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WHAT IS LAW
Substantive Law vs Procedural Law
Law is the legislation and rules enacted by the Central Legislature/Parliament, State Legislature, or principles established by court of law. The customs and social norms followed by different communities can also be considered as law.
In other words, it can be defines as: “A body of rules, whether by legislation, customs or judicial precedent, that are recognized as binding by a community and enforced by a controlling authority.”1See H.L.A. Hart, The Concept of Law 79
According to Cambridge Dictionary, law is “a rule, usually made by a government, that is used to order the way in which a society behaves.”2Law, Cambridge Dictionaries, https://dictionary.cambridge.org/dictionary/english/law (last visited June 14, 2024).
The Oxford Dictionary defines the law as “a rule that deals with a particular crime, agreement, etc.” or “the whole system of rules that everyone in a country or society must obey.”3Law, Oxford Learner’s Dictionaries, https://www.oxfordlearnersdictionaries.com/definition/english/law (last visited June 14, 2025).
Law can be broadly divided into two distinct categories:
1. Substantive law
2. Procedural law
The term “Substantive” and “Adjective” (commonly referred to as “Procedural”) were coined by Jeremy Bentham in 1843.4Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789; repr. Oxford Univ. Press 1907). However, these terms get popularized when Thomas Erskine Holland mentioned these terms in his “Treatise on Jurisprudence”.5Thomas Erskine Holland, Elements of Jurisprudence (13th ed. 1924).
Substantive and procedural laws are two important branches of law which cannot function effectively in the absence of each other. In the absence of substantive law, procedural law would not have much to regulate; conversely, without procedural laws, fair and consistent application of substantive law is not possible.6See R.W.M. Dias, Jurisprudence 10-13 (5th ed. 1985).
SUBSTANTIVE LAW
Substantive law is a statutory law which determines the rights and obligations/liabilities of the parties (individual and entities) and cannot be applied in non-legal contexts. It determines the facts that constitute a wrong, defines the crime and provide remedies. Substantive law is always prospective in its application unless the legislature gives it retrospective effect.
Examples of substantive law
The Bharatiya Nyaya Sanhita, 2023; The Indian Contract Act, 1872; The Transfer of Property Act, 1882.
Sources of substantive law
The sources of substantive laws are:
(i) legislation enacted by the legislature
The legislations7See The Constitution of India, art. 245 (empowering Parliament and State Legislature to make laws). enacted by the legislature (Parliament or State Legislature) are the most authoritative source of substantive law.
(ii) case laws (judicial precedents)
Case law includes decisions of higher courts, especially the Supreme Court (under Article 141 of the Indian Constitution) and High Courts, which become binding precedents. These binding precedents are binding on all courts of law. These courts (Supreme Court and High Courts) interpret statutes and fill the gaps where law is silent.
Example: The case of Keshavananda Bharati v. State of Kerala8AIR 1973 SC 1461., established the doctrine of basic structure.
(iii) other laws like customary, personal, constitutional, and international law
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- Customary law – Customary laws recognized by the prevalent social customs. They play an important role in personal laws like Hindu and Muslim Laws and valid only if the legislation recognized them. The case of Nar Hari v. Shankar9AIR 1925 All 623. holds that customs must be ancient, certain, and reasonable to be legally enforceable.
- Personal law – These laws govern specific section of society based on religion. Their source of origin is religious text, customs, and prevalent community practices.
- Constitution of India – The Indian constitution is grundnorm from which all Indian laws and legal procedures derive their validity.
- International law – If the International laws including treaties, conventions, and customary international laws are incorporated through municipal law, they may influence domestic substantive law especially in areas like human rights or environment.10See Vishakha v. State of Rajasthan, (1997) 6 SCC 241. (This case recognize international conventions like CEDAW in the absence of domestic legislation).
These sources of substantive law establish the legal principles which governs the rights, liabilities, and obligations of a person.
Nature of substantive law
The nature of substantive law lies in its role as the substantive backbone of any legal system. It determines what the law is? What people can do in case of breach of their right? and what legal remedies are available to them?
The nature of substantive law can be explained by the following characteristics:
(i) legal rights and duties
Substantive law provides the rules and regulations which governs the legal rights or remedies of an individual or entity. it tells us:
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- What is right?
- Who has the right?
- What is a duty or liability?
Example: Chapter VI (of offences affecting the human body) of Bharatiya Nyaya Sanhita, 2023 defines what constitutes a murder and prescribes punishment for the same.
(ii) substance of the law
Unlike procedural law, which is about “how” law is implemented, the substantive law is concerned with “what” the law is. It deals with the actual claims and defences of parties involved in a legal dispute.11H.W.R. Wade & C.F. Forsyth, Administrative Law 28 (11th ed. 2014).
