AS WELL AS THE SPECIFIC LEGISLATIONS.

B. ADMINISTRATIVE PROCEDURAL LAW (ADMINISTRATIVE ADJUDICATION):- IT IS NOT

POSSIBLE FOR THE ORDINARY COURTS OF LAW TO DEAL WITH ALL THESE SOCIO-

ECONOMIC PROBLEMS SUCH AS INDUSTRIAL DISPUTES ETC. IT IS, HOWEVER, NOT

POSSIBLE FOR AN ORDINARY COURT OF LAW TO DECIDE THESE DISPUTES EXPEDITIOUSLY,

AS IT HAS TO FUNCTION AS RESTRAINED BY CERTAIN INNATE LIMITATIONS. MOREOVER,

IT IS NECESSARY THAT SUCH DISPUTES SHOULD NOT BE DETERMINED IN AN ARBITRARY

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 OR AUTOCRATIC MANNER. ADMINISTRATIVE TRIBUNALS ARE, THEREFORE, ESTABLISHED

TO DECIDE VARIOUS QUASI-JUDICIAL ISSUES IN PLACE OF ORDINARY COURTS OF LAW.

BIBLIOGRAPHY

Black Stone. 1978. Commentaries on Laws of England. New York & London: Garland
Publishing Inc.
Salmond, mentioned in Fitzgerald, P. J. 2006. Salmond on Jurisprudence. Library: National Law
University, Jodhpur
Davis, K. C. 1972. Administrative Law Text. US: West Publication.
Schroeder, Justice. 1969. Sutt v Sutt, 1 Ontario Report 169, Ontario Court of Appeal.
Bhattacharya. T. 2001. Indian Penal Code. Allahabad: Central Law Agency
Saxena, R.N. 1999. The Code of Criminal Procedure. Allahabad: Central Law Agency
https://www.diffen.com/difference/Procedural_Law_vs_Substantive_Law
https://advokatskafirmasajic.com/en/connections-and-differences-between-substantive-law-and-
procedural-law/

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