SUBSTANSIVE AND PROCEDURAL

LAW
Law is used to mean the rules made by the government to protect the fundamental rights of the
citizens. Non-compliance or violation of the law can lead to punishment such as imprisonment or
penalty. Laws are classified into two groups procedural law and substantive law.

1. Substantive law establishes the rights and obligations that govern people and organizations; it
includes all laws of general and specific applicability.

2. Procedural law establishes the legal rules by which substantive law is created, applied and
enforced, particularly in a court of law.

Procedural law:
According to Salmond,

 Branch of law which governs the process of litigation.

 It includes all the legal proceedings whether civil or criminal.
 Regulate the conduct and relations between courts and litigants.
 What facts constitute the proof of the wrong is procedural law.

Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup and Sons (1994)

“Procedural law prescribes the methods in which rights and responsibilities maybe exercised and
enforced.”

Thirumalai Chemicals Ltd. v. Union of India and others (2011)

“Procedural laws establish a mechanism for determining those rights and responsibilities and machinery
for enforcing them.”

 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. 
Substantive law:
According to Salmond,

 It is concerned with the ends which administration of justice seeks.

 Determine the conduct and relation in respect of the matters being litigated.
 What constitutes wrong is determined by substantive law.
 Whether the offence is punishable by fine, or imprisonment is a question of substantive law.

Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup and Sons (1994)

“The court defined substantive law as the law which fix duties and establish rights and responsibilities
among and for natural and artificial persons.”

Thirumalai Chemicals Ltd. v. Union of India and others (2011)

“Substantive laws are a body of rules that create, define, and regulate rights and liabilities”.

 Sources of substantive laws

The Substantive Laws are usually derived from: 

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

II. Constitution 

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

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.

OPINION OF JURIST:

THEY ARE DIFFERENT:

 Jeremy Bentham, stated that in jurisprudence, both the procedural and substantive laws should
co-exist i.e. both cannot exist without the help of the other.

 Thomas Holland defined ‘Substantive Law’ as the laws which specify the way the laws will aid to
protect rights. Whereas, Procedural laws are the laws which provide the methods of aiding and
protecting the rights.

 Salmond believed that the ‘exact nature of distinction’ of the laws cannot be stated with
precision. Procedural laws govern the processes of litigation and are the laws of ‘actions’ and
 the remaining laws are substantive law. He further explained 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.

THEY ARE THE SAME:

 Charles Frederic Chamberlayne, mentioned in his book that the distinction between the laws is
‘artificial and illusory’.

 Professor Cook 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.

Element of Judicial Procedure:

The following are the different stages of judicial procedure: -

1. Summons:

Summon is a document issued from the office of a court of justice. Calling upon the person to whom it is
directed to attend before a judge or officer of the court for certain purpose in specific time. It enables
the parties interested in litigation to present their case before the court for the settlement of a claim.

2. Pleadings:

Pleadings mean the complaint or written statement filed respectively by the plaintiff and defendant. The
object of pleading is to narrow the parties to definite issues. Actually pleadings are the backbone of
litigation. The Code of Civil Procedure, 1980 defines ‘pleading’ as meaning a ‘plaint’ or ‘written
statement’. Pleadings are statement of the parties in written setting out their contention of claims or
counter claims. Thus, pleasing are written statements filed by each party to case.

3. Proof:

It is the process by which by which the parties to the dispute supply the materials by adducing evidence
to enable the court to arrive at the right conclusion on the struck in case.

4. Judgment:

A judgment contains the statements given by the judge about the grounds of a decree or order. It
embodies the decision. Judgment of courts other than Small Causes Courts Shall contain

a. A concise statement of the case;

b. The points for determination;

c. The decision thereon;

d. The reason for decision.

5. Execution:
It is process by which the court enforces its decree. It is that act of completing, or carrying into effect,
the judgment, which compels the defendant to do or to pay what has been adjudged. It may be by
attachment and sale of any property, by arrest and detention in prison of the defendant or by
appointing a receiver. A decree may be executed either by the court, which passed it, or by the court to
which it is sent for execution.