(iii) enforceability
Substantive rights are enforced by court of law. A person having grievance of civil or criminal nature can directly approach the court to claim a substantive right or defend themselves against a liability under substantive law.
Example: A person having grievance can directly approach a court of law for breach of contract.12Indian Contract Act, No. 9 of 1872, ss 73-75.
(iv) foundation of procedural law
Substantive law provides the basis on which the procedural law operates. In the absence of substantive rights and liabilities 13Ratanlal & Dhirajlal, The Law of Crimes 6-8 (Bharat Law House, 31st ed. 2023)., there would be no need for procedural mechanisms.
(v) influenced by morality, justice, and public policy
Substantive law reflects the moral and ethical principles of society. It is influenced by the concept of equality, public interest, and justice.14Lon L. Fuller, The Morality of Law 33-38 (rev. ed. 1969); Upendra Baxi, The Crisis of the Indian Legal System 142-144 (1982).
Relevant case laws
State of Maharashtra v. Bharat Shanti Lal Shah15(2008) 13 SCC 5.
The Supreme Court in the case provides the clearest definitions by laying down the conceptual distinction between what the law is (substantive) and how it is enforced (procedural).
The court provides:
“Substantive law is that part of the law which creates, defines and regulates rights, whereas procedural law prescribes the method of enforcing rights and obligations.”
K.K. Kochuni v. State of Madras16AIR 1960 SC 1080.
In this case, while dealing with the question of “whether a right in property was a substantive right protected under the Constitution”, the court held that “a right to property is not merely a procedural right; it is a substantive right which is enforceable under Article 226 or Article 32.”
Union of India v. Mohd. Nazim172016 SCC OnLine Del 4406.
In Mohd. Nazim’s case, the court affirms traditional jurisprudence by emphasizing that the “substantive law determines rights and duties of parties and procedural law lays down the machinery for enforcement of those rights.”
PROCEDURAL LAW
Procedural law also known as adjective law, governs the practice, procedure, and machinery for the enforcement of rights and liabilities provided by substantive laws. It provides rules and methods related to jurisdiction of courts, pleadings, and practice, evidence, appeal, execution of decree and judgement, etc. In other words, it governs how legal proceedings unfold, from initiating a lawsuit to reaching a verdict or settlement. Procedural law is adjunct to substantive law. The effectiveness of substantive laws depends on the quality of procedural law.
Examples of procedural law
The Code of Civil Procedure, 1908; The Limitation Act, 1963; The Bharatiya Nagarik Suraksha Sanhita, 2023.
Sources of procedural law
The sources of procedural law determine the origin or authority from which procedural rules and principles are derived. Following are the main sources of procedural law in India:
(i) statutes and legislations
Statutes and legislations are the primary and most authoritative source of procedural law in India.
Example: The Bharatiya Nagarik Suraksha Sanhita (governs the procedure in criminal cases) and Code of Civil Procedure, 1908 (governs the procedure in civil cases) etc.
These statutes outline procedures related to the filing of suits, summons procedure, trial, judgement, etc.
(ii) rules framed by the court of law (judiciary)
Procedural rules are also framed under the authority of various codes or statutes. For example: High Court rules under Section 122 of the Code of Civil Procedure, 1908 which provides High Courts may make rules regulating civil procedure and Supreme Court rules, 201318Supreme Court Rules, 2013, Noti. No. F.6/Rules/2013-SCA(I), INDIA GAZETTE (Aug. 27, 2014). which governs the practice and procedure of the Supreme Court.
(iii) judicial precedents
Judicial decisions (especially, the decisions of Supreme Court and High Courts) shape procedural norms. They interpret procedural statues, resolve ambiguities of law, and fill legislative gaps.
Example: In the case of Suk Das v. Union Territory of Arunachal Pradesh19AIR 1986 SC 991. the court emphasized ‘the right to legal aid’ as part of ‘fair trial’.
(iv) constitutional provisions
Although constitutional provisions are mainly a source of substantive law, certain procedural safeguards arise directly from the constitution. For example: Article 22 of Constitution guarantees procedural safeguards for arrested persons and Article 21 provides the right to a fair, just, and reasonable procedure.
(v) subordinate legislations
Subordinate legislations include notifications, regulations, and circulars. Procedural rules may also come from these authorities under delegated legislation. For example: Rules under the Income Tax Act, GST Acts, or Consumer Protection Rules.
Nature of procedural law
The procedural law does not itself confer rights on people but it is indispensable for the protection and enforcement of rights under substantive law. By establishing the structure within which fair adjudication can occur, the procedural law makes sure that justice is not only done but seen to be done.
