Introduction

According to Article 21 of the Indian Constitutional Law, a person’s life and personal liberty may be taken away if only a “procedure established by law” (i.e., a legally valid law) is in place. However, the doctrine of procedural due process requires that this procedural law be “fair, just, and reasonable.” The phrase “Procedure Established by Law” refers to the requirement that the proper steps have been taken in order for a law to be properly passed by the legislature or other relevant entity.

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

The law of procedure is the area of law that regulates the litigation process. It contains the regulations for starting and carrying out civil and criminal cases. The procedures by which a court hears and decides what happens in civil or criminal proceedings are known as procedural law. In the past, most people were familiar with substantive law, whereas individuals who presently practice law or who have served as judges have been more interested in procedural law. However, the courts have created laws and rules of evidence over time. But over time, the courts have created procedural law, including rules of evidence and procedure, which are primarily concerned with the fairness and transparency of the legal process.

I. Procedural Law

Adjective law, also known as procedural law, is concerned with the application of the law as it is governed and controlled by practice, process, and machinery. The administration of justice is greatly impacted by this law. The means by which society carries out its important objectives is procedural law. Procedural law is derived from constitutional law, laws passed by the legislature, written rules that law enforcement organizations issue for their employees and that, while not having the legal force of law, may result in internal sanctions if broken, and the rules and procedural guidelines established by the Supreme Court. Holland claims that although adjectival law largely deals with the rights and behaviour of individual litigants, it also directly addresses issues like the structure of courts and the duties of judges and sheriffs, which belong to public law. It comprises
of (i) jurisdiction (in the conflicts sense); (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings, trial(including evidence); (iv) judgment; (v) appeal; (vi) execution.

Procedural Law is that law which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian
Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of Procedural Law in India.

The Procedural Law can be said, is a law that:

• Lays down the rules with the help of which law is enforced
• Relates to process of litigation and determines- what facts constitute proof of a ‘wrong’ or ‘Tort’.
• In the context of administration of justice -the law of procedure defines the modes and conditions of the application of remedies to violated rights.
• Are the adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued.
• Provides for mechanism for: obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing.
• It is the law of action that includes all legal proceedings, civil or criminal.

Kinds of Procedural laws:

1. Law of Civil Procedure

Civil Procedural Law consists of the rules and standards which courts follows while conduct civil trials. These rules govern how a civil suit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil actions concern with the judicial resolution of claims by private individual or group, companies or organisations against another and in addition, governments (or their subdivisions or agencies) may also be parties to civil actions. In India Code of Civil Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of Civil judicature.

2. Law of Criminal Procedure

Law relating to criminal, Procedure provides or regulates the steps by which one that violate a criminal Statute is punished. Procedural Criminal Law can be divided into two parts, the investigatory and the adjudicatory stages. In the investigatory phase, investigation primarily consists of ascertaining of facts and circumstances of the case by police officers and arrest of suspect of criminal offence. The adjudicatory phase begins when with the trial of suspect for the alleged criminal conduct in the court of Law. In India Criminal Procedure Code, provides the procedure of getting the penal offences prosecuted and punished
by the criminal courts. It also lays down the details regarding the arrest, investigation, bail, jurisdiction, appeals, and revisions and compounding of offence etc with regards to the various offences.

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.

2. Substantive Law

The Substantive Laws are basically derived from Common, Statutory, Constitution and from the Principles found in judicial decisions following the legal precedents to cases with similar facts and situations. With the passage of time and creation
of new Statutes, the volume of Substantive Law has increased. For Example:- Penal Law, Law of Contract, Law of Property, Specific Relief Act, etc are Substantive Law

1Substantative Civil Law
The Civil Law includes any private wrong, a ‘Tort’, which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Substantative Law defines to charge the ‘Tort’. Substantative Civil Law also includes the Law of Contract- defines what is essential elements required for formation of contract; real property. The Indian
Succession Act, 1925 deals with Substantative Law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindu and Muslims in India. Other Acts that provides for Substantive Civil Law in India are Indian Contract Act, 1872;

Substantive Criminal Law
The Indian Penal Code (IPC) in India defines various penal offences and lists the elements that must be proved to convict a person of a crime. It also provides for punishment applicable to these offences. For example Substantive Criminal Law defines what constitutes ‘Murder’, ‘Robbery’, ‘Rape’, ‘Assault’ etc.

