Substantive law and procedural law

1. The distinction

Salmond: “The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions, jus quod ad actiones pertinet, using the term action in a wide sense to include all legal proceedings, civil and criminal. All the residue is substantive law, and relates not to the process of litigation but to its purposes and subject matter.” Substantive law is concerned with the ends which the administration of justice seeks; procedural law with the means and instruments by which those ends are attained.

Bentham called procedural law adjective law, as distinct from substantive law, because it exists only for the sake of the substantive law, as an adjective qualifies a noun.

2. Examples

• Substantive: the Indian Contract Act, 1872; the Transfer of Property Act, 1882; the law of torts; the Bharatiya Nyaya Sanhita, 2023 (definition of offences and their punishments); the Hindu Succession Act, 1956.
• Procedural: the Code of Civil Procedure, 1908; the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly the Code of Criminal Procedure, 1973); court rules.

3. Tests for distinguishing them

• Rights and remedies. Substantive law determines rights; procedural law determines remedies. Salmond qualifies this, because some remedies (damages, specific performance) are themselves part of the substantive law of rights and liabilities.
• Inside and outside court. Substantive law governs conduct and relations outside the court; procedural law governs conduct and relations within it, between parties, judges and officers in the course of proceedings.
• Ends and means. Salmond’s own test: does the rule relate to the purposes of litigation or to the manner of conducting it? A rule may be in a procedural code and still be substantive, or the reverse.

4. Borderline cases

• The law of evidence is generally procedural, since it governs how facts are proved in court. But some rules of evidence, such as conclusive presumptions and estoppel, operate in effect as rules of substantive law: they decide the rights of the parties by forbidding proof to the contrary. The Bharatiya Sakshya Adhiniyam, 2023 is treated as procedural in general, with that qualification.
• The law of limitation is procedural in so far as it bars the remedy without extinguishing the right: section 3 of the Limitation Act, 1963 bars the suit, but the debt survives. It is substantive where it extinguishes the right itself: section 27 of the same Act extinguishes the owner’s title to property at the end of the period for a suit for possession.
• Jurisdiction and the right of appeal. The forum is procedural, but a right of appeal is treated by Indian courts as a substantive right, vested in a litigant when the suit is instituted, which a later change in the law does not take away unless the statute says so expressly or by necessary implication.
• Court fees, costs and interest are sometimes treated one way, sometimes the other, depending on their effect on rights.

5. Why the distinction matters

• Retrospective operation. A statute affecting substantive rights is presumed to be prospective. A statute dealing only with procedure applies to pending proceedings, because no person has a vested right in any course of procedure. A right of appeal, being substantive, is the exception noted above.
• Conflict of laws. Procedure is governed by the law of the forum; substantive rights by the law applicable to the transaction.
• The approach of courts to procedure. Procedure is the handmaid, not the mistress, of justice. In Kailash v. Nanhku, 2005 INSC 186, (2005) 4 SCC 480, the Supreme Court held that the time limit for filing a written statement under Order VIII Rule 1 of the Code of Civil Procedure, being a rule of procedure, is directory, and may be extended in exceptional cases for reasons recorded; processual law is not to be a tyrant but a servant, an obstruction but an aid to justice.
• The criminal law codes of 2023. When the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam came into force on 1 July 2024, the distinction decided which law governed old cases. On the substantive side, section 358 of the BNS repeals the IPC but saves liabilities incurred and punishments for offences committed under it, so offences committed before 1 July 2024 remain punishable under the IPC; Article 20(1) in any case forbids a heavier penalty than the law in force at the time of the offence. On the procedural side, section 531 of the BNSS saves appeals, applications, trials, inquiries and investigations pending on that date, which continue under the Code of Criminal Procedure, 1973.

6. Relative importance

Substantive law is the primary part of the legal system, procedural law the secondary. But Salmond notes that much of early law was procedural: the forms of action in English law decided what rights a person had, so that “substantive law has at first the look of being gradually secreted in the interstices of procedure” (Maine). Rights in a developed system exist independently of procedure, and procedure exists to serve them.

How this is examined

As a short note: “Substantive and procedural law”, or as a part of a Unit V essay. Give Salmond’s definition, Bentham’s adjective law, examples of each, the three tests, the borderline cases of evidence and limitation, and the consequence for retrospective operation with Kailash v. Nanhku on the role of procedure.