The nature of procedural law can be explained by the following characteristics:
(i) instrumental
Procedural law does not create rights of people but provide the machinery for enforcing rights created by substantive law. It provides the parties how to approach the court and seek remedies for the wrong done to him.
Example: The Code of Civil Procedure, 1908 is a procedural law. The process to file a civil suit for possession or injunction is governed by the Code of Civil Procedure.
(ii) regulate judicial process
The procedural law governs the institution, conduct, and disposal of litigation before courts. It includes all the rules related to jurisdiction, framing of issues, evidence procedure, trial, etc.
(iii) promote justice delivery
Procedural law is designed to ensure fair and impartial administration of justice. It embodies principles of natural justice, such as: “Audi alteram partem” (hear the other side) and “Nemo judex in causa sua” (no one should be a judge in their own case).
(iv) dynamic and evolving
Although procedural law is codified law but, it is not rigid in nature. The courts in India interpret and adapt procedural rules in the interest of justice. For example: The courts have discretion to extend limitation periods or allow amendment of pleadings if it is in the interest of justice.
(v) complementary to substantive law
Procedural law and substantive law co-exist. They both cannot function properly without the existence of other. They work as the body (substantive law) and soul (procedural law) of the law.
(vi) codifies but subject to interpretation
Although, major procedural laws in India are codified, they often allow judicial discretion and interpretation to meet the ends of justice.
Relevant case laws
B.K. Pavitra v. Union of India20(2019) 16 SCC 129.
This case reaffirms the classical distinction between substantive and procedural law. The court cited that “the distinction between substantive and procedural law lies in the fact that the former creates rights, while the latter regulates the manner in which those rights are to be enforced.”
State of Maharashtra v. M.H. George21AIR 1965 SC 722.
This case differentiates between substantive and procedural law by holding that procedural laws may have retrospective effect while the substantive laws typically operates prospectively. The court cited that “It is well settled that all laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospective operation. But laws which are procedural in nature are generally retrospective unless there is a good reason to the contrary.”
Hitendra Vishnu Thakur v. State of Maharashtra22(1994) 4 SCC 602.
In this case, the court clarifies that procedural law governs the method of enforcement of rights, not the substance of rights, and does not create vested rights. The court reiterated that “A procedural statute generally operated retrospectively unless it takes away vested rights. No person has a vested right in any course of procedure. He has only the right of prosecution of defence in the manner prescribed for the time being.”
New India Insurance Co. Ltd. v. Smt. Shanti Misra23AIR 1976 SC 237.
This case provided that the procedural laws are only directory in nature unless specified otherwise and it should advance, not defeat justice. The court stated that “A procedural law should not ordinarily be construed as mandatory if it causes serious inconvenience or injustice to innocent persons or defeats the very ends of justice.”
Table: Substantive law vs Procedural law
| Point of distinction | Substantive law | Procedural law |
| Definition | Substantive law is a statutory law which determines the rights and liabilities of the parties. | Procedural law also known as Adjective law governs the practice, procedure and machinery for the enforcement of rights and liabilities of people. |
| Core function | Substantive law defines what the law is? It defines the rights, obligations, and liabilities of the parties. | Procedural law regulates how these laws is applied? These laws provide a legal mechanism to enforce those rights granted by substantive law. |
| Nature | Substantive laws are primary in nature. | Procedural laws are instrumental and auxiliary. |
| Scope of operation | These laws operate before litigation starts. They define the legal cause of action or criminal offences. | They operate after the litigation begins. They provide the procedure of legal proceedings from beginning to end. |
| Examples | The Bharatiya Nyaya Sanhita, 2023 | The Bharatiya Nagarik Suraksha Sanhita, 2023 |
| Rights affected | Substantive laws affect the substantive or vested rights of the people. | Procedural laws affects only the mode of enforcement of those rights, not the right itself. |
| Change impact | A change in substantive law may alter a right of a person or entity. | A change in procedural law does not affect the vested rights of people and can apply retrospectively. |
| Application in time | Substantive laws are generally, prospective in nature unless expressly stated otherwise. | Procedural laws are generally retrospective, unless they affects substantive rights of people. |
| Court’s role | Courts interpret and apply substantive law for the determination of merits of the case. | Procedural laws are used by the courts to manage process and fairness. |
| Flexibility | These laws are often rigid and requires legislative amendment to change. | They are flexible and may be interpreted by Courts or adjusted through judicial discretion. |
| Dependency | Substantive laws can exist independently (in theory). | Procedural laws cannot operate without substantive law. |
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Also read:
Historical evolution of CPC: https://lawgiverr.com/historical-evolution-of-code-of-civil-procedure-1908/
Extent and applicability of CPC: https://lawgiverr.com/the-ultimate-guide-to-the-extent-and-applicability-of-code-of-civil-procedure-1908/
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