Justice Schroeder (Sutt v Sutt, 1969) explained in a family law case, that “It is vitally important to keep in mind the essential distinction between substantive and procedural law”. Substantive law creates rights and obligations, and is concerned with the ends which the administration of justice seeks to attain. It defines the actual law set down by the legislature, such as elements of a right, liability / obligation, crime, penalties to be imposed, rules of evidence, etc. Procedural law defines the manner in which the case proceeds and will be handled. In a criminal case, if the state violates a substantive rule of law, that is more likely to result in reversal of a conviction than a violation of criminal procedural law (unless the violation relates to a constitutional or legal protection).

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.

SUBSTANTATIVE AND PROCEDURAL LAWS – RETROSPECTIVE OR PROSPECTIVE

In general, all Procedural Laws are retrospective unless a legislature specifies so.
In ‘Nani Gopal Mitra v. State of Bihar’ (AIR 1970 SC 1636), the Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure. In ‘Hitendra Vishnu Thakur and others etc. etc. v. State of Maharashtra and others (1994) 4 SCC 602– the Court summed up the legal position with regard to the Procedural Law being retrospective in its operation and the right of a litigant to claim that he/she be tried by a particular Court, in the following words:
(i) A Statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to form and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in Substantive Law but no such right exists in Procedural Law.
(iv) A Procedural Statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A Statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.

In Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa’ (2009) 4 SCC 299 the Court relied upon the observations made by Justice Benjamin N. Cardozo in his famous compilation of lectures The Nature of Judicial Process – that “ in the vast majority of cases, a judgment would be retrospective. It is only where the hardships are too great that retrospective
operation is withheld.”

EQUIVALENT- PROCEDURAL AND SUBSTANTIVE RULES/PRINCIPLES

According to Salmond, although the distinction between Substantive Law and Procedural Law is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules
of Substantive Law. Of these equivalent Procedural and Substantive principles there are at least three classes as discussed below:

1. An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. e.g. the Rule of Evidence that a Contract can be proved only by writing corresponds to a Rule of Substantive Law that a Contract is void unless reduced to writing.
2. Conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. For example:
   A child under the age of eight years is incapable of criminal intention is a rule of evidence, but differs only in form from the substantive rule that no child under that age is punishable for a crime.

The acts of a servant done about his master’s business are done with his master’s authority is a conclusive presumption of law, and pertains to procedure; but it is the forerunner and equivalent of our modern substantive law of employer’s liability.
A ‘Bond’ (that is to say, an admission of indebtedness under seal) was originally operative as being conclusive proof of the existence of the debt so acknowledged; but it is now itself creative of a debt; for it has passed from the domain of procedure into that of Substantive Law.

3. The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right.

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 & Son’s 1994 210 ITR 886 (SC) , 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

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.

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. Both substantive and procedural laws are inevitable components of law of any civilized society. One without the other has neither any useful and meaningful existence nor any significance as well. Both, substantive law and procedural law, are mutually reinforcing and one acquires greater meaning and validity in presence of the other.

The Substantive and Procedural laws are the two important branches of Law. The Substantive Law is a Statutory law that defines and determines the rights and obligations of the citizen to be protected by law. Procedural Law or Adjective Law deals with the enforcement of Law that is guided and regulated by the practice, procedure and machinery. Substantative Law also defines the crime or ‘wrong’ and also their ‘remedies’; determines the facts that constitute a wrong -i.e. the subject-matter of litigation; in the context of administration of justice. the substantive law defines the remedy and the right; includes all categories of Public and Private Law. It includes both Substantive Civil and Criminal Law.
Procedural Law lays down the rules with the help of which law is enforced; determines what facts constitute proof of a wrong; in the context of administration of justice –The Procedural Law defines the modes and conditions of the application of remedies to violated rights; provides for mechanism for obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing. It is the law of action that includes all legal proceedings, Civil or Criminal.